Rapanos & Carabell Decision
xRapanos v. United
The U.S. Supreme Court split decision known as Rapanos (2006) has complicated the Clean Water Act's ability to protect wetlands. The full text of the Rapanos decision is available for viewing and/or download by clicking HERE. (PDF) The transcript of oral arguments is similarly available HERE. (PDF) ASWM has published a number of related discussion papers in response to the Rapanos decision of 2006. It also prepared the graphic (right) to illustrate which waters were subject to jurisdiction after Rapanos, SWANCC and other court cases.
Environmental Law Institute – May 2012
In a year marking the 40th anniversary of the Clean Water Act, federal courts across the country continue to struggle in determining jurisdiction and applying the fractured Supreme Court's 2006 ruling in Rapanos v. United States, which has now been interpreted, applied, or cited in over 90 different cases arising in 35 states. Six years after the decision, the legal battle over federal Clean Water Act jurisdiction shows no signs of abating. ELI is pleased to release the second edition of its popular Clean Water Act Jurisdictional Handbook. According to ELI President John Cruden, “This newest version of the ELI CWA Handbook should be on the desk of every environmental practitioner in the nation. It is current, well-organized, and accurate. Because of the importance of the topic, and ELI's commitment to legal research, we are providing this timely reference source free to environmental professionals.” To download handbook, click here.
By Jeanne Christie – The Compleat Wetlander Blog – November 17, 2011
In the 2006 Carabell/Rapanos decision, the Supreme Court Justices lamented the absence of rulemaking following the SWANCC decision (2001) and recommended rulemaking as a follow-up to the Carabell/Rapanos decision. Now, the House and possibly the Senate, are including language in the appropriations bill for energy and water development to explicitly prohibit the U.S. Army Corps of Engineers (Corps) from conducting rulemaking or taking any other actions to provide greater certainty to the scope of Clean Water Act jurisdiction. For full blog post, visit ASWM's blog.
By Linda Roeder - BNA Daily Environment Report - September 9, 2011
Report Says Proposed Guidance Could Spur Improved Identification of Vulnerable Wetlands
Guidance proposed in May by the U.S. Army Corps of Engineers and the Environmental Protection Agency for determining Clean Water Act jurisdiction presents an opportunity for the agencies to more accurately account for losses of U.S. waters and wetlands that could benefit from additional protection, the Environmental Law Institute said in a Sept. 8, 2011 report. The report, America's Vulnerable Waters: Assessing the Nation's Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States, was prepared by ELI with the support of EPA's Office of Wetlands, Oceans, and Watersheds.
The guidance and related documents are posted to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers websites.
- EPA, Army Corps Issue Joint Guidance to Sustain Wetlands Protection Under Supreme Court Decision
- Clean Water Act Definition of "Waters of the United States"
- Legal Memorandum: Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States (PDF)
- Memorandum of Agreement (PDF)
- June 2007 Questions and Answers (PDF)
By Jon Kusler, Esq. Ph.D. – ASWM –May 3, 2007
This 2007 follow-up to the discussion paper, "Significant Nexus" (2006) provides ten specific recommendations to rectify remaining controversies after the Rapanos decision, and in particular to reconcile the scientific understanding that all waters need to be regulated to achieve CWA objectives, and the Supreme Court's understanding that Congress intended to limit CWA to certain geographic areas. The full document is only available in PDF form and may be viewed and downloaded by clicking HERE.
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