Wetland Law & Water-Related Legal Issues

wetlands treesASWM has over 28 years of experience in providing analysis of wetland-related law. ASWM's founder, Jon Kusler, Esq. Ph.D., has written a high volume of discussion papers on issues related to wetlands and water resource law. In addition, ASWM also works closely with other lawyers and nongovernmental organizations, whose papers are included on this section of the website.

DISCUSSION PAPER: "Significant Nexus" and Clean Water Act Jurisdiction

By Jon Kusler, Esq., ASWM; Pat Parenteau, Esq., Vermont Law School; Edward A. Thomas, Esq., Michael Baker, Inc. (3/2007)

Today there are uncertainties with respect to the extent of the areas subject to Federal regulation pursuant to the Clean Water Act.  Uncertainties are due, in part, to lack of clarity in Congressional intent with regard to regulated wetlands and waters.  Uncertainties are due, in part, to conflicting Supreme Court and lower court decisions interpreting the Act and to confusing and fractured decisions.  The Supreme Court's fractured decision in Rapanos has introduced additional confusion and uncertainty into the already complicated and contentious issue of determining the geographic scope of federal jurisdiction under the Clean Water Act. 

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 Rapanos and Carabell cases both arose in Michigan. These cases have attracted national attention, but few pictures have been available of these sites.


The Rapanos case before the Supreme Court is a civil case where Mr. Rapanos has been found guilty of filling and draining a total of 54 acres of wetlands at three different sites without state or federal permits, and challenged the jurisdiction of federal agencies over these wetlands. Michigan's Department of Environmental Quality coordinated with the U.S. Environmental Protection Agency in carrying out the original enforcement action under Michigan's state administered Section 404 Permit program. Wetlands impacted by Mr. Rapanos' activities included 15 acres of mostly forested wetland directly adjacent to the boatable Pine River (Pine River site) - a major tributary of the Tittabawassee River; and 17 acres of mixed wetland habitat adjacent to the Rose Drain, (Hines Road Site) about one mile from its confluence with the Tittabawassee River. In addition to the civil conviction, Mr. Rapanos was found guilty in a federal criminal trial of destroying at least 22 acres of wetlands at the headwaters of the Kawkawlin River (Salzburg Site). Rapanos previously appealed this case to the Supreme Court, but the court declined to review it.

EPA, Army Corps Extend Public Comment Period for Joint Rapanos Guidance

Contact: Enesta Jones, (202) 564-4355;

EPA and the U.S. Army Corps of Engineers (Corps) are extending the public comment period for the interagency joint guidance on the scope of Clean Water Act geographic jurisdiction following the U.S. Supreme Court's decision in Rapanos v. United States. The public comment period has been extended 45 days and comments on the guidance and experiences with its implementation are now due by January 21, 2008. EPA and the Corps issued the guidance in June 2007, consistent with the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies' jurisdiction under the Clean Water Act. The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement and protection of 3 million acres of wetlands by 2009 and a commitment to conserve isolated wetlands such as prairie potholes. During the early implementation of the guidance, the agencies are inviting public comments on case studies and experiences in applying the guidance. Comments can be submitted to docket EPA-HQ-OW-2007-0282. The agencies, within nine months after the Rapanos guidance has been issued, intend to either re-issue, revise, or suspend the guidance after carefully considering the public comments received and field experience with implementing the guidance. For more information, click here.

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.

Environmental Law InstituteMay 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 Jon Kusler, Esq. – ASWM – (6/26/06)

This 2006 guide addresses wetland assessment and the laws that pertain to it, generally. The document is intended for state, local, and federal government officials, as well as consultants, lawyers, conservation staff, and others who work with wetlands or their regulation. This addresses the general law of the land, and not necessarily a specific jurisdiction.

The full document is only available in PDF form and may be viewed or downloaded by clicking HERE.

By Jon Kusler – ASWM – (6/26/2006)

This 2006 guide addresses landowner's frequently asked questions pertaining to their liability for filling or draining wetlands pursuant to various legal theories including nuisance, trespass, and riparian rights violations.  The document is intended for landowners, their lawyers, as well as government officials at all levels.  Other stakeholders and participants may find value in this document, as well.  This addresses the general law of the land, and not necessarily a specific jurisdiction.

The full document is only available in PDF form and may be viewed or downloaded by clicking HERE.