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.

The federal Clean Water Act (CWA) is the main piece of federal legislation that protects the Nation's waters. Within the CWA, there are a number of sections that specifically address protection or regulation of wetlands. For example, Section 303 addresses water quality standards; Section 401 includes 401 Certification—to condition permits; Section 402 addresses the National Pollutant Discharge Elimination System (NPDES); and Section 404 includes the dredge and fill permitting program as well as State Assumption.

On Wednesday, May 27, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released the Clean Water Rule to clarify jurisdiction over streams and wetlands. The Association of State Wetland Managers (ASWM) has been following the rulemaking process for more than two years, and has been actively involved with other organizations in interpreting the proposed clarifications and their implications for managing wetlands, streams, floodplains and water quality.

The Clean Water Act was weakened by the US Supreme Court after the split decision known as the Rapanos and Carabell Decision in 2006, which followed another complex debate known as the SWANCC Decision in 2001. The intent of the proposed rule is to clarify jurisdiction for the protection of the nation’s water resources in response to multiple requests from multiple sectors, including the agricultural community, consultants, regulators, developers, natural resource managers and conservation groups.

The Association of State Wetland Managers will be closely following the roll-out of the Rule and will be posting news stories and other useful information about it as we receive them to our website here. To view information about the rule on the EPA website, click here.

2017 Actions & Information Regarding the Clean Water Rule

ABSTRACT: In the spring of 2017 the US Environmental Protection Agency and the Army Corps of Engineers are implementing Executive Order 13778 on Restoring the Rule of Law, Federalism, and the Economic Growth by Reviewing the ”Waters of the United States” Rule which directs the federal agencies to rescind the current Clean Water Rule and replace it.  This recorded webinar by Stephen Samuels, retired, formerly with Department of Justice, provides information about the status of the currently stayed Clean Water Rule and the case that has been accepted to be heard in 2018 before the Supreme Court, as well as a succinct overview of  Supreme  Court decisions addressing Clean Water Act jurisdiction in recent decades through the present day.  

     
Part 1: Introduction: Jeanne
Christie, Executive Director,
Association of State Wetland
Managers
Presenter:
 Stephen Samuels,
Retired, formerly with
Department of Justice
      Part 2: Presenter: Stephen
Samuels, Retired, formerly
with Department of Justice

 

2015 Actions & Information Regarding the Clean Water Rule

ABSTRACT: On Thursday, November 19, 2015 the Association of State Wetland Managers (ASWM) hosted a webinar on "Legal Challenges to the Clean Water Rule: Which Court? What Questions? What Timeframe?" Panelists were Roy Gardner, Professor of Law and Director of the Institute for Biodiversity Law and Policy, Stetson University College of Law and Kim Diana Connolly, Professor and Director of Clinical Legal Education, and Vice Dean for Legal Skills at the SUNY Buffalo Law School. The webinar recording can be viewed below.

          
Part 1: Introduction: Jeanne
Christie, ASWM
Presenter: Kim Diana Connolly,
Professor and Director of Clinical
Legal Education, and Vice Dean
for Legal Skills at the SUNY
Buffalo Law School 
    Part 2: Presenter: Roy Gardner,
Professor of Law and Director of
the Institute for Biodiversity Law
and Policy, Stetson University
College of Law
    Part 3: Presenters: Roy Gardner,
Professor of Law and Director of
the Institute for Biodiversity Law
and Policy, Stetson University
College of Law and Kim Diana
Connolly, Professor and Director
of Clinical Legal Education, and
Vice Dean for Legal Skills at the
SUNY Buffalo Law School
             
             
 Part 4: Questions/Answers            

 

  • Webinar: Clean Water Rule Webinar: Understanding Legal Challenges and Next Steps for the Clean Water Rule
    • Monday, August 24, 2015

ABSTRACT: On Monday, August 24, 2015 the Association of State Wetland Managers (ASWM) hosted a webinar on “Understanding Legal Challenges and Next Steps for the Clean Water Rule” with presentations by Roy Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy and Kim Diana Connolly, Professor, Director of Clinical Legal Education, Vice Dean for Legal Skills, SUNY Buffalo Law School. It was recorded and the webinar can be viewed below.

The PowerPoint from the webinar is available here.

   
Part 1: Introduction: Jeanne
Christie, ASWM
Presenter: Kim Diana
Connolly, Professor, Director of
Clinical Legal Education, Vice
Dean for Legal Skill, SUNY
Buffalo Law School
     Part 2: Presenter: Roy
Gardner, Professor of Law and
Director, Institute for Biodiversity
Law and Policy 
     Part 3: Presenter: Roy Gardner,
Professor of Law and
Director, Institute for
Biodiversity Law and Policy  
         
   
Part 4: Presenter: Kim Diana
Connolly, Professor, Director of
Clinical Legal Education, Vice
Dean for Legal Skill, SUNY
Buffalo Law School 
  Part 5: Discussion   Part 6: Discussion
         
  • Webinar: Clean Water Rule Webinar: Understanding the Final Clean Water Rule and Changes to CWA Jurisdiction Included in Senate Bill 1140
    • Wednesday, June 17, 2016

ABSTRACT: On Wednesday, June 17 the Association of State Wetland Managers (ASWM) held a webinar “Understanding the Final Clean Water Rule and Changes to CWA Jurisdiction Included in Senate Bill 1140” with presentations by Roy Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy and Kim Diana Connolly, Professor, Director of Clinical Legal Education, Vice Dean for Legal Skills, SUNY Buffalo Law School. Topics covered during the webinar included: an overview of changes to CWA jurisdiction under the new rule, a discussion of how the changes reflect the Carabell/Rapanos and SWANCC Supreme Court decisions and an overview of Senate Bill 1140, "The Federal Water Quality Protection Act". It was recorded and the webinar can be viewed below.

A PDF of the PowerPoint presentation is available here.

            
Part 1: Introduction: Jeanne
Christie, ASWM
Presenter: Roy Gardner, Professor
of Law and Director, Institute for
Biodiversity Law and Policy
    Part 2: Presenter: Kim Diana
Connolly, Professor, Director of
Clinical Legal Education, Vice
Dean for Legal Skill, SUNY
Buffalo Law School
    Part 3: Presenter: Roy Gardner,
Professor of Law and Director,
Institute for Biodiversity Law
and Policy
             
         
Part 4: Discussion     Part 5: Discussion      

 

Lawsuits filed in response to publication of Clean Water Rule

Texas, Louisiana and Mississippi
Ohio and Michigan
North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota and Wyoming
Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin


Useful Publications Regarding Wetlands & Jurisdictional Issue

Geographically Isolated Wetlands of the United States

ASWM has a robust collection of discussion papers on wetlands and jurisdictional issues, Rapanos, SWANCC and other significant court cases under Law on the menu. 


News Articles on the 2015 Rulemaking

EPA water rule takes effect in some states

By Timothy Cama – The Hill – August 28, 2015
The Environmental Protection Agency (EPA) started enforcing its controversial water pollution jurisdiction rule Friday in all but 13 states. Friday marks 60 days after the rule, known as the Clean Water Rule, was published in the Federal Register and the day that the agency planned to start enforcement along with the Army Corps of Engineers. In response to a petition from 13 states, a North Dakota Federal judge temporarily blocked the rule’s implementation late Thursday, ruling that the states would likely suffer if it took effect and that they are likely to succeed when their underlying lawsuit against the rule is decided. But the EPA is interpreting the North Dakota decision to apply only in the states involved in the litigation. For full story, click here.

GOP subpoenas Obama regulatory officials on water rule

By Timothy Cama – The Hill – July 14, 2015
House Republicans moved Tuesday to force the Obama administration to disclose certain documents related to the development of the Environmental Protection Agency’s (EPA) major water jurisdiction rule. The House Oversight Committee sent a subpoena on the rule to the White House Office of Information and Regulatory Affairs (OIRA), which is responsible for reviewing all major federal regulations before they are issued. Rep. Jason Chaffetz (R-Utah) alleged in his subpoena that OIRA and its chief, Howard Shelanski, are illegally withholding from Congress documents that lawmakers have requested since a March hearing. For full story, click here.

Business groups sue over Obama water rule

By Devin Henry – The Hill – July 13, 2015
The Obama administration continues to be flooded with lawsuits over its new water regulations.
The U.S. Chamber of Commerce, National Federation of Independent Businesses (NFIB) and other groups announced a lawsuit Monday against the Environmental Protection Agency's (EPA) "Waters of the United States" rule. They are the latest industry groups challenging the rule, which looks to define which water bodies the government has the ability to regulate. In a statement announcing their lawsuit, NFIB contended that the rule covers water bodies that go beyond what the EPA is legally allowed to regulate under the Clean Water Act. For full story, click here.

US EPA and Army Corps Issue Weak Clean Water Rule

By Maia Raposo – Waterkeeper Alliance – May 27, 2015
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) final “Clean Water Rule” issued today reduces the agencies’ jurisdiction to protect waters that have been covered under the Clean Water Act (CWA) since the 1970s. The final rule contains some very serious negative provisions including not protecting streams and rivers that have historically been protected under the CWA, exempting industrial-scale livestock facilities, and allowing streams and rivers to be impounded or filled with toxic coal ash and other waste. For full story, click here.

Barack Obama's water war

By Jenny Hopkinson – POLITICO – May 27, 2015
The Obama administration announced new protections Wednesday for thousands of waterways and wetlands, pushing ahead despite a fierce counterattack from powerhouse industries like agriculture, oil and home-building — and their supporters in Congress. On its face, the Waters of the United States rule is largely a technical document, defining which rivers, streams, lakes and marshes fall under the jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers. But opponents condemn it as a massive power grab by Washington, saying it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch. For full story, click here.

Clean Water Rule ‘A Major Victory for People, Great Lakes, Economy’

By Anna Brunner – Healing Our Waters-Great Lakes Coalition  – May 27, 2015
The Healing Our Waters-Great Lakes Coalition is heralding a new clean water rule as a major step forward in protecting drinking water and restoring the health of the Great Lakes. The clean water rule, released today, restores Clean Water Act protections to streams and wetlands that supply drinking water to 1-in-3 Americans—117 million people, 30 million of whom live in the Great Lakes states of Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio, Pennsylvania, and New York. For full story, click here.

House passes bill to stop EPA water rule

By Timothy Cama and Cristina Marcos –  The Hill  – May 12, 2015
The House voted Tuesday to overturn an Obama administration rule aimed at redefining which streams, ponds, wetlands and other waterways are under its jurisdiction. Passage of the legislation, which would require the Environmental Protection Agency (EPA) and Secretary of the Army to withdraw the proposed regulation within 30 days and craft a new one, fell largely along party lines by a vote of 261-155. The “waters of the United States” rule, which the EPA plans to make final this spring, has led to charges the administration is dramatically expanding its powers over water and would regulate puddles, decorative ponds, ditches and dry creekbeds. For full blog post, click here.

Senators to introduce bill to halt Waters of the US rule

By April Baumgarten – The Dickinson Press – April 30, 2015
U.S. senators will introduce a bill today that would send the controversial Waters of the U.S. proposal back to the Environmental Protection Agency, but the White House has threatened to veto the legislation. Bill co-sponsor Sen. Heidi Heitkamp, D-N.D., is holding a press conference this morning at the U.S. Capitol with other senators on the Federal Water Quality Protection Act, which would require EPA to withdraw the proposal and consult states, farmers and ranchers affected by the rule, also known as WOTUS. "We don't know what the final rule is going to look like," Heitkamp said, who has been working on this legislation for months. "We need certainty in rural America." For full story, click here.

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.

Rapanos

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.