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. 

The premise of this paper is that no one's interest, least of all the public interest in a strong and effective Clean Water Act, is served by the current state of uncertainty surrounding this fundamental question of the Act's coverage.  Accordingly, this paper proposes an approach and series of specific recommendations for the Environmental Protection Agency and Corps of Engineers to consider in charting a course for the future of the Act and in adopting guidance and/or regulations complying with the Rapanos decision.

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