CWA Jurisdiction Areas subject to Rapanos

Rapanos v. United

States Decision

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.

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.

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.