by Jon Kusler, Esq., Ph.D. – ASWM

This paper was prepared to facilitate discussion in a 2005 workshop concerning the identification of "waters of the U.S." for Section 404 wetland permitting and the role the states may play in closing the "gap" in federal Section 404 regulations created by the SWANCC decision. It focuses upon the identification of "waters of the U.S." What did the U.S. Supreme Court hold in SWANCC concerning that identification? What are some of the major legal issues  and field identification problems in identifying such waters? What have lower federal district and courts of appeals had to say with regard to Clean Water Act jurisdictional issues in both pre- and post- SWANCC contexts?

This paper has been written primarily for lawyers and, therefore, contains many case citations.  However, it may also be of interest to federal, state, and local regulatory agency staff, planners, and others who work with the Clean Water Act. This document is only available in PDF format and may be viewed and/or downloaded by clicking HERE.