Introduction

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 1-9

Page 1

Chapter 1

Introduction

I. Introduction

In any event, a Comprehensive National Wetlands Protection Act is not before us, and the “wis[dom]” of such

a statute, po st, at 19 (opinion of Stevens, J.), is beyond our ken. What is clear, however, is t hat Congress did

not enact one when it granted the Corps juris diction over only “the waters of the United States.”1

* * *

As we recognized in Riverside Bayview, t he Corps has concluded that such wetlands play importa nt roles in

maintaini ng the qual ity of their adjacent waters, see id ., at 134-135, and c onsequently in the waters down-

stream. Among other thi ngs, wetlands can oer “nesting , spawning, rea ring and rest ing sites for aquat ic or

land species”; “serve as valuable storage areas for storm and ood waters”; and provide “signicant water puri-

cation functions.” 33 C.F.R. §320.4(b)(2) (2005); 474 U.S., at 134-135. ese values are hardly “independent”

ecological considerations as the plurality would have it, ante, at 23—instead, they are integral to the “chemical,

physical, and biologica l integrity of the Nation’s waters,” 33 U.S.C. §1251(a). Given that wetla nds serve these

important water quality roles and given the ambiguity inherent in the phrase “waters of the United States,” the

Corps has reasona bly interpreted its jurisdiction to cover non-isolated wet lands.”2

e scope of the Clea n Water Act (CWA), which celebrated its 40th birthday in 2012, remains a con-

troversial matter. In 2006¸ a bitterly divided U.S. Supreme Court, in contra sting quotes above, could

not agree on whether the 1972 statute—enacted with lofty goals to maintain the nation’s water qual-

ity—included aut hority for the feder al government to regulate wetlands. e act ive controversy over the

extent of federal CWA jurisdic tion illustrates t he persistent tension underlying federal wetlands reg ula-

tion. While wetla nds serve signicant water quality purpose s, the federal statutory authority for wetlands

protection is far f rom clear.

Two 21st century Supreme Court decisions have permanently changed federal wetlands law, but the reg-

ulatory agencies have still not yet3 crystalized the revised regulatory scheme. In Solid Waste Agency of North-

ern Cook County v. Corps of Engineers (SWANCC),4 followed ve years later by Rapanos v. United States,

the Supreme Court concluded that federal authority did not extend to a ll wetlands and waters. SWANCC

set aside federal exercise of CWA authority over isolated intrastate waters with no surface connection to

navigable waters where the connection to interstate commerce was use by migratory birds. In Rapanos, the

court failed to attain a majority, but it reversed prosecutions for wetlands lling where the wetlands were

adjacent to non-navigable tributaries, declaring that federal jurisd iction required either a consistent, ow-

ing hydrological connection to (plurality opinion) or signica nt nexus to (concurring opinion) navigable

waters. Until 2001, if property contained wetlands, it was subject to the CWA. After SWANCC and Rapa-

1. Rapanos v. United States, 547 U.S. 715, 745–46, 36 ELR 20116 (2006) (Scalia, J., plurality).

2. Id. at 796 (Stevens, J., dissenting).

3. In 2014, as this Deskbook was being nalized, the agencies proposed changes to their regulations dening Waters of the United States. See

Chapter 2, infra.

4. 531 U.S. 159, 31 ELR 20382 (2001).