Introduction

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 5-12

Page 5

Chapter1

Introduction

Introduction

In any event, a Comprehensive National Wet-

lands Protection Act is not before us, and the

“wis[dom]” of such a statute, post, at 19 (opinion

of Stevens, J.), is beyond our ken. W hat is clea r,

however, is that Congress did not enact one when

it gr anted the Corps jurisd iction over only “the

waters of the United States.”1

As we recognized in Riverside Bayview, the Corps

has concluded that suc h wetlands play important

roles in ma intaining the qualit y of their adjacent

waters, see id., at 134-135, and consequently in

the waters downstream. Among other things, wet-

lands can o er “nesting, spawning, rearing a nd

resting sites for aquatic or land species”; “serve as

valuable storage areas for storm and ood waters”;

and provide “signicant water purication func-

tions.” 33 C.F.R. §320.4(b)(2) (2005); 474 U.S.,

at 134-135. ese values are hardly “independent”

ecological considerations as t he plurality would

have it, ante, at 23—instead, t hey are integral to

the “chemical, physical, and biological integrity

of the Nation’s waters,” 33 U.S.C. §1251(a). Given

that wetlands ser ve these important water qual-

ity roles a nd given the ambiguity inherent in the

phrase “waters of the United States,” the Corps

has reasonably interpreted its jurisdiction to cover

non-isolated wetlands.”2

More than 30 years after enactment of the Clean

Water Act (CWA), a bitterly divided U.S. Supreme

Court cannot agree on whether the 1972 statute

enacted with lofty goa ls to maintain the nation’s

water quality included authority for the federal

government to regulate wetlands. e active judi-

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).

cial controversy over the extent of federa l CWA

jurisdiction illustrates the persistent tension

underlying federal wetlands regu lation. Wetlands

serve signica nt water quality purposes, yet the

federal stat utory authority for wetlands protection

is far f rom clear.

e 21st century has barely begun, but recent

landmark cases have permanently changed federal

wetlands law. In Solid Waste Agency of Northern

Cook County v. Corps of Engineers (SWANCC),3

followed ve years later by R apanos v. United

States, the Supreme Court concluded that fed-

eral authority d id not extend to a ll wetlands

and waters. SWANCC set aside federal exercise

of CWA authorit y 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 wet-

lands were adjacent to non-navigable tributaries,

declaring that federal jurisdiction requ ired either

a c onsistent, owing hydrological connection to

(plurality opinion) or signicantnexus to (con-

curring opinion) navig able waters. Until 2001,

if property contained wetlands, it was subject to

the CWA. After SWANCCand Rapanos, federal

jurisdiction over wetlands must be proven with

additional showings, t he precise dimensions and

limitations of which remain u nsettled.

While federal law has required a permit to

ll wetlands or other waters of the United States

since 1972, the federalwetlandpermit program

has been in ux for most of its 35 plus years of

existence. Over time, the federal wetland program

has changed signicantly, regulating increasingly

3. 531 U.S. 159, 31 ELR 20382 (2001).