Introduction

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Pages5-12
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).

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