AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Page 5
Chapter 1
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 “independ ent
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 tha n 30 years after enactment of the Clean
Water Act (CWA), a bitterly divided U.S. Supreme
Court cannot a gree on whether the 1972 statute
enacted with loft y goa ls to ma intain the nation’s
water quality included authority for the federal
government to re gulate 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 illustr ates the persistent tension
underlying federal wetla nds regu lation. Wetlands
serve signica nt water quality purposes, yet the
federal stat utory authorit y for wetlands protect ion
is far f rom clear.
e 21st century has barely b egun, but recent
landmark cases have permanently changed federal
wetla nds law. In Solid Waste Agency of Norther n
Cook County v. Corps of Engineers (SWANCC),3
followed  ve years later by R apanos v. United
States, the Supreme Court conclude d that fed-
eral author ity d id not extend to a ll wetlands
and waters. SWANCC set aside federal exercis e
of CWA authorit y over isolated intrastate waters
with no surface connection to navigable waters
where the con nection to interstate com merce
was use by migrator y bi rds. In R apanos, the
court failed to attai n a majority, but it re versed
prosecut ions for wet lands  lling where the wet-
lands were adjacent to non-navigable tributa ries,
declaring t hat federal ju risdic tion requ ired either
a c onsistent, owing hydrological c onnection to
(plural ity opinion) or signicant nexus to (con-
curri ng opinion) navig able waters. Until 2001,
if property contained wetlands, it was subject to
the CWA. After SWANCC and Rapanos, federa l
jurisd iction over wetlands must be proven with
additional showing s, t he precise dimensions and
limitations of w hich remain u nsettled.
While federa l law has required a permit to
ll wetlands or other waters of the United States
since 1972, the federal wetland permit program
has been in ux for most of its 35 plus years of
existenc e. 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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