Introduction

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

Page 5

Chapter 1

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 “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).