AuthorFlatt, Victor
PositionThe Clean Water Act at 50: Requiem or Resurrection?
  1. Introduction 332 II. The Value of Wetlands 333 III. Evidence Establishing that States Will Not Assert Wetlands Jurisdiction 335 A. Current State Practice 335 B. Congressional Understanding of the Failure of States to Act 336 C. Theoretical Analysis Indicates That States Cannot Fill This Void 338 IV. Conclusion 338 I. INTRODUCTION

    Which "waters" Congress intended to include under the term "waters of the United States" in the Clean Water Act (CWA) (1) has been the subject of disagreements, administrative actions, and court cases for decades. As stated by Justice Sotomayor: "In decades past, the EPA and the Corps (collectively, the agencies) have struggled to define and apply that statutory term. And this Court, in turn, has considered those regulatory efforts on several occasions." (2)

    "Waters of the United States" or "WOTUS" comes from the term "navigable waters," defined in the CWA as "the waters of the United States, including the territorial seas." (3) The statute does not further define WOTUS, and the definition of the term was left to regulation by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps).

    Throughout the extensive litigation over the extent of federal jurisdiction, the possibility that states could take over regulation of wetlands left out of federal jurisdiction has been an important part of the debate. (4) The Environmental Law Institute (ELI) has twice undertaken an in-depth study of the likelihood that states would assert jurisdiction over wetlands in the aftermath of Rapanos v. United States. (5)

    Mischaracterizing information from the 2013 document, the Trump administration went so far as to base its positive cost-benefit analysis of redefining jurisdiction in the Navigable Waters Protection Rule on the theory that many states would assert jurisdiction were federal jurisdiction to go away. (6)

    The truth, however, is quite plainly that the states are never going to assert this jurisdiction, demonstrated by legislative history, federalism theory, empirical evidence, and the states' own actions prohibiting such jurisdiction. This means that any reduction of federal jurisdiction over the wetlands program will most definitely be a net harm to our society. While this may not settle the question of what the Supreme Court determines to be the intended jurisdiction of the CWA, it should certainly settle the question of whether any administration would be able to justify a shrinking of jurisdiction. Administrative action that shrinks CWA jurisdiction should be evaluated as a net negative in a cost-benefit analysis, and therefore, unless justified by currently unknown reasons, would be arbitrary and capricious.

    This Article proceeds in three Parts. It briefly reviews the important values and functions of wetlands, and then explores various reasons why the states will not take over such an important function. The Article then concludes.


    The value of wetlands is now firmly established. Wetlands provide water purification services, flood control, habitat, and carbon sequestration, in addition to their recreational and aesthetic values. (7) Recognition of the importance and value of these services continues to grow. In 2008, the Army Corps and the EPA, using the new ecosystem services theory, attempted to better assess wetland values in the regulatory program. (8) Ecosystem services theory recognizes that the value of wetlands and other ecosystems could be partially calculated by looking at how much it would cost to provide the services those ecosystems provide, such as water purification, if we were to lose these common resources. (9) The monetary values of wetlands are not fully settled, and owing to the variability and dynamism of wetlands systems, fully capturing the distribution of values wetlands provide is difficult. (10) However, these values are clearly considerable.

    The protection of wetlands also comes with a cost. For every wetland that is protected, other uses may be foreclosed. In particular, depending on location, wetlands regulation may impact the ability to develop land, which in turn affects the value of land and private wealth. (11) How much value would be lost if wetlands destruction were stopped is still in dispute, reflecting debates about the "costs" (foregone uses) of conservation. (12)

    But of course, that is not what happens. Under the current federal wetlands regulatory system, permits for wetlands fill or destruction should only be granted when any harms to wetlands functions are mitigated. (13) So even when development is allowed, the mitigation required by regulation costs something. In theory, this number should be somewhat easier to estimate by simply totaling all monies spent in any wetlands mitigation project, but the costs of wetlands mitigation is not comparable across US Army Corps Districts. (14) Perhaps a better cost comparison is established by comparing the cost per acre of wetlands created to mitigate harms due to permitted fill, but this too is variable. (15) However, even assuming a high cost of $10,000 per...

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