The Rapanos Decision
The Rapanos DecisionIn one of the most important clean water cases in decades, the United States Supreme Court issued a fractured decision on the reach of the federal Clean Water Act in June 2006. The 5-4 decision further confused federal protection of wetlands throughout the country.
The Supreme Court case combined two cases, United States v. Rapanos and Carabell v. United States, involving Michigan wetlands and streams. The combined case addressed whether the Clean Water Act protects wetlands adjacent to small tributaries that flow into larger water bodies.
With a split decision, the court sent the cases back to the lower court, the United States Court of Appeals for the Sixth Circuit, for further consideration. Four justices wanted to maintain protection of these wetlands. Four justices favored reducing protection unless they were directly connected to continuously flowing waters like rivers or lakes. Justice Kennedy didn't agree with either side but favored sending the case back to the lower court for consideration of the connections between the wetlands at issue and the adjacent waters. For Kennedy, for a wetland to come under protection of the Clean Water Act, the wetland needs to have a "significant nexus" to a body of water that is navigable, even if water flows only a few days a year.
As a result of the decision, the EPA and Army Corp of Engineers issued guidance on Clean Water Act jurisdication as interpreted in Rapanos. The guidance that was issued on June 5, 2007 was meant to provide clarification about federal jurisdiction of the waters of the United States. While a primary purpose of the guidance was to "establish an efficient and effective process for determining Clean Water Act Section 404 jurisdiction," the guidance instead further confuses jurisdiction about which waters receive federal protection and provides for a complicated case-by-case process that staff must undergo to make a jurisdictional determination.
Essentially, the guidance requires waters to meet one of the two tests outlined in the opinions written for the Rapanos decision. Protection of our waters will come for: 1) "traditionally navigable waters" and wetlands adjacent to these waters, 2) "non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries", and 3) other tributaries and wetlands if case-by-case determinations prove there is a significant nexus with the traditionally navigable waters.
Rather than ensuring protection of our vital water resources, the guidance ensures significant hurdles for agencies and citizens, and ultimately, more future court cases. Because resources are already scarcely available to the agencies, implementing case-by-case determinations will further waste resources leaving other waters at risk and more vulnerable to degradation and destruction.
The decisions by the Supreme Court over the past few years, Rapanos/Carabell in 2006 and SWANCC in 2001, and administrative actions by the Environmental Protection Agency and Army Corps of Engineers have muddied the waters regarding the jurisdiction of the Clean Water Act. Therefore, Congress must act now by passing the Clean Water Restoration Act. The bill would reaffirm the historical jurisdiction of the 1972 Clean Water Act and ensure all "waters of the United States" that have been covered by federal safeguards against pollution for more than 34 years retain Clean Water Act protection. This bill does not create "new" protective authority, but simply restores the regulatory status quo.
For more information:
The Supreme Court case combined two cases, United States v. Rapanos and Carabell v. United States, involving Michigan wetlands and streams. The combined case addressed whether the Clean Water Act protects wetlands adjacent to small tributaries that flow into larger water bodies.
With a split decision, the court sent the cases back to the lower court, the United States Court of Appeals for the Sixth Circuit, for further consideration. Four justices wanted to maintain protection of these wetlands. Four justices favored reducing protection unless they were directly connected to continuously flowing waters like rivers or lakes. Justice Kennedy didn't agree with either side but favored sending the case back to the lower court for consideration of the connections between the wetlands at issue and the adjacent waters. For Kennedy, for a wetland to come under protection of the Clean Water Act, the wetland needs to have a "significant nexus" to a body of water that is navigable, even if water flows only a few days a year.
As a result of the decision, the EPA and Army Corp of Engineers issued guidance on Clean Water Act jurisdication as interpreted in Rapanos. The guidance that was issued on June 5, 2007 was meant to provide clarification about federal jurisdiction of the waters of the United States. While a primary purpose of the guidance was to "establish an efficient and effective process for determining Clean Water Act Section 404 jurisdiction," the guidance instead further confuses jurisdiction about which waters receive federal protection and provides for a complicated case-by-case process that staff must undergo to make a jurisdictional determination.
Essentially, the guidance requires waters to meet one of the two tests outlined in the opinions written for the Rapanos decision. Protection of our waters will come for: 1) "traditionally navigable waters" and wetlands adjacent to these waters, 2) "non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries", and 3) other tributaries and wetlands if case-by-case determinations prove there is a significant nexus with the traditionally navigable waters.
Rather than ensuring protection of our vital water resources, the guidance ensures significant hurdles for agencies and citizens, and ultimately, more future court cases. Because resources are already scarcely available to the agencies, implementing case-by-case determinations will further waste resources leaving other waters at risk and more vulnerable to degradation and destruction.
The decisions by the Supreme Court over the past few years, Rapanos/Carabell in 2006 and SWANCC in 2001, and administrative actions by the Environmental Protection Agency and Army Corps of Engineers have muddied the waters regarding the jurisdiction of the Clean Water Act. Therefore, Congress must act now by passing the Clean Water Restoration Act. The bill would reaffirm the historical jurisdiction of the 1972 Clean Water Act and ensure all "waters of the United States" that have been covered by federal safeguards against pollution for more than 34 years retain Clean Water Act protection. This bill does not create "new" protective authority, but simply restores the regulatory status quo.
For more information:
- EPA and Army Corps of Engineers Guidance on Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States
- EPA Clean Water Act Definition of "Waters of the United States" Webpage
- Environmental Law Institute (ELI) Clean Water Act Jurisdictional Handbook
