jurisdictional wetlands

Last week, the Supreme Court heard oral arguments in the case of United States Army Corps of Engineers v. Hawkes Co. (Supreme Court Case No. 15-290), which poses the question of whether a determination by the Army Corps that a property contains “waters of the United States” under the Clean Water Act is a final

 In recent years, two United States Supreme Court decisions have significantly reduced the scope of federal wetlands jurisdiction under the Clean Water Act.  Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).  In SWANCC, the Court ruled the Act’s reach did not extend to isolated ponds whose only connection to interstate commerce is their use by migratory birds.  In Rapanos, the Court further scaled back the Act’s coverage, ruling it protects only those water bodies with a “significant nexus” to a traditionally-defined navigable waterway such as a river, lake or bay.

 Guidance from the EPA and Corps of Engineers

In the wake of these decisions, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published joint guidance in 2007 and 2008 seeking to clarify the bounds of their Clean Water Act jurisdiction and to explain how “significant nexus” determinations are made.  The stated purpose of the guidance was to create “certainty and consistency,” but in reality the guidance did not alleviate the confusion—or stem the resulting tide of litigation in the federal courts—over what qualifies as a water of the U.S.  The state of the law remained woefully unclear on a critical threshold issue under the Act:

  •  When are wetlands, ponds, ditches, ephemeral creeks and other small aquatic features regulated by the federal government as “waters of the United States”?
  • And more specifically, what does it mean to have a “significant nexus” to navigable water?

 “Clearer, More Predictable” Guidance and Maybe A Rule-Making (or Maybe Not)

In April 2011, the agencies jointly published new draft guidance that, compared with the prior guidance, provided a significantly higher level of environmental regulation.  In publishing the draft guidance, the agencies stated it would help to establish “clearer, more predictable guidelines for determining which water bodies are protected from pollution under the Clean Water Act.”

But instead the draft guidance unleashed a political firestorm.  The agencies received more than 230,000 comments on the proposal, many of them harshly critical, and bitter partisan battles ensued in Washington, D.C.  Opponents saw the new draft guidance as a “jurisdictional grab”—a backdoor effort to expand Clean Water Act protections beyond what the Supreme Court had prescribed.  They also urged the agencies to pursue formal rule-making proceedings, instead of merely adopting interpretive guidance. 
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