Client Alerts

Rapanos v. U.S. Army Corps of Engineers: Wetlands Ruling Leaves Developers High

07/18/2006

The issue in the Supreme Court case was to interpret the extent of federal jurisdiction over wetlands under the Clean Water Act (CWA). The CWA requires a person, such as a developer, to obtain a permit from the Army Corps of Engineers (the Corps) to dredge or fill regulated “waters of the United States.” As interpreted by the Corps, CWA jurisdiction extends to the disturbance of any wetland (including waterlogged soil), no matter how far that wet soil is from a waterway that is navigable in fact or one of its tributaries, so long as there is any potential hydrologic connection between the wetland and such waterway or tributary. Essentially, according to the Corps, the CWA confers and regulates every wetland located within a watershed, whether or not the wetland is actually adjacent to or part of a stream and regardless of whether the dredging or filling of such wetland has any actual impact on the water quality of the eventual receiving stream. For example, in the particular cases under review, some of the sites in question were near storm water drains while, at another site, a man-made berm separated the wetlands from a ditch that eventually made its way to a creek. The Court was asked to review the validity of this broad interpretation of federal jurisdiction.