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Publication date: Sep. 13, 2006

WETLANDS DECISION NO BRIDGE OVER TROUBLED WATERS

The June 19, 2006, US Supreme Court decision in the high-profile "Rapanos" wetlands case was anything but decisive. Now, state regulators are looking to EPA to clarify how they're supposed to determine what does and doesn't qualify as a federally protected wetland.

On Aug. 30, 2006, the AP reported that EPA assistant administrator for water Benjamin Grumbles told a meeting of the Association of State Wetland Managers (ASWM) that EPA is preparing instructions to guide state wetland decisions (Aug. 30, 2006, AP story). ASWM: Jeanne Christie, 207-892-3399.

In his Aug. 1, 2006, testimony before the Senate Subcommittee On Fisheries, Wildlife, and Water, Grumbles was more specific. He said that the US Army Corps of Engineers and EPA "are working closely with the US Department of Justice to interpret the [Rapanos] decision and its impacts on the scope of 'waters of the United States' protected under the CWA. In particular, we are working on joint EPA/Corps guidance clarifying CWA jurisdiction in light of the Rapanos decision."

  • Grumbles' speech. No timeline or other details on that process are available on the EPA site. The AP, which interviewed Grumbles, said the guidance would be forthcoming "soon."
  • EPA: Benjamin Grumbles, 202-564-5700. Press: Dale Kemery, 202-564-7839.
  • US Army Corps of Engineers press: David Hewitt, 202-761-1807.
The September/October 2006 issue of the National Wetlands Newsletter features a package of articles examining the legal and environmental implications of the Rapanos decision in detail, from several perspectives. Release. For press copies, contact NWN editor Rachel Jean-Baptiste, 202-558-3101.

The Supreme Court opinion for Rapanos v. United States is actually three differing opinions, with an attempt to punt the whole issue to Congress.

An Aug. 25 Science magazine editorial characterized the schizophrenic opinion thus: "Justice Scalia, representing the views of Roberts, Alito, Thomas, and himself, offered a very restrictive definition of wetlands: They must have surface connections to navigable waters. That view would have stripped regulatory protection from lands historically treated as wetlands by the Corps of Engineers. On the other side, Justice Stevens, for Souter, Ginsberg, and Breyer, favored a definition that includes groundwater with a significant nexus of connection to more distant navigable waters. Justice Kennedy wrote the decisive opinion, in effect bouncing the matter back to the appellate court. [He added] that the determination would essentially be a scientific matter, within the proper scope of the regulatory agency's authority."

  • Several property rights group were very active in the Rapanos case and, in its aftermath, continue to press for a restrictive definition of wetlands. For example, the Bluegrass Institute published a detailed guide to property-rights implications of Rapanos in Kentucky. Press: Jim Waters, 270-782-2140.
  • The Pacific Legal Foundation represented the developers in the Rapanos case and can provide property-rights contacts on wetlands throughout the US. Contact: M. Reed Hopper, 916-419-7111. Case summary.
  • Earthjustice coordinated amicus efforts of several environmental groups in the Rapanos case, and is following the fallout. Press: John McManus, 510-550-6707; or Cat Lazaroff, 202-667-4500 x213.
  • The Environmental Law Institute is conducting a detailed, four-phase review of state wetland programs. The first two phases are online; the rest will be completed in the coming year. Press: John R. Thompson, 202-939-3833. Phase I. Phase II.
Additional resources, see TipSheet, Feb. 1, 2006.


Last revised January 22, 2013

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