{ "id": "RL33263", "type": "CRS Report", "typeId": "REPORTS", "number": "RL33263", "active": true, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 452048, "date": "2016-04-27", "retrieved": "2016-05-24T19:16:38.635941", "title": "The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond", "summary": "In 1985 and 2001, the Supreme Court grappled with issues as to the geographic scope of the wetlands permitting program in the federal Clean Water Act (CWA). In 2006, the Supreme Court rendered a third decision, Rapanos v. United States, on appeal from two Sixth Circuit rulings. The Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA jurisdiction over wetlands adjacent only to nonnavigable tributaries of traditional navigable waters\u2014including tributaries such as drainage ditches and canals that may flow intermittently. (Jurisdiction over wetlands adjacent to traditional navigable waters was established in the 1985 decision.)\nThe legal and policy questions associated with Rapanos\u2014regarding the outer geographic limit of CWA jurisdiction and the consequences of restricting that scope\u2014have challenged regulators, landowners and developers, and policymakers for 40 years. The answer may determine the reach of CWA regulatory authority for all CWA programs, since the CWA uses but one jurisdiction-defining phrase (\u201cnavigable waters\u201d) throughout the statute. The Court\u2019s decision provided little clarification, however, splitting 4-1-4. The four-Justice plurality decision, by Justice Scalia, said that the CWA covers only wetlands connected to relatively permanent bodies of water (streams, rivers, lakes) by a continuous surface connection. Justice Kennedy, writing alone, demanded a substantial nexus between the wetland and a traditional navigable water, using an ambiguous ecological test. Justice Stevens, for the four dissenters, would have upheld the existing broad reach of Corps of Engineers/EPA regulations. \nBecause no rationale commanded the support of a majority of the Justices, lower courts are extracting different rules of decision from Rapanos for resolving future cases. Corps/EPA guidance issued in 2008 says that a wetland generally is jurisdictional if it satisfies either the plurality or Kennedy tests. In 2011, the agencies proposed revised guidance intended to clarify whether waters are protected by the CWA, but this proposal was controversial and was not finalized. The ambiguity of the Rapanos decision and questions about the agencies\u2019 guidance increased pressure on EPA and the Corps to initiate a rulemaking to promulgate new regulations, which they did with regulatory revisions to define \u201cwaters of the United States\u201d that are subject to CWA jurisdiction, issued in May 2015. (For discussion of this rule, seeCRS Report R43455, EPA and the Army Corps\u2019 Rule to Define \u201cWaters of the United States\u201d). The rule has been very controversial, including among Members of Congress. (For discussion, see CRS Report R43943, EPA and the Army Corps\u2019 \u201cWaters of the United States\u201d Rule: Congressional Response and Options, by Claudia Copeland ). Challenges to the rule, called the Clean Water Rule, have been brought in a number of federal courts, and the rule has been stayed for the duration of litigation.\nWhile regulators and the regulated community debate the legal dimensions of federal jurisdiction under the CWA, scientists contend that there are no discrete, scientifically supportable boundaries or criteria along the continuum of wetlands to separate them into meaningful ecological or hydrological compartments. Wetland scientists believe that all such waters are critical for protecting the integrity of waters, habitat, and wildlife downstream. Changes in the limits of federal jurisdiction highlight the role of states in protecting waters not addressed by federal law. From the states\u2019 perspective, federal programs provide a baseline for consistent, minimum standards to regulate wetlands and other waters. Most states are either reluctant or unable to take independent steps to protect non-jurisdictional waters through legislative or administrative action.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/RL33263", "sha1": "0d5ce5fbea48afd5c9de68d5d467aed4046f9ab4", "filename": "files/20160427_RL33263_0d5ce5fbea48afd5c9de68d5d467aed4046f9ab4.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/RL33263", "sha1": "e0b1d527d85d13721eb7f29d3e1446c517900c45", "filename": "files/20160427_RL33263_e0b1d527d85d13721eb7f29d3e1446c517900c45.pdf", "images": null } ], "topics": [ { "source": "IBCList", "id": 2647, "name": "Water Quality Protection" } ] }, { "source": "EveryCRSReport.com", "id": 441377, "date": "2015-05-15", "retrieved": "2016-04-06T19:03:19.661753", "title": "The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond", "summary": "In 1985 and 2001, the Supreme Court grappled with issues as to the geographic scope of the wetlands permitting program in the federal Clean Water Act (CWA). In 2006, the Supreme Court rendered a third decision, Rapanos v. United States, on appeal from two Sixth Circuit rulings. The Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA jurisdiction over wetlands adjacent only to nonnavigable tributaries of traditional navigable waters\u2014including tributaries such as drainage ditches and canals that may flow intermittently. (Jurisdiction over wetlands adjacent to traditional navigable waters was established in the 1985 decision.)\nThe legal and policy questions associated with Rapanos\u2014regarding the outer geographic limit of CWA jurisdiction and the consequences of restricting that scope\u2014have challenged regulators, landowners and developers, and policymakers for 40 years. The answer may determine the reach of CWA regulatory authority for all CWA programs, since the CWA uses but one jurisdiction-defining phrase (\u201cnavigable waters\u201d) throughout the statute. The Court\u2019s decision provided little clarification, however, splitting 4-1-4. The four-Justice plurality decision, by Justice Scalia, said that the CWA covers only wetlands connected to relatively permanent bodies of water (streams, rivers, lakes) by a continuous surface connection. Justice Kennedy, writing alone, demanded a substantial nexus between the wetland and a traditional navigable water, using an ambiguous ecological test. Justice Stevens, for the four dissenters, would have upheld the existing broad reach of Corps of Engineers/EPA regulations. \nBecause no rationale commanded the support of a majority of the Justices, lower courts are extracting different rules of decision from Rapanos for resolving future cases. Corps/EPA guidance issued in 2008 says that a wetland generally is jurisdictional if it satisfies either the plurality or Kennedy tests. In 2011, the agencies proposed revised guidance intended to clarify whether waters are protected by the CWA, but this proposal was controversial and was not finalized. The ambiguity of the Rapanos decision and questions about the agencies\u2019 guidance increased pressure on EPA and the Corps to initiate a rulemaking to promulgate new regulations, which they did with proposed revisions to define \u201cwaters of the United States\u201d that are subject to CWA jurisdiction, announced in March 2014. (For discussion of this proposed rule, see CRS Report R43455, EPA and the Army Corps\u2019 Proposed Rule to Define \u201cWaters of the United States\u201d). The proposed rule has been very controversial. In response, congressional hearings have been held by multiple committees, and legislation to bar issuance of the rule has been introduced. (For discussion, see CRS Report R43943, EPA and the Army Corps\u2019 Proposed \u201cWaters of the United States\u201d Rule: Congressional Response and Options).\nWhile regulators and the regulated community debate the legal dimensions of federal jurisdiction under the CWA, scientists contend that there are no discrete, scientifically supportable boundaries or criteria along the continuum of wetlands to separate them into meaningful ecological or hydrological compartments. Wetland scientists believe that all such waters are critical for protecting the integrity of waters, habitat, and wildlife downstream. Changes in the limits of federal jurisdiction highlight the role of states in protecting waters not addressed by federal law. From the states\u2019 perspective, federal programs provide a baseline for consistent, minimum standards to regulate wetlands and other waters. Most states are either reluctant or unable to take independent steps to protect non-jurisdictional waters through legislative or administrative action.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/RL33263", "sha1": "e3173bce36495cf49df00ca62afd71d3ce45edfb", "filename": "files/20150515_RL33263_e3173bce36495cf49df00ca62afd71d3ce45edfb.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/RL33263", "sha1": "90fc9bd19b5a307ff9c13758d8a0886aa7cd8bad", "filename": "files/20150515_RL33263_90fc9bd19b5a307ff9c13758d8a0886aa7cd8bad.pdf", "images": null } ], "topics": [ { "source": "IBCList", "id": 2647, "name": "Water Quality Protection" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc808165/", "id": "RL33263_2013Jan29", "date": "2013-01-29", "retrieved": "2016-03-19T13:57:26", "title": "The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20130129_RL33263_d96e46d70d8ebd2a3ea68da99c2e384b78d8bfe8.pdf" }, { "format": "HTML", "filename": "files/20130129_RL33263_d96e46d70d8ebd2a3ea68da99c2e384b78d8bfe8.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc809507/", "id": "RL33263_2009Jan09", "date": "2009-01-09", "retrieved": "2016-03-19T13:57:26", "title": "The Wetlands Coverage of the Clean Water Act is Revisited by the Supreme Court:: Rapanos v. United States", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20090109_RL33263_b221b1967aa6ca8d624cfc3957c8d4f067cc034f.pdf" }, { "format": "HTML", "filename": "files/20090109_RL33263_b221b1967aa6ca8d624cfc3957c8d4f067cc034f.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc847676/", "id": "RL33263_2008Apr22", "date": "2008-04-22", "retrieved": "2016-06-02T05:26:07", "title": "The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States", "summary": "This report discusses the Supreme Court decision in Rapanos v. United States, which addressed the asserted jurisdiction of the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) over wetlands adjacent to \"waters of the United States,\" the problematic phrase used by the Clean Water Act (CWA) to define the geographic scope of the act's wetlands permitting program.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20080422_RL33263_efcc446156db6b9a35bc11ef4183876ee630d003.pdf" }, { "format": "HTML", "filename": "files/20080422_RL33263_efcc446156db6b9a35bc11ef4183876ee630d003.html" } ], "topics": [ { "source": "LIV", "id": "Supreme Court decisions", "name": "Supreme Court decisions" }, { "source": "LIV", "id": "Wetlands", "name": "Wetlands" }, { "source": "LIV", "id": "Water resources", "name": "Water resources" }, { "source": "LIV", "id": "Environmental protection", "name": "Environmental protection" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc810328/", "id": "RL33263_2007Nov28", "date": "2007-11-28", "retrieved": "2016-03-19T13:57:26", "title": "The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20071128_RL33263_4bc19d94c9da0ef311588bab87a7d090655ec109.pdf" }, { "format": "HTML", "filename": "files/20071128_RL33263_4bc19d94c9da0ef311588bab87a7d090655ec109.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc818658/", "id": "RL33263_2007Jul26", "date": "2007-07-26", "retrieved": "2016-03-19T13:57:26", "title": "The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20070726_RL33263_67c4a595bd5acc3a09f180a8546f446268c9b47e.pdf" }, { "format": "HTML", "filename": "files/20070726_RL33263_67c4a595bd5acc3a09f180a8546f446268c9b47e.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc813356/", "id": "RL33263_2007Jan03", "date": "2007-01-03", "retrieved": "2016-03-19T13:57:26", "title": "The Wetlands Coverage of the Clean Water Act Is Revisited by the Supreme Court: Rapanos v. United States", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20070103_RL33263_765ea27d803c4c8031eb4cc7b100fc3c99756a73.pdf" }, { "format": "HTML", "filename": "files/20070103_RL33263_765ea27d803c4c8031eb4cc7b100fc3c99756a73.html" } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc821100/", "id": "RL33263_2006Sep12", "date": "2006-09-12", "retrieved": "2016-03-19T13:57:26", "title": "The Wetlands Coverage of the Clean Water Act is Revisited by the Supreme Court: Rapanos v. United States", "summary": "This report discusses the Supreme Court decision in Rapanos v. United States, which addressed the asserted jurisdiction of the U.S. Army Corps of Engineers and the Environmental Protection Agency (EPA) over wetlands adjacent to \"waters of the United States,\" the problematic phrase used by the Clean Water Act (CWA) to define the geographic scope of the act's wetlands permitting program.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20060912_RL33263_c53dae2bb7f39512317b387b09893cba2fc27115.pdf" }, { "format": "HTML", "filename": "files/20060912_RL33263_c53dae2bb7f39512317b387b09893cba2fc27115.html" } ], "topics": [ { "source": "LIV", "id": "Environmental protection", "name": "Environmental protection" }, { "source": "LIV", "id": "Supreme Court decisions", "name": "Supreme Court decisions" }, { "source": "LIV", "id": "Water resources", "name": "Water resources" }, { "source": "LIV", "id": "Wetlands", "name": "Wetlands" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metacrs9967/", "id": "RL33263 2006-02-02", "date": "2006-02-02", "retrieved": "2007-06-12T16:01:22", "title": "The Wetlands Coverage of the Clean Water Act is Revisited by the Supreme Court: Rapanos and Carabell", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20060202_RL33263_606238431191e7728e7ee6a41c9230e39aae9bf0.pdf" }, { "format": "HTML", "filename": "files/20060202_RL33263_606238431191e7728e7ee6a41c9230e39aae9bf0.html" } ], "topics": [ { "source": "LIV", "id": "Natural resources", "name": "Natural resources" }, { "source": "LIV", "id": "Supreme Court decisions", "name": "Supreme Court decisions" }, { "source": "LIV", "id": "Wetlands", "name": "Wetlands" }, { "source": "LIV", "id": "Wetland conservation - Law and legislation", "name": "Wetland conservation - Law and legislation" }, { "source": "LIV", "id": "Law", "name": "Law" }, { "source": "LIV", "id": "Water resources", "name": "Water resources" } ] } ], "topics": [ "Environmental Policy" ] }