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Ever since the U.S. Supreme Court issued its opinions in Rapanos v. United States in 2006, it has been unclear exactly how the U.S. is to go about evaluating which wetlands and tributaries of navigable waters are subject to federal jurisdiction under the Clean Water Act. Until recently, the U.S. Army Corps of Engineers asserted federal jurisdiction over wetlands and tributaries even where their connection to open, traditionally navigable waterways were attenuated. This meant, among other things, that private developers had to obtain a permit from the Corps under Section 404 of the Clean Water Act before taking many actions that would affect these wetlands and tributaries. Developers complain of delay and hassle from the permitting requirements, while environmentalists believe the requirements are essential to ensure proper protection of wetlands and streams.
The Rapanos case narrowed the Corps’ permitting jurisdiction, but it is still very unclear what the Court requires of the Corps because there was no majority opinion issued in the case. Prof. Jonathan Adler blogged yesterday on this subject on the Volokh Conspiracy website, arguing (in the wake of a new Sixth Circuit decision interpreting the Supreme Court case) that many lower federal courts are misinterpreting the Supreme Court’s mandate. I disagree. He and I engaged in a colloquy in the discussion thread to his post that I recommend for readers interested in this question. Read the rest of this entry »