Federal jurisdiction over wetlands under the Clean Water Act (“CWA”) 1 has always been difficult to delineate. Wetlands, by definition can be difficult to classify as either water or land. The CWA attempts to regulate these areas; it prohibits discharge of material without a permit into “navigable waters,” which are in turn defined in section 1362(7) of the CWA as the “waters of the United States.” The Army Corps of Engineers 2 is charged with granting permits, and must make the determination of whether or not certain areas of wetlands fall within the jurisdiction of the CWA.3 The Corps has interpreted the phrase “navigable waters” very broadly to include waters “which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce.”4 The tributaries of any of these “waters” also fall within the Corps’ jurisdiction.5 Intrastate waters are covered if their “use, degradation or destruction . . . could affect interstate or foreign commerce.”6 Wetlands “adjacent” to waters, such as those described above, except waters that are themselves wetlands, also clearly fall within federal jurisdiction under the CWA.7 Jurisdictional problems arise however when there are bodies of water or wetlands close to but not directly connected to navigable waters. These areas may still have significant impact on the neighboring navigable waters if a developer fills them in, or an industrial site discharges pollutants into them. Thus the Corps of Engineers has sought to regulate some of these wetland areas, in order to hold true to the CWA’s overall goals “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.
Federal Wetlands Jurisdiction – The Quagmire of Rapanos v. United States