September 2023 - Parks & Recreation - 31

over " the waters of the United
States " to cover 270-to-300 million
acres of wetlands and virtually
any parcel of land containing a
channel or conduit through which
rainwater or drainage may occasionally
or intermittently flow.
The Rapanos Case
In the case of Rapanos v. United
States, 547 U.S. 715, 722, 126 S.
Ct. 2208, 165 L. Ed. 2d 159 (2006),
the Supreme Court vacated a lower
court that had held " the CWA
covered wetlands near ditches and
drains that eventually emptied into
navigable waters at least 11 miles
away. " In so doing, four Justices
had concluded the CWA's coverage
did not extend beyond the following
two categories:
[F]irst,
certain
relatively permanent
bodies of water connected
to traditional interstate navigable
waters and, second, wetlands with
such a close physical connection to
those waters that they were " as a
practical matter indistinguishable
from waters of the United States. "
In addition, one Justice had concluded
jurisdiction under the CWA
requires
a " significant
Agency Rulemaking
Guidance
As noted by the Court, agency officials
were " instructed to assert jurisdiction
over wetlands 'adjacent'
to non-navigable tributaries based
on fact-specific determinations regarding
the presence of a significant
nexus. " In addition, officials were
further advised " to make this determination
by considering a lengthy
list of hydrological and ecological
factors. " In so doing, the Court noted
the agencies had admitted that
" almost all waters and wetlands
across the country theoretically
could be subject to a case-specific
jurisdictional determination " under
this guidance. 2008 Guidance 8.
As described by the Court, more
recently, the agencies had engaged
in a flurry of rulemaking to define
" the waters of the United States. "
As characterized by the Court, a
2015 rule would subject " the vast
majority of the nation's water features "
to a case-by-case jurisdictional
analysis:
Although the rule listed a few
examples of " waters " that were
excluded from regulation
like
" puddles " and " swimming pools, "
it categorically covered other waters
and wetlands, including any
within 1,500 feet of interstate or
traditional navigable waters. And
it subjected a wider range of other
waters, including any within
4,000 feet of indirect tributaries of
interstate or traditional navigable
waters, to a case-specific determination
for significant nexus.
nexus "
between wetlands and navigable
waters. The required " significant
nexus " would only exist and where
" the wetlands, either alone or in
combination with similarly situated
lands in the region, significantly
affect the chemical, physical, and
biological integrity " of those waters.
As
described by the Court, in response
to Rapanos, the EPA and the
Corps issued guidance documents
that " recognized larger grey areas
and called for more fact-intensive
individualized
determinations
those grey areas. "
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