The Clean Water Land Grab: Congress Should Not Expand Federal Regulation under the Guise of "Restoring" Environmental Protections

By Adler, Jonathan H. | Regulation, Winter 2009 | Go to article overview
Save to active project

The Clean Water Land Grab: Congress Should Not Expand Federal Regulation under the Guise of "Restoring" Environmental Protections

Adler, Jonathan H., Regulation

In 1989, developer John Rapanos deposited dirt onto a portion of his property near Midland, MI. This was illegal, according to the U.S. Army Corp of Engineers, as Rapanos property contained federally designated wetlands, subject to regulation as "waters of the United States under the Clean Water Act (CWA), and Rapanos lacked a federal permit. The U.S. Supreme Court was not convinced. Upon hearing Rapanos's appeal, over 15 years after his alleged offense, the Court questioned whether the wetlands were indeed subject to federal regulatory jurisdiction.

Why the uncertainty? The CWA prohibits the unpermitted discharge of fill material into "navigable waters." But the wetlands at issue were over 10 miles away from the nearest navigable waterway and lacked any direct hydrological connection. One of the wetlands in question was connected to a manmade drainage ditch, which drained into a creek, which in turn flowed into the Kawkawlin River, which emptied into Saginaw Bay and Lake Huron. While the latter are unquestionably waters subject to CWA jurisdiction, a divided court held the Corps had to prove the law's expansive scope was capacious enough to encompass the wetlands in question. Specifically, the Court held the Corps needed to demonstrate Rapanos' property possessed a "significant nexus" to navigable waters before it could be regulated as "waters of the United States." Waters and wetlands lacking any discernible hydrological connection to navigable waters are simply beyond the scope of federal regulation.

Rapanos v. United States was not the first time the Supreme Court challenged a broad assertion of federal regulatory authority under the CWA. In a 2001 case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court rejected the Army Corps' claim that it could regulate an isolated intrastate lake in Illinois merely because it was used by migratory birds. Isolated intrastate waters lacking any meaningful connection to navigable waterways, the Court held, did not constitute "waters of the United States" subject to CWA regulation. While not every water or wetland subject to federal regulation had to be navigable itself, the Court refused to read the word "navigable" out of the act or countenance federal regulatory control over waters or wetlands lacking any connection to navigable waterways.


Environmentalist groups, among others, labeled Rapanos and SWANCC environmental disasters. Now, some members of Congress are seeking to overturn both decisions by amending the CWA. Their proposed legislation, the Clean Water Restoration Act (CWRA), purports to extend federal regulatory jurisdiction as far as it may go under the Constitution. Though promoted as a modest measure to "restore" pre-Rapanos regulatory authority, this legislation would dramatically expand the federal government's regulatory reach over waters, marginally wet lands, and much else. Billed as a measure to clarify the scope of federal jurisdiction, the legislation would in fact exacerbate existing regulatory uncertainty. Sold as a necessary environmental measure, it would do little to improve environmental protection. Like so much other environmental legislation, the CWRA is far more expansive and less desirable than it might at first appear.


The Clean Water Act (formally, the Federal Water Pollution Control Act) was enacted in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." It prohibits the "discharge of any pollutant"--defined to include dredged material, rock, sand, and solid or industrial waste--into "navigable waters" without a federal permit. Navigable waters, in turn, are defined simply as "waters of the United States."

This definition has left the scope of federal regulatory authority somewhat unclear. At the time of the CWA's passage, the Army Corps maintained wetlands were not included within the definition of "navigable waters.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Clean Water Land Grab: Congress Should Not Expand Federal Regulation under the Guise of "Restoring" Environmental Protections


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?