March 01, 2014

Rapanos and the Clean Air Act: Linking Wetland and Single Source Determinations

Lauran M. Sturm

Seven years later, the impact of United States v. Rapanos, 547 U.S. 715 (2006), is clear in at least one respect: the decision did little to clarify the meaning of “waters of the United States,” especially with respect to “adjacent wetlands.” In Rapanos, a four-justice plurality, led by Justice Scalia, determined that such wetlands are subject to Clean Water Act (CWA) jurisdiction only if they have a “continuous surface connection” to bodies that are “waters of the United States” in their own right, such as navigable rivers. In contrast, wetlands with only an intermittent, physically remote hydrological connection to “waters of the United States” are not jurisdictional.

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