Drowning in Wetlands Jurisdictional Determination Process: Implementation of Rapanos v. United States

Today, through court interpretation and administrative agency adoption of related regulations, § 404 of the Clean Water Act of 1972 (the Act ) has become the major tool for protection of wetlands. Section 404(a) requires a permit from the United States Army Corps of Engineers for the discharge of dredged or fill material into the navigable waters at specified disposal sites. If the Corps concludes that development activity might harm wetlands subject to Corps jurisdictional protection, it can decline to issue a permit to allow development or issue a permit under conditions designed to protect the wetlands from harm. In the much anticipated case of Rapanos v. United States, it was expected that the Supreme Court would clarify federal wetland protection authority under § 404(a), specifically the authority to regulate and protect wetlands adjacent to non-navigable tributaries of traditional navigable waters. The decision generated more questions than it answered. Without majority support, the decision did not serve as the hoped for definitive vehicle for clarification of § 404(a) wetland protection authority. After briefly reviewing the hydro-geophysical features encompassed by wetlands, their importance, and the history of the Corps\u27 authority to protect wetlands, this article examines Rapanos and its precursor decisions and briefly considers the application of Justice Kennedy\u27s controlling concurring opinion significant nexus test to Arkansas wetlands. It then focuses on the impact of the decision on the process by which wetlands are determined to be within the jurisdictional requirements of § 404(a) of the Clean Water Act