I recently completed a short article summarizing my initial views on the implications of United States v. Rapanos. The article, “Reckoning with Rapanos: Revisiting “Waters of The United States” and the Limits of Federal Wetland Regulation,” is largely based upon my Congressional testimony, and will be published later this fall in the Missouri Environmental Law and Policy Review (MELPR) (Vol. 14, No. 1, 2006). In the meantime, it is available on SSRN here, and I’ve reproduced the abstract below:
Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of “waters of the United States” under the Clean Water Act. Although no single opinion in Rapanos commanded a majority of the Court, the Court delivered a discernible holding. Specifically, the Court held that the CWA jurisdiction over private lands is limited, and reaffirmed that federal regulatory authority only extends to those wetlands that have a “significant nexus” to navigable waters of the United States. While there is a clear holding in Rapanos, the lack of majority opinion will ensure continued litigation and uncertainty over the precise scope of federal regulatory authority under the CWA. Already, lower courts are adopting variable interpretations of the decision. Whether Rapanos results in an erosion of environmental protection will be a function of how various institutions and entities respond. Under Rapanos federal regulatory officials retain substantial leeway to define “waters of the United States” in expansive terms. The decision may also spur state and local governments to enhance their conservation efforts and induce policymakers at all levels of government to pursue more non-regulatory conservation strategies.