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Once More, With Feeling: Reaffirming the Limits of Clean Water Act Jurisdiction


Jonathan H. Adler


Case Western Reserve University School of Law; PERC - Property and Environment Research Center


Case Legal Studies Research Paper No. 07-6
Vermont Law School Monograph, Forthcoming

Abstract:     
The Supreme Court's decision reaffirming limits on federal regulatory jurisdiction in Rapanos v. United States was significant, but hardly revolutionary. The Court's holding that the Clean Water Act only reaches those wetlands with a significant nexus to navigable-in-fact waters followed directly from its prior decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in which the Court held the CWA did not extend to isolated, intrastate waters because they lack a significant nexus to navigable waters. Rapanos and SWANCC suggest the Court is reluctant to conclude Congress has authorized far-reaching federal regulatory controls over private land use, absent explicit statutory language to the contrary. Such a federalism clear statement rule may be in tension with some environmental concerns, but it need not hamper environmental conservation. Environmental progress is wholly consistent with meaningful limits on federal power. If the federal government is to play an optimal role in the protection of wetlands, and match its efforts to those aspects of wetland conservation that require action of a federal scope, it would concentrate its efforts in those areas where non-federal efforts are most likely to be insufficient. The challenge to policy makers is to adapt conservation measures to the broader legal landscape and recognize that environmental protection can live within legal limits.

Number of Pages in PDF File: 28

Keywords: Rapanos v. United States, section 404 of Clean Water Act, wetlands, federal land use legislation, EPA, private land use, federal regulatory jurisdiction, United States v. Lopez, SWANCC

JEL Classification: K30, K32, Q28

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Date posted: March 6, 2007  

Suggested Citation

Adler, Jonathan H., Once More, With Feeling: Reaffirming the Limits of Clean Water Act Jurisdiction. Case Legal Studies Research Paper No. 07-6; Vermont Law School Monograph, Forthcoming. Available at SSRN: http://ssrn.com/abstract=967356

Contact Information

Jonathan H. Adler (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)
HOME PAGE: http://www.jhadler.net
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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