Turtles All the Way Down: A Clearer Understanding of the Scope of Waters of the United States Based on the United States Supreme Court Decisions

50 Pages Posted: 12 Apr 2021

See all articles by Jesse Richardson

Jesse Richardson

West Virginia University College of Law

Tiffany Lashmet

Texas A&M University - Texas AgriLife Extension Service

Gatlin Squires

affiliation not provided to SSRN

Date Written: 2021

Abstract

The meaning of “waters of the United States” under the Clean Water Act has been debated in Congress, federal agencies and courtrooms across the country for almost 50 years. Despite the longstanding attention to the term, most consider the term even more unclear today than in 1972 when the Clean Water Act was adopted. However, a methodical examination of the statutory and regulatory history and the United States Supreme Court decisions on the issue reveal more consensus than previously understood. In addition, this focused examination shows that the debate centers on one problem that the arguments rarely acknowledge: wetlands adjacent to a “tributary”. Specifically, litigants and agencies attempt to show that the wetland at issue lies close to some type of water, whether a ditch, drain, or creek. If that water eventually reaches a navigable water, no matter how indirect or attenuated the path, the wetland is arguably jurisdictional. This article distills the issues and clarifies the agreements and controversies surrounding “waters of the United States”.

Keywords: SCOTUS, United States Supreme Court, Clean Water Act, "waters of the United States", wetlands, tributary, navigable water, administrative law, water law, environmental law

JEL Classification: K00, K10, K23, K32

Suggested Citation

Richardson, Jesse and Lashmet, Tiffany and Squires, Gatlin, Turtles All the Way Down: A Clearer Understanding of the Scope of Waters of the United States Based on the United States Supreme Court Decisions (2021). William & Mary Environmental Law and Policy Review, Forthcoming, WVU College of Law Research Paper No. 2021-006, Available at SSRN: https://ssrn.com/abstract=3823405

Jesse Richardson (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506-6130
United States
3042939460 (Phone)

Tiffany Lashmet

Texas A&M University - Texas AgriLife Extension Service ( email )

600 John Kimbrough Boulevard
Suite 509
Stephenville, TX 77843
United States

Gatlin Squires

affiliation not provided to SSRN

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