EPA Expands Federal Regulation of Wetlands


More federal control over wetlands, local streams and adjacent lands was announced in an EPA/Corps of Engineers guidance document issued April 27, 2011. Reinterpreting Supreme Court decisions from the mid-2000s, EPA’s guidance document now asserts expanded permit and enforcement authority under the federal Clean Water Act to include intermittent streams and isolated ponds, particularly in the West. This new EPA guidance rejects policies issued by the Bush administration that interpreted the Supreme Court as limiting federal Clean Water Act jurisdiction.

Writing for the majority in a 2006 Michigan case, Rapanos v. United States, Justice Anthony Kennedy explained that the government could potentially assert jurisdiction over a particular wetland if it is able to establish a significant connection to interstate waters. However, the Court also drew some bright lines, holding that artificial lakes and ponds, roadside ditches and gullies, among others, are all exempted from federal oversight.

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