The United States Supreme Court has declined a request from the Justice Department to clarify the Court's Rapanos v. United States decision. In 2006, the Court split 4-1-4 on the Rapanos decision which questioned whether the Clean Water Act prohibition on unpermitted discharges into navigable waters extended to nonnavigable wetlands.

The Justice Department recently asked the Court to clarify its statements on federal regulations on wetland protection as the ruling relates to a current case involving an Alabama pipe manufacturer (McWane Inc. v. U.S.). The central issue in the McWane case is whether the neighboring stream being polluted by the defendant qualifies for protection under the Clean Water Act. Lower courts have differed in their interpretation of the Rapanos ruling. A recently identified Environmental Protection Agency (EPA) memo has also brought attention to the fact that the agency's enforcement of Clean Water Act violations has declined since the Rapanos case, likely a function of the jurisdictional uncertainty created by the decision.

The task of clearly defining waterways that are to be regulated may now fall at the feet of the 111th Congress. Senator Russell Feingold (D- WI) and Representative James Oberstar (D-MN) plan to introduce legislation that restores protections to wetlands that have lost protection following the Supreme Court's ruling that muddied the definition of "navigable waters."

On 3 December, possibly in response to the Court's inaction and general confusion about the matter, the EPA and the Department of the Army announced they are issuing a revised guidance to ensure that American waterways have improved protection under the Clean Water Act. "This revised interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations within the scope of the Clean Water Act," said John Paul Woodley Jr., Assistant Secretary of the Army for Civil Works.


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