In the Washington Watch article in the March issue of the AIBS journal, BioScience, Adrienne Sponberg reports on recent machinations related to the Clean Water Act. To read this and other Washington Watch columns online for free, visit http://www.aibs.org/washington-watch/. An excerpt from the March article is below.
For two decades, Michigan developer John Rapanos battled the US government over the extent of protection for wetlands and streams under the Clean Water Act (CWA). Now, more than two years after the Supreme Court issued its 4-1-4 split decision, Rapanos and the government have reached a settlement: Rapanos will pay a $150,000 civil fine and about $750,000 more to mitigate 54 acres of wetlands that were filled without authorization. While Rapanos may finally have some closure, confusion over CWA protections remains, leaving all three branches of the federal government struggling to provide clarity for CWA implementation and enforcement.
The main source of confusion? The three opinions the Supreme Court issued in the Rapanos case set forth different tests for whether a body of water is protected. Lower courts have interpreted the Rapanos decision inconsistently. Some circuit courts have cited Justice Kennedy’s “significant nexus” test as the controlling law; others have employed Justice Scalia’s stricter interpretation in the plurality opinion: waters must be continuously flowing and have a surface connection to navigable waters. These conflicting jurisdictional tests led the Department of Justice (DOJ) to petition the Supreme Court for a clarification of Rapanos. In arguing for the review, the DOJ warned that confusion caused by different interpretations of Rapanos will “inevitably hinder the [government’s] ability to implement the Act in a uniform and workable fashion.” Nevertheless, the Supreme Court denied the DOJ’s request.
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