Whence Clean Water Act Jurisdiction?

What sorts of water can the federal government regulate? Many people would be surprised to learn that there are limits to what water bodies the government can regulate. At one time it was limited to so-called navigable waters, meaning those that were navigable in fact. The Clean Water expanded that to "waters of the United States" (33 USC 1262(7)) which has been difficult for courts to define. At one time it included almost every body of water, on the theory that almost all surface water could somehow be involved in interstate commerce. There were some incredible stretches - for example, prairie potholes, which are not hydrologically connected to any interstate body of water, were nonetheless regulated under the CWA because they might be used as stopovers by ducks, which migrate between states, and might be shot by hunters, making it all interstate commerce.

In the last several years, the Supreme Court has started to introduce a little rational thought into what constitutes waters of the United States. Its most recent decision, the Rapanos case, involved a split decision that unfortunately only muddied the waters. Nevertheless, it is the latest statement by the Supreme Court, and must be considered by anyone interested in this area of the law. This issue - the extent of the reach of the federal government under the Clean Water Act, is one of the hottest issues in environmental law today. It's been the subject of cases, administrative interpretations by the Corps of Engineers and EPA, Congressional debate, and probably hundreds of law review articles and seminar presentations.

Resolution of CWA jurisdiction it is going to be crucial in WV, in mining and oil and gas contexts, among other things. I can't begin to do the issue justice here, but if you're interested in an understandable discussion of the Rapanos decision, try going to http://legalplanet.wordpress.com/2009/02/09/how-do-we-decide-what-is-a-water-of-the-united-states-rapanos-revisited/ It doesn't have everything on the topic, but it's a readable exegesis of the Rapanos mess.