Clean Water Act Jurisdiction Still Unclear Three Years After Rapanos

I have been waiting for sometime to blog on the questions that have arisen about the scope of the Clean Water Act in the wake of the Rapanos decision. Much has been made of the Supreme Court's split opinion, which left everyone wondering exactly what constitutes a water of the United States that would be subject to federal jurisdiction under the Clean Water Act. The question is important, because many activities take place in locations far from streams that could be considered navigable, the traditional test of the CWA's reach under the Constitution. When that occurs, is the activity subject to federal programs, such as NPDES permitting and 404 wetlands permits, or is it subject only to state regulation?

Now Jessica Ferrell of the Marten Law Group beat me to the punch and did a fine job of summarizing the current state of the law. Rather than try to duplicate her work, I've provided a link to her article.

Congress has tried on several occasions in the last couple years to clarify the scope of the CWA and has failed. For all the grief the Supreme Court has taken on the fuzziness of its Rapanos test, it is fair to say that they are probably waiting on Congress to clear up any jurisdictional questons. That seems to me to be the best place to resolve a basically political question. Here's hoping they limit the federal reach to some reasonable extent that is consistent with a more reasonable application of the Commerce Clause.