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In Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the Supreme Court sided with AGC, confirming that the Clean Water Act (CWA) does not apply to all wetlands, ditches and the like, however remote they may be.
Four members of the Court would limit the regulated "waters of the United States" to “those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’" Even Justice Kennedy -- who provided the fifth and decisive vote, but wrote only for himself -- agreed that “mere hydrologic connection should not suffice in all cases.”
AGC had urged the Court to clarify that the U.S. Army Corps of Engineers (Corps) does not have jurisdiction over construction activities in or adjacent to remote wetlands and manmade drainages that have little or no nexus with “waters of the United States.” AGC and several of the associations in the real estate development industry filed a single brief explaining that such waters have little capacity to filter or purify water running into truly navigable waters, or to prevent the flooding or erosion of such waterways.
The limits of federal control over waters and wetlands have significant implications for contractors. CWA Section 404 requires contractors (and landowners) to obtain permits from the Corps before performing mechanized earth moving activities, or placing fill material, in “waters of the United States,” including wetlands that are adjacent to “navigable” waters or their tributaries. The Section 404 permitting process is time consuming and expensive. Moreover, application for a Section 404 permit often triggers extensive consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act. The current state of uncertainty has led Corps field staff to make inconsistent and often overreaching jurisdictional determinations.
As it analyses the details of the decision, AGC will also be looking to the Corps of the Engineers and the U.S. Environmental Protection Agency for signs of interest in a rulemaking that could eliminate the remaining uncertainty over the scope of their jurisdiction. For more than three years, AGC has been strongly advocating just such a rulemaking.
-Source: AGC of America
 
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