Post-Rapanos fallout

The US Environmental Protection Agency (EPA) and the US Army Corps of Engineers exercise regulatory control under the Clean Water Act (CWA), 33 USC § 1251 et seq, over "navigable waters," which the statute defines as "the waters of the US," see id. §§ 1311, 1341(a), 1362(7). These agencies have promulgated regulations interpreting "waters of the US" to include many waters (and wetlands) that are not navigable-in-fact. In Rapanos v. US, 547 US 715 (2006), the Supreme Court attempted, largely unsuccessfully, to provide guidance as to the circumstances under which wetlands between those two end points are jurisdictional. In Rapanos, the federal government contended that it had regulatory jurisdiction over Rapanos' property because a hydrological connection existed between the wetlands on the property and a navigable-in-fact river that was several miles away. The Supreme Court has denied petitions for writ of certiorari in five of the seven circuit court decisions addressing the Rapanos split-decision question.