The Impact of Recent Supreme Court Decisions on Federal Jurisdiction of Streams

The relatively recent U.S. Supreme Court case that was expected to reduce confusion and shed some light on the jurisdiction of the Corps of Engineers and EPA over wetlands and streams in the United States has primarily resulted in confusion and frustration on the part of both regulators and those being regulated by the agencies. The Supreme Court decision had something for everyone — except a clear conclusion of what should be included as "Waters of the United States". This lack of clear guidelines or a "bright line test" has led to new guidance from the Corps that attempts to apply the muddy conclusions of the Rapanos decision. The decision from Rapanos is evaluated herein and the decision presented in a way that is (hopefully) more clearly understood than the three conflicting opinions contained therein. Tables have been developed that can be used to help navigate the already muddy waters of determining which streams and wetlands are jurisdictional and which are not.