The Clean Water Act: Where Should Federal Authority Dry Up?

 

In the 2006 plurality decision in Rapanos v. United States, the Supreme Court limited the scope of the Clean Water Act’s protection of “navigable waters” to only include those bodies of water that are “permanent, standing or continuously flowing,” and thus did not apply to channels through which water flows only some of the time.  A concurring opinion by Justice Kennedy held that Clean Water Act jurisdiction extended only to those wetlands and waters with a “significant nexus” to navigable waters.  Substantial litigation and regulatory uncertainty followed in the wake of the Rapanos decision, as courts, regulators, and private landowners sought to identify the statutory limits of federal regulatory authority.  In response to Rapanos and the resulting regulatory uncertainty, Representative James Oberstar (D-MN) introduced the Clean Water Restoration Act.  According to the Congressman’s website, this legislation would “fix the Clean Water Act.”  The legislation, if enacted, would significantly expand federal regulatory authority over waters and wetlands and would allow the Environmental Protection Agency and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are unconnected to any a major navigable waterway.  Is such legislation sound policy?  Would the Clean Water Restoration Act provide regulatory uncertainty or enhance environmental protection?  Or would it create further regulatory nightmares for private landowners?  Is Congress likely to consider this legislation during its current session?  If so, is the Obama Administration likely to support it? Join the Boston Lawyers Chapter and the Environmental Law & Property Rights Practice Group on March 26 as a panel of experts discuss these and other questions. 

Speakers:

• M. Reed Hopper, Principal Attorney, Pacific Legal Foundation;
• Professor Jonathan Adler, Director, Center for Business Law and Regulation, Case Western Reserve University School of Law
• Professor Patrick A. Parenteau, Senior Counsel, Environmental and Natural Resources Law Clinic, Vermont Law School
• Christopher Kilian, Vice President and Director, Vermont Advocacy, Conversation Law Foundation
• Moderator: Leigh A. Gilligan, McCarter & English

There is no cost for this event. 

Please call (617) 449-6699 or e-mail [email protected] to RSVP.

Reception to follow.