A Decade of Uncertainty: Precon, Leaked Guidance, and Where to Go From Here?

As of early 2011, wetlands stakeholders have lived with Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) for more than a decade, and Rapanos v. United States, 547 U.S. 715 (2006) for half a decade. These U.S. Supreme Court decisions have increased uncertainty as to when the federal government is in charge of certain activities in waters of the United States. Yet, before SWANCC and Rapanos (in fact, immediately after the 1972 passage of the Clean Water Act (CWA)), professionals working with wetlands and other waters of the United States faced similar vexing questions: where does the authority to regulate begin and end? Should there be a change in that authority? How is that authority, wherever it begins and ends, best implemented? A few recent developments have brought these questions to the forefront in new and different ways.