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A Nexus Runs Through It: Wetlands, Hydrological Connections, and Federal Jurisdiction in the Post-<i>SWANCC</i> World

March 2006

Citation: ELR 10222

Author: Jack Kerns

Editor's Summary: The U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) has certainly caused much confusion about the exact contours of wetlands jurisdiction. In this Article, Jack Kerns reviews the circuit and district court decisions that followed SWANCC and their development of the "hydrologic connection" test. He then asks whether groundwater can serve as a jurisdictional basis for wetlands as "waters of the United States." This issue is fraught with uncertainty, as groundwater cannot be readily observed. Nevertheless, the author concludes that with proper documentation and field verification, the answer may be yes.

Jack Kerns is an attorney with the U.S. Army Corps of Engineers (the Corps). He recently completed the LL.M. program in environmental law at George Washington Law School, and also has an M.E.S.M from the University of California, Santa Barbara. Please note that the information contained in this Article represents the views of the author and does not represent official policy of the Corps. He would like to acknowledge the following individuals for their valued assistance: Jane Hicks, Dan Martel, Ryan Pingree, and Phelicia Thompson.

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