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Last Lake Standing: Clean Water Act Jurisdiction in the Alaskan Frontier After <i>Rapanos v. United States</i>

July 2008

Citation: ELR 10473

Author: Matthew A. Axtell

Editors' Summary: Environmental professionals continue to consider the implications of the 2006 U.S. Supreme Court landmark decision regarding CWA jurisdiction, Rapanos v. United States. In this Article, Matthew A. Axtell uses Justice William O. Douglas'travel description of Alaska's Last Lake as a hypothetical to test the potential impact of the 2001 SWANCC decision as well as Rapanos on the federal government's CWA authority in Alaska. He begins by analyzing the CWA regulatory regime that applied for many years to Alaskan tundra wetlands before SWANCC and Rapanos. He then suggests that the broad assertions of federal authority under the old regime merit reevaluation in light of the Supreme Court's recent decisions. Finally, he applies concepts and guidance derived from SWANCC and Rapanos to the Last Lake hypothetical, studying whether the area may possess the physical, chemical, biological, and hydrological characteristics now necessary to qualify as a water of the United States subject to the CWA.

 

Matthew A. Axtell is an associate with Vinson & Elkins LLP, Washington, D.C. From 2002 to 2006, he was Assistant Counsel for Environmental Law in the Office of the Chief Counsel, U.S. Army Corps of Engineers, where he provided counsel on the Rapanos case.

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