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“Waters of the United States” and the Future of Wetlands Protection

September 2019

Citation: ELR 10821

Author: Hannah Keating, Amanda Waters, Joel Gerwein, Greg Sutter, and Angela Waupochick

Federal jurisdiction over wetlands was muddied by the U.S. Supreme Court’s 2006 decision in Rapanos v. United States, a fractured 4-1-4 ruling with no clear majority. The Trump Administration is relying on Justice Scalia’s plurality opinion as the basis for amending the regulatory “waters of the United States” (WOTUS) definition, which could remove federal protections for many wetlands currently regulated under the Clean Water Act. States and localities are struggling with how to update and clarify their own wetland-related regulations in light of these everevolving developments. On May 7, 2019, ELI hosted an expert panel that explored the implications of Rapanos and the proposed new WOTUS rule for the future of wetlands. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Hannah Keating is Manager of Educational Programs at the Environmental Law Institute. Amanda Waters (moderator) is General Counsel at the National Association of Clean Water Agencies. Joel Gerwein is Deputy Regional Manager of the California State Coastal Conservancy. Greg Sutter is Vice President and General Manager at Westervelt Ecological Services. Angela Waupochick is a Hydrologist with the Stockbridge-Munsee Community Band of Mohicans.

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