The Rapanos case, as we've written about previously, ran counter to the intention of the original sponsors of the Clean Water Act, and thus has been the cause of confusion and other problems.
Now the ELI study shows how the U.S. Army Corps of Engineers has used the ruling to duck its responsibilities under the Clean Water Act by claiming it lacked jurisdiction to require permits.
ELI reviewed all of the Corps' publicly available online determinations from 2008 and 2009 that it lacked federal jurisdiction to require permits to alter wetlands because of Rapanos. That meant examining more than 2,500 wetland jurisdiction determinations from 31 Corps districts.
Over and over, the study found, the Corps cited Rapanos to claim no jurisdiction over ephemeral streams, prairie potholes, vernal pools, arroyos, bogs, Carolina bays, closed-basin lakes, oxbow wetlands, playas, and Southeast coastal plain gum pond wetlands -- even though, the study notes, " these wetlands provide valuable ecological services."
"Our study identifies loopholes in our Clean Water Act jurisdiction," ELI President John Cruden said. "The report should help state, local, and tribal governments fill the gap and protect vulnerable aquatic resources.” At least, until the next time the Supreme Court bungles a wetlands case.