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Testing Rapanos: United States v. Robison and the Future of “Navigable Waters”

By Thomas L. Casey
February 16, 2009
An apocryphal tale concerning Justice Story relates that “if a bucket of water were brought into his court with a corncob floating in it, he would at once extend the admiralty jurisdiction of the United States over it.” Something similar certainly could be said of both the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (“Corps”) in their eff orts to administer and enforce the Clean Water Act (CWA). Since the advent of the modern CWA in 1972, the EPA and the Corps have expanded their jurisdiction under the Act over “navigable waters” to include nonnavigable streams and wetlands remote from any genuinely “navigable” waterways, as that concept was understood historically. The U.S. Supreme Court often acquiesced in this eff ort, affirming unanimously in United States v. Riverside Bayview Homes that the Corps could exercise its CWA jurisdiction over wetlands adjacent to other waters covered under the Act, including tributaries of traditionally navigable waterways....