scope:

PREFACE

This document is intended to provide an overview of the body of case law related to the federal government's jurisdiction under the Clean Water Act. Specifically, this document traces the origins in case law of the scope of jurisdiction over "navigable waters"/"waters of the United States." This document includes some very early cases related to the federal government's regulation of waterways as highways of interstate commerce. These cases do not relate to environmental regulation; they are provided simply to provide some historical perspective.

This document is by no means exhaustive. While it does include select unpublished decisions, there may be other cases related to this topic that are not included. Furthermore, this document should not be used as a substitute for legal research. Any parties interested in analyzing the case law related to this topic should read the relevant cases, check each case for any subsequent history, and consult legal counsel.

Included as Appendix A is a matrix of the cases; Appendix B is the Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States," 68 Fed. Reg. 1991 (Jan. 15, 2003), which contains clarifying guidance on Clean Water Act jurisdiction (See Appendix A of the Advance Notice at page 1995); Appendix C is a memorandum issued jointly by the Environmental Protection Agency and the Army Corps of Engineers, entitled EPA and Army Corps Issue Wetlands Decision, which announced that a rule would not be proposed on federal regulatory jurisdiction under the CWA; Appendix D is a breakdown of the thirteen federal judicial circuits; and Appendix E is an Alphabetical Index of Cases.

API publications may be used by anyone desiring to do so. Every effort has been made by the Institute to assure the accuracy and reliability of the data contained in them; however, the Institute makes no representation, warranty, or guarantee in connection with this publication and hereby expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal regulation with which this publication may conflict.