Rapanos Case Study Essay

unilaterally expand the definition of “waters of the United States,” thereby expanding their jurisdictional powers, coupled with their control every aspect of the permitting process, including the discretion to decide whether to refer a violation for prosecution, and allowing the Corps to make unreviewable quasi-jurisdictional determinations as to whether a particular parcel of property is subject to its jurisdiction under the CWA, the Corps and EPA, in effect, are the judge, jury and executioner.
The structural limits on the exercise of constitutional power were not proposed because the founders were “anti-government” or as a way to upset democratic self-governance. The framers of the Constitution understood the need for a national government

In Rapanos, the Corps sought to include within its CWA jurisdiction any land containing a channel through which rainwater might occasionally flow. The plurality in Rapanos would have held that, in order to assert jurisdiction, the agencies must establish a “continuous surface connection” between the property in question and traditionally navigable interstate waters.” By contrast, Justice Kennedy’s significant nexus test would require a more complicated assessment of the “chemical, biological and hydrological connection between the property and other regulated waters.” Under both tests, the burden of proof rests on the agency asserting jurisdiction. Although the Corps purports to rely on Justice Kennedy’s “significant nexus” formulation, their claim of jurisdiction in such cases deprives that formulation of any meaning. Thus, the Supreme Court recently noted, the jurisdictional “reach of the [CWA] is notoriously unclear.” Sackett v. Environmental Protection Agency, 132 S.Ct. 1367, 1375 (2012) (observing that “[a]ny piece of land that is wet at least part of the year is in danger of being classified…as wetlands covered by the Act…”). As the Corps continuously expands definition of “waters of the United States,” and so does it expand its jurisdictional