The Constitutional Test for Wetlands Jurisdiction: Agencies in a Muddle

Fifteen years after the enactment of 404 of the Clean water Act, there continues to be substantial disagreement over a very basic question—what wetlands does the Act cover? In United States v. Riverside Bayview Homes, Inc., the U.S. Supreme Court confirmed that “adjacent” wetlands are within the geographic scope of the Act. However, the extent to which 404 regulates activities in “isolated” wetlands has yet to be resolved.