THE SUPREME COURT ADDRESSES CORPS OF ENGINEERS JURISDICTION OVER "ISOLATED WATERS": THE SWANCC DECISION
CRS Report for Congress
The Supreme Court Addresses Corps of
Engineers Jurisdiction Over “Isolated Waters”:
The SWANCC Decision
February 16, 2001
American Law Division
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Congressional Research Service The Library of Congress
The Supreme Court Addresses Corps of Engineers
Jurisdiction Over “Isolated Waters”:
The SWANCC Decision
On January 9, 2001, the Supreme Court handed down Solid Waste Agency of
Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. At issue in
SWANCC was the scope of Clean Water Act section 404, which requires permits for
the discharge of dredged or fill materials into “navigable waters,” defined by the Act
as “waters of the United States.” Section 404 is the charter for the federal wetlands
SWANCC explicitly held that the Corps of Engineers’ use of the “migratory bird
rule,” adopted by the agency to interpret the reach of its section 404 authority over
“isolated waters” (including isolated wetlands), exceeded the authority granted by that
section. Looking at the decision’s rationale rather than its holding, however,
SWANCC may be read more broadly to bar assertion of section 404 jurisdiction over
isolated waters on any basis, migratory bird rule or otherwise. The migratory bird
rule asserted that section 404 covers, among other waterbodies, isolated waters
“which are or would be used as habitat by ... migratory birds that cross state lines ....”
In 1985, the Supreme Court had sustained the assertion by the Corps and EPA
that waters and wetlands adjacent to navigable waters, interstate waters, or their
tributaries are “waters of the United States” under section 404. The question left for
SWANCC was whether waters and wetlands not so adjacent – “isolated waters” – also
are so covered. Such jurisdictional lines stand in contrast to the scientists’
perspective, which recognizes the value of wetlands based on water quality and other
physical functions which they perform, irrespective of whether the wetlands are
isolated or contiguous to other waters.
Estimates of waters and wetland acreage likely to be removed from the section
404 permitting program as a result of the SWANCC decision are very difficult to
assess, in part because of questions about Corps and EPA interpretation of the ruling,
but the decision may affect up to 79% of wetland acreage. One likely result is that
in those cases where case-by-case evaluations will be required to determine if
regulatory jurisdiction exists, the length of time to obtain section 404 permits will be
longer than in the past. If federal jurisdiction is diminished, the responsibility to
protect affected wetlands falls on states and local governments. A comprehensive
picture of their ability to protect wetlands, under various possible state and local
authorities, is difficult to draw together. Whether states will act to fill in the gap left
by removal of some federal jurisdiction through new laws or programs raises difficult
political and resource questions.
The SWANCC decision also raises issues for Congress. First is whether
confusion that may now exist about the extent of Clean Water Act jurisdictional
waters and wetlands should be resolved, and what constitutional limits may apply.
Second is whether to provide federal resources and incentives to encourage expansion
of state wetlands protection and regulatory programs or others that encourage
acquisition and conservation of wetlands.
Background of the Case.......................................1
The Supreme Court Decision...................................3
Legal Implications of the Decision...............................4
CWA Jurisdiction: Waters and Isolated Wetlands...................6
Policy Implications of the SWANCC Ruling........................7
Issues for Congress.........................................10
The Supreme Court Addresses Corps of
Engineers Jurisdiction Over “Isolated
Waters”: The SWANCC Decision
On January 9, 2001, the Supreme Court added another to its growing list of
recent decisions on the proper line of demarcation between federal and state authority
in our dual-sovereign system of government. In Solid Waste Agency of Northern
Cook County (SWANCC) v. U.S. Army Corps of Engineers,1 the Court addressed the2
geographic scope of Clean Water Act (CWA) section 404, which requires permits
for the discharge of dredged or fill materials into “navigable waters,” defined by the
Act as “waters of the United States,” and is the charter for the federal wetlands
SWANCC expressly held that the Corps of Engineers’ use of the long
controversial “migratory bird rule,” adopted by the Corps and Environmental
Protection Agency (EPA) in 1986 to interpret the reach of their authority over
discharges into “isolated waters,” exceeded the authority granted by section 404. As
we will discuss, however, the decision’s rationale may easily be read more broadly to
bar assertion of 404 jurisdiction over isolated waters on any theory, migratory bird
rule or otherwise.
This report discusses the background of the case, the Supreme Court’s decision,
and the legal and policy implications of the ruling for the CWA, especially for section
404. It discusses the ecological services and physical functions performed by
wetlands in maintaining water quality, including in isolated waters. States’ ability to
fill in any regulatory gaps resulting from the decision and issues for Congress also are
Background of the Case
SWANCC, a consortium of Chicago-area cities and villages, sought to develop
a landfill for baled nonhazardous solid waste on a 533-acre parcel in Illinois. The
parcel had been used for sand and gravel mining until about 1960. Since then, the
excavation trenches from the mining had evolved into ponds ranging in size from a
few feet across to several acres. SWANCC obtained the needed local and state
permits, but the Corps, based on the ponds and their use by migratory birds, asserted
jurisdiction under section 404 and denied a permit.
1121 S. Ct. 675 (2001).
233 U.S.C. § 1344.
Section 404 requires permits for discharges to dispose of dredged and fill
material into the nation’s navigable waters, such as when a landowner undertakes
activity to develop or otherwise improve his or her property. To assess whether this
requirement applies to a particular activity, a landowner must determine whether the
disposal site is a “water of the United States” within CWA jurisdiction. The
definitions of waters subject to CWA jurisdiction are contained in regulations of the
Corps of Engineers and EPA, the agencies with primary responsibility for3
administering section 404. Through judicial interpretation and regulatory changes
since the 1970s, the types of regulated waters have evolved from narrow to broad,
and also to include wetlands. Congress has not amended section 404 since 1977,
when it provided regulatory exemptions for categories of routine activities, such as
normal farming and forestry.
The SWANCC site ponds are known in section 404 parlance as “isolated
waters”– waters that are not traditionally navigable or interstate, nor tributaries
thereof, nor adjacent to any of these. Long ago, the Supreme Court in United States
v. Riverside Bayview Homes, Inc. upheld the Corps’ authority under section 404 to
regulate wetlands (and other waters) adjacent to navigable and interstate waters, and
their tributaries.4 It expressly left open the question, however, whether isolated
waters, not being adjacent, lie within the reach of section 404, or, for that matter,
within Congress’ power under the Commerce Clause of the Constitution.5 Both
before and after Riverside Bayview, the lower courts have wrestled with these
The Corps’ assertion of jurisdiction over the isolated waters at the SWANCC
site, as elsewhere, was based on a three-step argument. First, section 404 applies by
its terms to “navigable waters,” defined expansively by the CWA to mean “the waters6
of the United States.” Second, under 1977 regulations the Corps defines “waters of
the United States” broadly to include, in addition to traditionally navigable waters,
interstate waters, their tributaries, and adjacent wetlands, the following –
[all] other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation, or destruction of which could affect7
interstate commerce ....
Third, the Corps’ migratory bird “rule,” a 1986 attempt by the agency to clarify the
intrastate waters covered by this regulation, says that such “isolated waters” include
those “which are or would be used as habitat by ... migratory birds that cross state
3The Corps administers the permit program under section 404, pursuant to EPA guidelines.
CWA § 404(b); 33 U.S.C. § 1344(b). EPA also has veto authority over Corps permitting
decisions, though it is rarely exercised. CWA § 404(c); 33 U.S.C. § 1344(c).
4474 U.S. 121 (1985).
5Id. at 131 n.8.
6CWA § 502(7); 33 U.S.C. § 1362(7).
733 C.F.R. § 328.3(a)(3).
lines ....”8 The Corps had found that the water areas on the SWANCC site are used
as habitat by migratory birds that cross state lines.
In reading its section 404 jurisdiction broadly, the Corps was not without
congressional support. In defining “navigable waters” as “waters of the United
States,” Congress “evidently intended to repudiate limits that had been placed on
federal regulation by earlier water pollution control federal statutes ....”9 Indeed, the
conference report accompanying enactment of the CWA in 1972 states that “[t]he
conferees fully intend that the term `navigable waters’ be given the broadest possible
constitutional interpretation ....”10
The district court in SWANCC granted summary judgment to the Corps of
Engineers on the jurisdictional issue. On appeal, the U.S. Court of Appeals for the
Seventh Circuit ruled in favor of Corps jurisdiction as well. The Seventh Circuit
found that Congress has the authority under the Commerce Clause of the11
Constitution to regulate isolated waters, and that Congress, in enacting section 404,
intended to reach such waters. The Supreme Court reversed.
The Supreme Court Decision
As with many other Supreme Court decisions involving the line between federal
and state power, the SWANCC ruling saw the Court divide into now-familiar 5-4
voting blocs. The five-justice majority opinion, in one reading, concluded only that
the Corps and EPA could not continue to use the migratory bird rule to assert section
that the `Migratory Bird Rule’ is not fairly supported by the CWA.”12 The decision’s
rationale, however, was broader, appearing to preclude federal assertion of section
404 jurisdiction over isolated waters on any basis. Stated the Court: “In order to rule
for [the Corps], we would have to hold that the jurisdiction of the Corps extends to
ponds that are not adjacent to open water. But we conclude that the text of the13
statute will not allow this.”
851 Fed. Reg. 41,206, 41,217 (1986) (in preamble).
9Riverside Bayview, 474 U.S. at 133.
10S. Rep. No. 92-1236, at 144 (1972).
11U.S. Const. art. I, sec. 8, cl. 3: “The Congress shall have Power ... To regulate Commerce
... among the several States ....” Because the Constitution nowhere confers an express
authority on Congress to legislate for environmental protection, most federal environmental
statutes rest on the broad, contemporary reading of the Commerce Clause.
12121 S. Ct. at 680. See also 121 S. Ct. at 684 (“We hold that 33 CFR §328.3(a)(3) (1999),
as clarified and applied to petitioner’s balefill site pursuant to the `Migratory Bird Rule,’ 51
Fed. Reg. 41217 (1986), exceeds the authority granted to respondents under §404(a) of the
13121 S. Ct. at 680 (emphasis in original).
In any event, the Court deemed it unnecessary to reach the constitutional issue
pressed by SWANCC: whether, had the migratory rule been authorized under the
CWA, it exceeded Congress’ power under the Commerce Clause.
The majority opinion, written by Chief Justice Rehnquist, held that Congress, in
enacting the 1977 amendments to the CWA, had not implicitly approved the Corps’
broad definition of “navigable water” adopted that year14 under the original 1972-
enacted CWA. For example, Congress’ failure to pass a bill in 1977 containing a
narrow definition of navigable waters had not been shown by the Corps, said the
majority, to constitute congressional approval of the Corps’ broad definition. The
majority then declined to afford the Corps the customary deference granted agency
interpretations of ambiguous statutes. For one thing, it said, section 404 is not
ambiguous at all. And even if it were, deference is not appropriate where an agency
interpretation of a statute “invokes the outer limits of Congress’ power” – a reference
to the Court’s milestone decisions in recent years involving the reach of the
Commerce Clause. This concern is particularly strong, it said, where the agency
interpretation permits encroachment on a traditional state power – here, that over land
and water use.
The dissent, penned by Justice Stevens, asserts that given Riverside Bayview’s
holding that the CWA went beyond navigable waters, embracing marshes and inland
lakes adjacent thereto, there is no principled reason to stop there. The 1972 CWA,
in the dissent’s view, offers no support for such a constraint, and the 1977 CWA
amendment supports coverage of isolated waters. Moreover, the dissent declares,
there is no Commerce Clause problem, since the discharge of dredged and fill
materials into “waters of the United States” constitutes an economic activity that may
be aggregated to show a substantial effect on interstate commerce.
Legal Implications of the Decision
The SWANCC decision continues the efforts of the five Supreme Court justices
generally regarded as conservative to limit federal regulatory power. In 1995 and
2000, these same five justices found that Congress had exceeded Commerce Clause
limits in enacting legislation dealing with possession of guns in school zones15 and16
violence against women. To be sure, the Supreme Court in SWANCC did not reach
the constitutional question, but rather disposed of the case on purely statutory
grounds. Nonetheless, its analysis of the CWA has, as noted, a strong undercurrent
of the same Commerce Clause and federalism concerns. In not addressing the
constitutional issue, SWANCC resembles another recent Commerce Clause decision
where, as in SWANCC, the Court used the possibility of Commerce Clause issues
being raised by a broad interpretation of a federal statute to support its adoption of
a narrow reading.17 The next event to watch for in this constitutional area is the
14See text accompanying note 7.
15United States v. Lopez, 514 U.S. 549 (1995).
16United States v. Morrison, 120 S. Ct. 1740 (2000).
17Jones v. United States, 120 S. Ct. 1904 (2000).
Court’s decision whether to grant the pending petition for certiorari in a Commerce
Clause challenge to the Endangered Species Act.18
The problem underlying the SWANCC decision arises largely from the history of
some jurisdictional terms used by Congress in water-related statutes. In the
nineteenth century and first half of the twentieth century, Congress set the scope of
many such statutes as the “navigable waters” of the United States. This made sense
because Congress was focussed on fostering waterborne commerce, and the Supreme
Court had obliged by articulating a broad vision of federal power over navigation. A
prominent example, and a forerunner of the CWA, was the Rivers and Harbors Act
of 1899, particularly its section 13 known as the “Refuse Act.”19 With the shift in
emphasis in the mid-twentieth century from protection of navigation to protection of
the environment, however, the phrase “navigable waters” was no longer a comfortable
fit. Notwithstanding, Congress used “navigable waters” in 1972 when it wrote the
CWA, including section 404, accommodating the broader concerns of environmental
protection by defining “navigable waters” expansively to mean “waters of the United
States.” The question in SWANCC was whether this definition entirely removed the
“navigable” qualifier from the Act, or merely limited it. The majority justices opted
for the latter, and were unwilling to go beyond the erosion of this qualifier already
accepted by the Court in Riverside Bayview.
SWANCC’s implications for the scope of the federal wetlands permitting
program are certain to be significant, but it will take years of litigation before they are
fully clear. A key source of confusion is the aforementioned disconnect between the
decision’s narrow holding and broad rationale. The latter appears to preclude any
effort by the Corps to assert jurisdiction over isolated waters, including isolated
wetlands, based on linkages with interstate commerce other than the interstate flight
of migratory birds. (The Corps did assert such non-migratory-bird linkages after the
litigation commenced, noting that SWANCC’s municipal landfill is clearly of a
commercial nature and, when aggregated with similar activity elsewhere, would
substantially affect interstate commerce. The Supreme Court declined to consider this
argument, pointing out that landfill activity is a “far cry” from the “waters of the
United States” to which the CWA extends.) Plainly, the degree of section 404
program contraction occasioned by SWANCC will depend on which aspects of the
decision shape the government’s response.
On that point, a legal memorandum issued by the Corps and EPA on January 19,
2001,20 hews more closely to the narrow holding, though in tentative terms. The
memorandum notes the above-discussed difference between the SWANCC rationale
and holding, and, presumably as a result, takes a case-by-case approach as to the
18Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3383
(Nov. 22, 2000) (No. 00-844).
1933 U.S.C. § 407.
20Memorandum by Gary Guzy, General Counsel, EPA, and Robert W. Andersen, Chief
Counsel, Corps of Engineers, “Supreme Court Ruling Concerning CWA Jurisdiction over
Isolated Waters” (Jan. 19, 2001). 9 p.
waters falling within the coverage gap (last item below). In summary, the
memorandum asserts that –
•Traditionally navigable waters, interstate waters, their tributaries, and
wetlands adjacent to each are still covered.
•Intrastate waters that could affect interstate commerce solely by virtue of
their use as habitat for migratory birds are no longer covered.
•As to intrastate waters having other (non-migratory bird) connections to
interstate commerce, staff is advised to consult agency legal counsel. For
example, waters that are isolated and intrastate, but nonetheless navigable
(such as the Great Salt Lake in Utah) may still support jurisdiction “if their
use, degradation, or destruction could affect interstate or foreign commerce
The guidance goes on to state its view that the SWANCC holding, while important,
is “limited,” and must be interpreted in light of other Supreme Court precedents
“which ... broadly uphold CWA jurisdictional authority.”
Another source of uncertainty for the wetlands permitting program will be the
extent to which, lacking any clear authority over isolated waters now, the Corps may
seek to recharacterize wetlands from that category to ones over which its section 404
authority remains undisputed. For example, the concept of traditionally navigable
waters is an elastic one, covering all waters that are now navigable, were once21
navigable, or could reasonably be made navigable in the future. Another example
is the “adjacent wetlands” jurisdiction upheld in Riverside Bayview. One might think
the concept of adjacency to be relatively clear, but in Riverside Bayview itself, the
wetlands in question were only “near” the shores of the lake – “part of a wetland that22
actually abuts on a navigable waterway.” The Court expressly noted that the
concept of adjacent wetlands includes those adjacent wetlands “that are not the result
of flooding or permeation by water having its source in adjacent bodies of water,”23
approving the Corps view that wetlands may affect the water quality of adjacent
waterbodies by functioning as integral parts of the same aquatic environment.
It is not known whether the newly arrived Bush Administration would support
such recharacterization efforts.
As a final legal matter, we note that by interpreting the scope of “waters of the
United States” as used in section 404, SWANCC will affect the scope of other CWA
sections whose jurisdictional scope is defined by that same phrase. Such sections
include those governing oil spill cleanup (section 311), the National Pollutant
Discharge Elimination System permit program (section 402), and state water quality
certification (section 401).
21United States v. Appalachian Power Co., 311 U.S. 377, 408 (1940).
22474 U.S. at 124, 135 (emphasis added).
23Id. at 134.
CWA Jurisdiction: Waters and Isolated Wetlands
Long before the SWANCC case, there had been controversy and litigation over
whether isolated waters that are not adjacent to true navigable waters are properly
within the jurisdiction of section 404. Prior to SWANCC, virtually all U.S. wetlands
were, at least theoretically, subject to regulation under section 404. Philosophically,
the debate about isolated waters concerns whether the waters themselves and
wetlands not adjoining surface waters contribute to the CWA’s goals of restoring and
maintaining the chemical, physical, and biological integrity of the nation’s waters. In
the case of isolated waters that are wetlands, these questions are exacerbated because
wetlands may be seasonally dry or reduced in area and may not have the physical
characteristics of wetlands at all times. Some wetlands (swamps, bogs, and marshes)
are easily identified by the public as wetlands. Others are less obvious and require
sophisticated technical evaluation to determine that they have the three factors (water,
hydric or wet soil, and vegetation adapted for or requiring wetland conditions) that
scientists generally agree define wetlands.24 The result, in cases where wetlands are
less clearly identifiable, can be confusion and conflict between landowners and
regulators over national environmental goals and economic and property ownership
goals and values. Yet even these less obvious wetlands perform valuable ecological
Scientists recognize the value of wetlands based on a range of physical functions
that they perform. One group of functions relates to water quality. Wetlands are
good water filters: they remove and retain nutrients; they process chemical and
organic wastes; and they reduce sediment loads to receiving waters. Wetlands also
provide flood damage protection to urban and agricultural lands by storing flood
waters that overflow river banks or surface waters and by collecting waters in isolated
depressions. Wetlands recharge groundwater reserves that are hydrologically
connected to surface waters. According to a 1995 National Research Council report,
many of these functions occur irrespective of whether the wetlands are isolated or
contiguous to navigable waters, because of groundwater connections between isolated
wetlands and surface waters. Small, shallow wetlands that are isolated from rivers are
frequently important to waterfowl, the NRC said, for food and forage. Also, sites that
are intermittently flooded (even those that may be completely dry for several years)
can be important for storing flood waters and can have distinctive water-dependent
biota (plants and animals) that persist over dry intervals but return when water returns
to the site.25
Policy Implications of the SWANCC Ruling
Since the Court’s actual holding concerning CWA regulation was narrow, while
its rationale was wider ranging (as discussed above), the policy implications of how
much the SWANCC decision restricts federal regulation depend on how broadly or
narrowly the opinion is applied. Two scenarios are possible. A broad reading would
24 National Research Council. Wetlands: Characteristics and Boundaries. National
Academy Press, 1995: 50-55, 79-131.
25 Id. at 137-139.
be interpreted as knocking out all section 404 jurisdiction and Corps regulation of
isolated waters and wetlands. But a narrow reading, one asserting that jurisdiction
will be found lacking only if the sole connection to interstate commerce is the
presence of migratory birds and wildlife, would allow federal regulation of some
isolated waters to continue (e.g., in waters that are used by interstate travelers for
The question of which view the government would take was answered in a
January 19 memorandum issued jointly by EPA and the Corps for headquarters and
field/regional staff who work on the section 404 program, discussed above, in which
the agencies provide a legal interpretation of SWANCC based on a narrow reading of
the Court’s decision. Some observers anticipate that the agencies’ interpretation will
be tested in the courts.
A key policy question that may not be clearly answered for some time is how
regulatory protection of wetlands will be affected or reduced as a result of the
decision. Many types of isolated wetlands are not physically adjacent to navigable
waters and under a broad reading of the decision, would lack regulation. Major
wetland types that potentially would not be regulated include prairie potholes of the
Upper Midwest, wet meadows, river fringing wetlands along small nonnavigable
rivers and streams, lake fringing wetlands for smaller nonnavigable lakes, many
forested wetlands, playas and vernal ponds of Texas and other areas of the west,
seeps and spring, flats, bogs and large amounts of tundra in Alaska. A new report by
the Department of Interior’s Fish and Wildlife Service estimates that in 1997, there
were 105.5 million acres of wetlands on public and private lands in the conterminous
United States and that between 1986 and 1997, a net of 644,000 acres of wetlands
was lost.26 According to an analysis prepared by the Association of State Wetland
Managers (ASWM), accurate estimates of impacts of the decision on wetland
resources are not possible, in part because of uncertainty about how key terms in the
opinion (such as “adjacent” and “tributary”) will be defined, whether broadly or
narrowly. Still, ASWM believes that impacts are likely to be environmentally
Tentative state estimates which have been provided to the Association of
State Wetland Managers suggest 30% to 79% of total wetland acreage may
be affected...Even if SWANCC results in only a one percent loss of
America’s wetlands, the decision would cause more wetlands to be
destroyed than were lost in the past decade.27
While others may believe that a lesser percentage of the nation’s wetlands would be
so affected, there are no government estimates for comparison. In terms of regulatory
processes, however, one likely result of the SWANCC decision is that in those cases
where case-by-case evaluations will be required to determine whether the use,
degradation or destruction of the waters in question could affect interstate commerce
26 U.S. Fish and Wildlife Service. “Report to Congress on the Status and Trends of Wetlands
in the Conterminous United States 1986 to 1997.” January 2001, 84 p.
27 Kusler, Jon, Associate Director, Association of State Wetlands Managers. “The SWANCC
Decision and State Regulation of Wetlands.” Memorandum, Feb. 7, 2001: 8-9.
and, thus, if jurisdiction exists, the length of time for landowners to obtain section 404
permits will be longer than in the past.
The SWANCC decision affects not only privately owned lands but also isolated
waters and wetlands located on public lands: the federal government owns about one-
third of the nation’s lands. As a result of the Court’s decision, federal agency
decisions on these lands affecting isolated wetlands will no longer be subject to
section 404 permitting, although they will be subject to requirements of the National
Environmental Policy Act and Executive Orders dealing with wetlands, floodplain
management, and protection of migratory birds.
In addition to the section 404 program, questions arise about impacts of the
SWANCC ruling on other parts of the CWA, especially its principal permit program,
the National Pollutant Discharge Elimination System (NPDES) program under section
402. It requires permits for pollutant discharges from point sources (industrial
facilities and municipal sewage plants) into the nation’s waters. Another provision,
section 311, concerns liability for oil discharges into the nation’s waters. Neither of
these was at issue in this case but might be challenged through extension of the ruling.
The January 19 joint Corps-EPA memorandum states that federal implementation of
any other CWA provision that involves “waters of the United States” will be governed
by the same interpretation that applies to section 404. As a result, federal jurisdiction
to require NPDES permits or assess oil spill liability in some isolated waters could be
limited. These impacts will become clearer in time.
As noted previously, prior to SWANCC, virtually all U.S. wetlands were, at least
theoretically, subject to regulation under section 404. As federal jurisdiction is
diminished, the responsibility to protect affected wetlands falls on states primarily and
local governments, which also regulate some wetlands. State and local wetlands
regulatory programs focus primarily upon navigable waters, tributaries, and adjacent
wetlands. They supplement but do not substitute for federal jurisdiction. According
to the Association of State Wetland Managers (ASWM),28 14 states have some form
of regulatory program for freshwater wetlands, but they are quite variable.
Differences exist in part because freshwater wetland types vary greatly across the
nation and because of differing state preferences. Some of the state programs are
very comprehensive, but regulations in many of the 14 states are limited by wetland
size, mapping requirements, and exemptions for specified activities. According to
ASWM, state regulations do not generally apply to federal lands. Some of the states
with the largest isolated wetland acreages provide little or no state protection,
including Alaska, Louisiana, Texas, North Dakota, South Dakota, South Carolina,
North Carolina, Georgia, Nebraska, Kansas, and Mississippi.
Changes in section 404 jurisdiction would diminish use of one tool used by many
states to control activities affecting wetlands. In recent years, most states have
utilized CWA section 401 water quality certification programs in addition to or in lieu
of specific regulatory statutes. Section 401 requires that, before a federal permit or
28 Id. at 9-10.
license is issued, states must certify that the project complies with water quality
standards. This authority effectively gives states a veto power on the federal permit
or the ability to require conditions that become part of a permit. State water quality
certification has been used by a number of states to control activities affecting
wetlands without having to independently establish state permitting and enforcement
programs. But, where federal jurisdiction does not exist and no section 404 or other
federal permit is required, section 401 certification also is not required and thus is not
available as a tool for the state to evaluate the proposed activity.
A number of states that do not have wetlands laws on their books do have other
state environmental laws dealing with water quality or natural resources, and these29
may already provide substantial authority to regulate wetlands. However, a
comprehensive picture of states’ ability to protect wetlands, under various possible
authorities, is difficult to draw together. To fill in the gap left by removal of some
federal regulatory jurisdiction, states could adopt more comprehensive wetlands
regulatory statutes or wetland amendments to state pollution control statutes (possibly
including independent water quality certification programs) and rules. The latter, for
example, could integrate wetlands, water quality, and watershed management. States
do not have the constitutional constraints that the federal government does in enacting
legislation (i.e., whether a legislative action exceeds Congress’ power under the
Commerce Clause). Also, CWA section 404(t) expressly provides that the existence
of section 404 does not preempt state law governing the discharge of dredged or fill
material. However, whether states will take steps to expand wetlands protection in
response to the Court’s decision raises difficult political and resource questions (e.g.,
budget and staffing). It is quite likely that, among states, the SWANCC decision
pleases some and is opposed by others.
Issues for Congress
The Court’s ruling raises issues for Congress. First is whether confusion that
may now exist about the extent of CWA jurisdictional waters should be resolved. The
Court said that Congress has not authorized the Corps to regulate isolated waters that
are not adjacent to navigable waters. Some policymakers who hold the view that
Congress intended that the law be interpreted broadly may want to amend it to make
clear that section 404 and the CWA generally do apply to isolated wetlands and
waters. Whether such an action would be considered constitutional by the Supreme
Court remains to be seen. Others who favor an interpretation that limits federal
regulatory authority may find fault with EPA’s and the Corps’ reading of the
SWANCC decision and may want to amend the law to ensure a narrow jurisdictional
29California, for example, does not have a wetlands law and has used section 401 certification
to evaluate projects affecting wetlands. However, according to a memorandum prepared by
the chief counsel of the State Water Resources Control Board, irrespective of how the
SWANCC decision is interpreted, the state retains independent authority under its statutes to
regulate discharges of waste to all waters of the state, including those waters that are no
longer considered waters of the United States. Craig M. Wilson, chief counsel, California
State Water Resources Control Board. “Effect of SWANCC v. United States on the 401
Certification Program.” Memorandum, Jan. 25, 2001. 5 p.
Second is the issue of providing resources and incentives to encourage expansion
of state wetlands protection and other programs. Other than Michigan and New
Jersey, states have been reluctant to seek delegation of section 404 program authority
to them both because of the resource burden that would be required and because the
law currently does not allow states to issue permits for activities affecting traditionally
navigable waters. To the extent the SWANCC decision limits the scope of the federal
program, states are likely to be even less interested in assuming responsibility to issue30
section 404 permits. Some may want Congress to address how to assist states in
protecting wetlands through financial support (such as the EPA state wetlands grant
program, currently funded at $15 million per year), technical assistance, or other
possible incentives. Congress also could expand existing programs, such as the
Wetland Reserve Program, that provide incentives to private landowners for
protection of isolated wetlands through acquisition and easements, rather than
Finally, as noted above, the views of the new Bush Administration on these
issues are unknown for now. The Supreme Court’s SWANCC decision and the
Corps’ and EPA’s interpretation of it preceded Inauguration Day. Thus, it is unclear
what directives and guidance, if any, the White House will provide to the agencies or
how the Administration might respond to legislative initiatives in Congress or other
possible proposals concerning state wetland or incentive programs
30 CWA section 404(g) currently authorizes EPA, in consultation with the Corps, to delegate
the federal section 404 permitting function to qualified states. Only New Jersey and Michigan
have, so far, sought and received this authority. Other states cite a number of factors for not
seeking program authorization, including the resource burden required to staff and operate a
separate state office. Further, section 404(g)(1) provides that state authorization may not
include traditionally navigable waters, so even before SWANCC, states’ authority to
administer the federal 404 permit program has been limited and is more restricted by the
diminished jurisdiction resulting from the Court’s decision.