HTML _ RL30849 - The Supreme Court Addresses Corps of Engineers Jurisdiction Over
16-Feb-2001; Claudia Copeland; 6 p.

Abstract: 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 permitting program. 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.

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Topics: Risk & Reform, Federal Agencies, Wetlands

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