Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers
Encyclopedia
Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), was a decision by the Supreme Court of the United States
interpreting a provision of the Clean Water Act
. Section 404, , requires permits for the discharge of dredged or fill materials into "navigable waters," which is defined by the Act as "waters of the United States." This provision was the basis for the federal wetland
s permitting program.
The Court held that the Corps of Engineers
' use of the long controversial "migratory bird rule
," adopted by the Corps and Environmental Protection Agency (EPA) to interpret the reach of their section 404 authority over discharges into "isolated waters" (including isolated wetlands), exceeded the authority granted by that section!
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. In 1985, the Supreme Court 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.
-area cities and villages, sought to develop landfill for baled nonhazardous solid waste on a 533 acres (2.2 km²) 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, on the basis of the ponds and their use by migratory birds, asserted jurisdiction under section 404 and denied a permit.
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 for 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. 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
. Both before and after Riverside Bayview, the lower courts have wrestled with these questions.
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 waters 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 -
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 lines..." 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...." 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... '
The district court 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 the Constitution to regulate isolated waters, and that Congress, in enacting section 404, intended to reach such waters. The Supreme Court reversed.
The Court deemed it unnecessary to reach the constitutional issue pressed by SWANCC: whether the EPA's interpretation of the CWA 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 year 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 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.
and 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. The next event to watch for in this constitutional area is the Court's decision whether to grant the pending petition for certiorari in a Commerce Clause challenge to the Endangered Species Act
.
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 focused 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." 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.
SWANCCs 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, on the basis of 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 SWANCCs 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, 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 takes a case-by-case approach as to the 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 once 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 o/a wetland that 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," approving the Corps view that wetlands may affect the water quality of adjacent waterbodies by functioning as integral parts of the same aquatic environment.
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).
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.
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 105500000 acres (426,943.7 km²) of wetlands on public and private lands in the conterminous United States and that between 1986 and 1997, a net of 644000 acres (2,606.2 km²) of wetlands was lost. 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 significant.
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.
Scientists recognize the value of wetlands on the basis of 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 hydrological: connected to surface waters. According to a 1995 National Research Council report, many of these functions occur irrespective of whether the wetlands are isolated o contiguous to navigable waters, because of groundwater connections between isolate) 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 return to the site.
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.
, 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 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 these 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.
, 547 U.S. 715
(2006). In Rapanos, the Court further narrowed the scope of the term "waters of the United States," which "include[] only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
interpreting a provision of the Clean Water Act
Clean Water Act
The Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
. Section 404, , requires permits for the discharge of dredged or fill materials into "navigable waters," which is defined by the Act as "waters of the United States." This provision was the basis for the federal wetland
Wetland
A wetland is an area of land whose soil is saturated with water either permanently or seasonally. Wetlands are categorised by their characteristic vegetation, which is adapted to these unique soil conditions....
s permitting program.
The Court held that the Corps of Engineers
United States Army Corps of Engineers
The United States Army Corps of Engineers is a federal agency and a major Army command made up of some 38,000 civilian and military personnel, making it the world's largest public engineering, design and construction management agency...
' use of the long controversial "migratory bird rule
Migratory bird rule
The migratory bird rule, adopted by the United States Army Corps of Engineers and the Environmental Protection Agency asserted that the Clean Water Act covers regulation of isolated waters "which are or would be used as habitat by.....
," adopted by the Corps and Environmental Protection Agency (EPA) to interpret the reach of their section 404 authority over discharges into "isolated waters" (including isolated wetlands), exceeded the authority granted by that section!
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. In 1985, the Supreme Court 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.
Background
SWANCC, a consortium of ChicagoChicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
-area cities and villages, sought to develop landfill for baled nonhazardous solid waste on a 533 acres (2.2 km²) parcel in Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
. 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, on the basis of the ponds and their use by migratory birds, asserted jurisdiction under section 404 and denied a permit.
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 for 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. 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
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. Both before and after Riverside Bayview, the lower courts have wrestled with these questions.
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
Navigability
A body of water, such as a river, canal or lake, is navigable if it is deep, wide and slow enough for a vessel to pass. Preferably there are few obstructions such as rocks or trees to avoid. Bridges must have sufficient clearance. High water speed may make a channel unnavigable. Waters may be...
waters," defined expansively by the CWA to mean "the waters 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 affect interstate commerce
Third, the Corps' migratory bird rule
Migratory bird rule
The migratory bird rule, adopted by the United States Army Corps of Engineers and the Environmental Protection Agency asserted that the Clean Water Act covers regulation of isolated waters "which are or would be used as habitat by.....
, 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 lines..." 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...." 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... '
The district court granted summary judgment to the Corps of Engineers on the jurisdictional issue. On appeal, the U.S. Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
ruled in favor of Corps jurisdiction as well. The Seventh Circuit found that Congress has the authority under the Commerce Clause of the 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
The SWANCC ruling saw the Court divide 5-4. 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 404 jurisdiction over isolated waters. "We conclude," said the Court at one point, that the 'Migratory Bird Rule' is not fairly supported by the CWA." 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 the statute will not allow this."The Court deemed it unnecessary to reach the constitutional issue pressed by SWANCC: whether the EPA's interpretation of the CWA 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 year 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.
Dissent
The dissent, written by Justice Stevens, stated that given Riverside Bayviews holding that the CWA went beyond navigable waters, to embrace marshes and adjacent inland lakes would extend the CWA indefinitely. 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.Implications of the Decision
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.
Legal Implications
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 zonesUnited States v. Lopez
United States v. Alfonso Lopez, Jr., was the first United States Supreme Court case since the New Deal to set limits to Congress's power under the Commerce Clause of the United States Constitution.-Background:...
and violence against women
United States v. Morrison
United States v. Morrison, is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.-...
. 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. The next event to watch for in this constitutional area is the Court's decision whether to grant the pending petition for certiorari in a Commerce Clause challenge to the Endangered Species Act
Endangered Species Act
The Endangered Species Act of 1973 is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon on December 28, 1973, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and...
.
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 focused 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
Rivers and Harbors Act of 1899
The Rivers and Harbors Appropriation Act of 1899 is the oldest federal environmental law in the United States. The Act makes it a misdemeanor to discharge refuse matter of any kind into the navigable waters, or tributaries thereof, of the United States without a permit; this specific provision is...
, particularly its section 13 known as the "Refuse Act." 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.
SWANCCs 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, on the basis of 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 SWANCCs 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, 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 takes a case-by-case approach as to the 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
Great Salt Lake
The Great Salt Lake, located in the northern part of the U.S. state of Utah, is the largest salt water lake in the western hemisphere, the fourth-largest terminal lake in the world. In an average year the lake covers an area of around , but the lake's size fluctuates substantially due to its...
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 once 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 o/a wetland that 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," approving the Corps view that wetlands may affect the water quality of adjacent waterbodies by functioning as integral parts of the same aquatic environment.
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).
Policy Implications
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 o narrowly the opinion is applied. Two scenarios are possible. A broad reading would 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 recreation).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.
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 105500000 acres (426,943.7 km²) of wetlands on public and private lands in the conterminous United States and that between 1986 and 1997, a net of 644000 acres (2,606.2 km²) of wetlands was lost. 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 significant.
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.
Scientists recognize the value of wetlands on the basis of 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 hydrological: connected to surface waters. According to a 1995 National Research Council report, many of these functions occur irrespective of whether the wetlands are isolated o contiguous to navigable waters, because of groundwater connections between isolate) 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 return to the site.
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.
State Authority
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), 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 AlaskaAlaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, North Dakota
North Dakota
North Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
, South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
, North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
, Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
, Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
, Kansas
Kansas
Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...
, and Mississippi
Mississippi
Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
.
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 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 these 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.
Rapanos
Some of the issues left open by SWANCC were resolved by the Supreme Court's subsequent ruling in Rapanos v. United StatesRapanos v. United States
Rapanos v. United States, 547 U.S. 715 , was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel...
, 547 U.S. 715
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2006). In Rapanos, the Court further narrowed the scope of the term "waters of the United States," which "include[] only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,] ... oceans, rivers, [and] lakes.'"