2001 United States Supreme Court case
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 US Supreme Court that interpreted a provision of the Clean Water Act. Section 404 of the Act 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." That provision was the basis for the federal wetlands-permitting program.
The Court held that the use of the Corps of Engineers of the long-controversial "migratory bird rule," adopted by the Corps and Environmental Protection Agency (EPA) to interpret the reach of its Section 404 authority over discharges into "isolated waters" (including isolated wetlands), exceeded the authority that was 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," are also so covered.
Background.
SWANCC, a consortium of Chicago-area cities and villages, sought to develop landfill for baled nonhazardous solid waste (balefill) on a 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. In 1985, 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 -
[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, 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.
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 the power of Congress, 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 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 that section 404 is not ambiguous at all. 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. That concern is particularly strong, it said, where the agency interpretation permits encroachment on a traditional state power, in this case land and water use.
Dissent.
The dissent, written by Justice Stevens, stated that given "Riverside Bayview", 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 that there is no Commerce Clause problem since the discharge of dredged and fill materials into "waters of the United States" is an economic activity that may be aggregated to show a substantial effect on interstate commerce.
Impact.
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 case-by-case evaluations will then 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 by new laws or programs raises difficult political and resource questions.
The "SWANCC" decision also raises issues for Congress. One is whether confusion that may now exist about the extent of Clean Water Act jurisdictional waters and wetlands should be resolved, as well as what constitutional limits may apply. Another 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.
In 2001, the "SWANCC" decision continued the efforts of the five Supreme Court justices generally regarded as conservative to limit federal regulatory power. In 1995 and 2000, the same five justices found that Congress had exceeded Commerce Clause limits in enacting legislation dealing with possession of guns in school zones 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 in which, 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 Court did not grant a petition for certiorari in a similar 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 19th century and first half of the 20th 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-20th 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 justices in the majority opted for the latter and were unwilling to go beyond the erosion of that qualifier that had already been 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, on the basis of linkages with interstate commerce other than the interstate flight of migratory birds. (The Corps asserted 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