{
  "id": "RL30849",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "RL30849",
  "active": false,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 100302,
      "date": "2001-02-16",
      "retrieved": "2016-05-24T20:27:17.707941",
      "title": "The Supreme Court Addresses Corps of Engineers Jurisdiction Over \"Isolated Waters\": The SWANCC Decision",
      "summary": "On January 9, 2001, the Supreme Court handed down  Solid Waste Agency of Northern\nCook County\n(SWANCC) v. U.S. Army Corps of Engineers . At issue in  SWANCC  was the\nscope of Clean Water\nAct section 404, which requires permits for the discharge of dredged or fill materials into \"navigable\nwaters,\" defined by the Act as \"waters of the United States.\" Section 404 is the charter for the\nfederal wetlands permitting program. \n  SWANCC  explicitly held that the Corps of Engineers' use of the \"migratory bird\nrule,\" adopted\nby the agency to interpret the reach of its section 404 authority over \"isolated waters\" (including\nisolated wetlands), exceeded the authority granted by that section. Looking at the decision's\nrationale rather than its holding, however,  SWANCC  may be read more broadly to bar\nassertion of\nsection 404 jurisdiction over isolated waters on  any  basis, migratory bird rule or\notherwise. The\nmigratory bird rule asserted that section 404 covers, among other waterbodies, isolated waters\n\"which are or would be used as habitat by ... migratory birds that cross state lines ....\" \n In 1985, the Supreme Court had sustained the assertion by the Corps and EPA that waters and\nwetlands  adjacent to  navigable waters, interstate waters, or their tributaries are \"waters\nof the United\nStates\" under section 404. The question left for  SWANCC  was whether waters and\nwetlands not so\nadjacent - \"isolated waters\" - also are so covered. Such jurisdictional lines stand in contrast to the\nscientists' perspective, which recognizes the value of wetlands based on water quality and other\nphysical functions which they perform, irrespective of whether the wetlands are isolated or\ncontiguous to other waters.\n Estimates of waters and wetland acreage likely to be removed from the section 404 permitting\nprogram as a result of the  SWANCC  decision are very difficult to assess, in part because\nof questions\nabout Corps and EPA interpretation of the ruling, but the decision may affect up to 79% of wetland\nacreage. One likely result is that in those cases where case-by-case evaluations will be required to\ndetermine if regulatory jurisdiction exists, the length of time to obtain section 404 permits will be\nlonger than in the past. If federal jurisdiction is diminished, the responsibility to protect affected\nwetlands falls on states and local governments. A comprehensive picture of their ability to protect\nwetlands, under various possible state and local authorities, is difficult to draw together. Whether\nstates will act to fill in the gap left by removal of some federal jurisdiction through new laws or\nprograms raises difficult political and resource questions.\n The  SWANCC  decision also raises issues for Congress. First is whether confusion\nthat may now\nexist about the extent of Clean Water Act jurisdictional waters and wetlands should be resolved, and\nwhat constitutional limits may apply. Second is whether to provide federal resources and incentives\nto encourage expansion of state wetlands protection and regulatory programs or others that\nencourage acquisition and conservation of wetlands.",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": false,
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      "topics": []
    }
  ],
  "topics": [
    "American Law",
    "Constitutional Questions",
    "Environmental Policy"
  ]
}