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.