I. Introduction and Overview

Traveling by water can conjure images of everything from goliath cruise ships to Huckleberry Finn's homemade raft. For some federal courts, however, navigable water need not accommodate even a toy sailboat. The Clean Water Act (CWA), although primarily concerned with protecting the nation's seas and rivers from pollution, also provides for federal jurisdiction over wetlands, a catchall term for bogs, swamps, and even large puddles that only exist during spring rains or flood seasons. The key to federal involvement is the term "navigable waters," which authorizes the federal government to prevent the filling of wetlands with dirt under the U.S. Commerce Clause. To facilitate this transfer, the U.S. Congress, the U.S. Army Corps of Engineers (the Corps), and courts have stretched, strained, and tortured common definitions and ideas about water and land, especially the term "navigable," to preserve broad federal jurisdiction. The Corps and U.S. Environmental Protection Agency (EPA) have exercised jurisdiction over wetlands that could never support any watercraft used in interstate commerce and the courts have been willing to bend. But only so far.

In January 2001, the U.S. Supreme Court stated that it could bend no further. The Court's decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers invalidated the migratory bird rule, promulgated by the Corps as the basis for jurisdiction over intrastate wetlands that were isolated from any navigable body of water. The wetlands at issue in SWANCC were a series of ditches and trenches from an abandoned gravel mining operation that filled with water over the years, but were not part of any stream or river. Although the Court admitted that "navigable water" should be construed broadly, it simply was not a reasonable interpretation of the statute for the Corps to completely eliminate the term from the CWA. Thus, the migratory bird rule was not faithful to the language of the statute or the intentions of Congress. The Corps would have to find another way to regulate these isolated, intrastate wetlands.