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Extrajurisdictional Takings After SWANCC

October 2001

Citation: ELR 11225

Author: Timothy S. Bishop and Kermit Roosevelt

In January 2001, the U.S. Supreme Court, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),1 held that the U.S. Army Corps of Engineers (the Corps) lacks jurisdiction under the Clean Water Act (CWA) to require landowners and developers to obtain § 404 permits to dredge or fill isolated ponds and wetlands which are not navigable and not connected to navigable waters, but are used by migratory birds that fly across state lines. Since 1996, the Corps had asserted jurisdiction over isolated ponds and wetlands based on their actual or potential use by migratory birds. Thus the result of the SWANCC decision is that for the past 15 years, the Corps has been reviewing projects and issuing and denying permits despite having no jurisdiction to do so. Without having jurisdiction, the Corps has put landowners and developers to the often considerable delay and expense of seeking § 404 permits, has insisted on significant project modifications and costly mitigation, and has denied some permits outright. Furthermore, in some states (reportedly, for example, Indiana and Wisconsin), the jurisdiction of state agencies over isolated waters and wetlands piggybacked on the Corps' CWA jurisdiction; if there was no CWA jurisdiction, there was no state jurisdiction either. In those states, agency demands associated with CWA § 401 water quality certifications or otherwise, with regard to the fill of isolated waters, have similarly been outside the agency's jurisdiction and were improper.

This Dialogue explores whether agency-imposed limitations on land use that are later adjudicated to have been beyond the agency's jurisdiction—such as the Corps' improper assertion of regulatory jurisdiction over isolated waters and wetlands—may be takings under the Fifth Amendment to the U.S. Constitution. We call these "extra-jurisdictional takings." Whether there can be such a thing is a subject of a dispute that, after SWANCC, is no longer "just academic."

The authors are environmental litigators with the Chicago office of Mayer, Brown & Platt. Mr. Bishop briefed and argued the SWANCC case in the U.S. Supreme Court. The SWANCC briefs are available at http://www.mayerbrown.com/propertyrights.

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