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Navigating <I>SWANCC</I>: An Examination of the U.S. Army Corps of Engineersâ

August 2004

Citation: ELR 10723

Author: Daniel Simmons

I. Introduction

For the last 25 years, the U.S. Army Corps of Engineers (the Corps), the U.S. Environmental Protection Agency (EPA), and courts have argued that the Clean Water Act (CWA) gave the Corps and EPA the authority to regulate waters in the United States to the full extent of the U.S. Congress' authority under the Commerce Clause. This assumption was rejected in 2001 when the U.S. Supreme Court handed down its decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The Court held that the presence of migratory birds did not provide the Corps regulatory authority over isolated ponds. In rejecting the Corps' broad assertion of regulatory authority, the Court limited the Corps' regulatory scope to conform with the limits in the CWA.

This Article asks: in light of SWANCC, what are the statutory limitations on the Corps' authority to regulate wetlands property under the CWA? The Article reviews the history of Congress' regulation of navigable waters, the history of the Corps' regulation of "navigable waters," the SWANCC decision, CWA's legislative history, and counterarguments to the holding in SWANCC. The Article concludes that the CWA provides authority for the Corps to regulate navigable waters as they have been traditionally defined and the power to regulate wetlands adjacent to navigable waters. The CWA does not provide authority of the Corps to regulate beyond those statutorily defined boundaries.

Daniel Simmons is the Emmett McCoy Research Fellow at the Mercatus Center. He graduated from George Mason University School of Law in May 2003. He would like to thank Karol Boudreaux, Susan Dudley, Wendy Gramm, Paul Kamenar, Randy Simmons, and the Pacific Legal Foundation. The original version of this Article was the second runner up in the Fourth Annual Student Writing Competition sponsored by Pacific Legal Foundation's Program for Judicial Awareness. For more information, visit Pacific Legal Foundation's website at http://www.pacificlegal.org.

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