This Article investigates the murky regulatory world of stormwater pollution. Nonpoint source pollution has been described as the most significant water quality problem facing the United States. It is generally not subject to the primary enforcement mechanisms of the Clean Water Act (CWA). Stormwater is where the CWA's primary enforcement mechanisms, usually reserved for point sources, intersect with nonpoint pollution. Effective regulation of stormwater could go far toward controlling nonpoint sources of water pollution. However, the U.S.

Few, if any, issues have divided environmental lawyers more than the legitimacy of the Migratory Bird Rule (Rule). Ever since its adoption in 1986 by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) as an assertion of federal authority over isolated wetlands, ostensibly for the sake of protecting migratory birds, the Rule had come to symbolize for some all that was wrong with either modern U.S.

Wetlands permitting under § 404 of the Clean Water Act (CWA)¹ presents many complex and challenging issues, ranging from the extent of the federal government's jurisdiction over potential "waters of the United States," to controversies over the definition of "dredge" and "fill" activities, to appropriate forms and amounts of mitigation for wetlands impacts.

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of "other waters." This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency's understanding of a statute. The significance of the case is best gauged by contrasting it with United States v.

For the last several years, federal circuit courts have debated the exact jurisdictional scope of §404 of the Clean Water Act (CWA), which authorizes the Secretary of the U.S. Army (the Army), acting through the U.S. Army Corps of Engineers (the Corps), to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The circuit courts have based their debates on the assumption, well-supported by earlier CWA decisions, that Congress intended the term "navigable waters" within the CWA to extend to the limits of the U.S. Commerce Clause.

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) is particularly disappointing. First, it might be said that the impact of the opinion, in circumstances in which legislative amendment is virtually impossible, may be the most devastating judicial opinion affecting the environment ever.

This past January, the U.S. Supreme Court held that the Clean Water Act (CWA) did not authorize the federal government to prohibit a landfill operator from filling isolated ponds on its property merely because the ponds were used as habitat by migratory birds. The National Association of Home Builders claimed that the decision in Solid Waste Agency of Northern Cook County v. U.S.

Does the use by migratory birds of isolated, intrastate waters establish enough of a connection to "navigable waters" and interstate commerce to permit federal regulation under the Clean Water Act (CWA) and the U.S. Commerce Clause? The U.S. Army Corps of Engineers thinks so, but courts and commentators have not been entirely sympathetic to the Corps' so-called migratory bird rule. The Fourth Circuit and U.S. Supreme Court Justice Thomas (in a dissent from denial of certiorari) have rejected such a broad jurisdictional reach in no uncertain terms.

For over two decades, courts and agencies have assumed that the Clean Water Act (CWA) grants the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jurisdiction over the nation's waters to the full extent of the U.S. Congress' authority under the U.S. Constitution's Commerce Clause. This belief led the Corps and EPA to assert CWA jurisdiction over virtually all waters in the nation, including navigable waters; non-navigable tributaries; adjacent wetlands; and non-navigable, isolated, intrastate waters and wetlands.

In the wake of the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), courts have scrambled to reevaluate the scope and reach of the government's regulatory authority over "navigable waters" pursuant to the Clean Water Act (CWA). A growing majority of courts, especially the U.S. Court of Appeals for the Fourth Circuit, the U.S. Court of Appeals for the Sixth Circuit, the U.S. Court of Appeals for the Seventh Circuit, and the U.S.