31 ELR 10669 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Federal Regulation of Isolated Wetlands After SWANCC

Stephen M. Johnson

The author is a Professor of Law at the Walter F. George School of Law, Mercer University. He received both his B.S. and his J.D. from Villanova University. The author received his LL.M from George Washington University School of Law.

[31 ELR 10669]

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.1 The National Association of Home Builders claimed that the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)2 was "a major legal victory for home builders and other private property owners." Critics of the SWANCC decision argued that it jeopardizes "perhaps a fifth of the water bodies in the United States."3 The timing of the Court's decision was particularly disheartening to wetlands protection advocates, since the ruling was announced shortly after the U.S. Fish and Wildlife Service (FWS) released a report that indicated that the annual rate of wetlands loss has been declining steadily.4

While the ruling will primarily impact federal wetlands regulation, the Court's holding applies to isolated waters, in general, and not merely to isolated wetlands.5 Further, while the SWANCC case merely examined the federal government's authority to prohibit the filling of isolated waters under § 404 of the CWA,6 the reasoning of the Court precludes the federal government from regulating any pollution of isolated waters that are within the reach of the ruling. The Court concluded that the U.S. Army Corps of Engineers (the Corps) could not prohibit the filling of the ponds because they were not "navigable waters,"7 as defined in the statute.8 Since the term "navigable waters" is used throughout the statute, the Court's ruling has implications for the § 402 national pollutant discharge elimination system (NPDES) permit program, and for the rest of the statute.9

[31 ELR 10670]

This Article examines the potential impacts of the Court's ruling, and potential responses to the ruling. Although the Court's decision impacts isolated waters, in general, this Article focuses primarily on isolated wetlands. Part I introduces the benefits of isolated wetlands and analyzes the statutory and constitutional implications of the Court's holding in SWANCC. Part II examines potential administrative and legislative responses to the decision that would continue to protect isolated wetlands. It also explores whether it is feasible or advisable to entrust the protection of isolated wetlands solely to state regulation.

I. Benefits of Isolated Wetlands and the Impacts of SWANCC

A. Benefits of Isolated Wetlands

Despite their label, "isolated" wetlands regulated by the Corps and EPA are not, generally, "isolated" from other water bodies.10 The term "isolated" is not a precise, scientific term, and is used loosely to refer to wetlands that lack a surface connection to downstream rivers and bays.11 Some of the more prevalent types of isolated wetlands are prairie potholes,12 playa lakes,13 vernal pools,14 pocosins, Carolina bays, Delmarva bays, Appalachian bogs, and cypress domes.15

Isolated wetlands provide many important environmental, biological,16 and economic benefits. Despite their size (or perhaps because of it), they are the principal breeding ground and primary habitat for many species of migratory birds.17 Isolated wetlands provide seasonal oases of wet habitat in relatively dry regions of the country during peak migratory seasons, and they provide a diversity of habitat for waterfowl precisely because they do not have surface connections to other water bodies.18 They also provide important habitat for amphibians that need protected breeding waters.19

In addition to those biological functions, isolated wetlands prevent flooding of downstream waters and erosion of downstream river or stream banks by temporarily collecting and storing water that would otherwise flow into the downstream waters.20 Similarly, they collect and filter pollutants out of water and reduce pollution of downstream waters.21 Development and drainage of these wetlands [31 ELR 10671] can release those pollutants into other waters.22 In essence, isolated wetlands provide the same benefits that the Court highlighted for "adjacent" wetlands when it upheld their regulation in United States v. Riverside Bayview Homes, Inc.23

B. Potential Impacts of SWANCC

Although isolated wetlands provide important environmental, biological, and economic benefits, the SWANCC decision could significantly limit the power of the Corps and the U.S. Environmental Protection Agency (EPA) to protect those wetlands from development and pollution. Further, the decision could have broader impacts on water quality by limiting the power of the federal government to protect other waters.

1. An Optimistic View

Optimistic wetlands advocates could read the Court's holding in SWANCC very narrowly, and argue that the Court did not invalidate federal regulation of isolated wetlands under the CWA,24 but merely invalidated the "migratory bird rule," an interpretive rule that the Corps and EPA have used to assert CWA jurisdiction over isolated waters that are or would be used as habitat for migratory birds.25 After all, the precise holding of the Court was that "33 C.F.R. § 328.3(a)(3) . . . as clarified and applied to the petitioner's balefill site pursuant to the 'Migratory Bird Rule,' . . . exceeds the authority granted to [the federal government] under § 404(a) of the [CWA]."26 Similarly, the Court's Commerce Clause discussion focused on the migratory bird rule, rather than the broader Corps regulations.27 The only basis for the Corps' assertion of jurisdiction over the waters at issue in the case was the migratory bird rule,28 and the petition for certiorari identified the question for the Court as "whether the [Corps], consistent with the CWA and the Commerce Clause . . ., may assert jurisdiction over isolated intrastate waters solely because those waters do or potentially could serve as habitat of migratory birds."29 Significantly, the press release that the National Association of Home Builders issued following the decision cautiously avoids suggesting that the case did anything more than invalidate regulation of isolated waters based solely on the migratory bird rule.30 The U.S. Court of Appeals for the Ninth Circuit seems to have adopted this narrow reading of the case, as well, in a decision that it issued two months after the Supreme Court's SWANCC ruling.31

Wetlands advocates can also argue that the Court did not hold that regulation of isolated wetlands violates the Commerce Clause, although the Court had an opportunity to invalidate the Corps' actions on those grounds.32

2. A Pessimistic View

a. Statutory Impacts

However, the Court's decision has potentially broader impacts. Instead of merely limiting the power of the Corps and EPA to prohibit discharges of dredged or fill material into isolated wetlands that are or would be used as habitat by migratory birds, the decision could be read to limit their power, under the CWA, to regulate discharges into any isolated wetlands unless the wetlands are, were, or could reasonably be made, navigable in fact.33 The California State Water Resources [31 ELR 10672] Control Board has read the case that broadly and has suggested, in guidance to board members, that "isolated non-navigable waters . . . appear to be outside the purview of Section 404 of the Clean Water Act."34

Prior to the SWANCC decision, it was generally accepted that "navigable waters" under the CWA did not have to be "navigable in fact."35 In Riverside Bayview Homes, the Court upheld the regulation, under § 404 of the CWA, of wetlands that were not navigable in fact, but were adjacent to other navigable waters.36 The Riverside Bayview Homes Court correctly noted that Congress defined the term "navigable waters" in the CWA as "waters of the United States, including the territorial seas,"37 and the Court indicated that the term "navigable" in the Act was of "limited import."38 Accordingly, the Riverside Bayview Homes Court concluded that Congress intended to regulate some waters, under the CWA, that were not navigable in fact.39

Despite this clear precedent, the SWANCC Court suggested that when Congress defined the term "navigable waters" in the CWA as "waters of the United States," it was concerned with protecting "waters that were or had been navigable in fact or which could reasonably be so made."40 Recognizing the potential inconsistency with the Riverside Bayview Homes decision, the Court argued that although the legislative history of the CWA suggested that Congress intended to assert jurisdiction over the broadest class of waters that was constitutionally permissible, Congress did not intend to exert anything more than its commerce power over navigation.41 As the SWANCC dissenters noted, however, Congress did not have to define "navigable waters" to include "waters of the United States" if it merely intended to regulate waters that had been regulated for over a century under Congress' power over navigation.42 Furthermore, the Riverside Bayview Homes Court did not limit its reading of the CWA's jurisdiction over "navigable waters" to waters that were within Congress commerce power over navigation. The Supreme Court recognized almost a century ago that "it cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation . . . . Navigability . . . is but a part of the whole. Flood protection, watershed development . . . are likewise parts of commerce control."43 To the extent that the Riverside Bayview Homes Court upheld the regulation of non-navigable adjacent wetlands, it appeared to be relying on broader Commerce Clause authority than the commerce power over navigation.

The SWANCC Court also departed from the Riverside Bayview Homes precedent in another important respect. While the Riverside Bayview Homes Court focused on the purpose of the CWA to protect the biological, physical, and chemical integrity of the nation's waters and concluded that it was necessary to regulate adjacent wetlands to achieve the Act's purposes,44 the SWANCC Court did not examine the purpose of the Act and did not examine whether it was necessary to regulate isolated waters to achieve the purpose of the Act.45

While the SWANCC ruling seems to be fundamentally inconsistent with Riverside Bayview Homes, the Court did not overrule that decision. Instead, the Court distinguished the regulation of isolated waters from the regulation of adjacent wetlands on several grounds. First, the SWANCC Court held that the Riverside Bayview Homes decision was "based in large measure upon Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the [CWA] to cover wetlands adjacent to navigable waters."46 While supporters of federal regulation of adjacent wetlands could argue that Congress was aware of federal regulation of adjacent wetlands and acquiesced in that regulation when Congress did not amend the CWA to limit federal jurisdiction, supporters of federal regulation of isolated waters could not make those arguments. The SWANCC Court noted that there was no persuasive evidence that Congress was aware of federal regulation of isolated, non-navigable waters.47

The SWANCC Court's decision was also influenced by two canons of statutory interpretation. Where an interpretation of a statute raises serious constitutional problems, the Court will construe the statute to avoid that interpretation unless it is clear that Congress intended the potentially unconstitutional interpretation.48 Similarly, where an interpretation of a statute interferes with fundamental or important state powers, the Court will construe the statute to avoid that interpretation unless it is clear that Congress intended to interfere with those state powers.49 The SWANCC Court suggested that federal regulation of the isolated ponds based solely on the use of the ponds as habitat by migratory birds [31 ELR 10673] might interfere with traditional state powers or might be outside of Congress' Commerce Clause powers.50 In light of those two canons of statutory interpretation, the SWANCC Court refused to interpret the CWA to authorize federal regulation of the isolated ponds unless the statute clearly authorized their regulation.51 Since the Riverside Bayview Homes Court did not believe that the regulation of adjacent wetlands raised constitutional concerns or interfered with state powers, it was not looking for a clear statement that the CWA regulated those wetlands.

Through fractured, inconsistent statutory analysis, therefore, it is possible that the Court has created two separate definitions of "navigable waters" under the CWA. Adjacent wetlands are "navigable waters," regardless of whether they are, were, or could reasonably be made, navigable in fact. Isolated wetlands, on the other hand, might not be "navigable waters" unless they are, were, or could reasonably be made, navigable in fact, even though the filling of isolated wetlands may, in many cases, have the same impacts on other navigable waters and the environment as the filling of adjacent wetlands. However, for reasons discussed in part II of this Article, it is unlikely that the Court's decision will, or should, be read so broadly.

b. Constitutional Impacts

Although the SWANCC Court's ruling that the federal government could not prohibit the filling of isolated non-navigable ponds merely because they provided habitat for migratory birds was based on an interpretation of the CWA, rather than the U.S. Constitution, the Court's decision could have important constitutional implications. Indeed, the Court implicitly addressed the constitutional issue when it determined that the CWA should be interpreted narrowly to avoid the potential constitutional concerns that could arise under the Commerce Clause if the statute were interpreted to authorize the federal government to prohibit the filling of the isolated ponds in the case.52

Significantly, the SWANCC Court suggested that "permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in significant impingement of the States' traditional and primary power over land and water use."53 The implications of the statement are not completely clear, however. In United States v. Morrison,54 the Court counseled that the Commerce Clause does not authorize regulation of activities that would "effectually obliterate the distinction between what is national and what is local."55 Since the SWANCC Court determined that the regulation of the isolated waters in the case raised significant constitutional questions, the Court may have been suggesting that the regulation of land and water use under the CWA should be scrutinized closely under the Commerce Clause as regulation of "local" activities. However, the SWANCC Court also interpreted the CWA narrowly because statutory interpretation principles require courts to interpret statutes narrowly to avoid interpretations that interfere with fundamental or traditional state powers.56 The Court's statement regarding the states' power over the regulation of land and water use most likely refers to that federalism canon, rather than the constitutional canon, because the cases that the Court cites to support that statement, and to support other statements in the opinion regarding the division of federal and state powers, do not involve the Commerce Clause.57

If the Court's statement simply refers to the federalism canon, it is rather insignificant. The canon does not prohibit Congress from regulating activities when regulation interferes with traditional or important state powers. It merely provides that Congress must clearly express its intent to interfere with traditional or important state powers before courts will interpret a statute to interfere with those powers.58

However, if the Court is suggesting, through the statement, that the regulation of land and water use under the CWA should be scrutinized closely under the Commerce Clause as regulation of "local" activities, the statement is more troubling. Such an approach would be inconsistent with prior Court jurisprudence. For several decades, the Court has recognized that "the power conferred by the Commerce Clause [is] broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State."59 The Court has recognized important differences between environmental regulation and land use regulation, a traditionally local activity, and counseled, in California Coastal Commission v. Granite Rock Co.,60 that "environmental regulation . . . does not mandate particular uses of the land but requires only that, however, the land is used, damage to the environment is kept within prescribed limits."61 The Court has not strictly scrutinized federal environmental [31 ELR 10674] regulation as improper regulation of local activities, but rather has held that "the court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding."62

II. Legislative and Administrative Responses to SWANCC

The extent to which the SWANCC ruling actually diminishes federal jurisdiction over isolated waters under the CWA depends primarily on the administrative and legislative responses to the decision. There are several ways that the federal government could continue to regulate isolated waters after the SWANCC decision, but it remains to be seen whether Congress or the executive branch are interested in continued federal protection of those waters. Administratively, the government could interpret the SWANCC decision as merely invalidating the migratory bird rule, and authorizing the government to regulate isolated waters under the CWA as long as there is a nexus between the waters and other "navigable waters" similar to the nexus that the Court upheld in Riverside Bayview Homes. Thus, if the degradation or destruction of isolated waters results in the flooding or pollution of other "navigable waters," regulation of the isolated waters would be appropriate. The government might also exert jurisdiction over "isolated waters" by adopting a broader interpretation of the regulatory term "adjacent" waters to include some waters that were perceived to be isolated in the past.

Legislative reform is also an option. Since the Court invalidated the federal regulation of the isolated ponds in SWANCC because it felt that the CWA did not authorize regulation of those waters, and since the Court did not strike down the regulation on constitutional grounds, Congress could amend the statute to extend their jurisdiction over waters to encompass as broad a class of waters as is permissible under the Commerce Clause, and not merely, as the SWANCC Court suggests, as broad a class of waters as is permissible under Congress' power over navigation under the Commerce Clause.

In the absence of administrative or legislative efforts to exert federal jurisdiction over isolated waters, regulation of those waters will be left to the states. For reasons that will be discussed below, this may not be an attractive option.

A. Administrative Options

1. Regulation of Isolated Wetlands With a "Nexus" to Other Navigable Waters

The regulations of the Corps and EPA define "waters of the United States" to include "intrastate lakes, rivers, streams . . . mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce."63 As EPA's guidance regarding the SWANCC decision notes, the Court did not invalidate those regulations.64 Instead, the actual holding of the Court was very limited. The Court struck down the regulation of the isolated ponds in the case because the government had relied solely on the migratory bird rule as authorization for that regulation.65 Arguably, therefore, the federal government can continue to exert jurisdiction over isolated waters that are within the scope of the Corps' and EPA's regulations, as long as they are not relying solely on the migratory bird rule as authority for jurisdiction.

Although the SWANCC Court did not invalidate those regulations, the Court implied that the CWA only authorized federal regulation of waters that Congress could regulate pursuant to its commerce power over navigation.66 This does not necessarily mean that the CWA only authorizes the regulation of waters when they are navigable in fact.67 Since the SWANCC Court did not purport to overrule Riverside Bayview Homes, one could assume that Congress could regulate the adjacent waters in that case pursuant to its commerce power over navigation. In fact, the SWANCC Court indicated that "the significant nexus between the wetlands and 'navigable waters'" in Riverside Bayview Homes was an important factor that led the Court to uphold regulation of those wetlands under the CWA.68 As the Riverside Bayview Homes Court noted, adjacent wetlands are hydrologically connected to navigable waters and play an important role in reducing flooding, erosion, and pollution of those waters.69 Presumably, Congress could regulate those waters under their commerce power over navigation, even though the waters were not navigable in fact, because their destruction or degradation could lead to flooding, erosion, or pollution of other "navigable" waters.70 Arguably, therefore, Congress' [31 ELR 10675] commerce power over navigation should extend to isolated wetlands that have a nexus to navigable waters that is similar to the nexus between adjacent wetlands and navigable waters that the Court recognized in Riverside Bayview Homes.

Numerous studies have demonstrated that isolated waters perform precisely the same water quality, flood protection, and other hydrologic and biological functions as the adjacent wetlands in the Riverside Bayview Homes case.71 In many cases, "isolated" waters are hydrologically connected to "navigable waters" in precisely the same manner as the "adjacent" wetlands in that case.72 Therefore, to the extent that the destruction or degradation of isolated waters could lead to flooding, erosion, or pollution of "navigable waters," the CWA should authorize federal regulation of those waters.73

This interpretation of the CWA would not violate the Commerce Clause because the aggregate impact on interstate commerce of discharges of dredged or fill material into isolated waters would be substantial.74 Pursuant to its Commerce Clause power, Congress can regulate channels of interstate commerce, instrumentalities of interstate commerce, and activities that cumulatively have a substantial effect on interstate commerce.75 The Court, in Morrison, clarified that in determining whether congressional regulation of activities that have a substantial effect on interstate commerce is appropriate, courts should examine (1) the nature of the activity at issue; (2) the presence or absence of a jurisdictional, interstate commerce element in the statute; and (3) any findings made by Congress regarding the effects on interstate commerce.76 Although the Court has not established any bright-line rules with regard to the nature of activities that may be regulated under the Commerce Clause, the Court has been reluctant to uphold federal regulation of activities unless they can be categorized as economic activities.77 Similarly, the Court has closely scrutinized federal regulation when the activity regulated can be characterized as a local activity.78 Whether an activity has a substantial effect on interstate commerce in the aggregate79 may depend on the manner in which a court characterizes the activity at issue in the case.80

[31 ELR 10676]

When the federal government regulates the discharge of dredged or fill material into isolated waters under § 404 of the CWA, it is usually regulating an economic activity, such as land development, manufacturing, agriculture, mining, construction, or waste disposal.81 Although the SWANCC Court suggested that permitting federal regulation of the isolated ponds in the case based solely on the migratory bird rule would "result in a significant impingement of the states' traditional and primary power over land and water use,"82 it is unlikely that the Court was suggesting that the CWA should be closely scrutinized under the Commerce Clause because it regulates a local activity. As noted above, such an approach would be inconsistent with the Court's recognition, in California Coastal Commission83 and Hodel v. Virginia Surface Mining & Reclamation Ass'n,84 that environmental regulation is conceptually different from land use regulation.85

Since § 404 of the CWA regulates an economic activity, courts should uphold the regulation as long as the activity has a substantial aggregate effect on interstate commerce. Discharges of dredged or fill material into isolated waters have a substantial aggregate effect on interstate commerce because they increase flooding, water pollution, and erosion.86 As the Court has recognized, "flood protection [and] watershed development . . . are . . . part of commerce control."87 Congress can regulate discharges of dredged or fill material into isolated waters due to the substantial flooding, erosion, and pollution impacts of those discharges, even though filling of some isolated waters will not have those effects.88 The Court has long acknowledged that a complex regulatory program "can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal."89

2. Broader Interpretation of "Adjacent" Wetlands

The Corps and EPA could take other administrative steps to retain jurisdiction over many "isolated" waters after SWANCC. Prior to SWANCC, the agencies may have characterized some waters as "isolated" waters, even though the waters could be regulated as tributaries of navigable waters, or as adjacent wetlands, because the agencies had authority to regulate all of those waters, and did not have significant incentives to distinguish between isolated waters and other waters.90 On closer scrutiny after SWANCC, however, the agencies may conclude that some waters that they characterized as "isolated" are actually tributaries of navigable waters or are "adjacent" wetlands. The Corps and EPA took this approach in the Fourth Circuit91 after the U.S. Court of Appeals invalidated federal regulation of isolated wetlands in that circuit in United States v. Wilson92 and the guidance that the Corps and EPA issued after SWANCC suggests that they may take a similar approach in light of the Supreme Court's decision.93

Alternatively, the federal government could continue to regulate some waters that it characterized as "isolated" prior to SWANCC by expanding the regulatory interpretation of "adjacent" wetlands. The Court upheld federal regulation of adjacent wetlands in Riverside Bayview Homes, and the Court did not overturn that decision in SWANCC. In Riverside Bayview Homes, the Court deferred to the Corps' determination that wetlands that were hydrologically connected to navigable waters by groundwater, but which were not regularly flooded by surface water from those waters, were "adjacent" wetlands94 and could be regulated under the CWA.95 The Riverside Bayview Homes Court noted that the purpose of the CWA is "to restore the chemical, physical and biological integrity of the Nation's waters," and the Court recognized the need to regulate wetlands adjacent to navigable waters because those wetlands are part of a hydrologically connected ecosystem, and that pollution in one part of the system affects all of the system.96 The term "adjacent" wetlands does not have to be limited to wetlands that are physically contiguous to a navigable water. "Adjacency" is merely a matter of degree, as is "isolation."97 A [31 ELR 10677] broader interpretation of the term "adjacent" could include wetlands that are hydrologically connected to navigable waters through groundwater, and which impact those waters through periodic flooding or pollution.98 Regulation of wetlands that periodically flood or pollute other navigable waters would seem to be consistent with the approach taken by the Court in Riverside Bayview Homes.99 One potential reformulation of the "adjacent" wetlands definition that was recently suggested by the Association of State Wetlands Managers would include any wetlands within the 100-year floodplain of a navigable water.100

3. Migratory Bird Executive Order

While there are a few administrative tools that the federal government could use to retain jurisdiction over isolated waters, the first administrative response to the decision was a "migratory bird" executive order. On the day after the SWANCC decision, President Clinton issued Executive Order No. 13186, "Responsibilities of Federal Agencies to Protect Migratory Birds," a symbolic, but rather "toothless," instrument.101 The order is premised on the authority of the Migratory Bird Treaty Act,102 the Bald and Golden Eagle Protection Act,103 the Fish and Wildlife Coordination Act,104 the Endangered Species Act,105 the National Environmental Policy Act,106 and other laws.107 The order describes the economic and ecological value of migratory birds and requires federal agencies that are taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations to develop and implement a memorandum of understanding (MOU) with the FWS that "shall promote the conservation of migratory bird populations."108 Pursuant to the MOU, agencies are required to consider the impacts of their actions on migratory birds, and to avoid negative impacts whenever possible, consistent with their authorities under other laws.109 The order also directs the Secretary of the Interior to establish an interagency Council for the Conservation of Migratory Birds to oversee the order.110 The council's duties include collecting the latest resource information to assist in the conservation and management of migratory birds and developing an annual report of accomplishments and recommendations related to the order.111

While the order reflects a concern for the welfare of migratory birds, there are obvious limits to its effectiveness. As with any executive order, the migratory bird executive order only binds executive agencies and does not bind the public.112 The order does not, and could not, change any existing laws, and it is not enforceable in court.113 While it was a symbolic response to the SWANCC decision, stronger administrative action will be needed to protect isolated waters.

B. Legislative Options

Administrative tools can provide some security for isolated waters, but legislative reform would provide firmer and more permanent protection. Since the SWANCC Court merely held that Congress did not intend, through the CWA, to prohibit the discharge of dredged or fill material into isolated waters when the only basis for asserting jurisdiction over those waters is the use of the waters as habitat by migratory birds,114 Congress could "overturn" the Court's decision by amending § 404 of the CWA to explicitly authorize the federal government to regulate discharges of dredged or fill material into isolated waters. Alternatively, Congress could enact separate wetlands protection legislation that explicitly authorizes the federal government to regulate discharges of dredged or fill materials into wetlands, including isolated wetlands.

However, while the SWANCC Court merely invalidated discharge of dredged or fill materials into isolated waters, the Court's reasoning could limit the federal government's authority to regulate pollution of isolated waters under § 402 of the CWA, and other activities in isolated waters unless Congress could regulate those activities pursuant to its powers over navigation under the Commerce Clause. Thus, in lieu of merely amending § 404 of the Act, it may be necessary to clarify, through amendments, that the Act authorizes the federal government to regulate discharges of dredged or fill material, discharges of pollution and any other activities in isolated waters that Congress could regulate under its Commerce Clause powers, and not merely activities that [31 ELR 10678] Congress could regulate under its power over navigation under the Commerce Clause.115

Regardless of whether Congress amends § 404 of the CWA, enacts broader amendments to the CWA, or enacts separate wetlands protection legislation, it must craft the legislation carefully to ensure that it will survive constitutional scrutiny. If Congress enacts legislation pursuant to its Commerce Clause power, it could regulate discharges of dredged or fill material into isolated waters or pollution of isolated waters because those activities have substantial impacts on interstate commerce.116 Congress may be able to regulate a broader class of activities than is authorized under the Commerce Clause if it relies upon the Treaty Power as an additional basis for legislation.

1. The Commerce Clause

Pursuant to its Commerce Clause power, Congress can regulate activities that cumulatively have a substantial effect on interstate commerce,117 including activities that destroy or degrade isolated waters. The Supreme Court, in Morrison, suggested that when determining whether congressional regulation of activities that have a substantial effect on interstate commerce is appropriate, courts should examine (1) the nature of the activity at issue; (2) the presence or absence of a jurisdictional, interstate commerce element in the statute; and (3) any findings made by Congress regarding the effects on interstate commerce.118

In order to increase the likelihood that post-SWANCC legislation will be upheld under the Commerce Clause, Congress could (1) draft the legislation to focus on the regulation of economic activities that affect isolated waters; (2) include legislative findings that describe the substantial impact of the regulated activities on interstate commerce; and (3) include a jurisdictional, interstate commerce element in the legislation.

Since the Court has been reluctant to uphold federal regulation of activities that substantially affect interstate commerce under the Commerce Clause unless the activities can be categorized as economic activities, Congress should protect isolated waters by drafting legislation that regulates economic activities that can harm those waters. In light of the fact that most "discharges of dredged or fill materials" are economic activities,119 expansion of § 404 of the CWA to regulate "discharges of dredged or fill materials" into isolated waters should withstand a Commerce Clause challenge as long as such discharges, in the aggregate, have a substantial effect on interstate commerce.120 Section 402 of the CWA, on the other hand, establishes a permit program for discharges of pollutants into navigable waters121 and potentially regulates many noneconomic activities. To the extent that Congress intends to amend that provision of the law to explicitly authorize the federal government to issue permits for pollution of isolated waters, it may be necessary for Congress to limit the scope of the amendment, so that the permit requirement only applies to economic activities.

If Congress drafts amendments to the CWA that protect isolated waters by regulating economic activities, as described above, or if Congress drafts wetlands protection legislation that regulates economic activities, the legislation should survive Commerce Clause challenges. Discharges of dredged or fill material into isolated waters have, in the aggregate, a substantial impact on interstate commerce because they increase flooding, erosion, and water pollution,122 and they harm migratory birds, endangered species, and amphibians.123 Isolated waters provide important habitat for migratory birds and each year, millions of Americans cross state lines and spend over $ 1 billion to hunt and observe them.124

Congress should include findings regarding those impacts on interstate commerce in legislation to amend the CWA or legislation to create a Wetlands Protection Law and in the legislative history for such legislation. Although legislative findings, in and of themselves, will not insulate a statute from constitutional challenges,125 the Morrison126 and United States v. Lopez127 Courts suggested that legislative findings regarding the interstate commerce effects of regulated activities can be a significant factor when a court reviews the constitutionality of a statute under the Commerce Clause.

The Morrison Court also suggested that the presence of a jurisdictional, interstate commerce element in a statute was an important factor to consider when determining whether the statute is constitutional.128 Accordingly, post-SWANCC [31 ELR 10679] legislation should, if possible, include a jurisdictional, interstate commerce element. For instance, if Congress decides to amend § 404 of the CWA, it could amend the section to prohibit discharges of dredged or fill materials into isolated waters whenever the discharges affect interstate commerce.129 One weakness with that approach is that the language could be read to require the federal government to demonstrate that the discharge into a specific isolated water will have a specific effect on interstate commerce. The Commerce Clause would authorize regulation of activities that, in the aggregate, have a substantial effect on interstate commerce, and would not limit federal regulatory authority to activities that, in and of themselves, have a substantial effect on interstate commerce.130 It may be possible to avoid a narrow interpretation of an amendment to § 404 by including language in the amendment that clarifies that "discharges affect interstate commerce" whenever the class of discharges, in the aggregate, has a substantial effect on interstate commerce.

To the extent that Congress enacts legislation to protect isolated waters that focuses on the regulation of economic activities, includes legislative findings that describe the substantial impact of the regulated activities on interstate commerce, and includes a jurisdictional, interstate commerce element, the legislation should withstand the inevitable Commerce Clause challenges.

2. The Treaty Power

Congress has enacted most of the existing federal environmental laws pursuant to its Commerce Clause authority, and it is likely that Congress would rely on that authority as the basis for any amendments to the CWA, or separate wetlands protection legislation. However, to the extent that Congress enacts amendments to the CWA or enacts a separate Wetlands Protection Law as measures to protect migratory birds, it may be appropriate to rely upon the Treaty Power as additional authority for the legislation.

Article II, section 2 of the Constitution empowers Congress to ratify treaties,131 and the Necessary and Proper Clause of the Constitution authorizes Congress to "make all laws which shall be necessary and proper for carrying into execution . . . powers vested by [the] Constitution in the Government of the United States . . . ."132 Early in the last century, the United States entered into a treaty to protect migratory birds, and Congress enacted the Migratory Bird Treaty Act of 1918 to implement that treaty.133 The Supreme Court upheld the statute as a valid exercise of Congress' Treaty Powers in Missouri v. Holland.134

Since discharges of dredged or fill material into isolated waters and pollution of isolated waters can destroy or degrade the habitat of migratory birds,135 Congress could conceivably justify legislation to protect isolated waters as a necessary and proper means of implementing the Migratory Bird Treaty and protecting migratory birds.

In fact, Congress may be able to regulate a broader class of activities under the Treaty Power than is appropriate under the Commerce Clause.136 In Missouri, the Court upheld, against a Tenth Amendment challenge by the state of Missouri, a federal law that was enacted to implement a treaty to protect migratory birds.137 Although the Court recognized that, in the absence of a treaty, the challenged legislation could interfere with rights guaranteed to states by the Tenth Amendment,138 it suggested that "there are many matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such act could."139 Justice Holmes, writing for the majority, stressed that the protection of migratory birds is "a national interest of very nearly the first magnitude . . . [which] can be protected only by national action in concert with that of another power."140 In the same way that the Treaty Power and the Necessary and Proper Clause authorized Congress to enact legislation to protect migratory birds, those powers may authorize Congress to act to limit the destruction or degradation of isolated waters, even though such legislation, in the absence of a treaty, might be outside of Congress' power in light of the Tenth Amendment, or be beyond Congress' Commerce Clause powers.

C. State Regulation

If Congress and the federal government do not take administrative or legislative steps to reverse the SWANCC decision, many isolated waters will be left unprotected from pollution or development.141 While SWANCC does not prevent states from protecting isolated waters through legislation or administrative action, very few states provide such protection.142 Only about one-third of the states have regulatory programs that are designed to protect isolated wetlands, and many of those states do not regulate wetlands [31 ELR 10680] on federal land.143 Little or no protection is provided in the states with some of the largest isolated wetlands acreages.144 In the past, many states that lacked aggressive wetlands programs protected wetlands by imposing limits through CWA § 401's certification process on federal wetlands development permits.145 To the extent that SWANCC reduces the scope of the federal wetlands permit program, the decision also reduces the scope of state protection of wetlands in states that relied on § 401 to prevent destruction or pollution of wetlands.

There may be a silver lining in the otherwise cloudy SWANCC ruling in that it may spur states to enact broader protection for isolated waters and wetlands.146 In Virginia, for instance, wetlands advocates praised the SWANCC ruling because it strengthened their argument in support of state wetlands protection legislation, due to take effect in October 2001, that is being reviewed and challenged by a coalition of builders, developers, and property rights advocates.147

However, many states cannot enact broad wetlands protection legislation because their state laws prohibit the state from enacting environmental laws or regulations that are more stringent than federal law.148 Other states may be reluctant to enact legislation due to concerns that the state may lack the budget and resources to administer a program, or concerns that the state could be subject to numerous takings claims in light of the development restrictions that the legislation would impose on property owners.149 Without federal regulation that establishes a baseline level of protection for isolated waters, it is likely that states will engage in the proverbial "race to the bottom" in establishing or expanding their wetlands protection laws.150 Developers will also be disadvantaged because they will have to comply with vastly different regulatory requirements from state to state, or even, perhaps, from local government to local government.151

For all of these reasons, state regulation of isolated waters is an inadequate alternative to federal legislative or administrative action.

Conclusion

In order to limit the damage that the Court's SWANCC ruling could inflict upon one-fifth of the water bodies of the United States, EPA, the Corps, and Congress must take action. At a minimum, the federal regulatory agencies should clarify that they will continue to regulate discharges of dredged or fill material into isolated wetlands when those wetlands are hydrologically connected to other "waters of the United States" and when the destruction or degradation of those wetlands could impact other waters through flooding, erosion, or pollution. After SWANCC, federal agencies may not regulate isolated waters solely due to the fact that the waters provide habitat for migratory birds. Therefore, in order to protect those waters, and to ease the burden on federal agencies to establish jurisdiction over other isolated waters, Congress should, pursuant to its Commerce Clause and Treaty Powers, enact legislation that explicitly authorizes federal regulation of isolated waters. These actions will undoubtedly spur Commerce Clause challenges, but such regulation should be within Congress' Commerce Clause power. The Court issued a decisive ruling in SWANCC and a decisive response is necessary to protect the nation's water quality.

1. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 31 ELR 20382 (2001).

2. 121 S. Ct. 675, 31 ELR 20382 (2001). See National Ass'n of Home Builders, Press Release: Supreme Court Rules That Corps' Clean Water Act Regulation of Isolated Wetlands Is Illegal (Jan. 9, 2001), at http://www.nahb.com/news/wetlandcourt.htm (last visited Jan. 14, 2001) [hereinafter NAHB Press Release].

3. See Environmental Defense, Press Release: Environmental Defense Criticizes Supreme Court Ruling (Jan. 9, 2001), at http://www.environmentaldefense.org/pubs/NewsRelease/2001/Jan/c-courtruling.html (last visited Jan. 14, 2001) [hereinafter Environmental Defense Press Release]. See also Jan Hollingsworth, Supreme Court Ruling May Affect Florida Wildlife, Wetlands, TAMPA TRIB., Jan. 10, 2001, at 1; Brief of Dr. Gene Likens and Association of State Wetlands Managers at 3, Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675 (2001) (No. 99-1178) [hereinafter ASWM Amicus Brief]. Media reports suggested that the decision could impact almost 400,000 acres of wetlands in Virginia; see Scott Harper, Protecting Wetlands Wise Move, Virginia Is 10 Years Behind, VIRGINIAN-PILOT, Mar. 3, 2000, at B10; one-third of South Carolina's coastal plain, see Sammy Fretwell, Wetlands Ruling Provides a Call to Action for South Carolina Environmentalists, THE STATE (COLUMBIA, S.C.), Jan. 11, 2001; and could have significant impacts in the Midwest and western states. See Scott Harper, Virginia Environmentalists Applaud Ruling Against Wetlands Regulations, VIRGINIAN-PILOT, Jan. 11, 2001, at B11; Kathie Durbin, Supreme Court Ruling—Corps' Wetlands Oversight Weakened, THE COLUMBIAN, Jan. 11, 2001, at C5. "Isolated" waters covered by the U.S. Supreme Court's decision could, potentially,include Utah Lake and Lake Tahoe. See ASWM Amicus Brief, supra, at 24-25. A report prepared for the Association of State Wetlands Managers suggests that the ruling could impact 79% of the wetlands in Wisconsin, 40% of the wetlands in Nebraska, 74% of the wetlands in Indiana, and 33% of the wetlands in Delaware. See Jon Kusler, The SWANCC Decision and State Regulation of Wetlands, prepared for the Association of State Wetlands Managers (2001), at 1.

4. See U.S. DEPARTMENT OF THE INTERIOR, U.S. FISH AND WILDLIFE SERVICE (FWS), REPORT TO CONGRESS ON THE STATUS AND TRENDS OF WETLANDS IN THE COTERMINOUS UNITED STATES 1986 TO 1997 (2001) [hereinafter FWS REPORT]. See also Durbin, supra note 3, at C5. The report indicated that the annual rate of wetlands loss has decreased by 80% over the last decade. See FWS REPORT, supra, at 1. U.S. Department of Agriculture Secretary Dan Glickman noted: "This is the greatest overall decline in the rate of wetlands loss since records have been compiled by the federal government." See Margot Higgins, Wetlands Decline Is Slowing, Report Finds, ENVTL. NEWS NETWORK, Jan. 12, 2001, at http://www.enn.com/news (last visited Jan. 12, 2001).

Despite the initial dire press releases, the Court's decision may have more limited impacts. For instance, although the U.S. Court of Appeals for the Fourth Circuit invalidated the Corps' regulation of some isolated wetlands almost four years ago, see United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997), in Virginia, the decision has only prevented the Corps from intervening in development projects that have affected a total of 103 acres. See Harper, Virginia Environmentalists Applaud, supra note 3, at B1. However, the Wilson court merely held that it was inappropriate for the federal government to regulate isolated wetlands when the filling of the wetlands could, rather than would, affect interstate commerce. The court's ruling did not prohibit the Corps from regulating isolated wetlands when the filling of the wetlands would affect interstate commerce, and the Corps continued to exercise jurisdiction over those wetlands after the Wilson decision. See U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) & U.S. ARMY CORPS OF ENG'RS, GUIDANCE FOR CORPS AND EPA FIELD OFFICES REGARDING CLEAN WATER ACT SECTION 404 JURISDICTION OVER ISOLATED WATERS IN LIGHT OF United States v. Wilson, § 4.b. (1998) [hereinafter EPA/CORPS WILSON GUIDANCE]. The Supreme Court's SWANCC decision imposes broader restrictions on federal regulation of isolated waters than the Fourth Circuit imposed in Wilson.

5. The waters at issue in the SWANCC case were permanent and seasonal ponds that formed in abandoned excavation ditches, 121 S. Ct. at 678, 31 ELR at 20382, and the Corps determined that they were not wetlands. Id. at 678-79, 31 ELR at 20382.

6. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

7. Id. § 1362(7), ELR STAT. FWPCA § 502(7).

8. 121 S. Ct. at 682-83, 31 ELR at 20384.

9. Guidance from the Corps and EPA warns regional offices that "the Court's decision affects the scope of regulatory jurisdiction under other provisions of the [Clean Water Act] . . ., including the section 402 NPDES program and the section 311 oil spill program. Under each of these sections, the Agencies have jurisdiction over 'waters of the United States.' CWA 502(7)." See Memorandum from Gary S. Guzy, General Counsel, EPA, and Robert M. Andersen, Chief Counsel, the Corps Regarding Supreme Court Ruling Concerning CWA Jurisdiction Over Isolated Waters 1 (Jan. 2001) [hereinafter EPA/Corps SWANCC Memo]. Although EPA has not previously asserted jurisdiction over groundwater under the CWA, the Court's ruling could also limit the federal government's authority to regulate groundwater under the statute. Groundwater is clearly not navigable in fact.

10. See Vicki Monks, The Beauty of Wetlands, NAT'L WILDLIFE,June 1996, at 20.

11. See ASWM Amicus Brief, supra note 3, at 6-7. See also Harper, Virginia Environmentalists Applaud, supra note 3, at B10. Since "isolated" wetlands usually form in depressions in the landscape, water from the wetlands generally does not flow further downstream. See ASWM Amicus Brief, supra note 3, at 7. However, the wetlands are not truly "isolated" because they are often connected to other waters by groundwater, and they prevent flooding, erosion, and pollution in other waters. Id. at 7-9.

12. Sometimes referred to as the "duck factories of America," prairie potholes are "saucer-shaped depressions formed by retreating glaciers" and are located primarily in North and South Dakota, Minnesota, and Iowa. See National Wildlife Fed'n, Wetlands, at http://www.nwf.org/wetlands/types.html (last visited Feb. 28, 2001).

13. Playa lakes are temporary, shallow lakes in undrained desert basins in Texas and New Mexico, and provide wintering habitat for waterfowl and a crucial water source for livestock. Id.

14. Vernal pools are "small, isolated wetlands that retain water on a seasonal basis" and provide important habitat for amphibians and many endangered and rare plant species. Id.

15. See ASWM Amicus Brief, supra note 3, at 7.

16. Isolated wetlands provide many of the "significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species" that the Court cited as benefits of adjacent wetlands when the Court upheld federal regulation of those wetlands in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134-35, 16 ELR 20086, 20089 (1985).

17. See David G. Savage, Justices Curb Wetland Protection, L.A. TIMES, Jan. 10, 2001, at 12; Hollingsworth, supra note 3, at 1; ASWM Amicus Brief, supra note 3, at 16. According to a 1995 report by the National Academy of Sciences, although prairie pothole wetlands "make up only 4[%] of the surface water in the pothole region, they support a large percentage of the total populations of several of the most abundant duck species." See Monks, supra note 10, at 20. At least 15 species of ducks nest in the potholes, including 70-90% of the mallards, pintails, and canvasbacks on the North American continent. See THOMAS E. DAHL, U.S. FWS, STATUS OF PRAIRIE POTHOLE WETLANDS IN THE UNITED STATES(1990); H.A. KANTRUD ET AL., PRAIRIE BASIN WETLANDS OF THE DAKOTAS: A COMMUNITY PROFILE 15 (U.S. FWS, Biological Report No. 85, 1989). The playa lakes of New Mexico and Texas provide habitat for approximately one million birds, including ducks, geese, and cranes. See E.G. Bolen, Playa Wetlands of the U.S. Southern High Plains: Their Values and Challenges for Management, in WETLANDS: ECOLOGY AND MANAGEMENT (B. Gopal ed., 1982). The isolated wetlands of the Nebraska Rainwater basin provide habitat for two to three million waterfowl, including 90% of the population of white-fronted geese and 50% of the mallards that use the mid-continental flyway. See ASWM Amicus Brief, supra note 3, at 16-17 (citing studies).

18. See ASWM Amicus Brief, supra note 3, at 15-16 (citing NATIONAL RESEARCH COUNCIL OF THE ACADEMY OF SCIENCES, WETLANDS: CHARACTERISTICS AND BOUNDARIES 156 (1995)). Melting snow and seasonal rainfall inundate isolated wetlands in the spring in otherwise dry landscapes during peak migration seasons for many waterfowl. See ASWM Amicus Brief, supra note 3, at 15; Monks, supra note 10, at 20.

19. See Durbin, supra note 3, at C5; Hollingsworth, supra note 3, at 1; ASWM Amicus Brief, supra note 3, at 20. Many amphibian species prefer isolated waters because there are fewer predators in the waters. See R.D. Semlitsch & J.R. Bodie, Are Small, Isolated Wetlands Expendable?, 12 CONSERVATION BIOLOGY 1129-33 (1998). Isolated wetlands also benefit amphibians by providing "ecological connectivity" of habitats, allowing them to migrate and recolonize lost habitat sites. Id.; see also J.P. Gibbs, Wetland Loss and Biodiversity Conservation, 14 CONSERVATION BIOLOGY 314-17 (2000).

20. See Monks, supra note 3, at 20; THOMAS WINDER ET AL., GROUND WATER AND SURFACE WATER: A SINGLE RESOURCE 19-21, 46-47 (U.S. Geological Survey Circular No. 1139, 1999); V. Carter, Technical Aspects of Wetlands: Wetlands Hydrology, Water Quality, and Associated Functions, in NATIONAL WATER SUMMARY ON WETLAND RESOURCES, U.S. GEOLOGICAL SURVEY WATER SUPPLY PAPER 2425 (J.D. Fretwell et al. eds., 1996). For instance, prairie potholes in the Devils Lake basin of North Dakota store about 72% of the runoff from the largest storm that occurs every 2 years and 41% of the largest storm expected once every 100 years. See A.P. Ludden et al., Water Storage Capacity ofNatural Wetland Depressions in the Devils Lake Basin of North Dakota, 38 SOIL & WATER CONST. 45-48 (1983). In addition, several studies have concluded that development of prairie potholes in Iowa, Minnesota, and North Dakota has played a major role in flooding in those regions. See L.J. Brun et al., Stream Flow Changes in the Southern Red River Valley, 38 N.D. FARM RES. 1 (1981); K.L. Campbell & H.P. Johnson, Hydrologic Simulation of Watersheds With Artifical Drainage, 11 WATER RESOURCES 120 (1975); I.D. Moore & C.L. Larson, Effects of Drainage Projects on Surface Runoff From Small Depressional Watersheds in the North Central Region, WATER RES. CENT. BULL. 99 (1979).

21. See Monks, supra note 10, at 20; Hollingsworth, supra note 3, at 1; ASWM Amicus Brief, supra note 3, at 8-9, 11 (citing studies). For instance, the U.S. Geological Survey has found that the concentrations of nitrates decrease in correlation with the presence of isolated forested wetlands. See P.J. Phillips et al., Effect of Forested Wetlands on Nitrate Concentrations in Ground Water and Surface Water on the Delmarva Peninsula, 13 WETLANDS 75-83 (1993).

22. See ASWM Amicus Brief, supra note 3, at 13 (citing studies).

23. 474 U.S. 121, 134, 16 ELR 20086, 20089 (1985).

24. The Corps' regulations define "waters of the United States" that are subject to regulation under the CWA to include "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 or foreign commerce . . . ." 33 C.F.R. § 328.3(a)(3) (2000).

25. When the Corps repromulgated its regulatory definition of "waters of the United States" in 1986, it stated, in the preamble to the rule, that the CWA regulates intrastate waters "which are or would be used as habitat by birds protected by Migratory Bird Treaties; or which are or would be used as habitat by other migratory birds which cross state lines; or which are or would be used as habitat for endangered species; or used to irrigate crops sold in interstate commerce." 51 Fed. Reg. 41217 (Nov. 13, 1986).

26. 121 S. Ct. at 684, 31 ELR at 20385. In another portion of the opinion, the Court held that "the 'Migratory Bird Rule' is not fairly supported by the [CWA]." Id. at 680, 31 ELR at 20383.

27. Id. at 683-84, 31 ELR at 20384.

28. Id. at 679, 31 ELR at 20382.

29. See Petitioner's Petition for a Writ of Certiorari, Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 31 ELR 20382 (2001) (No. 99-1178), available at http://www.swancc.org/supreme.htm (last visited Feb. 28, 2001).

30. See NAHB Press Release, supra note 2. Some newspaper reports adopted similar cautious readings of the case. See Hollingsworth, supra note 3, at 1.

31. See Headwaters, Inc. v. Talent Irrigation Dist., No. 99-35373 (9th Cir. filed Mar. 12, 2001).

32. 121 S. Ct. at 683-84, 31 ELR at 20384.

33. The SWANCC Court suggested that "the term 'navigable' has at least the import of showing us what Congress had in mind as its authority for enacting the [CWA]: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made." Id. at 683, 31 ELR at 20384. In the late 19th century, the Court indicated that waters are

navigable in fact when they are used, or are susceptible of being used in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade or travel on water . . . . And they constitute navigable waters of the United States, when they form in their ordinary condition by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water.

The Daniel Ball, 77 U.S. 557, 563 (1871). The Court later clarified that

[a] waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken. . . . When once found to be navigable, a waterway remains so. . . . The power of Congress over Commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic.

United States v. Appalachian Power Co., 311 U.S. 377, 407-08 (1940). Furthermore,

if a waterway at one time was navigable in it natural or improved state, or was susceptible to navigation by way of reasonable improvement, it retains its navigable status even though it is not presently used for commerce, or is presently incapable of use because of changed conditions or the presence of obstructions.

Lykes Bros. v. Corps of Eng'rs, 64 F.3d 630, 634, 26 ELR 20157, 20158 (11th Cir. 1995) (citing United States v. Harrell, 926 F.2d 1036, 1039 (11th Cir. 1991)).

34. See Memorandum from Craig M. Wilson, Chief Counsel, California State Water Resources Control Board, to State Board Members, Regional Board Executive Officers Regarding Effect of SWANCC v. [Corps of Eng'rs] on the 401 Certification Program 3 (Jan. 25, 2001) [hereinafter California Memo]. The guidance further suggests that "if anything definitive can be said about the SWANCC decision, it is that the Supreme Court believes regulating inland waters, including isolated wetlands, vernal pools, etc. are the primary (and probably now the exclusive) province of the state." Id.

35. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 16 ELR 20086, 20089 (1985).

36. Id. at 134, 16 ELR at 20089.

37. Id. at 133, 16 ELR at 20089. The dissenting justices in SWANCC argued that Congress eliminated any requirement that waters must be "navigable" to be regulated under the CWA "when it deleted the word from the § 502(7) definition." 121 S. Ct. at 688, 31 ELR at 20386. The dissenters asserted that the Court should have adopted the statutory interpretation approach that it adopted in Babbitt v. Sweet Home Chapter, Communities for Greater Or., 515 U.S. 687, 697-98 n.10, 25 ELR 21194, 21196 n.10 (1995), when it interpreted the term "take" in the Endangered Species Act according to the definition provided in the statute, rather than according to the common-law meaning of the term. 121 S. Ct. at 688, 31 ELR at 20386.

38. 474 U.S. at 133, 16 ELR at 20089.

39. Id.

40. 121 S. Ct. at 683, 31 ELR at 20384 (emphasis added).

41. Id. at 680 n.3, 31 ELR at 20383 n.3.

42. Id. at 688, 31 ELR at 20386-87 (dissenting opinion).

43. See United States v. Appalachian Power Co., 311 U.S. 377, 426 (1940).

44. 474 U.S. at 134-35, 16 ELR at 20089.

45. As the dissenting justices noted, "the goals of the [CWA] have nothing to do with navigation at all." See 121 S. Ct. at 688, 31 ELR at 20386 (dissenting opinion) (emphasis in original).

46. Id. at 680, 31 ELR at 20383.

47. Id. at 682, 31 ELR at 20383-84.

48. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); National Labor Relations Bd. v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979).

49. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985); United States v. Bass, 404 U.S. 336, 349 (1971).

50. 121 S. Ct. at 683-84, 31 ELR at 20384.

51. Id.

52. The Court recognized that the regulation of the filling of isolated, non-navigable ponds based solely on the use of those ponds as habitat for migratory birds raised "significant constitutional questions." Id.

53. Id. at 684, 31 ELR at 20384.

54. 529 U.S. 598 (2000).

55. Id. at 608, 615-16 (citing United States v. Lopez, 514 U.S. 549, 557 (1995)).

56. 121 S. Ct. at 683-84, 31 ELR at 20384.

57. The case that the Court cited to support its statement regarding state power over land and water use focused on whether a governmental authority was entitled to Eleventh Amendment immunity from suit in a case involving a claim for compensation under the Federal Employers Liability Act. See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994). Similarly, United States v. Bass, 404 U.S. 336, 349 (1971), which the SWANCC Court cited to support its assertion that the need for the Court to interpret a statute narrowly "is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power," 121 S. Ct. at 684, 31 ELR at 20384, did not involve a Commerce Clause challenge. Curiously, however, the Court did not cite Gregory v. Ashcroft, 501 U.S. 452 (1991), as support for its assertion that statutes that interfere with fundamental or important state powers should be interpreted narrowly.

58. While the Supreme Court held, in National League of Cities v. Usery, 426 U.S. 833, 844-46, 851-52 (1976), that the Tenth Amendment prohibited Congress from applying the Fair Labor Standards Act's minimum wage and maximum hours provisions to state and municipal workers because the law interfered with traditional government functions, the Court overturned that decision in Garcia v. San Antonio Metro. Transp. Auth., 469 U.S. 528, 531 (1985), and held that Congress can regulate traditional state functions if there is a clear statement that it intends to do so.

59. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 282, 11 ELR 20569, 20573 (1981).

60. 480 U.S. 572 (1987). As the dissenting Justices in SWANCC noted, the CWA is not a land use code, but is, rather "a paradigm of environmental regulation." 121 S. Ct. at 693, 31 ELR at 20388 (dissenting opinion).

61. California Coastal Comm'n, 480 U.S. at 587.

62. Hodel, 452 U.S. at 275, 11 ELR at 20571.

63. 33 C.F.R. § 328.3(a)(3).

64. See EPA/Corps SWANCC Memo, supra note 9, at 3.

65. Id. at 3.

66. 121 S. Ct. at 683, 31 ELR at 20384. See also EPA/Corps SWANCC Memo, supra note 9, at 3.

67. The SWANCC Court held that the term "'navigable' has at least the import of showing us what Congress had in mind as its authority for enacting the [CWA]: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made." 121 S. Ct. at 683, 31 ELR at 20384. The Court did not state that Congress only intended to regulate waters that were or had been navigable in fact or which could reasonably be so made. Instead, the Court suggested that Congress, in enacting the statute, only intended to protect those waters. As the Court apparently concluded in Riverside Bayview Homes, it is necessary to regulate some waters that are not navigable in fact in order to protect other waters that are navigable in fact.

68. 121 S. Ct. at 680, 31 ELR at 20383.

69. 474 U.S. at 134-35, 16 ELR at 20089. The Court noted:

The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, . . . and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion . . . . In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams[,] and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps' judgment on these matters is unreasonable, and we therefore conclude that a definition of "waters of the United States" encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act.

Id.

70. Significantly, the Riverside Bayview Homes Court held that the Corps could regulate adjacent wetlands, as a class, even though some adjacent wetlands might not provide the flood protection, erosion protection, water quality, and other benefits that adjacent wetlands, in general, provide. Id. at 135 n.9, 16 ELR at 20089 n.9.

71. See ASWM Amicus Brief, supra note 3, at 2. Several wetlands scientists that supported federal regulation of isolated waters argued, in an amicus brief in the SWANCC litigation, that

isolated ponds and wetlands . . . provide a basic function that wetlands adjacent to navigable waters and their tributaries provide—they store water. If they are left unaltered, the water they store is used by plants, evaporates, or filters through them and often reaches streams and rivers through groundwater. But when isolated ponds and wetlands are developed and drained, the water and its associated pollutants are typically transported quickly and without filtration into the local streams which feed into larger, ultimately navigable, downstream rivers, lakes, and coastal waters. The results can be severe. Streams receive rapid influxes of water and associated pollutants they had not previously experienced. This may cause flooding, severe bank erosion, and downstream water quality problems. Furthermore, the untrapped water that now flows rapidly as runoff into streams during the spring rainy season is no longer available to recharge groundwater and provide the critical "base" flow to streams in drier summer months.

Id.

72. See 121 S. Ct. at 685 n.2, 31 ELR at 20385 n.2 (dissenting opinion). As the Riverside Bayview Homes Court recognized, the federal government asserted jurisdiction over the adjacent wetlands in that case even though they were not flooded or inundated by surface water from navigable waters. See 474 U.S. at 134, 16 ELR at 20089. Pursuant to the Corps' regulations, wetlands can be "adjacent" to other navigable waters, and regulated under the CWA, when they are inundated or saturated through a groundwater connection to other waters. Id. "Isolated" waters are often connected to other navigable waters through similar groundwater connections. See ASWM Amicus Brief, supra note 3, at 2-3.

73. Environmental Defense advocated this approach shortly after the Court issued its decision. In their press release at the time of the ruling, Environmental Defense argued that

despite today's decision, the Army Corps may be able to protect isolated water bodies on some basis other than use by migratory birds. Filling isolated water bodies typically means that water that would have been stored in them must now go elsewhere, which sometimes causes flooding and pollution. The decision doesn't discuss whether the [CWA] can regulate these water bodies because of these impacts downstream.

See Environmental Defense Press Release, supra note 3.

74. EPA and the Corps have not interpreted the SWANCC ruling to prohibit federal regulation of all isolated, non-navigable intrastate waters, although the agencies recognize that "the Court's opinion did not specifically address what other connections with interstate commerce might support the assertion of [CWA] jurisdiction over 'nonnavigable, isolated intrastate waters.'" See EPA/Corps SWANCC Memo, supra note 9, at 5-6.

75. See United States v. Morrison, 529 S. Ct. 598, 608-09 (2000); United States v. Lopez, 514 U.S. 549, 558 (1995); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276-77, 11 ELR 20569, 20572-73 (1981); Perez v. United States, 402 U.S. 146, 150 (1971).

76. 529 U.S. at 608-09.

77. Id. at 610-13. Several federal appellate courts have upheld environmental statutes against Commerce Clause challenges when the courts determined that the laws regulated economic activities. See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 492, 30 ELR 20602, 20604 (4th Cir. 2000), cert. denied, Gibbs v. Norton, 121 S. Ct. 1081 (2001) (upholding provisions in the Endangered Species Act that prohibit "taking" of endangered species, in light of a finding that the taking of red wolves "implicates a variety of commercial activities"); Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 30 ELR 20723 (D.C. Cir. 2000) (upholding EPA regulations that limit the volatile organic compound content of architectural coatings, in light of a finding that the regulations targeted a product that was sold or distributed in interstate commerce); United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997) (upholding Comprehensive Environmental Response, Compensation, and Liability Act in light of a finding that the statute regulated commercial activities).

78. See Morrison, 529 U.S. at 608, 615-18; Lopez, 514 U.S. at 557. See also Jones v. United States, 529 U.S. 848, 858 (2000) (interpreting 18 U.S.C. § 844(i) narrowly to avoid federal regulation of criminal conduct that would traditionally be regulated locally).

79. See Wickard v. Filburn, 317 U.S. 111, 127-28 (1942) (holding that where a class of activities, in the aggregate, has a substantial effect on interstate commerce, Congress may regulate those activities under the Commerce Clause, even though the activities, individually, would not have a substantial effect on interstate commerce).

80. See John Copeland Nagle, The Commerce Clause Meets the Dehli Sands Flower-Loving Fly, 97 MICH. L. REV. 174 (1998). The SWANCC Court recognized the importance of this issue when it stated that

we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner's municipal landfill, which is "plainly of a commercial nature." But this is a far cry, indeed, from the "navigable waters" and "waters of the United States" to which the statute by its terms extends.

121 S. Ct. at 683, 31 ELR at 20384 (emphasis in original). The dissent correctly observed, however, that "the activity being regulated . . . is the discharge of fill material into water. The Corps did not assert jurisdiction over petitioner's land simply because the waters were 'used as habitat by migratory birds.'" Id. at 694, 31 ELR at 20389 (dissenting opinion). The outcome of the constitutional analysis may differ depending upon whether the Court characterizes the action at issue as regulation of isolated waters, regulation of isolated ponds, regulation of discharges of fill material into isolated ponds, or regulation of discharges of fill material into isolated ponds in order to build landfills.

81. See id. at 694, 31 ELR at 20389 (dissenting opinion) (citing V. ALBRECHT & B. GOODE, WETLAND REGULATION IN THE REAL WORLD (1994)); see also Brief of Environmental Defense et al. at 6, Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 31 ELR at 20382 (2001) (No. 99-1178) [hereinafter Environmental Defense Amicus Brief].

82. 121 S. Ct. at 684, 31 ELR at 20385.

83. 480 U.S. at 587.

84. 452 U.S. 264, 282, 11 ELR 20569, 20573 (1981).

85. See supra notes 59-62 and accompanying text. See also Gibbs v. Babbitt, 214 F.3d 483, 500, 30 ELR 20602, 20608 (4th Cir. 2000); Stephen R. McAllister & Robert L. Glicksman, Federal Environmental Law in the "New" Federalism Era, 30 ELR 11122 (Dec. 2000).

86. See supra notes 20-23 and accompanying text.

87. See United States v. Appalachian Power Co., 311 U.S. 377, 426 (1940).

88. See supra note 79. See also SWANCC, 121 S. Ct. at 694, 31 ELR at 20388-89 (emphasis in original) ("it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect"); Perez v. United States 402 U.S. 146, 154 (1971) ("where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class").

89. See Hodel v. Indiana, 452 U.S. 314, 329, 11 ELR 20581, 20586 (1981); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964); Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964). Cf. Perez, 402 U.S. at 154-56; Wickard v. Filburn, 317 U.S. 111, 127-28 (1942); United States v. Darby, 312 U.S. 100, 123 (1941).

90. Although not significant, the agencies did have some incentives, prior to SWANCC, to distinguish between isolated waters and other waters. First, there was "a more conclusive body of case law supporting [CWA] jurisdiction over an aquatic area based on that area's status as part of, or wetlands adjacent to, a tributary system to traditional navigable waters, rather than as isolated waters." See EPA/CORPS WILSON GUIDANCE, supra note 4, § 3(d). The second reason was "ease of proof. When a water body is shown to be part of a tributary system to interstate or traditional navigable waters, that usually easily established fact is sufficient to show that the water body can be regulated by the federal government under the Commerce Clause." Id.

91. Id. § 3c.

92. 133 F.3d 251, 256-57, 28 ELR 20299, 20300-01 (4th Cir. 1997).

93. See EPA/Corps SWANCC Memo, supra note 9, at 3, 9.

94. 474 U.S. at 129-30, 16 ELR at 20088.

95. Id. at 131, 16 ELR at 20088.

96. Id. at 132-34, 16 ELR at 20088-89.

97. The Riverside Bayview Homes Court recognized that it is difficult to determine "the precise bounds of regulable waters," id. at 134, 16 ELR at 20089, but the Court deferred to "the Corps' ecological judgment about the relationship between waters and their adjacent wetlands" in determining the scope of federal jurisdiction over wetlands. Id.

98. This approach is conceptually similar to the regulation of isolated waters where the destruction of the waters will lead to flooding, erosion, or water pollution, discussed in the prior section. However, this approach would regulate those waters as "adjacent" wetlands under 33 C.F.R. § 328.3(a)(7), rather than as isolated waters under § 328.3(a)(3).

99. 474 U.S. at 134-35, 16 ELR at 20089.

100. See Kusler, supra note 3, at 8.

101. Exec. Order No. 13186, 66 Fed. Reg. 3853 (Jan. 17, 2001), ADMIN. MAT. 45135.

102. 16 U.S.C. §§ 703-711.

103. Id. §§ 668-668d.

104. Id. §§ 661-666c.

105. Id. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

106. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

107. 66 Fed. Reg. at 3853.

108. Id. at 3854.

109. As part of the MOU, agencies are required to

(1) . . . integrate bird conservation principles, measures, and practices into agency activities and . . . avoid . . . or minimize, to the extent practicable, adverse impacts on migratory bird resources when conducting agency actions; (2) restore and enhance the habitat of migratory birds, as practicable; (3) prevent or abate the pollution or detrimental alteration of the environment for the benefit of migratory birds, as practicable; (4) design migratory bird habitat and population conservation principles, measures, and practices, into agency plans and planning processes; . . . (5) as practicable, and coordinate with other agencies and nonfederal partners in planning efforts; [and] (6) ensure that environmental analyses of Federal actions require the NEPA or other established environmental review processes evaluate the effects of actions and agency plans on migratory birds.

Id. at 3854-55.

110. Id. at 3856. The council includes representatives, at the bureau or administrator level, from EPA, the U.S. Departments of the Interior, Commerce, Agriculture, Transportation, Energy, Defense, and such other agencies as are appropriate. Id.

111. Id.

112. The order only imposes duties on federal agencies, which it defines as "an executive department or agency." Id. at 3853.

113. Id. at 3856.

114. As noted above, the Court did not conclude that such regulation would be unconstitutional. See supra note 32 and accompanying text.

115. As noted previously, the Court recognized in United States v. Appalachian Power Co. that "the constitutional power of the United States over its waters is [not] limited to control for navigation . . . . Navigability . . . is but a part of the whole. Flood protection, watershed development . . . are likewise parts of commerce control." 311 U.S. 377, 407-08 (1940).

116. The Commerce Clause also authorizes Congress to regulate instrumentalities of commerce. See supra note 75. Discharges into, and pollution of, isolated waters can harm migratory birds by destroying or degrading their habitat. See supra notes 17-18 and accompanying text. Congressional regulation of isolated waters could, therefore, be characterized as an effort to control instrumentalities of commerce. See McAllister & Glicksman, supra note 85. As the dissenting Justices in SWANCC noted, "the power to regulate commerce among the several States necessarily and properly includes the power to preserve the natural resources that generate such commerce. Migratory birds, and the waters on which they rely, are such resources. Moreover, the protection of migratory birds is a well-established federal responsibility." 121 S. Ct. at 695-96, 31 ELR at 20389 (dissenting opinion).

117. See supra note 75.

118. See 529 U.S. at 608-09.

119. See supra note 81.

120. See supra notes 86-89.

121. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402.

122. See supra notes 20-23 and accompanying text.

123. See supra notes 16-19 and accompanying text.

124. The dissenting Justices in SWANCC noted that, "in 1980, 5.3 million Americans hunted migratory birds, spending $ 638 million [and] more than 100 million Americans spent almost $ 14.8 billion in 1980 to watch and photograph fish and wildlife." See 121 S. Ct. at 695-96, 31 ELR at 20389 (dissenting opinion). In the decision below, the U.S. Court of Appeals for the Seventh Circuit found that "in 1996, approximately 3.1 million Americans spent $ 1.3 billion to hunt migratory birds (with 11[%] crossing state lines to do so) as another 17.7 million Americans observed migratory birds (with 9.5 million traveling for the purpose of observing shorebirds)." See Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 191 F.3d 845, 850, 30 ELR 20161, 20162 (7th Cir. 1999).

125. See McAllister & Glicksman, supra note 85. Although Congress included extensive findings regarding the effects of gender-motivated violence on interstate commerce in the Violence Against Women Act (VAWA), the Court, in Morrison, concluded that the law was outside of Congress' Commerce Clause power. 529 U.S. at 614-17.

126. See 529 U.S. at 612.

127. 514 U.S. 549, 562 (1995).

128. See Morrison, 529 U.S. at 611-12; Lopez, 514 U.S. at 562. The VAWA, which the Court struck down in Morrison, did not include a jurisdictional limit. 529 U.S. at 611-13.

129. This is similar to the regulatory approach that the Corps and EPA took prior to SWANCC, when they defined "waters of the United States" to include "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 or foreign commerce . . . ." 33 C.F.R. § 328.3(a)(3).

130. See supra note 88.

131. U.S. CONST. art. II, § 2. Article VII of the Constitution provides that the "Constitution, and the Laws of the United States . . . and all treaties made . . . under the authority of the United States shall be the supreme law of the land . . . ." Id. art. VII.

132. Id. art. I, § 8, cl. 18.

133. 40 Stat. 755 (1918).

134. 252 U.S. 416 (1920).

135. See supra notes 16-19 and accompanying text.

136. See Martin S. Flaherty, Part II: Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L. REV. 1277, 1279 (1999).

137. 252 U.S. at 431-32.

138. Id. at 432.

139. Id. at 433. Prior to the ratification of the Migratory Bird Treaty and enactment of the Migratory Bird Treaty Act, two lower federal courts invalidated a 1913 federal law that regulated hunting of migratory birds, on the grounds that Congress could not displace state authority in the area. See Flaherty, supra note 136, at 1297.

140. 252 U.S. at 435.

141. See supra note 3.

142. See Kusler, supra note 3, at 9. See also Fretwell, supra note 3; Savage, supra note 17, at 12; Brief of the States of California et al. at 23, Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 31 ELR at 20382 (2001) (No. 99-1178) [hereinafter California Amicus Brief] (citing Jon Kusler et al., State Wetland Regulation: Status of Programs and Emerging Trends, prepared for the Association of State Wetlands Managers (1995), at 5-8); ILLINOIS DEP'T OF NATURAL RESOURCES, NATIONWIDE SURVEY OF STATE WETLANDS REGULATORY PROGRAMS (1997).

143. See Kusler, supra note 3, at 9. Fourteen states, including Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, provide considerable protection for isolated freshwater wetlands, although regulation in some of those states is limited by wetland size and other exemptions. Id. While the other two-thirds of the states do not have regulatory programs that focus on isolated wetlands, it may be possible to limit pollution or destruction of isolated waters in those states, to some degree, through sediment control laws, land use laws, and broad anti-pollution provisions in other environmental laws. See Durbin, supra note 3, at C5 (discussing the Growth Management Act in Washington State); Fretwell, supra note 3 (discussing sediment control laws in South Carolina); Kusler, supra note 3, at 9-11; California Memo, supra note 34.

144. See Kusler, supra note 3, at 9 (identifying Alaska, Georgia, Kansas, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, and Texas as states with large isolated wetlands acreage and limited protection for isolated waters). See Jon Kusler, The SWANCC Decision and the States—Fill in the Gaps or Declare Open Season?, NAT'L WETLANDS NEWSL., Mar./Apr. 2001, at 9. However, the North Carolina Environmental Management Commission, in an April 12, 2001, interpretative ruling issued at the request of the state environmental agency, stated that isolated wetlands are addressed by regulations (15A N.C. ADMIN. CODE § 02B.0231) promulgated in 1996. See Isolated Wetlands Remain Protected Under State Rules, Commission Says, Daily Env't Rep. (BNA), Apr. 18, 2001, at A-4. See also California Amicus Brief, supra note 142, at 23.

145. See Kusler, supra note 3, at 9-10, 15. Section 401 of the CWA requires applicants for federal licenses or permits for activities which may result in a discharge into the navigable waters to provide the federal government with a certification from the state in which the discharge will originate that the discharge complies with state water quality standards and with several other provisions of the CWA. See 33 U.S.C. § 1341(a)(1), ELR STAT. FWPCA § 401(a)(1). The law provides that "no license or permit shall be granted if certification has been denied by the State . . . ." Id.

146. See Kusler, supra note 3, at 14-16. Bills have been introduced in Nebraska and Wisconsin, and legislation is likely in many other states. Id. at 16. States are also using administrative tools to assert jurisdiction over isolated wetlands after SWANCC. See, e.g., 25 S.C. Reg. 27 (Mar. 23, 2001) (South Carolina emergency regulation on wetlands).

147. See Harper, Virginia Environmentalists Applaud, supra note 3, at B11. As noted previously, the U.S. Court of Appeals for the Fourth Circuit invalidated federal regulation of most isolated wetlands in Virginia and other states in that circuit in 1997, so the Court's decision did not have a negative impact of wetlands regulation in the state. Id. On the contrary, the Court's ruling bolstered the argument of wetlands advocates in Virginia that state legislation is necessary to protect isolated waters. Id.

148. See Environmental Defense Press Release, supra note 3.

149. See Kusler, supra note 3, at 16.

150. See Oliver Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 MD. L. REV. 1242, 1252-53 (1995). See also Environmental Defense Press Release, supra note 3. For a more general discussion regarding the "race to the bottom" phenomenon in environmental law, see Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"?, 48 HASTINGS L.J. 271, 275 (1997) (defending the race to the bottom rationale for federal regulation); Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23, 31 (1996); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992).

151. See Kusler, supra note 3, at 16.

31 ELR 10669 | Environmental Law Reporter | copyright © 2001 | All rights reserved