A Brief Discussion of Post-SWANCC Decisions Regarding Definition of “Waters of the United States” under the Clean Water Act

Steven I. Addlestone
Hunton & Williams
Atlanta, Georgia
Kimberly A. Childs

Introduction

On January 9, 2001, the Supreme Court decided and apparently narrowed the Army Corps of Engineers' ("Corps") jurisdiction under the "Clean Water Act" ("CWA"). In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 121 S. Ct. 675 (2001) ("SWANCC"), the Supreme Court held that "isolated ponds, some only seasonal, wholly located within two Illinois counties" do not fall within the Clean Water Act's ("CWA's") definition of "navigable waters" merely because these waters serve as habitat for migratory birds. Id. at 682 (2001). It its holding, the Court also discussed the Congressional intent behind the CWA, Commerce Clause limitations on the CWA, and federalism concerns about the CWA. See 121 S.Ct. at 680-684. The initial post-SWANCC cases reveal a wide range of interpretations of the Court's discussions.

Post-SWANCC Positions and Activity

The Government's Position: A Narrow Interpretation

On January 19, 2001, the Environmental Protection Agency and the Corps issued an internal memorandum directing field staff to "no longer rely on the use of waters or wetlands as habitat by migratory birds as the sole basis for the assertion of regulatory jurisdiction under the CWA." Memorandum from Gary S. Guzy and Robert M. Andersen on Supreme Court Ruling Concerning CWA Jurisdiction over Isolated Waters, to Various Federal Agencies (Jan. 19, 2001). In that memorandum, the government stated that the Supreme Court's decision was limited to non-navigable, isolated, intrastate waters and that it did not limit pre-SWANCC precedent such as United States v. Riverside Bayview Homes. See id.

Post-SWANCC Decisions

The trial and appellate courts are already disagreeing about the implications of the SWANCC decision. Some cases interpret the SWANCC decision quite narrowly. For example, the Ninth Circuit recently held that a leaky irrigation canal was a tributary under the CWA, see Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. Mar. 12, 2001), and a Montana district court allowed the Corps to exercise jurisdiction over a creek that did not connect to a navigable-in-fact waterway for over 200 miles, see United States v. Buday, 138 F. Supp. 2d 1282 (D. Mont. Apr. 11, 2001). In dicta, an Illinois district court suggested that SWANCC requires non-navigable wetlands or waters to have a substantial connection to a navigable waterway. See United States v. Krilich, No. C 5354, 2001 U.S. Dist. LEXIS 8405 (N.D. Ill. June 21, 2001).

The Montana court in Buday also determined that the Supreme Court in SWANCC did not address the definition of "waters of the United States" in 33 C.F.R. § 328 (a)(3). See Buday, 138 F. Supp. 2d at 1287. Conversely, a Maryland district court, taking a broader approach, stated that the SWANCC decision invalidated 33 C.F.R. § 328.3 (a)(3). See United States v. Interstate Gen. Co., Nos. AW-96-112, AQ-95-0390, 2001 U.S. Dist. LEXIS 8061 (D. Md. June 12, 2001).

Lower courts have also disagreed about jurisdiction over groundwater in light of SWANCC. In an Oil Pollution Act cases, the Fifth Circuit commented that groundwater is not covered by the CWA. See Rice v. Harken Exploration Co., No. 99-11229, 2001 WL 422051 (5th Cir. Apr. 25, 2001). A Maryland district court, however, suggested that an unlined landfill that leaked into groundwater violated the CWA. See Aliello v. Town of Brookhaven, 136 F. Supp. 2d 81 (E.D. N.Y. Mar. 15, 2001).

States May Take Action

On May 7, 2001, Wisconsin passed legislation that will allow the state to regulate the filling and dredging of isolated wetlands. See Wisconsin Restores Wetlands Protection, 21 No. 14 ANDREWS HAZARDOUS WASTE LITIG. REP. 13 (May 25, 2001). Wisconsin now requires that filling or dredging of a non-federal wetland must meet Wisconsin's water quality standards. See id. Commentators suggest that other states may follow suit. See Edward B. Witte, Wetlands Rules Were For the Birds, 21 No. 11 ANDREWS HAZARDOUS WASTE LITIG. REP. 5 (Apr. 13, 2001) (predicting that states will "fill the void created by SWANCC"); Honigman Miller Schwartz & Cohn Christopher J. Dunsky, Supreme Court Says States Must Regulate Filling of Isolated Ponds, MICH. ENVTL. COMPLIANCE UPDATE (Mar. 2001) (stating that after SWANCC, Michigan will finally be able to administer wetland permits without federal oversight).

Conclusion

Parties and courts alike will continue to debate the impact of the SWANCC decision. It is already evident that the lower courts are grappling with these issues, and states may step in to fill a perceived void. In any event, the SWANCC decision should provide fodder for CWA jurisdictional arguments for some time.

Mr. Addlestone is an associate with the Atlanta office of Hunton & Williams. Ms. Childs is a third-year student at Georgia State University Law School.