Federal Regulation of Wetlands in Aftermath of Supreme Court’s Decision in SWANCC v. United States

Abstract

Under the commerce clause, Congress has the power to regulate any activity that has a ‘‘substantial effect’’ on interstate commerce. Congress may, however, choose not to exercise the full extent of its regulatory power. When Congress passed the Clean Water Act, it delegated to the U.S. Army Corps of Engineers ~Corps! and the Environmental Protection Agency ~EPA! the authority to regulate ‘‘waters of the United States.’’ In deciding what wetlands to regulate, the Corps and the EPA were thus required to consider what scope of regulatory authority Congress intended to confer when it used the term ‘‘waters of the United States.’’ Did Congress intend regulation only of navigable waterways on which commerce was conducted? Did Congress intend regulation of wetlands and watercourses that are adjacent to navigable waterways? What about isolated wetlands that are not even adjacent to navigable waterways? Ultimately, the Corps concluded that Congress intended the Corps to regulate the nations’ waters to the full extent allowed under the Commerce Clause, i.e. to any waters or wetlands that had a substantial effect on interstate commerce. Thus, prior to SWANCC v. United States, the Corps claimed that ‘‘waters of the United States’’ included not only navigable waterways but also ‘‘isolated wetlands’’ which were not attached or adjacent to ‘‘navigable’’ waterways. The Corps reasoned that because migratory birds have economic impacts in multiple states and internationally, and because migratory birds use isolated wetlands, what happened on isolated wetlands affected interstate commerce. The rule promulgated by the Corps to extend jurisdiction over these isolated wetlands became known as the migratory bird rule. The Court in SWANCC invalidated this migratory bird rule, holding that Congress did not intend to give the Corps authority to regulate isolated wetlands when it used the term ‘‘waters of the United States.’’ The Court did not reach what it described as a close constitutional question about whether Congress ~and by delegation the Corps! had power under the Commerce Clause to regulate isolated wetlands. In other words, the Court decided that Congress may or may not have been able to give the agency power to regulate isolated wetlands but that it did not do so in the Clean Water Act. The Corps, therefore, was acting beyond its statutory authority in passing the migratory bird rule. This decision has been characterized as ‘‘the end of life as we know it’’ and the ‘‘beginning of the end’’ for the environmental movement. The truth seems less extreme.