The U.S. Supreme Court Limits Federal Regulation of Wetlands: Implications of the SWANCC Decision

Abstract

In January, 2001, the U.S. Supreme Court limited federal authority to regulate isolated wetlands that serve as habitat for migratory birds or endangered species. The Court determined that the Clean Water Act's protection of wetlands only extends to waters, their tributaries, and wetlands adjacent to each. As with many of the Court's 5-4 decisions, the ruling is enigmatic. It may produce a drastic reduction in federal regulation of vernal pools, desert springs, interior drainage streams, and other wetlands of importance in California. It may also mean the end of federal regulation of water pollution in these water bodies. Or, the ruling could have a practical effect rather less than that. Clearly, the Supreme Court believes that regulation of wetlands beyond navigable waterways is the province of state and local governments. As of yet, the Army Corps of Engineers has not issued guidance on how that agency will interpret the SWANCC decision. The SWANCC decision presents California with the opportunity to assess the ecological and economic benefits of the state's remaining isolated wetlands, the costs of protecting them, and to determine whether the state should take the lead in their regulation. This paper reviews federal regulation of wetlands and the Supreme Court's decision. It attempts to identify the wetlands in California that now lie outside of federal regulation, and reviews existing state laws and regulatory programs that might cover the affected wetlands. It concludes with several policy options, ranging from minor fixes to plug the gap in federal-state regulation to creating a statewide wetlands conservancy.