Summary of Recent Wetlands Jurisdiction Decisions - June 2002
In the wake of the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, (2001) courts have scrambled to re-evaluate the scope and reach of the government's regulatory authority under the Clean Water Act (CWA) over 'navigable waters'. Some courts have read SWANCC broadly as significantly restricting the authority of the Corps and EPA over waters and wetlands that are a significant distance from traditionally navigable ('navigable-in-fact') waters. These courts read SWANCC 'reining in' the historical expansion of federal jurisdiction since 1972 with the Corps revisions of its regulations in 1975, 1977 and 1986. These courts hold that t Corps has misconstrued the Congressional intent under the CWA by expanding its jurisdiction to waters and wetlands a distance from traditionally navigable waters. These courts generally hold that while not all regulated waterways must be navigable-in-fact, an actual nexus to such navigable-in-fact waters must be shown it is not enough to merely have a tenuous and indirect linkage.