On January 9, 2001, the U.S. Supreme Court ruled that jurisdiction to regulate wetlands under section 404 of the Clean Water Act (CWA) did not extend to isolated waters and wetlands if their sole connection to interstate commerce is the use of such waters by migratory birds. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001). This holding invalidated the so-called migratory bird rule used by the Corps and EPA to extend their permitting jurisdiction over excavation trenches, ditches, and other isolated waters or wetlands. Ten days after the SWANCC decision, the Corps and EPA issued a legal memorandum to the regional offices and advised the offices that: (1) traditionally navigable waters, interstate waters, their tributaries, and directly adjacent wetlands were still jurisdictional; (2) wholly intrastate waters that affect interstate commerce solely by their use as habitat for migratory birds are not jurisdictional; and (3) for all other intrastate waters with some other connection to interstate comment, consult agency counsel.

     Since the January 19, 2001, guidance, the Corps and EPA regional offices have, in effect, been playing it by ear. Jurisdictional determinations have been made on a case-by-case basis and this, some argue, has led to confusion, chaos, and disparity of treatment between the regional offices. Regulated interests have argued that the SWANCC decision has simply prompted the Corps to be more creative in how it claims jurisdiction, with some regional offices asserting jurisdiction over remote ponds or ditches on the theory that the surface water from those ponds could eventually mix with a downstream navigable water. Critics derisively call this the "Migratory Molecule Rule." Attorneys for developers argue that the Corps has come up with creative definitions of the term "tributary" in an effort to extend CWA jurisdiction. Environmental groups, on the other hand, say no clarification is needed and that the SWANCC decision, if not outright erroneous, should be read very narrowly and cannot be applied as general guidance.

     Further, recent appellate decisions have narrowed the impacts of the SWANCC decision by holding that the ruling cannot be used to justify setting aside or reopening a consent decree issued before the SWANCC opinion was issued. See United States v. Krilich, 303 F.3d. 784 (7th Cir. Sept. 9. 2002); United States v. Interstate General Co., Case No. 01-4513, 32 Envtl. L. Rep. 20,781 (4th Cir. July 2, 2002) (unpublished). The boundaries of the decision are still being tested. In an amicus brief filed with the U.S. Court of Appeals for the Sixth Circuit on September 18, the National Federation of Independent Businesses argued that the defendant's conviction for illegally filling isolated wetlands should be overturned because the SWANCC ruling has limited federal jurisdiction over wetlands. (Lower decision at: United States v. Rapanos, 190 F. Supp.2d 1011 (E.D.Mich. 2002)).

     All of this led Rep. Doug Ose (R-CA), chairman of the Government Reform Committee's subcommittee on energy policy, natural resources and regulatory affairs, to schedule a hearing on September 19, 2002, to address the issue of wetlands jurisdiction. At the September 19 meeting, key officials from the Corps, EPA, and the Department of Justice (DOJ) testified that the Corps and EPA planned to engage in rulemaking to address and clarify the scope of federal jurisdiction over wetlands. Part of that rulemaking effort will include workshops to take public input on these issues and bi-weekly interagency meetings among EPA, the Corps, and DOJ to identify the key SWANCC-related issues arising in the field, keep staff apprised of litigation developments, and exchange information. Despite this aggressive meeting schedule, none of the agencies would forecast a timetable for the rulemaking. An interagency meeting of top-level officials was scheduled to occur on October 4, but the agencies have yet to release details of any issues discussed at that meeting, if it in fact occurred. No rulemaking schedule has been released.

     Issues ripe for resolution after SWANCC include:

* Jurisdiction over isolated, non-navigable, intrastate waters where some use other than by migratory birds alone is the basis for the waters' connection to interstate commerce (e.g., use by tourists; use as habitat by endangered species)
* Definition or clarification of the term "adjacent" (i.e., how far is too far?)
* Definition or clarification of the term "tributary" in particular:
* Whether ephemeral or intermittent streams (those wet only part of the year) should be considered "tributaries" or their wetlands considered "adjacent" to navigable waters
* Whether water passing through agricultural ditches or similar manmade structures should be considered "tributaries" or their wetlands considered "adjacent" to navigable waters

     Rulemaking to address these and other issues raised by the SWANCC decision is bound to be contentious, with environmental groups supporting efforts to keep jurisdiction under the CWA as broad as possible and groups representing private property interests and developers fighting hard to narrow it. Stay tuned.