RIVER AND WETLAND REGULATION: WHO’S IN CHARGE AFTER SWANCC V. UNITED STATES?

摘要

The United States Supreme Court, in SWANCC v. United States, 121 S. Ct. 675(2001) limited federal jurisdiction over what are known as “isolated wetlands.” Federalagencies (primarily the U.S. Army Corps of Engineers and EPA) whose regulatory authoritydepends upon the definition of “waters of the United States” in the Clean Water Act are stillattempting to determine how the decision impacts their regulatory missions.The courts have also begun to define what is meant by “isolated” and “adjacent to”“waters of the United States.” Understanding how these terms are defined and used can helpowners, consultants, and contractors avoid trouble with the various regulatory agencies.Because the Supreme Court decision impacts only federal regulations, it does not affect stateregulations dealing with wetlands and interested parties must still be careful to comply withstate regulations when dealing with any body of water.This paper attempts to clarify the impact of the Supreme Court decision onprofessionals working with wetlands and “waters of the United States” issues by explainingthe types of waters still under Corps jurisdiction, types of waters where uncertainty exists,and waters that may be outside of the new jurisdictional limits.