Navigating Federalism: The Missing Statutory Analysis in Solid Waste Agency

20 Pages Posted: 8 Aug 2006


In January 2001, the Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, holding that the U.S. Army Corps of Engineers could not exercise jurisdiction over ponds at an abandoned gravel pit pursuant to its Migratory Bird Rule, an interpretive gloss on its regulatory interpretation of waters of the United States for purposes of section 404 of the Clean Water Act. For the first time in the Act's 30-year history, moreover, the Court gave substantive weight to the Act's inclusion of states as regulatory partners, refusing to accord the Army Corps Chevron deference on grounds that the Army Corps' interpretation of the Act pushed the Act to its constitutional limits, on both federalism and Commerce Clause grounds.

This article argues that by emphasizing one sentence from the Clean Water Act's general purposes section, the Court displaced Congress' complex compromise between state and federal regulatory authority - a compromise that incorporates the variety of accepted state and federal interests in this country. If the Court had looked at the broader context of the Clean Water Act instead of just section 404, it would have noticed that Congress used the term navigable waters to recognize and preserve state authority over certain types of waters, rather than to undermine that authority in favor of federal regulation.

Keywords: Clean Water Act, navigable waters, waters of the United States, Solid Waste Agency, SWANCC, section 404, section 402, federalism, Commerce Clause

Suggested Citation

Craig, Robin Kundis, Navigating Federalism: The Missing Statutory Analysis in Solid Waste Agency. Environmental Law Reporter, Vol. 31, pp. 10508-10527, May 2001, Available at SSRN:

Robin Kundis Craig (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics