Lower Courts Untangle the Finer Points of Swancc
National Wetlands Newsletter, Vol. 24, No. 5, pp. 7-13, September-October 2002
4 Pages Posted: 7 Aug 2006
On January 2, 2001, the U.S. Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, holding that the Corps could not require SWANCC to get a Clean Water Act section 404 permit before filling ponds in an abandoned sand and gravel pit. In so holding, the Supreme Court redefined federal jurisdiction over wetlands, although the federal courts are still working out the scope of that redefinition.
This article explores lower courts' reactions to and interpretations of the SWANCC decision. It concludes that the lower courts have created a variety of approaches to assessing the Army Corps' authority to regulate wetlands, but that the emergining majority rule is that federal jurisdiction exists any time a wetland has a surface water connection -- however distant and convoluted -- to other "navigable waters."
Keywords: Solid Waste Agency, SWANCC, wetlands, Army Corps, Clean Water Act, jurisdiction, majority rule, minority rule
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