Beyond SWANCC: The New Federalism and Clean Water Act Jurisdiction

Article excerpt

  I. INTRODUCTION
 II. CWA BASICS
     A. Statutory Elements of CWA Jurisdiction
     B. Compliance with the CWA: Two Permit Programs
III. SWANCC, FEDERALISM AND CWA JURISDICTION
     A. Constitutional Federalism
     B. Statutory Federalism
        1. Cooperative Federalism and State Participation
        2. Navigable Waters and Increased Federal Involvement in Water
           Quality Regulation
     C. SWANCC: Federalism as a Principle of Statutory Interpretation
        1. The SWANCC Decision
        2. The Meaning of "Navigable Waters" in SWANCC
 IV. CWA JURISDICTIONAL ISSUES AFTER SWANCC.
     A. What Part of the Corps' Regulations Did SWANCC Invalidate?
     B. What Kind of Hydrological Connection Makes an Intrastate Water
        an "Adjacent" Water so that Federal CWA Jurisdiction Attaches?
        1. The Emerging Majority Rule
        2. Minority Rule #1
        3. Minority Rule #2
     C. Does SWANCC Affect EPA's CWA Jurisdiction as well as the Corps'?
     D. Will State Regulation Fill in the Gaps SWANCC Left?
  V. COLLATERAL EFFECTS OF SWANCC
     A. Oil Pollution Act Jurisdiction
     B. Fifth Amendment Takings Cases
     C. Endangered Species Act Regulation
 VI. WATERS AND ACTIVITIES THAT MAY INSPIRE POST-SWANCC FEDERALISM
     ISSUES
     A. Underground Waters
     B. Dams
     C. Coastal and Ocean Waters
VII. CONCLUSION

I. INTRODUCTION

On January 9, 2001, the Supreme Court decided Solid Waste Agency of Northern Cook Country v. United States Corps of Engineers (SWANCC), (1) restricting the federal government's permitting authority over "navigable waters" and thus readjusting the federal-state balance under the Clean Water Act (2) from its pre-SWANCC presumed Commerce Clause limits. In the process, the Court made several statements indicating that federalism concerns were relevant in interpreting the scope of the federal government's jurisdiction under the Act. Lower federal courts have since strived to resolve the ambiguities regarding the federal role in water quality jurisdiction left by the SWANCC Court, but few have addressed the larger issues of statutory federalism raised by the Supreme Court. However, three specific areas of Clean Water Act jurisdiction--underground waters, dams, and ocean and coastal waters--are likely to test the federalism implications of SWANCC, leading to a different balancing of federal and state interests in each area and hence different decisions regarding federal Clean Water Act jurisdiction in those areas.

This Article explores the aftermath of SWANCC and its implications for CWA jurisdiction. Part II lays out the basic regulatory structure of the CWA. Part III discusses the principles of constitutional federalism, federalism-related provisions of the CWA, and SWANCC. Parts IV and V discuss the aftermath of SWANCC--specifically, Part IV focuses on the lower courts' direct applications of SWANCC to CWA issues, and Part V addresses the collateral effects of SWANCC for other federal statutes and for Fifth Amendment takings claims. Part VI examines three looming issues of CWA jurisdiction--underground waters, dams, and ocean water quality--and explores how SWANCC's "new federalism" might influence future decisions regarding these issues. This Article concludes that, for the most part, post-SWANCC federal courts have been less interested in adopting the SWANCC Court's emphasis on the role of federalism in interpreting the CWA than they have been in limiting SWANCC itself, but that interesting issues of statutory and constitutional federalism remain for the CWA, particularly if Congress expands protections for ocean water quality.

II. CWA BASICS

A. Statutory Elements of CWA Jurisdiction

The overall purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (3) To achieve this purpose, the Act imposes a basic prohibition on all who would pollute the nation's waterways: "Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. …