In Solid Waste Agency of Northern Cook County v. Corps of Engineers, 121 S.Ct. 675 (2001) (“SWANCC”), the United States Supreme Court held that the Corps of Engineers (“COE”) proceeded unlawfully when it asserted jurisdiction over a proposed landfill in an isolated wetland, purporting to act under the authority of the Clean Water Act. Section 404(a) of that Act prohibits the discharge of dredged or filled material into “navigable waters” without a permit. In this instance, COE exercised its presumed jurisdiction by refusing to issue a permit to fill with garbage a series of artificial ponds on an old quarry site. COE claimed the right to regulate the filling because the ponds had a history of migratory bird usage.

For several years, COE has defined “navigable waters” (and its jurisdiction) to include isolated ponds and wetlands (including potholes), based on the use of such waters by migratory birds. One cannot hope to understand this issue, COE’s assertion of jurisdiction and the Supreme Court’s rejection of it without exposure to a few rudiments of Constitutional law and principles of statutory construction.

First, the Constitution of the United States does not authorize Congress to adopt regulatory legislation with respect to purely local (i.e., intrastate matters). The matters must affect “interstate or foreign commerce” to provide the federal government with jurisdiction to regulate. Matters affecting or pertaining to migratory birds clearly qualify as matters affecting interstate or foreign commerce. According to the United States Census Bureau and facts found by the court in Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7th Cir. 1993), approximately 3.1 million Americans spent 1.2 billion dollars in 1996 (for example) to hunt migratory birds (with 11 percent crossing state lines to do so) and another 17.7 million Americans observe migratory birds (with 9.5 million traveling for the purpose of observing them). With this sort of record and these kinds of facts, Congress clearly has the power to subject waters used by and significant to the preservation and enhancement of migratory birds to federal regulation. The importance of this point cannot be over-emphasized.

But the issue in SWANCC was whether or not Congress had in fact exercised that power under the Clean Water Act when it used the term “navigable waters.” In other words, did Congress intend that isolated wetlands became “navigable” by virtue of their use by waterfowl that crossed state lines? The Court found that no such intent could be gleaned from the Clean Water Act. It held that COE had no jurisdiction to regulate the placement of fill in the waters involved in the case before the Court because the Act could not be fairly construed as COE construed it.

Waterfowlers must recognize what SWANCC is -- and what it is not. It is not a determination by the Supreme Court that Congress has no power to regulate or prevent the filling of potholes, based solely on their use by and importance to migratory waterfowl. Indeed, Congress clearly has such power and has adopted regulatory legislation where the connection with interstate commerce was far more tenuous. The case is simply a statement that Congress did not do so under the Clean Water Act; and COE’s determination to the contrary exceeded its authority under the Act. It is for Congress to legislate and COE to administer that legislation. COE has no authority independent of that it derives from Congressional delegation.

Nor does SWANCC apply to any potholes adjacent to or linked by intermittent stream or drain to interstate waterways. Specifically, it would not preclude COE from exercising jurisdiction over filling or “modification” of potholes in North Dakota that drain from time to time into tributaries of the Missouri River, to pick an obvious example.¹

The waterfowl community is especially alarmed by the EPA’s interpretation² of SWANCC, summarized as follows:

“SWANCC clearly eliminates CWA’s jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines in their migrations. Vol. 68 Code of Federal Regulation 1996 (2003).

This interpretation would apparently eliminate regulatory jurisdiction and Clean Water Act protection from large numbers of potholes – but it is no more than the Supreme Court has ordained in SWANCC. But that has no bearing on protections for wetlands under the Food Security Act’s “swamp-buster” prohibitions, agricultural program benefit conditions and restoration requirements under such federal initiatives as the wetland reserve program, grant programs such as Partners in Wildlife administered by the Fish and Wildlife Service and various other programs in common use. Nor does it preclude state regulations that provide similar or even greater protections.³

Most of these programs (other than state regulation) suffer from a common defect, however. A landowner may elect not to participate in them and thus avoid their constraints. No such option exists under the Clean Water Act with respect to any waters that fall within the scope of that act. Thus, SWANCC potentially exposes many potholes to elimination by withdrawing an important protection in those states lacking state level regulation (North and South Dakota providing important examples). A year or so of improved world grain prices could, for example, provide the catalyst for large-scale destruction of important waterfowl breeding habitat. Indeed, informed landowners may move quickly to destroy potholes before new and more durable protections can be put in place.

What should waterfowlers do to counter the potential impact of SWANCC?

First, consider the possibility of promoting state law and regulation that would not be limited by the interstate and foreign commerce clause of the U.S. Constitution. Although you can expect opposition from the agricultural community and those who hate regulation of any sort as a matter of principle, the economic implications of healthy waterfowl populations have become matters of importance in many states, particularly those on the Mississippi Flyway. Although farmers have a powerful voice in most state legislatures – out of all proportion to their numbers – there is no compelling state interest that favors the filling of wetlands in order to create land for the production of grains, already in surplus, that cannot be sold at economic prices without massive subsidy.

Second, encourage your representatives in Congress to propose legislation protecting wetlands that are material to the preservation and enhancement of migratory birds species under federal migratory bird laws not linked to the Clean Water Act and the concept of “navigable waters.” Congress clearly has the power to regulate that subject matter directly.

Third, insist on vigilant enforcement of other laws that prohibit elimination of potholes, whether those laws be state or federal.

Fourth, use the citizen suit provisions of federal acts that allow private groups to compel federal agencies to carry out the purpose of those acts. For example, if species listed under the Endangered Species Act (“ESA”) depend in whole or in part on potholes, suits can be filed to require the U.S. Fish & Wildlife Service to intervene to prevent “taking” of or harm to such species, including material alteration of their habitat. Waterfowl need not be the object of such suits to be the beneficiary of them. And one such suit based on a strong set of facts can deter a lot of potentially destructive behavior, given the draconian penalties for violating the ESA.

I realize that many of us hate the ESA and the outlandish abuses of common sense that have been committed under its banner. But it’s the law and likely to remain so, substantially in its current form. Why not use it to protect the birds at a point in history where an element vital to their well-being is under threat?

One can view SWANCC as a serious defeat in the effort to preserve waterfowl production habitat. The decision may indeed have that effect. Landowners may rush to fill potholes, secure in the knowledge that they are not violating the Clean Water Act and need no permit from COE. Setting sentiment aside, however, the case is well-reasoned. As a decision of the Supreme Court, it is the law, whether well-reasoned or not. COE’s “migratory bird rule” indeed stretched the statute well beyond original Congressional intent – and it would be far better to address the subject directly rather than strained interpretation.

As waterfowlers, we contribute tens of millions of dollars a year to our various organizations. They, in turn, spend good parts of that money on the management and restoration of wetlands. In my opinion, the time has come for our organizations to spend some of their habitat money for lobbying and lawyering, to fashion a forthright, law-based series of protections for wetlands significant for migratory bird use, whether isolated or not.⁴ Let’s get it done expressly and directly, rather than relying upon an attenuated and ultimately unsupportable interpretation by career bureaucrats intent on expanding their own power.

Wouldn’t you rather see Ducks Unlimited, for example, finance such an effort rather than spending your donations on enhancements to various lands owned by private individuals who have more than sufficient means to do the job themselves? In one sense, SWANCC is a call to action long overdue. The country club mentality of our organizations is a bit too soft for the task at hand.

As I read the wailing laments over SWANCC with no suggestions for constructive response, I am reminded of the third rule of life: Do not participate in a gunfight armed only with a knife. We have been made unwilling participants with little time to lose. The world grain markets could elevate the issue to a high level of urgency without warning. And we’re not going to solve this problem with a lot of happy talk, raffles, dinners, ceremonies of self-congratulation and marsh field days. The time for a serious, focused effort is at hand, the very type of dogged, confrontational exercise at which the enviros have become so adept over the last three decades.

Perish the thought, brothers – but SWANCC has probably forced us to heed their example.

¹ In Borden Ranch Partnership v. Corp of Engineers, 261 F.3d 810 (9th Cir. 2001), the Corp successfully asserted jurisdiction over farming activities impacting intermittent streams and seasonal wetlands based on their connection to interstate waterways during high water and flood events.

² EPA and COE have dual jurisdiction to perform various functions under the Clean Water Act. It lies beyond the scope of this piece to explore that arcane thicket.

³ In California, for example, SWANCC is a non-issue. State regulations triggered by the California Environmental Quality Act and other enactments authorize generally more stringent regulation on activities that affect wetlands, navigable or otherwise, than the restrictions imposed by COE. Indeed, California regulators seem bent on proving their mettle by establishing that they are tougher and more restrictive than COE and EPA combined.

⁴ We have seen in California that our local waterfowl association can be remarkably successful in our state legislature, curtailing the power of our transportation department to build roads through wetlands, defeating efforts to curtail hunting, and sponsoring legislation making it more likely that some private lands will be open to hunting. That’s a tribute to the people involved – but also proof that we can get things done, despite our small numbers in terms of the electorate at large.