Beyond SWANCC: The New Federalism and Clean Water Act Jurisdiction

On January 9, 2001, the Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], 531 U.S. 159 (2001), restricting the federal government's permitting authority over navigable and thus readjusting the federal-state balance under the Clean Water Act 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. In the wake of the SWANCC decision, lower federal courts have strived to resolve the ambiguities regarding the federal role in water quality jurisdiction that the SWANCC Court left, but few have addressed the larger issues of statutory federalism that the Supreme Court raised. 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 the SWANCC decision, 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.