The SWANCC Decision: Implications for Wetlands and Waterfowl

On January 9, 2001 the U.S. Supreme Court issued a decision, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers. The decision reduces the protection of isolated wetlands under Section 404 of the Clean Water Act (CWA), which assigns the U.S. Army Corps of Engineers (Corps) authority to issue permits for the discharge of dredge or fill material into "waters of the United States." Prior to the SWANCC decision, the Corps had adopted a regulatory definition of "waters of the U.S." that afforded federal protection for almost all of the nation's wetlands.

The Supreme Court also concluded that the use of migratory birds to assert jurisdiction over the site exceeded the authority that Congress had granted the Corps under the CWA. The Court interpreted that Corps jurisdiction is restricted to navigable waters, their tributaries, and wetlands that are adjacent to these navigable waterways and tributaries. The decision leaves "isolated" wetlands unprotected by the CWA. These wetlands are very significant to many wildlife populations, especially migratory waterfowl. This report examines the possible implications to wetlands that are important to waterfowl across the nation.

We considered other state and federal laws and regulations that would protect isolated wetlands in the absence of Section 404. The most significant federal provision is Swampbuster, a provision of the Farm Bill that excludes agricultural producers from receiving federal subsidies if they destroy wetlands for crop production. We considered how factors responsible for wetland loss varied regionally. We especially focused on areas that are continentally important to waterfowl and we generally assessed the consequences for the nation's wetlands as a whole.

East Coast and Great Lakes states generally have laws that offer moderate to strong protection of isolated wetlands even in the absence of Section 404, although there are exceptions. Protection is weak to non-existent in the Mississippi Alluvial Valley (MAV) and Prairie Pothole Region (PPR). However, the majority of isolated wetlands located in these regions occur on agricultural land where most producers are enrolled in Farm Bill programs and wetlands are afforded some protection under Swampbuster. In the western half of the country state wetland protection laws are generally weaker and a high percentage of wetlands are found on non-agriculture land.

In general, isolated wetlands play a minor role in meeting the needs of waterfowl in areas that are important for migration and wintering. In contrast, the SWANCC decision could have significant consequences for breeding waterfowl, especially in the PPR and migrating waterfowl, especially in the Rainwater Basin. Within these states, Section 404 and Swampbuster represent complimentary wetland protection programs that have proven highly effective in reducing wetland loss. As a result, Swampbuster now remains as the only effective legal or regulatory deterrent to wetland drainage.