U.S. Supreme Court Scales Back Federal CWA Jurisdiction

U.S. Supreme Court Scales Back Federal CWA Jurisdiction

In a January 8, 2001 decision, the Supreme Court limited the scope of federal jurisdiction over isolated wetlands under the Clean Water Act ("CWA"), rejecting the U.S. Army Corps of Engineers' ("Corps") assertion of jurisdiction over isolated ponds used by migratory birds.  The case involved plaintiffs' application for a CWA permit to fill wetlands in order to construct a landfill.  The Corps refused to issue the permit on grounds that the CWA empowers the agency to prohibit filling of intrastate waters that provide habitat for migratory birds (the "Migratory Bird Rule").

A five-member majority held that the Migratory Bird Rule, as applied to plaintiffs' site, exceeds the Corps' CWA authority.  The Court found that the CWA protects only navigable waters, defined as those supporting interstate commerce, and adjacent waters.

This decision is consistent with other recent Supreme Court opinions limiting federal regulatory powers over the states and local governments.  Business and construction groups view the decision as a necessary curbing of the federal government's authority over local activities, while environmental groups expressed concern that the decision would result in greater destruction of wetlands and deterioration of water quality.

Since New Jersey has assumed control of administering the federal freshwater wetlands program, including isolated wetlands, this decision will not impact regulation of isolated wetlands in the State.  While the corps may be prevented from asserting jurisdiction, NJDEP is not.  Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 99-1178 (2001).