The Murky Future of the Clean Water Act after SWANCC: Using a Hydrological Connection Approach to Saving the Clean Water Act

In 2001, the Supreme Court decided Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). In this five-to-four decision, the Court held that the U.S. Army Corps of Engineers (Corps) lacked the authority under the Federal Water Pollution Control Act (FWPCA) to regulate isolated intrastate wetlands and waters that serve as habitat for migratory birds. The Court found the FWPCA\u27s jurisdiction is limited to navigable waters and non-navigable waters that have a significant nexus to navigable waters, such as wetlands adjacent to navigable waters. However, the Court did not clearly define which adjacent wetlands and tributaries are within the scope of the FWPCA, generating considerable uncertainty about the FWPCA\u27s jurisdiction. Some courts and commentators read SWANCC broadly to limit the FWPCA\u27s application to only navigable waters and non-navigable wetlands and tributaries that immediately abut navigable waters. Other courts read SWANCC narrowly to mean that the FWPCA does not reach isolated, non-navigable waters that have no connection to navigable waters, but that its jurisdiction does reach inland waters or wetlands that have any hydrological or ecological connection to navigable waters. This Article proposes an intermediate position that requires that non-navigable waters contribute more than a mere hydrological connection or drop of water to navigable water to come within the FWPCA\u27s jurisdiction, but also rejects the view that adjacent wetlands and tributaries must directly abut navigable waters to constitute waters of the United States. The Article concludes that courts should interpret the Act to include any non-navigable waters, wetlands, or tributaries that possess a significant hydrological nexus with navigable waters