Abstract
On January 9, 2001, the U.S. Supreme Court (Court) issued a decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) that called the scope of the Clean Water Act (CWA) into question and in turn the extent of the U.S. Army Corps of Engineers wetland regulatory permitting program (Section 404 program) (Downing et al., 2003). By a narrow majority, the Court held that isolated, non-navigable intrastate waters will not be protected through the CWA when their definition is based solely on the presence of migratory birds. With the power of the CWA stemming directly from the Commence Clause, the Court found that merely providing habitat for migratory birds was not a sufficient connection to interstate commerce to warrant federal regulation (Ruffolo, pg. 31, 2002). Because of the SWANCC decision, the California state goal of “no net loss” of wetlands is challenged. Isolated wetlands, which in California are numerous due to its arid nature, are no longer subject to federal regulation. Therefore, an unknown but potentially significant acreage of wetlands now exists outside the protection of the CWA, leaving a gap in overall wetland and water quality protection. Aside from a gap in the regulation of isolated features, the SWANCC decision exposes some of the problematic components of California’s environmental regulatory system. The SWANCC decision reveals that California nearly exclusively relied on federal regulation of “waters of the U.S.,” leaning wholly on the power of the CWA (Kusler, 2004). The decision narrowed the Section 404 program, and in doing so limited state water quality programs built upon Section 404 permitting. Prior to SWANCC, California had relinquished most of the burdens of a regulatory system to the federal government (SWANCC, 2001). After SWANCC, a need for comprehensive change at the state regulatory level is evident. Currently, a comprehensive state program to regulate wetlands does not exist. Thus, there are numerous opportunities for regulatory reform. State agencies, private consultants and environmental interest groups question how California is filling the gap in regulation created by SWANCC. Can existing state and local wetland regulations fill the gap in federal regulation? How can the current state regulatory policies and their implementation be improved to sustain “no net loss” of state wetlands? Even with improved policy, can isolated wetlands be managed as they had been prior to SWANCC?