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Determinations of No Jurisdiction

In Isolated, Intrastate, Non-Navigable Waters
Pursuant to the U.S. Supreme Court Decision
Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers

In 2001, the U.S. Supreme Court rendered a decision in the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) case. This decision has affected the scope of federal jurisdiction under the CWA and the section 404 regulatory program. SWANCC involved a challenge to Clean Water Act jurisdiction over certain isolated, intrastate, non-navigable ponds in Illinois that were part of an abandoned sand and gravel mining operation, but which, over time functioned as habitat for migratory birds.

In SWANCC, the Supreme Court held that the Corps had exceeded its authority in asserting CWA jurisdiction pursuant to section 404(a) over isolated, intrastate, non-navigable waters under 33 CFR Part 328.3(a)(3), based solely on their use as habitat for migratory birds pursuant to the so-called "Migratory Bird Rule," 51 Fed. Reg. 41217 (1986). At the same time, the Court in SWANCC did not disturb its earlier holding in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), which found that the Congressional concern for the protection of water quality and aquatic ecosystems was evidence of its intent to regulate wetlands "inseparably bound up with" jurisdictional waters. 474 U.S. at 134.

Although the SWANCC decision did not expressly invalidate any part of the CWA or of the regulations (the so-called "Migratory Bird Rule" is not a regulation but is actually an excerpt from the preamble to the Corps 1986 rule), it does have important implications for the scope of waters protected by the section 404 program, as well as implications for other Clean Water Act programs whose jurisdiction depends upon the meaning of "navigable waters."

The Corps' and Environmental Protection Agency's interpretation of the scope of CWA geographic jurisdiction since SWANCC seeks to achieve the goals and objectives of all CWA programs, including section 404, while at the same time maintaining consistency with the Court's decision. To this end, the agencies also have agreed to coordinate and share jurisdictional data. The Corps routinely collects information on jurisdictional determinations and has agreed to collect and share information on determinations of "no jurisdiction" (as a result of SWANCC) with EPA and the general public. This page provides copies of No Jurisdiction Information Sheets reflecting the Corps' consideration of case-specific facts.