The Clean Water Act (“CWA”) was passed in 1972 during the “birth” of modern environmental law. As is common with most federal environmental laws, the federal government’s authority to regulate waters is, in part, based on the U.S. government’s ability to regulate commerce. In fact some have called the CWA one of the most significant reaches of the federal government's authority under the commerce power. In passing the act, Congress expressed its intent to "restore and maintain the chemical, physical, biological integrity of the nation's waters." Congress even went so far is to set a goal of eliminating the discharge of pollutants in our waters by 1985.

As we well know 21 years later, we are no where close to achieving this extraordinary goal.

Under the CWA, a permit is required in order to discharge pollutants or fill in wetlands and the Army Corps of Engineers has the authority to issue or deny permits for the discharge of pollutants in the “navigable waters of the US.” Herein lies the crux of the argument.

The CWA defines “navigable waters” as “the waters of the US.” 33 U.S.C 1362 . Regulations issued by the Corp further expand upon that very simple definition to incorporate both tributaries of waters—which would not normally be considered navigable—and waters/wetlands that are adjacent to or otherwise hydrologically linked to navigable waters or tributaries of navigable waters. Given the lofting goals of the CWA to would make very logical sense to cover all of the waters in the U.S. as otherwise it would be fruitless to control the discharges into navigable waters when someone upstream in a small creek can dump, without a permit, and that pollutant would migrate downstream to the protected water.

In SWANCC the Court considered whether the Corps’ expanded definition of “waters of the US” went further than federal powers would allow. The Court was called upon to determine whether the Corps had jurisdiction to deny a permit to SWANCC who wanted to fill isolated gravel pits which had become wetlands to create a “balefill.” The Corps justified the denial of a permit under the so-called “Migratory Bird rule” - as the gravel pit wetlands were used by migratory birds, the Corp asserted its jurisdiction over the wetlands and denied the permit.

The Court’s opinion authored, by the late Chief Justice Rehnquist, found that the Corps' assertion of jurisdiction exceeded its authority under the CWA. Some interpret Rehnquist’s opinion as saying that the Corps’ denial exceeded the federal government’s power to regulate commerce. This case has been held by some to have done nothing more than invalidate the Migratory Bird Rule. Some courts, including the District Court of NJ, however, have held that SWANCC signified a definitive shift in what was once a well understood principal of the Corps' jurisdiction.

Under the old test, a body of water fell under the jurisdiction of the Corps if it was in some way hydrologically linked to navigable water or a tributary of navigable water or came under the migratory bird rule. In FD&P Enteprises, Inc. v. U.S. Army Corps of Engineers, the Court found that the hydrological connection test was no longer a valid method of analysis. According to the District Court, the Corps has jurisdiction only where there is a significant nexus between the wetlands and a navigable waters. This significant nexus must be more than a hydrological connection between the wetland and navigable water.

If the U.S. Supreme Court’s opinion continues the SWANCC line of reasoning the CWA’s regulation of wetlands will be severely curtailed. According to a recent article in the Environmental Law Institute’s Environmental Forum over half of the nation's wetlands would be without legal protection if the SWANCC holding continues to be applied. This loss would be particularly harmful for those states that do not have its own laws regulating wetlands.

New Jersey, however, has several statutes that pertain to water and wetlands, including the Water Pollution Control Act (NJSA 58:10A-1 et seq.), the Freshwater Wetlands Protection Act (NJSA 13:9 B-1 et seq.), and the Wetlands Act (NJSA 13:9A-1 et seq.) Luckily, these statutes do not appear to rely on the federal definition of “water” or the federal jurisdiction of wetlands. Under the WPCA waters are defined as: “the ocean and its estuaries, all springs, streams and bodies of surface or ground water, whether natural or artificial . . .” NJSA 58:10A-3t. Under the Freshwater Wetlands Act, a freshwater wetland is defined as, “an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions. . . .” NJSA 13:9B-3.

Even though New Jersey’s programs do not seem dependant on the federal definition of water that does not mean we should not be concerned over the restriction of the federal authority to control water. Under the CWA even though NJ assumed responsibility to administer the program, the federal government retained authority to refuse the issuance of a permit. With the removal of this additional check, we must rely on the strength of DEP and those who run it to vigorously protect our natural resources. Currently, there are bills currently in both houses of the State legislature to restrict DEP’s authority over wetlands. One of those bills, A2736, would remove from the definition of freshwater wetland all man-made swales, canals, ruts or drainage ditch. How many of New Jersey’s features started off as man-made but, through time, have been assimilated into the natural environment? If this bill passes, a person can discharge a pollutant into a manmade ditch that runs into a river without restriction.

Lastly, the Supreme Court’s decision regarding the Federal Government’s ability to regulate wetlands will have a potentially significant impact on other environmental programs as well. If the scope of the CWA’s protection of waters of the United States is construed too narrowly, how will the scope of the Endangered Species Act’s protection meet similar review in future cases?

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