Court acknowledged the characterization problem
The Court's decision in SWANCC
thus invalidated the Migratory
139) In the aftermath of the SWANCC
decision, the Corps and the EPA issued a notice of proposed rulemaking to address the jurisdictional reach of the CWA with respect to isolated wetlands, but the agencies ultimately failed to amend the regulations.
environmental scholar considered SWANCC
to be "the most devastating
69) Second, Justice Kennedy determined that the holding in SWANCC
did not overrule Riverside Bayview's consideration of adjacency as a factor in the jurisdictional test because SWANCC
distinguished between isolated ponds and wetlands adjacent to non-navigable waters.
sold in interstate commerce"); see also SWANCC
, 531 U.
Over the next two decades, federal courts heard numerous challenges to the scope of federal regulatory authority under the CWA over private land, eventually culminating in the SWANCC
and Rapanos decisions.
In a 5-to-4 decision, the Supreme Court sided with SWANCC
Due to the SWANCC
and Rapanos decisions the Corps recent recommendations lower the maximum size for emergent wetlands from 4.
In deciding SWANCC
, the same 5-4 majority that decided Lopez
Since the SWANCC
decision, the Corps and EPA have provided limited additional guidance to the districts concerning jurisdictional determinations, and the Corps has prohibited the districts from developing new local practices for determining the extent of Clean Water Act regulatory jurisdiction.
In contrast to Jones, the Court's five-to-four decision in SWANCC
suggested a restrictive approach to Commerce Clause interpretation consistent with the framework applied in Lopez and Morrison, albeit with a new revelation of the risk of judicial manipulation of perspectives.