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Prior to the 1972 Federal Water Pollution Act, wetlands regulation was a state responsibility that was poorly discharged. Studies under the National Estuary Protection Act of 1968 (16 U.S.C § 1221 et seq.) documenting the extensive loss of wetlands helped lead to the federal program for wetland protection that began in the 1970s, largely reliant upon Clean Water Act (CWA) Section 404, 33 U.S.C. § 1344. Federal control over wetlands, since then, has expanded greatly. The U.S. Army Corps of Engineers (the Corps), which has the primary federal responsibility for the wetland permit program, has by regulation interpreted "waters of the United States" to cover all traditionally navigable waters, tributaries of these waters, and wetlands adjacent to traditionally navigable waters or their tributaries. 33 C.F.R. §§ 328.3(a)(1), (5) and (7) (2005); §§ 323.2(a)(1), (5) and (7) (1985).
In an effort to resolve the issue concerning the proper scope of jurisdictional wetlands, at least with regard to adjacency, the United States Supreme Court has issued several important opinions. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court upheld the Corps' expansive view of wetland jurisdiction as including wetlands adjacent to navigable waters, but without either defining "adjacency" or expressing an opinion on wetlands not adjacent to open waters. Therefore, Riverside Bayview Homes left open the issue of how to treat nonadjacent wetlands. The Court addressed this issue in Solid Waste Agency of Northern Cook Cry. v. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), wherein the Court rejected a Corps claim of jurisdiction over isolated intrastate waters that had no "significant nexus" to traditional navigable waters. For some time, SWANCC posed a quandary for some government officials who seemingly were uncertain of the scope of the Court's decision. At first, the Corps interpreted the jurisdictional holding in SWANCC as being limited to a rejection of the "migratory bird rule." Under that rule, ponds isolated from navigable waters might nevertheless be jurisdictional if used as habitat for migratory birds, which conceivably provides support for an interstate commerce connection. Eventually, the various Corps districts acknowledged that SWANCC resolved that "isolated waters," not having a significant nexus to navigable waters, are not jurisdictional. Nevertheless, SWANCC did not resolve the adjacency issue.
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