The preservation of open space has captured the public's imagination. Taxpayers are lining up to vote in favor of referenda authorizing their local or state governments to borrow funds to purchase open land or its development rights. Environmental groups are forming coalitions to support public acquisition of open space and the adoption of laws regulating development in and around open lands. Opponents of urban sprawl target the loss of open space as one of the major impacts of runaway development.

For the last several years, federal circuit courts have debated the exact jurisdictional scope of §404 of the Clean Water Act (CWA), which authorizes the Secretary of the U.S. Army (the Army), acting through the U.S. Army Corps of Engineers (the Corps), to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The circuit courts have based their debates on the assumption, well-supported by earlier CWA decisions, that Congress intended the term "navigable waters" within the CWA to extend to the limits of the U.S. Commerce Clause.

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) is particularly disappointing. First, it might be said that the impact of the opinion, in circumstances in which legislative amendment is virtually impossible, may be the most devastating judicial opinion affecting the environment ever.

Does the use by migratory birds of isolated, intrastate waters establish enough of a connection to "navigable waters" and interstate commerce to permit federal regulation under the Clean Water Act (CWA) and the U.S. Commerce Clause? The U.S. Army Corps of Engineers thinks so, but courts and commentators have not been entirely sympathetic to the Corps' so-called migratory bird rule. The Fourth Circuit and U.S. Supreme Court Justice Thomas (in a dissent from denial of certiorari) have rejected such a broad jurisdictional reach in no uncertain terms.