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Wednesday March 27, 2001 Major New Ruling on Isolated Wetlands Source: James Burroughs
Partner, Environmental Practice Group The United States Supreme Court issued a major new ruling last January which has the potential for significantly limiting, if not eliminating, federal jurisdiction by the Corps of Engineers over "nonnavigable, isolated intrastate waters." Some commentators believe that this much anticipated ruling in the case of Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers, No. 99-1178 (January 9, 2001) ("SWANCC") may affect one-fifth or more of all wetlands and waters that have heretofore been subject to the Corps' permitting program. Much has already been written about this case, including a memo issued by the General Counsel and Chief Counsel of the U.S. Environmental Protection Agency and the Corps of Engineers, respectively. Presented here is a quick introduction on the meaning and significance of this new ruling. This case involved a local trash agency that sought to build a new landfill in an abandoned sand-and-gravel quarry. Construction of the new dump site required filling a series of permanent and seasonal pools of water, an activity which the Corps asserted was subject to permitting requirements under Section 404 of the Clean Water Act. These pools did not cross state lines and they were not connected or adjacent to other streams or lakes which might be used in interstate commerce. To find federal jurisdiction, the Corps had to rely upon its "Migratory Bird Rule." This rule, published by the Corps in 1986, states that an intrastate water used by a migratory bird which has crossed state lines creates federal jurisdiction for purposes of the Section 404 permitting program. The Court, in a 5 - 4 decision, was not persuaded by the Corps. Specifically, Chief Justice Rehnquist, writing for the majority, found that the Migratory Bird Rule is not authorized by the Clean Water Act which governs the wetlands permitting program, and that the Corps was therefore wrong to rely upon it in finding jurisdiction over the mining pit ponds. The majority opinion focused on the Clean Water Act's limitation of jurisdiction to "navigable waters," and found nothing in the Corps' argument to suggest that the ponds in question met the definition of "navigable waters." The Migratory Bird Rule itself has no basis in navigation, and even though the Court appeared willing to give the term "navigation" a very broad meaning, it saw no basis for reading the term "navigable" out of the statute. The dissent, on the other hand, argued that this was in fact the intent and effect of Congress when it defined the term "navigable waters" in the Clean Water Act as "waters of the United States." The significance of this ruling is potentially huge for the federal wetlands permitting program. If taken at its apparent face value, the Court may have just deleted an entire class of waterbodies ("nonnavigable, isolated intrastate waters") from federal jurisdiction that has been asserted and applied by the Corps in one form or another since at least 1977. Waters affected by this decision may include, depending on the site-specific facts, vernal pools, other seasonal and perennial ponds and wetlands that have no outlets, tributaries and washes associated with these isolated waters, artificially-created wetlands and waters that have no connection with navigable waters, and playa lakes. There are a number of important caveats and qualifications that follow from the Court's ruling. The Corps' wetlands permitting program is still alive and well with regard to "navigable waters" and waters "tributary" or "adjacent" thereto. The exact meaning of these terms (navigable, adjacent, tributary) promises to become much more important, but we know, for example, that all tidally-influenced waters and "adjacent" wetlands remain jurisdictional. Also, the Court struck down use of the Migratory Bird Rule as a basis for jurisdiction over isolated, intrastate waters, but it did not expressly state that these waters could never be found to be jurisdictional under the Clean Water Act. We might expect to hear a whole host of new creative claims to jurisdiction that have nothing to do with migratory bird use. Even more important in California, although the Corps may not be able to assert claims over "nonnavigable, isolated intrastate waters," the fill of these waters will in many instances, if not most, still be subject to regulation under State law. Wetland fills are governed by several State statutes, including the California Environmental Quality Act, the California Coastal Act, the Fish and Game Code, and arguably (although legally untested), the Porter-Cologne Water Quality Act as implemented by the Regional Water Quality Control Boards. Nonetheless, with regard to isolated wetlands and waters, the import of the Supreme Court decision appears to be the removal of one important regulatory agency (the Corps of Engineers) from the "jungle of jurisdictions" that we know to govern the fill of wetlands and waters. How this decision will actually translate in the field remains to be seen. It may take time for the new administration in Washington, D.C. to sort through the various details and ramifications of this important court case before new direction can be given to the Corps' front-line field staff who are responsible for implementing the wetlands regulatory program. For additional information, please contact the following members of the firm:
James Burroughs is one of a few selected Legal Elites. To participate in his free MCLE approved discussions via e-mail, sign up to the Environment Group at: http://www.legalelite.com/subscribe.cfm |
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