Win, Lose or Draw?

In a span of nine days, from January 9-17, 2001 the federal regulatory landscape relating to wetlands underwent major changes as a result of a U.S. Supreme Court decision, a final rule announced by the U.S. EPA and U.S. Army Corps of Engineers, and an Executive Order issued by former President Clinton in his final days in office.

Property owners, municipalities and land developers scored a major victory on January 9 when the U.S. Supreme Court, in a 5-4 decision in Solid Waste Agency of Northern Cook County (SWANCC) v U.S. Army Corps of Engineers, invalidated the Army Corps of Engineer's "Migratory Bird Rule." This rule had expanded the Corps of Engineers' jurisdiction under the Federal Clean Water Act over dredge and fill projects by interpreting the term "navigable waters" to include intrastate waters "which are or would be used" as habitat by migratory birds or other endangered species. In its decision, the Supreme Court made clear that the definition of "navigable waters" under the Federal Clean Water Act does not extend to isolated, intrastate waters which are not connected or adjacent to navigable waters.

On the same day as the Supreme Court's SWANCC decision, the U.S. EPA and the Army Corps of Engineers announced a final rule intended to clarify the definition of "incidental fall back" and to identify those dredging activities expected to result in more than "incidental fallback." However, on January 20, President Bush's Chief of Staff issued a memorandum postponing the effective date of this and all other Federal regulations, which had been published, but had not yet become effective, for 60 days. And on January 17, 2001, President Clinton signed an executive order, which directed all federal agencies to develop processes to protect migratory birds and their habitats whenever agency action could have a measurable negative impact.


The U.S. Supreme Court held that the definition of "navigable waters" in the Clean Water Act did not include isolated, intrastate waters not connected to, or adjoining, navigable waters of the United States.

What Was the Supreme Court Case About?

The SWANCC case involved the question of whether the Corps of Engineers had exceeded its Clean Water Act authority over isolated, non-navigable waters pursuant to its Migratory Bird Rule. In this case, the Corps of Engineers denied a dredge and fill permit sought by a consortium of Chicago area municipalities to enable their use of a 533-acre former sand and gravel pit as a disposal site for baled, non-hazardous waste. The site "included a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet)." Because the landfill project required the filling in of these ponds, SWANCC contacted the Corps to determine if a permit was required under Section 404 of the Clean Water Act.

After initially concluding that it had no jurisdiction, the Corps subsequently decided that because the seasonal ponds were used as habitat by migratory birds, the Corps had jurisdiction under Section 404. After considering SWANCC's permit application, including several proposals to mitigate the displacement of the migratory birds and to preserve a great blue heron rookery which had been established on the site, the Corps refused to issue a Section 404 permit. The Corps found that SWANCC had not established that its proposal was the "least environmentally damaging, most practicable alternative for disposal of non-hazardous solid waste" and that the impact upon migratory birds and other area species was "unmitigatable, since a landfill surface cannot be redeveloped into a forested habitat."

After both the District Court and Seventh Circuit Court of Appeals upheld the Corps' assertion of jurisdiction, SWANCC turned to the U.S. Supreme Court. In its 5-4 decision, the Court's majority found that the Corps exceeded its authority under the Clean Water Act. The U.S. Supreme Court held that the definition of "navigable waters" in the Clean Water Act did not include isolated, intrastate waters not connected to, or adjoining, navigable waters of the United States.

By invalidating the "Migratory Bird Rule," the Supreme Court sent a message to federal regulators that the Court will look closely at administrative interpretations of a statute which seek to expand the limits of Congress' power over the states, particularly where that administrative interpretation impinges on the traditional powers of the State. In this case, the Court noted, "permitting federal jurisdiction over ponds and mudflats falling within the "Migratory Bird Rule" would result in a significant impingement of the States' traditional and primary power over land and water use?." The Court rejected the Corps' argument that its interpretation of the enabling statue was entitled to deference.

Why Is the Decision Important?

This decision is important for several reasons. First, property owners, municipalities and developers now will have a more certain understanding of those projects which may trigger the Corps' jurisdiction under Section 404. Waters or wetland areas which are connected or adjacent to "navigable waters" will still require Section 404 permit action from the Corps for proposed dredge or fill projects. However, the guessing game as to whether the proposed filling of an isolated water or wetland area would trigger the assertion of jurisdiction by the Corps under its "Migratory Bird Rule" is over. This should make development planning more certain.

Second, the Supreme Court's ruling will likely have a restrictive impact upon the recent publication by the Corps and the U.S. EPA of a final regulation designed to clarify the "Tulloch Rule." The original Tulloch Rule asserted jurisdiction over any discharge of dredged material in navigable waters or wetlands. In 1998, the Corps' authority had been limited by the D.C. Circuit Court of Appeals to exclude "incidental fall back" (excavated material that falls back into substantially the spot of removal). The Tulloch rule clarification announced by the Corps and EPA is intended to identify more clearly the types of activities the agencies consider to constitute regulable discharges, which are subject to the Clean Water Act's permit requirements. The rule states that both EPA and the Corps will regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, instream mining or other earth-moving activities in waters of the United States as a discharge of dredged material, unless a specific showing can be made that the particular project only results in "incidental fall back." The rule defines "incidental fall back" as "?the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal." Because the Supreme Court's SWANCC decision has narrowed the scope of "navigable waters" subject to the Corps' jurisdiction under the Clean Water Act, it can be expected that this final rule will also be limited accordingly. It also may not survive review under the Bush administration. At press time, the effective date of the rule was to be February 16, 2001, but that date was postponed for 60 days under a January 20, 2001 memorandum order by Andrew Card, President Bush's Chief of Staff, which applied to all regulations under the previous administration which had been published in the Fede ral Register but which had not yet become effective.


The Tulloch rule clarification announced by the Corps and EPA is intended to identify more clearly the types of activities the agencies consider to constitute regulable discharges, which are subject to the Clean Water Act's permit requirements.

What Effect Does the President's Executive Order Have On the Court Decision?

On January 17, President Clinton issued Executive Order 13186, which directed all federal agencies to take certain specific actions to implement the Migratory Bird Treaty Act to ensure the protection and conservation of migratory birds. The Executive Order requires all federal agencies to develop and implement, within two years, a Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife Service which outlines the processes the agency will use to promote the conservation of migratory birds whenever the agency takes an action which has, or is likely to have, a measurable negative effect on migratory bird populations. Although the obvious intent of the Executive Order is to respond to the Supreme Court's SWANCC decision, the practical effect of the Executive Order is difficult to assess since the Executive Order can only regulate agency actions within the scope of the agency's legal authority, and the SWANCC case has clearly limited the extent of the Corps' jurisdiction under the Cl ean Water Act. However, once the MOUs are finalized, a project such as the one proposed in the SWANCC case could be forced to address the impact of the project on migratory birds - including the effect of filling in isolated, intrastate water - if a federal permit was required or if other federal agency action was involved. The Bush Administration could rectify this attempt to circumvent the SWANCC decision by rescinding the executive order.

What Projects Are Affected by the Court's Decision?

The Court's decision clearly applies to dredge or fill projects in isolated, intrastate waters, which are neither connected to, nor adjoining, navigable waters. However, the outer boundaries of what may constitute a "navigable water" as that term has been limited by the SWANCC decision is unclear. Are projects, which occur in intermittent streams or dry headwaters subject to the Corp's jurisdiction if the water body is not "navigable" at the time the activity occurs? Are human-made ponds or streams which are self-contained - for example, to enhance a golf course or park - considered "navigable waters' within the Corps' Section 404 jurisdiction? Because the SWANCC decision and Executive Order 13186 create a significant gray area of jurisdictional authority, I recommend that an environmental attorney be consulted at the outset of any water-related project.

This article was prepared to meet a press deadline of February 28, 2001, and therefore discussed events prior to that date.

e-sources

U.S. Supreme Court decision - supct.law.cornell.edu/supct/html/99-1178.ZS.html

EPA Office of Water-Wetlands - www.epa.gov/owow/wetlands

Federal Register access - www.access.gpo.gov/su_docs/aces/aces140.html

EPA Office of Water - www.epa.gov/water




This article originally appeared in the April 2001 issue of Environmental Protection, Vol. 12, No. 4, p. 36.

This article originally appeared in the 04/01/2001 issue of Environmental Protection.

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