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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 its meaning and significance.
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 isolated waters, artificially-created wetlands
and waters that have no connection with navigable waters,
and playa lakes. 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. 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, the fill of "nonnavigable,
isolated intrastate 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.
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