Probate & Property Magazine

Environmental Law Update provides information on developments in environmental law as it applies to property, probate and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

High Court Scales Back Federal Authority over Isolated Waters and Wetlands

On January 9, 2001, the U.S. Supreme Court ruled, 5-4, that the Clean Water Act (CWA) does not allow the Army Corps of Engineers to assert jurisdiction over isolated ponds and wetlands solely on the basis of their use by migratory birds. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178. In an opinion written by Justice Rehnquist and joined by Justices Thomas, Scalia, Kennedy and O'Connor, the Court overturned a ruling by the U.S. Court of Appeals for the Seventh Circuit upholding the Corps' denial of a permit for construction of a regional solid waste landfill that would affect isolated seasonal ponds on a 533 acre site near Chicago.

The Court's determination that the CWA does not allow federal regulation of "isolated" waters and wetlands has important implications for property owners, municipalities, mining companies, utilities and others seeking to conduct activities in such areas. Although President Clinton issued an executive order Jan. 11, 2001, that attempted to limit the scope of the ruling, many isolated ponds, ditches and vernal pools may no longer fall within federal jurisdiction.

The case arose out of efforts by the Solid Waste Agency of Northern Cook County, Ill. (SWANCC), a consortium of 23 suburban Chicago cities and villages, to construct a regional landfill for baled non-hazardous solid waste. SWANCC planned to construct the landfill at an abandoned sand and gravel pit that had several isolated ponds and depressions filled with rainwater. The Corps initially declined jurisdiction over the ponds, but it later reversed itself and denied the permit after finding that the site contained 121 bird species. The Corps relied on a regulation that extended its jurisdiction under § 404(a) of the CWA to include "intrastate lakes, rivers, streams . . . the use, degradation or destruction of which could affect interstate or foreign commerce," including such waters, "which are or would be used as habitat by . . . migratory birds that cross state lines." 33 C.F.R. § 328.3(a)(3) (appropriately named the "Migratory Bird Rule"). The district court and the Seventh Circuit upheld the denial, finding CWA jurisdiction under the Migratory Bird Rule consistent with the Commerce Clause of the U.S. Constitution.

Commerce Clause Issue Avoided

Significantly, the Court sidestepped the question whether the migratory bird rule conformed to the Commerce Clause, an issue it has recently addressed in other contexts. Instead, the Court relied on the narrower ground of a statutory interpretation of the CWA. It said, "Section 404(a) [of the CWA] authorizes [the Corps] to regulate the discharge of fill material into 'navigable waters' . . . which the statute defines as 'the waters of the United States, including the territorial seas.' . . . We conclude that the 'Migratory Bird Rule' is not fairly supported by the CWA."

The Court sharply distinguished its 1985 decision on jurisdiction, focusing on the central question whether the term "navigable waters" extended to isolated, intrastate wetlands and other such areas. It conceded that in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), it had found congressional intent to regulate at least some waters that would not be deemed "navigable" under that term's classical understanding, such as those that are adjacent to navigable waters. The Court distinguished Riverside Bayview by pointing out that it had upheld the regulation of wetlands that "actually abutted on a navigable waterway." It asserted the text of the CWA will "not allow extension of the Corps' jurisdiction" to regulate wetlands that are "not adjacent to open water." The term "navigable" in the CWA reflects "what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."

The Court also rejected the Corps' argument that Congress had acquiesced to a broad interpretation of the term "navigable waters" by failing to overturn past regulations that include nonnavigable, isolated, intrastate waters. The Court went on to state: "We thus decline respondents' invitation to take what they see as the next ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under § 404(a)'s definition of 'navigable waters' because they serve as habitat for migratory birds."

Justice Stevens' dissent, joined by Justices Souter, Breyer and Ginsburg, recited at length the background and history of the CWA, deferring to the Corps' Migratory Bird Rule and noting that the protection of migratory birds is a "well established federal responsibility." Stevens cautioned that "the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water."

This decision is very significant and will likely scale back federal CWA jurisdiction considerably. Property owners can now argue that there is no federal jurisdiction over isolated waters, wetlands, ponds and "mud puddles" that are not hydrologically connected to open waters. However, it remains to be seen how the Corps, EPA and the lower federal courts will interpret and apply this decision. A key issue is how the terms "isolated" and "adjacent" will be interpreted, as the federal agencies have usually sought to find a hydrologic connection, even by groundwater, in order to ensure federal jurisdiction.

Environmental Law Update Editor: Rafe Petersen, Linowes & Blocher LLP, 1010 Wayne Ave., 10th Floor, Silver Spring, MD 20910, rp@linowes-law. com.



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