Client Alert

Supreme Court Narrows Federal Wetlands Protections

1/1/2001

In a 5-4 decision, the United States Supreme Court has sharply limited the federal government's ability to regulate activities affecting wetlands. The Court's decision effectively eliminates the federal government's jurisdiction over a large class of wetlands and other waterbodies throughout the nation.

The case involves a federal permit requested by the Solid Waste Agency of Northern Cook County, Illinois (SWANCC) to fill an abandoned sand and gravel pit that had, over time, returned to natural conditions that included a number of ponds used by migratory birds. SWANCC intended to use the site as a solid waste disposal facility. The Army Corps of Engineers (Corps) refused to issue SWANCC a permit, claiming that SWANCC's application did not satisfy certain requirements of the Clean Water Act.

SWANCC filed suit and later appealed a negative trial court ruling, claiming that (1) Congress did not intend Section 404 of the Clean Water Act to regulate wetlands or other waterbodies that are not connected to larger, "navigable" bodies of water; and (2) if Congress did intend to regulate such "isolated" wetlands and other waters, then that aspect of Section 404 would be unconstitutional. The Supreme Court did not address the constitutional question, holding only that Section 404 does not cover isolated wetlands and other waters.

During the 1970s, the Corps issued regulations covering isolated wetlands and other waters in circumstances where impacts to those waterbodies would affect "interstate commerce." The Corps later adopted a policy stating that impacts to an isolated waterbody would be considered to affect interstate commerce -- and thus subject to regulation -- if the water is or would be used by migratory birds. This controversial "Migratory Bird Rule," which has been the subject of litigation for many years, was the Corps' stated basis for regulating SWANCC's gravel pit.

The Supreme Court's ruling was fairly simple. Section 404 grants the Corps authority to issue permits for the fill of "navigable waters." Although the statute's definition of the term "navigable waters" appears to be much broader than the term itself, the Supreme Court held that a waterbody must nonetheless bear some connection to open, navigable waters (e.g., lakes, rivers, streams) in order to be covered by Section 404. (The Supreme Court ruled in 1985 that certain nonnavigable waterbodies are subject to regulation under Section 404 if they are "adjacent" to navigable waters.) Thus, under the SWANCC decision, wetlands and other waterbodies that are not connected hydrologically to some open waterbody may now be filled without a permit from the Corps.

The SWANCC decision has an interesting subplot. In 1984 the Supreme Court ruled that the judiciary should typically defer to an agency's interpretation of the statutes it is charged to implement (e.g., the Corps' interpretation of Section 404). This earlier case, known as the Chevron decision, has become an important precedent in environmental law. In SWANCC, the Supreme Court ruled that the hands-off approach endorsed in Chevron does not apply 1 to situations where a federal agency's regulation "invokes the outer limits of Congress' [constitutional] power." The Court then sharply criticized the Corps' use of the Migratory Bird Rule to impinge on "the States' traditional and primary power over land and water use," which is a "traditional state power."

It remains to be seen whether this decision will affect governmental practices under other provisions of the Clean Water Act. Because the Court did not reach the broader constitutional question posed by SWANCC (i.e., how far can Congress use its authority over interstate commerce to regulate environmental matters), however, this decision will not directly affect other federal environmental laws, such as the Endangered Species Act. It is likely that regulators in the State of California, such as the regional water boards, will try to fill the regulatory "gap" created by SWANCC. In the meantime, unless Congress acts to expand the scope of the Clean Water Act, the federal government is powerless to regulate truly isolated wetlands and other waterbodies under Section 404.

If you would like additional information or assistance, please contact Clark Morrison in Walnut Creek at (925) 295-3317, Robert Falk in San Francisco at (415) 268-6294, Nancy Hayes in San Francisco at (415) 268-7245, or Peter Hsiao in Los Angeles at (213) 892-5731.

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