Major U.S. Supreme Court Wetlands Decision: Victory For Landowners As Court Stri

In a sweeping victory for landowners and developers across the country, the U.S. Supreme Court today ruled that isolated, non-navigable wetlands and other waters are not subject to federal regulation even if they provide habitat for migratory birds and endangered species. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (No. 99-1178). For many landowners, this may eliminate the need to secure fill permits from the Army Corps of Engineers under Section 404 of the Clean Water Act. However, the decision is also likely to lead to new regulatory and legislative initiatives to restore regulatory protections to these waters.

To fill wetlands and other "waters of the United States" for development or other purposes, developers must obtain a permit from the Corps pursuant to Section 404 of the Clean Water Act. The Corps issues such permits under the oversight of the Environmental Protection Agency.

Section 404 applies to discharges of dredged or fill material into "navigable waters," which the Act defines simply as "the waters of the United States." By regulation, the Corps has defined "waters of the United States" to include both interstate waters (i.e., waters which cross state lines), and certain intrastate waters. Intrastate lakes, rivers, streams, wetlands, wet meadows, playa lakes and natural ponds are subject to 404 jurisdiction if "the use, degradation or destruction" of those waters "could affect interstate or foreign commerce," regardless of whether those waters are navigable. Since 1986, the Corps has asserted that non-navigable intrastate waters which are or would be used as habitat by migratory birds or endangered species provide the necessary connection to interstate commerce. The legal theory is that millions of citizens cross state lines and spend large amounts of money to hunt and observe migratory birds. Accordingly, the Corps routinely asserts 404 jurisdiction over intrastate waters that provide such habitat, even when such waters clearly are not "navigable."

The Solid Waste Agency of Northern Cook County ("SWANCC") is a consortium of cities and villages established to develop a regional site to dispose of municipal garbage. It purchased the site of a former sand and gravel pit mining operation that was abandoned in 1960. The remnant excavation trenches evolved into multiple permanent and seasonal ponds of varying sizes and depths. Since the disposal site operation would involve filling some of the ponds, SWANCC contacted the Corps to determine whether a 404 permit would be required. The Corps determined that because migratory birds used the ponds, which were not connected or adjacent to any navigable waters, a 404 permit would be necessary. However, the Corps later refused to issue a Section 404 permit. Among other things, it concluded that SWANCC had failed to show that its proposal constituted the "least environmentally damaging practicable alternative" as required by Section 404 and its implementing regulations. SWANCC then filed suit, challenging the Corps' jurisdiction over the site.

Today the Court ruled 5-4 that the Migratory Bird Rule is not supported by the Clean Water Act. Specifically, the Court held that waters which are not adjacent to navigable waters are not subject to Section 404 jurisdiction solely because they provide habitat for migratory birds.

Chief Justice Rehnquist authored the opinion. The following passage will surely delight landowners who have long complained that the Corps and EPA have in effect become federal land use agencies: "Permitting [the Corps] to claim 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." Justice Stevens wrote a scathing dissent.

For many years developers, farmers, ranchers, miners and other landowners have been frustrated by the perceived efforts of federal regulatory agencies to expand their jurisdiction well beyond the limits established by Congress under such laws as the Clean Water Act and the Endangered Species Act. Here the Supreme Court put its foot down firmly, expressly rejecting the Corps' interpretation of the statute it administers, and confining the Corps within the bounds of authority which the Court understands Congress to have established.

This decision is an enormous victory for landowners. Many water bodies previously subject to Corps jurisdiction (and, in turn, the often more onerous Endangered Species Act requirements which can be triggered by Corps jurisdiction) no longer are.

Nevertheless, the decision is by no means a blanket repeal of Section 404. Every landowner's on-the-ground situation is unique, and must be analyzed individually. In the aftermath of this decision each landowner must still carefully assess its situation to determine whether its property contains features which qualify as "waters of the U.S." In addition, this decision is likely to exacerbate the legal and regulatory debate over wetlands protection, rather than quiet it. The Corps and EPA will undoubtedly look for room to maneuver within the confines established by the Court. They will likely consider enacting new regulations which accomplish their original intent while also passing muster with the Supreme Court. The environmental community will also likely push for legislation, at both the federal and state levels, to explicitly provide protection for the aquatic features which as of today are no longer covered by Section 404.

Indeed, in a statement released late today, EPA Administrator Carol Browner has already called upon Congress to enact legislation to further protect wetland resources.