Wetlands Decision May Simplify Permitting

The complexity and delays typically associated with projects with wetland issues have long challenged developers. The landscape of federal regulation changed suddenly when the Supreme Court, in Solid Waste Associates of Northern Cook County v. US Corps of Engineers, ruled that the U.S. Army Corps of Engineers' policy of asserting jurisdiction over intrastate wetlands pursuant to the Migratory Bird rule was beyond its authority under the Clean Water Act of 1990.

As a rule, the Corps exercises jurisdiction over navigable waterways, non-isolated waterways and waterways that straddle state lines. The Corps asserted jurisdiction to regulate non-navigable, isolated, intrastate water based on the presence of migratory waterfowl in these isolated ponds and wetlands. The Corps' reasoning was that the birds enter interstate commerce when they migrate and are hunted.

In the case, a solid waste agency sought to use an abandoned gravel pit, which had reverted to natural state, for a 410-acre solid waste landfill site. There was standing water on the site in remnant excavation trenches and seasonal ponds. The petitioner, the solid waste agency, contacted the Corps to determine if a federal wetland permit was required. After initially concluding that it lacked jurisdiction, the Corps reconsidered and determined it has jurisdiction based on the sightings of waterfowl on the site.

The waste agency challenged this determination in court and the issue made its way to the Supreme Court. That body ruled that the words "navigable" and "adjacent" in the Clean Water Act's grant of authority must be given some significance. By regulating waters that were clearly not navigable nor adjacent to navigable waters, the Corps had essentially ignored the words that limited its power.

The practical ramifications of the Supreme Court's decision are still far from clear. The General Counsels of both the EPA and the Corps have issued directions to their agencies to follow the Supreme Court decision narrowly, noting that jurisdiction may be possible if the "use, degradation, or destruction" of an "isolated, intrastate, and non-navigable" body of water could affect other waters or interstate or foreign commerce. A recent directive from the Chief of the Corps' Regulatory Branch in Sacramento notes that "the only isolated waters that the Corps will not continue to regulate are those where the only interstate commerce connection is use by migratory birds. There are numerous other considerations and connections to interstate commerce that must be evaluated prior to the Corps of Engineers making the final jurisdictional determination."

Environmental consultants anticipate a dual effect of the new rule. First, the federal government will be more flexible about the exact meaning of "adjacent" and "affecting" to include the maximum number of cases. Second, there may be a willingness to permit the EPA to shoulder more of the burden when it comes to environmental protection. Whether or not the Corps will reconsider prior wetland delineations is also unclear at this point. Local counsel for the Corps have indicated that the Corps is still considering the impact of the decision.

The impact of the decision on state agencies with existing regulatory jurisdiction over wetlands remains to be clarified. State regulation may be in keeping with the thrust of the decision, which asserts that regulation is a matter for the states.