Article Written By: Ken Berg, President, Berg Oliver Associates, Inc.
On January 11, 2001, the Supreme Court of the United States began the new year with a notable ruling. In a 5-4 decision, the Court ruled that the presence of migratory birds do not make a body of water a wetland. What makes this ruling notable? Moreover, how did the presence of migratory birds ever make a body of water a jurisdictional wetland anyway?
It is an interesting story. Following is a short account of the history and thought behind the definition of a jurisdictional wetland.
In 1899, the U.S. Congress passed a law called the Rivers and Harbours Act. These were the days of sailing ships, and a great deal of commerce depended upon being able to have ships sail into harbors by using rivers and waterways to deliver their cargo and goods (or get their Navies in and out for coastal defense). Section 10 of this law made it illegal to fill or dredge in navigable waters without permission from the government, since dredging or filling could interrupt interstate or foreign commerce. Therefore, if you wanted to get a permit to dredge or fill, you had to get a permit from the Coast Guard. If I had lived in this part of Texas in 1899, I would have been in favor of that law. A few of the ships actually brought ice here during the summer months.
In 1972, Congress passed the Clean Water Act. Of special importance were the sections dealing with "jurisdictional waters of the United States". Since the U.S. Government already had jurisdiction over "navigable waters" under the 1899 Act, the Clean Water Act picked up jurisdiction at the point where the waters were no longer navigable. The new limits of jurisdiction extended upstream to the non-navigable portion of rivers, streams, tributaries, and adjacent wetlands. Under Section 404 and Section 401 of the Clean Water Act, it became illegal to fill waters above the navigable limits of waterways without government permission. However, this still left isolated wetlands that were not connected to any rivers, streams, tributaries or adjacent wetlands unregulated.
Isolated wetlands, widely recognized at this time as a valuable ecological and wildlife resource, were considered "natures kidneys" helping clean the nation's water. With no law in existence to regulate these wetlands the passage of the Migratory Bird Act was a way for the government to claim jurisdiction. This Act reasoned that: (a) If a migratory bird (e.g. a duck) lands in a body of water or wetland area, it must have crossed state lines while migrating (Interstate!); and (b) Hunters spend a fortune on gear, leases, guns, camouflage, and ammunition (Commerce!). Therefore, Regulators said, "Isolated wetlands can be protected by connecting the Migratory Bird Act with the interstate commerce clauses of the Rivers and Harbours Act." Lobbying efforts of the NRA and Ducks Unlimited joined in the effort, thus the policy was developed, and isolated wetlands were regulated.
Back to the Supreme Court ruling. The Solid Waste Agency of Northern Cook County (SWANCC) wanted to use abandoned sand pit excavations for solid non-hazardous waste disposal. The Corps of Engineers first told them they did not have wetlands, and did not need a permit. Later, after years of planning and securing all other necessary permits, the Corps, using the migratory bird policy, told SWANCC that they did need a permit after all because they had ducks and migratory birds using the ponded water in the bottom of former sand pits. SWANCC then submitted for a permit, which was then denied by the Corps. Understandably, SWANCC disagreed with this decision and sued.
The case went to several lower courts where is was decided repeatedly in favor of the Corps. After several appeals, the case reached the Supreme Court, and in a 5-4 decision the court ruled the duck connection was not part of the written laws and the migratory bird policy did not give the Corps jurisdiction. The SWANCC rulingmeant that the way the Corps and EPA had attempted to gain jurisdiction over these isolated waters and wetlands was no longer valid. The only jurisdictional "Waters of the United States" were ruled to be only those clearly described in the Rivers and Harbours Act and the Clean Water Act. With jurisdiction moving upstream on navigable rivers to the tributaries, government jurisdiction now stops at "adjacent" wetlands. Isolated wetlands, being no longer under the protection of the federal government, can now be filled, or otherwise destroyed, without penalty.
What is an "adjacent" wetland? This question gets a little complicated. The simple rules-of-thumb to identify adjacent wetlands are any one of the following: (1) the wetland is hydrologically connected to a water of the U.S.; (2) it lies within the 100-year floodplain; and/or (3) it is not separated in proximity from a water of the U.S. by at least two barriers which could halt surface sheet flow. There are a few exceptions to these rules-of-thumb but not many. In order to not violate the law, or the new policies currently enforced by the individual Corps districts, it remains very important to have a professional assessment of wetlands on property destined to be developed. The requirements of a current wetland assessment are to assess not only whether wetlands are present, but to additionally assess if the wetlands are "isolated" or "adjacent".
Because of the SWANCC ruling, the government has lost jurisdiction over the majority of wetlands within the United States. Few people believe that this legal opening will remain indefinitely. In the interim, a professional opinion before development is recommended.
