Regulating Isolated Wetlands

Alice Jacobsohn

When the U.S. Supreme Court last January decided that the Corps of Engineers (COE), Washington, D.C., could not regulate isolated wetlands based on migratory bird usage, many predicted that valuable wetlands would be lost. [SWANCC v. U.S. Corps of Engineers, No. 99-1178]

Consequently, the National Solid Wastes Management Association (NSWMA), Washington, D.C., advised its members that states and localities would quickly fill the gap to regulate these isolated wetlands. Since then, NSWMA has proven correct as governments work to limit the effect of the Supreme Court's decision.

For example, in May, Wisconsin Governor Scott McCallum signed legislation to usurp state control over isolated wetlands. The new law gave authority to the Wisconsin Department of Natural Resources (WDNR), Madison, Wis., to require a water quality certification when discharging dredged or fill material into “nonfederal” (isolated) wetlands. Anyone who dredges or fills nonfederal wetlands without a certification is subject to civil and criminal penalties.

Additionally, because Ohio law previously did not contain a stand-alone permit for wetland impacts, all development in isolated wetlands was prohibited last January. However, in April, Ohio Governor Bob Taft signed an executive order creating an emergency rule to allow the Ohio Environmental Protection Agency, Columbus, Ohio, to issue dredge and fill permits for projects that affect isolated wetlands. The rule was effective for 90 days. A long-term solution is in process.

In Illinois, opposition to the Solid Waste Association of Northern Cook County's (SWANCC) efforts to build a landfill on a wetland are so strong that it may be unable to mount the necessary support. In the midst of legal battles, last fall, the Illinois general assembly came close to denying the necessary permits. The bill passed in the state Senate, but failed in the House.

Along with individual states' activities, there also are other initiatives that limit the impact of the SWANCC case.

Prior to leaving office, President Bill Clinton signed an executive order requiring federal agencies to develop within two years a memorandum of understanding with the Fish and Wildlife Service, indicating whether agency activities will have a measurable negative impact on migratory bird populations. While President George W. Bush's Administration blocked many of Clinton's final measures, the wetlands executive order remains valid.

Following the Supreme Court's decision, the U.S. Environmental Protection Agency (EPA), Washington, D.C., and COE published a final rule revising their interpretation of the Clean Water Act's (CWA) definition of “discharges to a wetland.” The revised definition states that dredged material that falls back into a U.S. water during mechanized land clearing, ditching, channelizing, in-stream mining or other mechanized excavation activity will be presumed as a discharge. The presumption is rebuttable based on project-specific evidence showing that the fallback was only incidental. All other fallback activity requires a permit. The rule took effect on April 17.

Still, SWANCC argues that its landfill would recover the costs invested during the past 14 years in developing its landfill plans, including $30 million and the cost of the Supreme Court case, and would save $90 million over 20 years.

In the SWANCC case, a group of suburban Chicago municipalities applied to the COE to determine whether a landfill permit was required to fill in man-made, isolated ponds located on its property. The COE claimed jurisdiction and denied the permit because of the migratory bird habitat found on the pond.

The U.S. Supreme Court held that the CWA does not authorize the regulation of wetlands that are not adjacent or connected to “navigable waters.” Therefore, the COE could not prevent landfill construction on SWANCC's property.

The case arose from a 1986 interpretation of the CWA by the COE to include intrastate waters that provide habitat for migratory birds in the definition of navigable waters; thus, the name Migratory Bird Rule.

Additionally, the U.S. Supreme Court found that the Migratory Bird Rule stretched congressional intent beyond the language in the CWA. According to the majority opinion, if Congress intended to include the Migratory Bird Rule, it could have passed an amendment to the CWA.

Alice Jacobsohn is EIA's director of Public Affairs and Industry Research and manager of NSWMA's Medical Waste Institute. Contact the author at (202) 244-4700 or [email protected].