On January 9, 2001 the U.S. Supreme Court (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers), held that the U.S. Corps of Engineers’ claim of jurisdiction over wholly intrastate seasonally ponded abandoned mining ditches, admittedly not wetlands from a technical standpoint and without any connection to waters of the United States was an invalid expansion of Corps’ jurisdiction under the Clean Water Act. Because the Commerce Clause of the United States Constitution grants Congress the authority to regulate wholly intrastate activities only if they "substantially affect" interstate commerce, the Corps relied on the controversial "Migratory Bird Rule," enacted in 1986, to contend that the abandoned mining ditches were "used as habitat by migratory birds which cross state lines," and therefore could "substantially affect" interstate commerce. Affirming that the Clean Water Act was intended to regulate only navigable waters (including the territorial sea) and waters adjacent to navigable waters whose effects on interstate commerce are not questioned,(including wetlands, streams and tributaries) the Supreme Court held against the Corps, avoiding the constitutional question of whether the Commerce Clause of the United States Constitution is broad enough to include federal authority over these intrastate ditches under the reasoning established by the Migratory Bird Rule.

Although the Solid Waste Agency case involved waters not classified as "wetlands," a fact the Court took pains to make clear, it seems reasonable to assume that the decision provides ammunition against Corps jurisdiction over wholly intrastate wetlands not adjacent to or somehow connected to navigable waters or the territorial sea. In those instances, if the only nexus between the isolated wetland and navigable waters, and/or the territorial sea, and/or interstate commerce is the presence of migratory birds, the lower courts will now rule against claims of jurisdiction by the Corps. Jurisdiction based on other remote or indirect connections to navigable waters and/or the territorial sea, will probably also be found to fall outside the scope of the Clean Water Act.

Real estate developers and contractors have hailed the Solid Waste Agency case as a vindication of their rights and the long awaited answer to their prayers for relief from Corps intervention in development plans involving lands with wetlands and/or other types of waters. In fact, the Association of State Wetland Managers contends that the decision has voided federal protection for 30 to 79 percent of the nation’s wetlands (considered isolated or wholly intrastate wetlands) and shifted the burden of regulation of these wetlands to state and local governments.

The road to salvation is, however, not so easy. Where the Corps is able to provide scientific proof of the wetland’s hydrologic or other sound technical connection to navigable waters and/or the territorial sea, or where the purportedly isolated wetland is proven to be part of a valuable larger eco-system or wetland system involving navigable waters or the territorial sea, we anticipate that the jurisdiction of the Corps of Engineers may be sustained.

On the same day the Supreme Court issued the Solid Waste Agency decision, EPA and the Corps of Engineers issued a final rule to clarify the types of activities that are likely to result in the "discharge of dredged material" into wetlands and are thus subject to permit requirements under the Clean Water Act. Pursuant to this rule, the use of mechanized earth moving equipment to conduct land clearing, ditching, channelization, in stream mining, or other earth moving activities in wetlands are presumed to result in the "discharge of dredged" material, subject to permit requirements. Only "incidental fall back" (excavated material that falls back into substantially the place of removal), is exempt from permit requirements, if the developer is able to rebut the presumption of jurisdiction established by the regulation factually.

For land developers and contractors the Solid Waste Agency decision and the breadth of the rule requiring Corps of Engineers permits for virtually all earth moving activities on wetlands are sure to add fuel to the existing controversy over exactly what wetlands and which wetland management activities should be the subject of regulation by the Corps. A swarm of challenges to Corps of Engineers jurisdiction, and associated litigation, is expected within the next few months. It will be up to the courts to establish legal boundaries that are both reasonable from the standpoint of respect for rights over private property and of protection of wetland resources.

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