Corps Of Engineers´ Jurisdiction Clarified

Two recent developments have clarified the Corps of Engineers' jurisdiction. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, et al., ___ US ___ (Jan. 9, 2001), the United States Supreme Court limited the jurisdiction of the United States Army Corps of Engineers under the Clean Water Act to navigable waters, their tributaries, and wetlands adjacent to them. On January 17, 2001, the Corps of Engineers published its final rule, "Further Revisions to the Clean Water Act - Regulatory Definition of 'Discharge of Dredged Materials,'" which clarifies and substantially limits the definition of "incidental fallback" which would be exempt from the Corps of Engineers permitting under Section 404 of the Clean Water Act.

In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, et al., supra, Justice Rehnquist, joined by Justices O'Connor, Scalia, Kennedy and Thomas, found that Congress had not intended the definition of navigable waters in the Clean Water Act to extend beyond "those waters of the United States which are subject to the navigable flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate foreign commerce," together with their tributaries and adjacent wetlands. The Court specifically rejected the Corps of Engineers' definition of waters of the United States, found at 33 CFR § 323.2(a)(5), which included "isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of the tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could effect interstate commerce." See slip opinion 7-8. The Court further specifically rejected the "Migratory Bird Rule" which extended the Corps' jurisdiction to waters used by interstate migratory birds.¹

The Court held that this interpretation of the Clean Water Act would approach the limits of the authority of Congress under the Constitution and impinge upon the traditional role of the states. Such an interpretation was to be avoided, the Court said, unless Congress clearly expressed its intention to test those limits. The Court found no such expressed intention in the Clean Water Act or its legislative history.

In the case before it, the Court found that the Corps of Engineers did not have jurisdiction over the abandoned sand and gravel quarry and resulting intermittent pools sometimes used by migratory birds. In doing so, it reverses the district court in the United States Court of Appeals for the Seventh Circuit and affirms the right of the Solid Waste Agency of Northern Cook County to develop these areas as a landfill without the Corps' approval.

In many news reports of this decision, it was implicitly stated that the limitation on the scope of the Clean Water Act was constitutional. Clearly, this is not what the Court held. An effort to amend the Clean Water Act to restore the broader reach sought by the Corps can be expected.

Under Section 404 of the Clean Water Act, the Corps of Engineers has jurisdiction to issue or deny permits for filling of wetlands. As set forth above, this jurisdiction extends to all navigable waters of the United States, their tributaries and adjoining wetlands. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). Over the years, there has been considerable dispute as to what constituted "filling." In 1993, the Corps and the United States Environmental Protection Agency (USEPA) promulgated the "Tulloch rule" in 58 Federal Register 45008.² This definition included any redeposited dredge materials in regulated waters, including any incidental activity, such as mechanized ditching and excavation that destroys or degrades waters of the United States. In American Mining Congress v. United States Army Corps of Engineers, 951 F.Supp. 267 (D.D.C. 1997), aff'd. sub nom, National Mining Association v. United States Army Corps of Engineers, 145 F.3d 1339 (D.C. Cir. 1998), the Court held that the definition exceeded the authority of the Corps under the Clean Water Act because it impermissibly regulated "incidental fallback" of dredge material, and the Court enjoined the Corps from applying or enforcing the regulation. In this ruling, the Corps and the USEPA greatly limited the application of the "incidental fallback" rule. They state, "the rule now provides that the Agencies regard the use of mechanized earth moving equipment to conduct land clearing, ditching, channelization, in-stream mining, or other earth moving activity in waters of the U.S. as resulting in a discharge of dredge material unless project-specific evidence shows that the activity results in only incidental fallback." The Corps further clarified its new rule by making it clear that this was not a rebuttable presumption and that the burden was not solely on the applicant or other party to establish that a discharge was "incidental fallback," but the decision will be based upon the totality of circumstances. The preamble goes on to state, "the Court also acknowledged that sidecasting, the placement of removed soil in a wetland some distance from the point of removal, has always been regulated by the Agency; and finally, recognized that removal of dirt and gravel from the stream bed and its subsequent deposit in a waterway after segregation of minerals constitutes an addition." 40 CFR at 4554. The Corps, therefore, clarified that any movement of the material to a location other than that from which it was removed will require a Corps of Engineers' permit.

Taken together, the Supreme Court decision on the Corps' rulemaking further clarifies the extent of the jurisdiction of the Corps and the USEPA under Section 404 of the Clean Water Act. Section 404 does not apply to isolated waters which are not navigable, their tributaries, or adjoining wetlands. A permit is required for virtually any activity in those waterways which results in material returning to the wetland unless the specific facts of the case establish that it fell back to the same location from which it was removed.

1 Executive Order 13186, January 10, 2001, 66 Fed.Reg. 3853 (1/17/01), directed agencies to take whatever action possible "within established authorities" to protect migratory birds. This Order does not impact the jurisdiction of the Corps.

2 The Corps and EPA announced Feb. 15 that the effective date of the new rule would be delayed from Feb. 17 to April 17 (66 FR 10367). The rule has also been challenged in The National Association of Homebuilders v. U.S. Army Corps of Engineers, D.D.C., No. 1:01 CV 00-274, filed 2/6/01)

First published in February 2000

This Environmental Update is published by Ross & Hardies to provide a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation.