Supreme Court Weights In On Wetland Development

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Environmental Alert

The Clean Water Act provides that 'navigable waterways,' or 'waters of the United States,' are subject to its provisions. Wetlands adjacent to 'navigable waterways' are considered to be a 'water of the United States' and are also within the jurisdiction of the Clean Water Act. The Army Corps of Engineers ('Corps'), the agency charged with administering the federal wetlands program under the Clean Water Act, has also asserted jurisdiction over 'isolated waters' that are not adjacent to navigable waterways. These waters are often little

'...the Corps' jurisdiction does not extend to these 'isolated waters' based solely on the presence of migratory birds, thus eliminating 'isolated waters' from federal regulatory authority.'

more then mudflats or water filled depressions. The Corps has regulated these 'isolated waters,' claiming them to be 'waters of the United States,' through what has been dubbed 'The Migratory Bird Rule.' This rule provided the Corps' with jurisdiction over 'isolated waters' whenever there was a presence of migratory birds. Recently however, the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, et al., U.S. No. 99-1178, said the Corps' jurisdiction does not extend to these 'isolated waters' based solely on the presence of migratory birds, thus eliminating 'isolated waters' from federal regulatory authority.

Background of the Case

The 'isolated' waters at issue in Solid Waste Agency of Northern Cook County were abandoned sand and gravel pits located at an Illinois County landfill. Initially, the Corps concluded that it had no jurisdiction over the seasonally ponded, abandoned gravel depressions because the area was not a traditional 'wetland' in that it did not contain the types of vegetation and soils normally found in a wetland. However, after the Illinois Nature Preserves Commission informed the Corps that a number of migratory bird species had been observed at the site, the Corps reconsidered and ultimately asserted jurisdiction claiming that, while the site was not a wetland, it did qualify as a 'Water of the United States' and was subject to regulation under the Clean Water Act because:
1. the proposed site had been abandoned;
2. the water areas had developed a natural character; and
3. the water areas were used as habitat for migratory birds.

The Corps then refused to issue a dredge and fill permit on the grounds that the County's proposal was not the least environmentally damaging, practicable alternative.

The Solid Waste Agency filed suit, challenging the Corps' jurisdiction over the site and its denial of the permit. When the case reached the 7th Circuit Court of Appeals, the court held that the Corps had jurisdiction over these 'isolated' waters because the reach of the Clean Water Act, and therefore the Army Corps' 'Migratory Bird Rule,' should be read as broadly as the reach of the commerce clause. The Court stated that the aggregate effect of the destruction of natural habitat of migratory birds has a substantial impact on interstate commerce, since each year Americans cross interstate lines and spend over a billion dollars to hunt and observe migratory birds.

The Supreme Court's Decision

The Supreme Court reversed the Court of Appeals without addressing the scope of the Clean Water Act's jurisdiction under the commerce clause of the U.S. Constitution. Instead, the Court found that the Corps did not have authority to regulate 'isolated' waters because Congress never stated that it intended the Clean Water Act to regulate them. The Court held that, without such a statement, the Corps is given no jurisdiction over ponds that are not adjacent to navigable waterways.

Furthermore, the Court noted that allowing the Corps 'to claim federal jurisdiction over ponds and mudflats by relying on the presence of migratory birds' would result in a 'significant impingement of the States' traditional and primary power over land and water use.'

Effect on New Jersey Dredge and Fill Permits

The precise impact of the Supreme Court's decision in New Jersey is unclear. New Jersey has assumed delegated authority from EPA to enforce the Federal wetland permit requirements. The State does so through the Freshwater Wetlands Protection Act, N.J.S.A. 13:9B-1, et seq. The Freshwater Wetlands Act regulations provide DEP with jurisdiction over projects discharging dredge and fill material into 'state open waters.' 'State open waters' are defined as those 'waters of the United States' within the boundary of the state that are not wetlands. N.J.A.C. 7:7A-2.6. The regulations adopt the Corps' definition of 'Waters of the United States,' which as stated above, encompasses 'isolated waters' serving as habitat for migratory birds. This definition was adopted in 1993 to create a program that is as stringent as that of the Corps, in order to secure the assumption of the permit jurisdiction.

Now that the Supreme Court has held that the jurisdiction of the Corps does not extend to isolated waters used as migratory bird habitat, it is uncertain whether New Jersey's definition of 'waters of the United States,' which is now broader than the definition used by the federal government, would be upheld. Additionally, the governor and legislature of this state have explicitly recognized that it is in the public interest to adopt regulations that are consistent with their federal counterparts. Exec. Order # 27 (1994); N.J.S.A.14B-22. Therefore, not only may DEP's authority over isolated waters used by migratory birds exceed Congressional authority, it may also contravene a State mandate.

'...the scope and location of construction projects must be analyzed carefully.'

However, this jurisdictional uncertainty should be clarified by a proposed rule change to the Freshwaters Wetlands Protection Act regulations. The proposed regulations amend the definition of 'state open waters.' The amended definition provides that it is the State's Water Pollution Control Act, N.J.S.A. 58:10A (WPCA), which gives the DEP jurisdiction over 'waters of the State.' Thus, the term 'waters of the United States' is not used in the definition. As defined in the WPCA, 'waters of the state' includes all bodies of surface water or ground water, whether natural or artificial. Even a puddle may be regulated. Under this definition, the need for a migratory bird presence to regulate 'isolated waters' would be gone. Until these rules are adopted, the issue of DEP jurisdiction over non-wetland isolated water remains an issue.

Regardless of the jurisdictional issues surrounding dredge and fill permits, it is important for developers and businesses to be aware that there are other permits that may be needed for their projects, such as Stream Encroachment permits pursuant to the Flood Hazard Area Control Act, N.J.S.A. 58:16A-50 et seq. As such, the scope and location of construction projects must be analyzed carefully.

For more information regarding the regulation of Wetlands or other Clean Water Act compliance issues, please contact Christopher D. Hopkins, Esq. at 908.322.6121. We would also be pleased to provide you with advice respecting your other environmental compliance issues.

About The Law Office of Christopher D. Hopkins, LLC

The Law Office of Christopher D. Hopkins, LLC is a boutique law firm located in Scotch Plains, New Jersey committed to providing the highest quality of legal services in the select areas of real estate, land use and environmental law. The firm is committed to working collaboratively with clients to achieve practical, cost effective results- whether it be in complex litigation, transactions, cleanups and/or development projects. The firm provides transactional and litigation counsel to a broad spectrum of clients including private and public corporations, trade associations, nonprofit institutions, banks, real estate investment trusts and individuals in New Jersey, New York and Pennsylvania.

Contact Information

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Scotch Plains, NJ 07076
TEL: 908.322.6121
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Email: chris@chopkinslaw.com

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