Court decision redefines wetlands, how Corps regulates them
The property in question was a former sand and gravel pit on which ponded water had accumulated. A public agency purchased the property with the intention of filling the ponds. The Corps initially declined jurisdiction because the ponds did not qualify as "wetlands." However, an environmental group asserted the ponds are used by migratory waterfowl.
Using its 1986 "Migratory Bird Rule," the Corps reasserted jurisdiction over the ponds because these constituted "waters of the United States." The rule states that waters that are or could be habitat for migratory birds crossing state lines become "waters of the United States."
The Supreme Court disagreed. The court’s majority emphasized that the Clean Water Act regulates "navigable waters." Referring to an earlier decision, the court said that Congress intended to regulate some waters that are not navigable in a classical sense. That decision held that the Corps could regulate wetlands adjacent to actually navigable waters.
However, the Jan. 9 decision found that the Corps’ "isolated waters" regulation as clarified in its "Migratory Bird Rule" exceeds the authority granted in the Clean Water Act.
The Corps’ "isolated waters" and wetlands regulations are administrative interpretations of the Clean Water Act. Normally, the courts defer to administrative agencies in their interpretations of statutes. In the Jan. 9 decision, the court refused to do so.
The court also declined to legitimize the Corps’ assertion that Congress has been aware of the Corps’ wetlands regulations for years and tacitly approved the rules.
Most importantly, the court refused to endorse an expansive interpretation of the Clean Water Act that would trigger constitutional consequences under the Commerce Clause, saying it would alter "the federal state framework by permitting federal encroachment upon a traditional state power."
The impact of the case is perhaps best expressed in Justice John Paul Stevens’ dissent: "In its decision today, the court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation, as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each."
With those exceptions, the Corps’ wetlands regulatory program is at risk of being declared unlawful. The ramifications for Alaska are obvious, with thousands of acres of wetlands lying across the state.
Due to the many environmental laws on the books, wetlands may still be regulated under other laws unaffected by the court’s Jan. 9 decision. For example, the Coastal Zone Management Act provides extensive authority for resource regulation. Also, the Clean Water Act allows states to condition or veto permit approval pursuant to state water quality considerations.
In addition, wetlands may be classified as habitat for endangered species under the Endangered Species Act. Furthermore, state and local governments may regulate land use, including wetlands, pursuant to their police powers over real property generally. Finally, wetlands adjacent to waters that are navigable fall within the Corps’ jurisdiction.
Reverberations are likely from the court’s Jan. 9 decision. The Corps of Engineers may issue interpretative guidance; property owners will seek determinations that wetlands regulations do not apply to their property; and environmental advocates may seek remedial legislation in Congress.
Prior to the decision, the docket of regulatory takings cases filed in the United States Court of Federal Claims consisted largely of the Corps’ regulation of wetlands under the Clean Water Act. For those who believe Alaska’s land is over-regulated by the federal government, the decision is a breath of fresh air.
For those who advocate responsible stewardship of resources, other environmental laws and authorities will have to be examined as a source of wetlands protection.
Lawrence V. Albert is an Anchorage attorney in private practice specializing in natural resources and regulatory takings law. He can be reached via e-mail at ([email protected]).