Wetlands decision by highest court has opened the door for developers

If you have wetlands on your property, you may want to review the January U.S. Supreme Court decision, Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers. This ruling states that the Corps of Engineers cannot require a property owner or developer to obtain a permit before filling intrastate, isolated wetlands.

As a result of the ruling, homebuilders, developers and others can now use isolated intrastate wetlands on their property free from the Corps' requirement to obtain a Clean Water Act Section 404 dredge and fill permit. This decision gives builders and developers greater freedom in the use of their property. It also will eliminate one hurdle that may have otherwise increased the costs of development and slowed its progress.

Chances are this window won't stay open long. Some states assert jurisdiction over isolated intrastate wetlands and may require permits to fill such waters. Additionally, environmentalists likely will lobby Congress to remove the opportunity and close the window created by the Supreme Court ruling for good.

Some background information

Under Section 404 of the Clean Water Act, developers have been required to obtain a permit from the Corps of Engineers before discharging dredged or fill material into “waters of the United States.” The Corps of Engineers interprets waters of the United States to include wetlands. The authority of the Corps of Engineers is not boundless; it is only authorized to regulate waters of the United States if the use, degradation or destruction of the body of water could affect interstate commerce.

For the past five years, under the “migratory bird rule,” the Corps has maintained that the destruction or degradation of a body of water may affect interstate commerce, and thus be regulated, if the body of water is or could be used by migratory birds as a habitat. This migratory bird rule allowed the Corps to require permits for discharges into isolated wetlands — intrastate wetlands unconnected with any navigable surface water, which would otherwise not be seen as affecting interstate commerce.

The Solid Waste Agency of Northern Cook County case hinged on the Corps' use of the migratory bird rule. The case started several years ago when a group of 23 towns and villages in metropolitan Chicago acquired an abandoned 533-acre sand and gravel pit to build a 410-acre landfill. The site had been mined for sand and gravel for approximately 30 years. After work ceased in the 1960s, pits and depressions created by the excavations eventually became seasonal and permanent ponds used by migratory birds. To build the landfill, developers needed to fill in the ponds.

The consortium contacted the Corps to determine if it needed a Section 404 permit to do so. The Corps initially determined that a Section 404 permit was not required because the site did not support wetland vegetation. After reviewing information that documented migratory bird use at the site, the Corps changed its mind, citing the migratory bird rule.

Split decision

Negotiations over mitigation plans failed, and the Corps denied the consortium's Section 404 permit application. The consortium then filed suit, arguing that the Corps' definition of waters of the United States, using the migratory bird rule, exceeded the Clean Water Act's scope, therefore violating the U.S. Constitution. In a 5-4 decision, split along the familiar conservative-liberal fault lines, the Supreme Court agreed with the consortium, holding that the application of the Section 404 program pursuant to the migratory bird rule exceeds the authority granted to the Corps under the Clean Water Act.

The Court found it instructive that Congress used the term navigable water in the Clean Water Act, which signaled an intention to restrict the Act to waters that are traditionally navigable, or waters adjacent or connected to such waters. As a result of the Supreme Court decision, the Corps is not authorized to require a permit solely on the basis of the migratory bird rule, when a developer or property owner wants to fill isolated intrastate waters, including wetlands.

The court decision paves the way for developers, builders and others to fill isolated wetlands and other isolated waters without obtaining a Section 404 permit. This decision allows builders and developers greater freedom to use their property as they see fit. The costs associated with developing land with these isolated wetlands will be significantly reduced, and one type of permitting red tape will be eliminated.

Richard Horder is a partner with the law firm of Kilpatrick Stockton LLP. He heads up the Environmental and Natural Resources Practice Group in Atlanta.

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