UPDATE ON THE LAW OF WETLANDS

Transcription

1 UPDATE ON THE LAW OF WETLANDS Author: Sally A. Longroy CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P. 200 Crescent Court, Suite 1500 Dallas, Texas (214) NORTH TEXAS ASSOCIATION OF ENVIRONMENTAL PROFESSIONALS Rules and Reality, Making Environmental Issues Work For Your Community March 15, 2003 Cityplace Conference Center Dallas, Texas Copyright 2004 by Sally A. Longroy. All rights reserved.

2 Update on the Law of Wetlands Author: Sally A. Longroy 1 This paper highlights some of the recent developments in the regulation of wetlands in the United States. Although it is not intended to be comprehensive in nature, it should, among other things, give the reader a perspective on the current controversy over which governmental bodies have or should have authority to regulate wetlands. Federal Jurisdiction Over Wetlands - Decisional Law In order to appreciate the recently developing case law, it is necessary to begin by looking back to 1985, when the Supreme Court issued its opinion in United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Riverside Bayview involved the interpretation of 404(a) of the Federal Water Pollution Control Act, 33 U.S.C (the Clean Water Act or CWA ), as it applied to non-navigable wetlands that were adjacent to open waters. Under 404(a), Congress granted the federal government authority to regulate discharges of dredged or fill materials into navigable waters, which it defined as waters of the United States, including the territorial seas. 33 U.S.C. 1362(7). In 1974, the Corps defined navigable waters to mean those waters of the United States which are subject to the ebb and 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 or foreign commerce. The Supreme Court interpreted the CWA and the Corps regulations as follows: Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into navigable waters,... the Act s definition of navigable waters as the waters of the United States makes it clear that the term navigable as used in the Act is of limited import. In adopting this definition of navigable waters, Congress evidently intended to repudiate limits that had been placed on federal regulations by earlier water pollution control statues and to exercise its power under the Commerce Clause to regulate at least some waters that would not be deemed navigable under the classical understanding of that term.... [T]he evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term waters to encompass wetlands adjacent to waters as more conventionally defined. (Citations omitted). The Riverside Bayview Court explicitly declined to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water... and [declined to] express any opinion on that question. Nevertheless, following 1 The author gratefully acknowledges Elisa Feldman s valuable assistance in the preparation of this paper and offers her thanks to West for its helpful and complimentary Westlaw research assistance. This paper is published as of February 23,

3 the decision in Riverside Bayview, the lower courts generally gave the term navigable waters its broadest possible constitutional meaning. These courts have routinely upheld the Corps expanding view of its jurisdiction to the full extent of the Commerce Clause, including its regulation of wetlands adjacent to non-navigable tributaries or having any hydrological connection to navigable-in-fact waters, as well as its assertion of jurisdiction over certain isolated, non-navigable waters. In 2001, the Supreme Court spoke again on the authority of the federal government to regulate wetlands and narrowed, but did not overturn, Riverside Bayview. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct 675, 148 L.Ed.2d 576 (2001) ( SWANCC ), the Court was asked to decide whether the Corps had jurisdiction to regulate several ponds that had formed in man-made pits created by sand and gravel mining. The ponds were wholly isolated from any navigable waters, and initially the Corps concluded that it did not have jurisdiction over the site because it contained no wetlands, or areas that support vegetation typically adapted for life in saturated soil conditions. Later, however, the Corps reconsidered and asserted jurisdiction over the site pursuant to its regulation known as the Migratory Bird Rule, 33 C.F.R (a)(3) (1999). This 1986 Rule attempted to clarify the reach of the Corps jurisdiction as extending to intrastate waters which are or would be used as habitats by other migratory birds which cross state lines. The Supreme Court found there were significant constitutional questions raised by the Corps application of its regulations and refused to interpret the CWA as extending the federal government s regulatory power to the limits of the Commerce Clause. Although the Court acknowledged that in Riverside Bayview, it had found the word navigable of limited import, it concluded that it is one thing to give a word limited effect and quite another to give it no effect whatever. The term navigable has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made. The Court reasoned, that it was the significant nexus between the wetlands and navigable waters that informed [its] reading of the CWA in Riverside Bayview Homes. Additionally, the Court found there was no clear statement from Congress showing that it intended 404(a) to reach isolated and abandoned sand and gravel pits. Finding the text of the statute to prohibit such a reading, the Court refused to rule that the Corps had jurisdiction over ponds that were not adjacent to open waters. Permitting the Corps to claim federal jurisdiction over ponds and mudflats falling within the Migratory Bird Rule would result in a significant impingement of the state s traditional and primary power over land and water use in violation of the Commerce Clause. Therefore, the Supreme Court held that the Migratory Bird Rule, as clarified and applied to petitioner s bail-fill site, exceeded the authority granted to the Corps under 404(a) of the CWA. Since SWANCC, the lower courts have struggled with establishing new jurisdictional lines for regulating navigable waters. Many of the recent cases considering the issue are summarized on the attached table. The courts have essentially divided into two camps: Narrow View of Jurisdiction: SWANCC represents a significant shift in the reach of federal jurisdiction under the CWA to cover only waters that are actually navigable or directly adjacent to navigable waters

4 Broad View of Jurisdiction: SWANCC did not significantly narrow the jurisdiction of the Corps, except with regard to the Corps jurisdiction over isolated waters. The Fifth Circuit, which includes Texas, has adopted the most narrow reading of the federal government s jurisdiction over navigable waters. In re Needham, 342 F.3d 340 (5th Cir. 2003); Rice v. Harken Exploration Company, 250 F.3d 264 (5th Cir. 2001). Initially in Rice, the Fifth Circuit refused to expand the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C , to cover releases onto dry land, even if some of such releases might eventually seep into groundwater and ultimately into "navigable waters." The Rices sought damages under the OPA for the contamination of their land as a result of intermittent releases of hydrocarbons and other pollutants from drilling operations on their property. The District Court granted Harken s motion for summary judgment in part, on the ground that the Rices could not sustain a cause of action under the OPA. The Fifth Circuit affirmed, holding that consistent with the meaning of "navigable waters" under the CWA, "navigable waters" protected under the OPA do not include groundwater, or navigable waters that are ultimately contaminated by only natural seepage of contaminated groundwater into such surface waters. The Rice court read SWANCC to hold that jurisdiction under the CWA extended only to a body of water that is actually navigable or adjacent to an open body of The Fifth Circuit reaffirmed its position on the meaning of SWANCC in Needham, another OPA case in which the court found that the federal government s jurisdiction did not extend to the outermost limits of Commerce Clause. The court clearly stated that federal regulations over tributaries that are neither themselves navigable nor truly adjacent to navigable waters are not sustainable under SWANCC. Quoting Rice, the court said that in this circuit the United States may not simply impose regulations over puddles, sewers, roadside ditches and the like; under SWANCC a body of water is subject to regulation... if the body of water is actually navigable or adjacent to an open body of The court in United States v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va. 2002) took a rather unique, but also narrow, approach to SWANCC and reviewed the expansion of the Corps regulations since the Clean Water Act was passed in The 1975 regulations defined navigable waters to include [a]ll tributaries of navigable waters of the United States up to their headwaters and landward to their ordinary high water mark ( OHWM ), which the court found to refer to the landward or upstream flow of waters. 33 C.F.R (2)(i)(e) (1975). In 1986, the Corps stated in the preamble to its new rules that in the absence of wetlands, the upstream limit of Corps jurisdiction also stops when the OHWM is no longer perceptible. 51 Fed. Reg. 41,217. Nevertheless, the Corps omitted the upstream component in the 1986 definition of its jurisdiction: In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark. 33 C.F.R (c). According to the RGM court, by 2000 the Corps no longer considered the upstream component of the OHWM, but used the OHWM as the basis for asserting jurisdiction over ephemeral streams, drainage ditches and the newly coined term, waterbody. In other words, the Corps used the OHWM to assert jurisdiction over any perceptible OHWM caused by the flow of water toward navigable waters. Under the Corps current regulations, in order for non-tidal water to be a tributary, it must be capable of having an OHWM and there would have to be an OHWM flowing continuously from the wetlands to the - 3 -

5 The court ultimately found that the Corps reinterpretation of its jurisdiction was not entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) and ruled the 1986 definition invalid. Although the Corps could make an argument for jurisdiction from an environmental standpoint, for purposes of determining jurisdiction under the CWA, the court held that it was not enough for water from the wetlands to ultimately enter navigable waters. When carried to its logical extreme this argument means that any mountain stream, drainage ditch, culvert or artificial watercourse which eventually enters navigable water, even sporadically, and which possesses a perceptible OHWM would contain waters of the United States subject to Corps jurisdiction. On the other side of the spectrum, several courts have now concluded that SWANCC applies only to isolated waters which have no hydrological connection to navigable waters. Some of these courts have continued to find that federal jurisdiction extends to distant, nonnavigable tributaries, including roadside ditches and intermittent streams several miles removed from actually navigable waters. Some have relied on Justice Stevens dissent in SWANCC to support their view that the Corps retains jurisdiction over non-navigable tributaries and their adjacent wetlands. Justice Stevens stated in his 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 jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each. Others have cited the ambiguity of the statute as the basis for giving Chevron deference to the Corps to interpret the applicability of SWANCC. For example, in United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), pet. for cert. filed, 72 U.S.L.W (U.S. Nov. 10, 2003) (No ), the Fourth Circuit allowed the Corps to regulate wetlands adjacent to a roadside ditch whose waters take a winding, 32 mile path to Chesapeake Bay, but reach navigable waters about eight miles from the Deatons property. The Deaton court reasoned that the statutory term waters of the United States was sufficiently ambiguous to constitute an implied delegation of authority to the Corps under Chevron, which essentially allows the Corps to determine the applicability of SWANCC. The court ultimately found reasonable the Corps reading of its regulations as extending to roadside ditches and adjacent wetlands. Later, in Treacy v. Newdunn Assoc. LLP, 344 F.3d 407 (4th Cir. 2003), pet. for cert. filed, 72 U.S.L.W (U.S. Oct. 27, 2003) (No ), the Fourth Circuit found the Corps had jurisdiction over waters that flowed intermittently from wetlands on the Newdunn property through a series of natural and man-made waterways a distance of 2.4 miles to traditional navigable waters. The Newdunn court focused on the SWANCC Court s holding that Congress concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up with the waters of the United States (quoting Riverside Bayview). It also looked to the explanation in Riverside Bayview: In determining the limits of power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs--in short, a huge array of areas that are not wholly aquatic but nevertheless - 4 -

6 fall far short of being dry land. When on this continuum to find the limits of waters is far from obvious. Although several circuits have yet to weigh in on the meaning of SWANCC, it appears that until the Supreme Court gives further direction on the topic, there will remain a split on the jurisdictional lines under the Clean Water Act. This split will result in the diverse regulation of the discharge and fill of waters that are not navigable or adjacent to navigable waters. Regulatory Developments On January 15, 2003, the EPA and the Corps published an Advance Notice of Proposed Rulemaking ( ANPR ) and Joint Memorandum on the CWA s definition of waters of the United States. 68 Fed. Reg (2003). The ANPR sought public comment, information and data on the implications of the SWANCC decision. In particular, it solicited comments on the following issues: (1) Whether, and, if so, under what circumstances, the factors listed in 33 C.F.R (a)(3)(i)-(iii) (i.e., use of the water by interstate or foreign travelers for recreational or other purposes, the presence of fish or shellfish that could be taken and sold in interstate commerce, the use of the water for industrial purposes by industries in interstate commerce) or any other factors provide a basis for determining CWA jurisdiction over isolated intrastate, non-navigable waters? (2) Whether the regulations should define isolated waters, and if so, what factors should be considered in determining whether a water is or is not isolated for jurisdictional purposes. The memorandum explained that the EPA and the Corps are now precluded from asserting jurisdiction based solely on the Migratory Bird Rule. It further explained that isolated, intrastate waters that meet any of the tests for being navigable in fact would remain subject to CWA jurisdiction, as would their adjacent wetlands. However, the Agencies directed that field staff should seek formal project-specific Headquarters approval prior to asserting jurisdiction over other isolated waters that are both intrastate and non-navigable. The comment period for the ANPR closed on April 16, 2003, by which time the agencies had received approximately 130,000 comments, many of which opposed revisions to the regulations. In an apparent effort to dispense with a political hot potato in an election year, President Bush, the EPA and the Corps issued a press release on December 16, 2003, announcing the decision to not revise regulations governing federal jurisdiction over isolated wetlands. The release reiterated the Bush Administration s commitment to the goal of no net loss of wetlands in the United States and the EPA s and Corps decision to preserve the federal government s authority to protect our wetlands. State Regulation of Isolated Wetlands According to the ANPR discussed above, prior to SWANCC 15 states had programs regulating isolated wetlands, and since SWANCC two states have adopted new wetlands - 5 -

7 regulations and several have considered adopting legislation to protect isolated waters. A number of initiatives are available to assist states in their efforts to protect wetlands not regulated by the federal government, including the EPA s Wetland Program Development Grants and a wetlands conference co-sponsored by federal agencies along with the National Governors Association Center for Best Practices, the National Conference of State Legislatures, the Association of State Wetlands Managers, and the National Association of Attorneys General. The Texas Commission on Environmental Quality ( TCEQ ) has set a goal to assure no net loss of the functions of the State s wetlands. Texas Wetlands Protection Programs. 2 Texas goal is implemented primarily by TCEQ s review of federal permit applications for compatibility with state requirements under the 401 water quality certification procedures. 30 TEX. ADMIN. CODE, Ch This procedure protects only wetland loss due to activities requiring a federal permits under 404 of the CWA. Notwithstanding the decision in SWANCC, Texas has not yet implemented a permitting program to regulate isolated wetlands and does not make jurisdictional wetland determinations. Wetlands Mitigation Banking The new Federal Guidance on the Use of the TEA-21 Preference for Mitigation Banking to Fulfill Mitigation Requirements Under 404 of the Clean Water Act (July 11, 2003) provides information on how to apply the preference for Wetlands Mitigation Banking mandated in the Transportation Equity Act for the 21st Century (TEA-21) to compensatory mitigation requirements under 404 of the CWA. TEA-21 established a preference for mitigation banking to compensate for unavoidable losses to wetlands or other natural habitats caused by transportation projects receiving federal assistance under Title 23 of the U.S. Code. The July 11, 2003 memorandum conforms to the Natural Wetlands Mitigation Action Plan of December 24, 2002, which enunciated the Bush Administration s commitment to the goal of no net loss of the nation s wetlands. To that end, the Administration announced six principles that guide its actions: (1) work in consultation with the Tribes, States, and interested parties to provide a consistent voice on compensatory mitigation matters; (2) focus our guidance research and resources to advance ecologically meaningful compensatory mitigation, informed by science; (3) emphasize accountability, monitoring, and follow through in evaluating compensatory mitigation; (4) apply the same compensatory mitigation provisions to Federal projects and on Federal lands as we do to private parties, consistent with existing laws and policies; (5) provide information and options to those who need to mitigate for losses of wetlands function; and (6) provide technical and research assistance to those who undertake the work of mitigation

8 In re Needham, 342 F.3d 340 (5th Cir. 2003). JURISDICTION OVER NAVIGABLE WATERS AFTER SWANCC Narrow View Case Alleged Violation Wetlands/Waters Holding Cleanup costs for oil Bayou Folse is directly spill into drainage ditch adjacent to navigable and Bayou Folse. water. Rice v. Harken Exploration Co., 250 F.3d 264 (5 th Cir. 2001). FD&P Enters., Inc. v. United States Army Corps of Engineers, 239 F. Supp. 2d 509 (D.N.J. 2003). United States v. RGM Corp., 222 F. Supp. 2d 780 (E.D. Va. 2002). Oil spilled on dry ground seeped into groundwater that flowed into the Canadian River. FD&P applied for a permit under 404 to fill wetlands. After seven years of negotiations, FD&P filed an action alleging that the Corps lacked jurisdiction over the wetlands in question. Dredging and filling on property to develop an upscale residential neighborhood with an adjacent golf course. Groundwater that ultimately flowed into the Canadian River. The Corps deemed 77 acres of the FD&P property wetlands. The western border of the property was adjacent to a non-navigable creek/tributary of a navigable body of water. The wetlands involved in this case were not adjacent to navigable water. The Corps alleged a surface water and hydrological connection via drainage ditches, one that connected to a navigable waterway and another that connected to an ephemeral stream, which then flowed to a navigable waterway. Jurisdiction under CWA and OPA does not extend to outermost limits of Commerce Clause. Federal government may not impose regulations over tributaries that are neither navigable nor truly adjacent to navigable waters. The U.S. may regulate only wetlands adjacent to navigable waters, but not puddles, sewers, roadside ditches and the like. Congress intended navigable waters to have the same meaning under the Oil Pollution Act and the CWA. Navigable waters does not include ground water and creeks that flow into a navigable river because ground water and creeks are not navigable waters. Noted that Riverside Bayview had explicitly declined to extend jurisdiction to wetlands adjacent to non-navigable waters. A significant nexus must constitute more than a mere hydrological connection. The court denied the motion for summary judgment because of a material fact issue as to whether there was a significant nexus between the wetlands and the Found that the Corps reliance on surface water and hydrological connection was based on its application of the ordinary high water mark ( OHWM ). 33 C.F.R (2)(i)(e). The court held that the language in the rule referred only to the OHWM caused by the upstream/landward flow of waters, not the flow of water toward - 7 -

9 Treacy v. Newdunn Assoc. LLP, 344 F.3d 407 (4 th Cir. 2003), pet. for cert. filed, 72 U.S.L.W (U.S. Oct. 27, 2003) (No ). United States v. Deaton, 332 F.3d 698 (4th Cir. 2003), pet. for cert. filed, 72 U.S.L.W (U.S. Nov. 10, 2003) Broad View Case Alleged Violation Wetlands/Waters Holding Ditching and draining wetlands on 43-acre property. (No ). United States v. Interstate General Co., 39 Fed. Appx. 870 (4 th Cir. 2002) (unpublished). United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003), pet. for cert. filed, 72 U.S.L.W (Dec. 22, 2003) (No ). Rueth Development Corp. v. United States, 335 F.3d 598 (7th Cir. 2003), cert. denied, No (Dec. 1, 2003). United States v. Krilich, 303 F.3d 784 (7 th Cir. 2002), cert. denied, U.S., 123 S. Ct (2003). Digging ditch and depositing excavated dirt into wetlands without a permit. Knowingly discharging fill materials into protected wetlands in violation of the CWA. Sought to reverse conviction and vacate consent decree entered into before SWANCC. Landowner filled wetlands without the appropriate permits. Failing to comply with consent decree requiring restoration of wetlands. Discharging fill material into wetlands without a permit. Sought to reverse conviction and vacate consent decree entered into before SWANCC. Wetlands are connected to actual navigable waters by intermittent flow of surface water through about 2.4 miles of natural streams and man-made ditches. Wetlands adjacent to, and drain into, roadside ditch, which takes a winding, 32-mile path and eventually flows into Wetlands are adjacent to the headwaters of small streams that flow into creeks, which in turn flow into navigable river. Wetlands occupied less that one-third of 175-acre plot of land, located between eleven and 20 miles from the nearest Government alleged wetlands were connected to a man-made drain, which flowed into a creek, then into a navigable river. Wetlands adjacent to tributary of ditch that flows into another ditch, which flows into a navigable river. In the consent decree, the parties stipulated that certain wetlands were waters of the United States. Corps had jurisdiction to regulate wetlands adjacent to tributaries of traditionally navigable waters. Man-made ditches are tributaries. Held that the CWA extends to distant, non-navigable tributaries of navigable waters and the ditch is a tributary, deferring to the Corps interpretation of a tributary. The court declined to reverse the guilty plea and consent decree because the only clear change in the law made by SWANCC was with regard to 33 CFR 328(a)(3), the section that covers isolated bodies of water. A significant nexus was required by SWANCC, but a hydrological connection between the wetlands and the drain was sufficient. Corps had jurisdiction over wetlands adjacent to tributary of navigable water and the SWANCC decision had not effected a change in the law necessitating the modification of the decree. Consent decree was entered into after Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992), in which the court held that the EPA had no jurisdiction over intrastate, nonadjacent or isolated wetlands under 40 C.F.R (s)(3). SWANCC s holding was more narrow than Hoffman Homes and no significant change in the law had occurred that would allow reopening the consent decree

10 United States v. Phillips, 2004 WL (9th Cir. 2004). Broad View Case Alleged Violation Wetlands/Waters Holding Appeal of a criminal A creek that empties into conviction for another creek that empties instructing employees into a river. to dig approximately 20 ponds without a permit. encompasses tributaries. Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001). Applied herbicide to irrigation canals without a permit fish kill involved. Canals deriving water from a variety of surface streams and other water bodies, including a lake. The river, which flows between two states, has been designated as navigable. Navigable water within the meaning of the CWA Irrigation canals were jurisdictional because they are tributaries to natural streams and one lake with which they exchange water. Borden Ranch Partnership v. United States Corp of Engineers, 261 F.3d 810 (9 th Cir. 2001), cert. granted, 536 U.S. 903, aff d, 537 U.S. 99 (2002). United States v. Hummel, 2003 WL (N.D.Ill. Apr. 8, 2003). North Carolina Shellfish Assoc. v. Holly Ridge Assocs., 278 F. Supp. 2d 654 (E.D. N.C. 2003). Carabell v. United States Army Corps of Engineers, 257 F. Supp. 2d 917 (E.D. Mich. 2003). Developer initiated deep ripping without a permit in order to convert ranchland into vineyards and orchards. Dug trench and installed sanitary sewer line through wetlands without a permit. Cleaning out, expanding and creating ditches on 1,262-acre tract. Denial of a 404 permit to fill wetlands. Vernal pools (formed during the rainy season, but often dry in the summer), swales (sloped wetlands), and intermittent drainages. Connection with navigable waters not discussed. Small stream flows from lake through the wetlands and joins a creek, which flows over part of the wetlands into a navigable river. Wetlands adjacent to navigable in fact water and intermittent nonnavigable water. Factual dispute whether nonnavigable waterway flows to wetland flat and then to new channel that intersects navigable water or whether non-navigable waterway is tributary to Forested wetlands on parcel with drain ditch along one boundary. The ditch connects to a drain, which connects to Undisputed that the property has no surface water connection to adjacent water body; water collected on property remains until The Corps had jurisdiction over deep ripping; the farming exception did not apply. Each pass of the ripper counted as separate violation. The Corps conceded that SWANCC precluded its authority over vernal pools. Court bound by 7th Circuit s interpretation. Follows cases before and after SWANCC that do not require a direct connection to navigable water; wetlands may be linked through other connections two or three times removed from navigable water and still fall within the Corps jurisdiction. A hydrological connection with traditional navigable water is enough for a significant nexus required under SWANCC. Considers Riverside Bayview to hold that CWA jurisdiction extends to wetlands adjacent to navigable waters and tributaries. SWANCC did not substantially narrow the jurisdiction of the Corps under the CWA. Held that Corps had jurisdiction because the property is adjacent to unnamed ditch, which ultimately connects with navigable waters, creating significant nexus between wetlands and - 9 -

11 Broad View Case Alleged Violation Wetlands/Waters Holding United States v. Lamplight Equestrian Center, Inc., 54 Env t Rep. Case 1217, 32 Envtl. L. Rep (N.D. Ill. 2002). United States v. Buday, 138 F. Sup. 2d 1282 (D. Mont. 2001). Colvin v. United States, 181 F. Supp. 2d 1050 (C.D. Cal. 2001). United States v. Jones, 267 F. Supp. 2d 1349 (M.D. Ga. 2003). Northern California River Watch v. Healdsburg, 2004 WL (N.D. Cal. Jan. 23, 2004). Discharging sand and clay fill into the alleged wetlands without authorization from the Corps. Buday pled guilty to knowingly discharging fill material into creek. The court asked the parties to file supplemental briefs addressing whether the court had jurisdiction to prosecute in light of SWANCC, decided hours after the guilty plea. Colvin was convicted of discharging pollutants into navigable waters. After the sentence was affirmed by the 9th Circuit, Colvin moved to vacate, set aside, or correct the sentence. The government sought to recover costs and penalties from an oil processing facility for alleged violations of the CWA and the OPA. Discharged treated sewage into a pond that drains into a river, without a permit. absorbed. Non-continuous meandering drainage swale that carries water off the property to a tributary of a tributary of Tributary 235 miles from Colvin dumped 5.4 million pounds of waste on a ranch, located on the shoreline of a lake, and some of the waste ended up in the lake. The lake is Storm drain on a street flowed from a stream to a larger ditch that emptied into an adjacent wetland and drained into the a river, approximately 1-2 miles away. A pond formed from an old gravel pit and adjacent wetlands. The wetlands are inseparably bound with the waters of the United States through a tributary of Brewster Creek, therefore, the Corps has jurisdiction. Creek is a tributary of a tributary. Tributaries that are distant from but connected to navigable water are ecologically capable of undermining the quality of Congress intended for jurisdiction to extend the subject creek and Buday was not permitted to withdraw his guilty plea. After SWANCC, the CWA authorizes federal jurisdiction over illegal discharges into the lake and Colvin s motion was denied. SWANCC did not dramatically alter CWA case law, therefore, the discharge into storm drain was into navigable waters. SWANCC only invalidated the migratory bird rule; it did not impose a rule of hydrological connection. SWANCC reaffirmed that wetlands and other bodies of water, like ponds adjacent to navigable waters, share a significant nexus worthy of protection under the CWA

12 OTHER WETLANDS CASES Case City of Olmsted Falls v. United States EPA, 266 F. Supp. 2d 718 (N.D. Ohio 2003). Greenfield Mills, Inc. v. O Bannon, 189 F. Supp. 2d 893 (N.D. Ind. 2002). Northwest Environmental Defense Center v. United States Army Corps of Engineers, 118 F. Supp. 2d 1115 (D. Oregon 2000). Citizens for Honesty and Integrity in Regional Planning v. County of San Diego, 258 F.Supp.2d 1132 (S.D.Calif. 2003). Airport Communities Coalition v. Graves, 280 F. Supp. 2d 1207 (W. D. Wash. 2003) Holding This case arises out of the dredge or fill permit issued under the CWA in conjunction with construction under way at Cleveland Hopkins International Airport. Prior to the issuance of the permit, the Ohio EPA had sent a letter to the Corps indicating that Ohio waived its authority to act on the 401 application. Plaintiffs claimed that the Corps reliance on Ohio s waiver, which they claimed was invalid, violated 401(a)(1). The Court disagreed, finding that on its face, the statute and supporting regulations allowed an applicant for a 404 permit to submit an express waiver from the state in order to satisfy 401. Congress also permitted the Corps the right to accept such a waiver. The court found no explicit requirement for the Corps to ensure that the state s certification process complied with its own guidelines. Plaintiffs brought citizen suit alleging that the defendants violated the CWA when, without obtaining a permit, they opened a flow control gate at the Fawn River State Fish Hatchery, which resulted in sediment deposits in the Fawn River. The court considered the regulatory exclusion from the permitting requirements for maintenance of dams which does not have as its purpose bringing an area of the navigable waters into a new use. The court found that the discharge of dredged materials included dredging that occurred by hydraulic, as opposed to mechanical, means, but also found that the defendants qualified for the dam maintenance exception. Plaintiff brought citizen suit alleging that the Corps and private parties violated permits issued by the Corps. The court held that there are no implied private causes of action under the CWA and that it had no authority to read into the statute a definition that would allow citizen suits against private parties alleging violations of permits issued by the Corps. Title XII of the Food Securities Act of 1985 (the Swampbuster provision) provides that any person who produces an agricultural commodity on converted wetlands forfeits eligibility for a variety of federal funds. Wetlands are defined as any property consisting of (1) hydric soils, (2) wetland hydrology, and (3) hydrophytic vegetation. The county may impose substantial restrictions on land use if wetlands are located on such property. The county defines wetlands more broadly as any property consisting of (1) hydric soils, (2) wetland hydrology, or (3) hydrophytic vegetation. Plaintiffs sought a major use permit from the county to develop their property, which was denied after pending for more than eight years. The plaintiff argued that the Swampbuster definition of wetlands preempted the county s definition. The court held to the contrary, based on the adoption of the Swampbuster provision under only the Spending power of Congress, in which Congress essentially purchased what it lacked authority to compel. The court explained that Spending Clause legislation is in the nature of a contract, in which the recipient of funds agrees to be bound by federally imposed conditions. Under 401, an applicant for a 404 permit must provide the Corps with a state certification that the proposed project complies with the state water quality standards. If the state fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements are waived. The court held that the Corps was obligated to incorporate in the permit only those state certification conditions that were issued within one year of issuing the notice of the request for certification

13 Case Big Meadows Grazing Assoc. v. United States, 344 F.3d 940 (9th Cir. 2003). Holding The federal government purchased a permanent conservation easement from Big Meadows and at the time had represented to Big Meadows its intent to implement a conservation plan with a cost of around $80,000. However, the government substantially revised its restoration plan to have a projected cost of $486,000. The court held that the statute governing the Wetlands Reserve Program did not require the landowner to assent to the government s conservation plan or that the conservation plan be made a part of the easement