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Federal control of wetlands being challenged. (Insiders Outlook).

While America's attention is focused abroad; conservatives are quietly attacking the federal government's jurisdiction over the nation's wetlands. Emboldened by a recent United States Supreme Court decision, conservatives are asking judges to hold unconstitutional the scope of the federal government's regulation of wetlands and water bodies since the Carter Administration (including during the administrations of Presidents Reagan and George H.W. Bush).

The conservatives' strategy has resulted in diametrically opposed decisions by different judges over the federal government's authority to regulate activities affecting many of the nation's wetlands. If Congress doesn't act, federal judges, and not the Environmental Protection Agency or the United States Army Corps of Engineers (the federal agencies charged with protecting these resources), will continue to be the ultimate decision makers regarding these activities, with different rules in different states.

The United States Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County ("SWANCC") v. United States Army Corps of Engineers, et al. sparked the current controversy. In the SWANCC case the Supreme Court struck down the Army Corps of Engineers' "migratory bird rule" which had regulated activities affecting wetlands and waterways serving as homes for migratory birds or used to irrigate crops sold in interstate commerce. SWANCC had purchased a former sand and gravel pit to expand an existing municipal landfill. The Army Corps of Engineers asserted that the "migratory bird rule" required SWANCC to obtain a federal permit pursuant to the Clean Water Act in order to expand the landfill in the former sand and gravel pit. Five of the nine justices of the Supreme Court disagreed, holding that no such permit was required because the Clean Water Act's jurisdiction over "waters of the United States" could not be triggered solely because wetlands provided habitat to migratory birds.

The Environmental Protection Agency and the Army Corps of Engineers are in the middle of considering whether to further scale back the federal regulation of wetlands on account of the Supreme Court's decision in the SWANCC case. Conservationists are fighting back, urging the Bush Administration to maintain the federal government's longstanding regulations. Even if the conservation movement wins this hotly contested fight, it won't end the court battles being waged around the country.

Earlier this year, in FD&P Enterprises, Inc. v. United States Army Corps of Engineers, a federal judge in New Jersey held that the Corps of Engineers could not require a federal permit to fill approximately 54 acres of wetlands merely because the wetlands were connected by a stream to the Hackensack River. The judge decided that he was constrained by the Supreme Court's decision in the SWANCC case to require a "substantial nexus" between the wetlands to be filled and a "navigable water" of the United States (in this case the Hackensack River) in order to uphold the federal government's effort to regulate the filling under the Clean Water Act.

The federal courts have been debating the extent of the federal government's jurisdiction over the nation's waters for over 15 years. Now the debate has spread to the agencies charged with asserting that jurisdiction. Once settled, these debates could determine the extent to which the federal government will regulate activities ranging from the filling of wetlands to the storage and dispensing of petroleum products. This could take years, with confusion and inconsistent results reigning in the meantime.

Congress and the President could settle this matter more quickly and efficiently. On Feb. 27, the Democrats introduced legislation in the House and Senate to incorporate in the Clean Water Act the regulatory definition of wetlands and water bodies subject to federal jurisdiction in effect since 1977.

Congress should seize this opportunity to answer for itself the fundamental questions that have been raised over the extent to which the Clean Water Act which sprung from its chambers confers federal jurisdiction to protect the nation's waters.
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Author:Porter, Jeffrey R.
Publication:Real Estate Weekly
Geographic Code:1USA
Date:Apr 9, 2003
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