1. Constitutional Limits to Wetlands Regulation By: Chris Smith

2. Presentation Overview The Commerce Clause The Commerce Clause Brief discussion CWA wetlands regulations Brief discussion CWA wetlands regulations History of the relevant case law History of the relevant case law Discussion of how the Corps and EPA reacted to the SWANCC decision Discussion of how the Corps and EPA reacted to the SWANCC decision Advice to homebuilders Advice to homebuilders Brief discussion of case law since SWANCC Brief discussion of case law since SWANCC

3. The Commerce Clause Commerce Clause Authority Commerce Clause Authority –Channels of interstate commerce –Instrumentalities of interstate commerce –Activities having a substantial relation to interstate commerce Power over navigable waters is an aspect of the authority to regulate the channels Power over navigable waters is an aspect of the authority to regulate the channels

4. The Clean Water Act Purpose Purpose –“to restore and maintain the chemical, physical, and biological integrity of the Nation’s water” 33 U.S.C. § 1251(a) (2002). Navigable waters Navigable waters –“waters of the United States, including the territorial seas” Id. at § 1362(7)

5. Corps Definition “water of the United States” “water of the United States” –waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce; –all interstate water including wetlands; –wetlands adjacent to covered waters, including tributaries

6. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) 80 acres of low-lying, marshy land near the shores of Lake St. Clair 80 acres of low-lying, marshy land near the shores of Lake St. Clair Riverside began filling land for housing development Riverside began filling land for housing development Corps asserted CWA jurisdiction under section 404(a) Corps asserted CWA jurisdiction under section 404(a) Supreme Court needed to decide the proper interpretation of the Corps’ regulations defining “waters of the United States” and the scope of the Corps’ jurisdiction under the CWA. Supreme Court needed to decide the proper interpretation of the Corps’ regulations defining “waters of the United States” and the scope of the Corps’ jurisdiction under the CWA.

7. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) Congress sought to define coverage of the CWA broadly Congress sought to define coverage of the CWA broadly Corps regulations do not require wetlands to be frequently flooded Corps regulations do not require wetlands to be frequently flooded Saturation is sufficient, provided wetlands vegetation exists Saturation is sufficient, provided wetlands vegetation exists The term “navigable” should be given limited meaning The term “navigable” should be given limited meaning Court deferred to Corps determination because it was not unreasonable Court deferred to Corps determination because it was not unreasonable

8. 1986 Migratory Bird Rule (“MBR”) “waters of the United States” now included “waters of the United States” now included –Intrastate waters that would be or were being used as habitat by migratory birds which cross state lines. 33 C.F.R. § 238.3(b)

9. Hoffman Homes, Inc. v. Administrator, EPA, 999 F.2d 256 (1993). One of the first courts to consider section 404’s reach to isolated wetlands One of the first courts to consider section 404’s reach to isolated wetlands Issue: an isolated, one-acre wetland, separated from a small creek by 750 feet Issue: an isolated, one-acre wetland, separated from a small creek by 750 feet EPA argued they had jurisdiction under the MBR EPA argued they had jurisdiction under the MBR Held: federal jurisdiction could be premised on a potential effect to IC, but not enough evidence of use by migratory birds Held: federal jurisdiction could be premised on a potential effect to IC, but not enough evidence of use by migratory birds

10. United States v. Lopez, 514 U.S. 549 (1995). Restricting Congress’ Commerce Clause power Restricting Congress’ Commerce Clause power Congress’ authority is limited to regulation of economic behavior Congress’ authority is limited to regulation of economic behavior Regulated activities now need to substantially effect interstate commerce to be a valid use of the Commerce Clause Power Regulated activities now need to substantially effect interstate commerce to be a valid use of the Commerce Clause Power

11. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). (“SWANCC”) Issue: whether Congress has the constitutional authority to regulate isolated wetlands used by migratory birds. Issue: whether Congress has the constitutional authority to regulate isolated wetlands used by migratory birds. Petitioners wanted to fill some abandoned sand and gravel pits to create a landfill Petitioners wanted to fill some abandoned sand and gravel pits to create a landfill Corps asserted jurisdiction under the MBR Corps asserted jurisdiction under the MBR

12. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). (“SWANCC”) Congress intended to “regulate at least some waters that would not be deemed ‘navigable’” when it enacted the CWA. Congress intended to “regulate at least some waters that would not be deemed ‘navigable’” when it enacted the CWA. The wetlands in Riverside could be regulated because there was “a significant nexus between the wetlands and ‘navigable waters’” The wetlands in Riverside could be regulated because there was “a significant nexus between the wetlands and ‘navigable waters’” Since wetlands were not adjacent to an open body of water there can be no Corps jurisdiction Since wetlands were not adjacent to an open body of water there can be no Corps jurisdiction Held: the MBR was not supported by Congress’ intent in passing the CWA Held: the MBR was not supported by Congress’ intent in passing the CWA Punting on the Commerce Clause question Punting on the Commerce Clause question

13. How the Corps and EPA reacted to SWANCC There was considerable confusion after SWANCC There was considerable confusion after SWANCC EPA issued a advanced notice of proposed rulemaking to solicit commentary EPA issued a advanced notice of proposed rulemaking to solicit commentary They concluded that SWANCC “squarely eliminates CWA jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for asserting federal jurisdiction is the actual or potential use of waters as habitat for migratory birds.” They concluded that SWANCC “squarely eliminates CWA jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for asserting federal jurisdiction is the actual or potential use of waters as habitat for migratory birds.”

14. Advice to the National Home Builders Association based on SWANCC Since the SWANCC opinion was not clear it can be read expansively or narrowly Since the SWANCC opinion was not clear it can be read expansively or narrowly Expansive reading Expansive reading –Beneficial to homebuilders –Less land would come under the Corps section 404 jurisdiction –Land could be developed that contained wetlands as long as they were not adjacent to navigable water like the land in Riverside

15. Advice to the National Home Builders Association based on SWANCC Narrow reading of SWANCC Narrow reading of SWANCC –Not beneficial to homebuilders –Need to be wary about purchasing land that contains a wetland –EPA memorandum seems to indicate this reading –If land contain marshy areas homebuilder will need to expend extra resources on an inspection –Extra costs could deter the development of land, and possibly make some land unsuitable for development

16. Subsequent case law following SWANCC and another look by the Supreme Court United States v. Deaton, 332 F.3d 698 (4 th Cir.2003). United States v. Deaton, 332 F.3d 698 (4 th Cir.2003). –Taking Commerce Clause issue head on –Wetland bordered a “roadside ditch” that took “a winding, thirty-two mile path to the Chesapeake Bay.” –Argument: Corps regulations were a violation of Congress’ commerce power

17. Subsequent case law following SWANCC and another look by the Supreme Court United States v. Deaton, 332 F.3d 698 (4 th Cir.2003). United States v. Deaton, 332 F.3d 698 (4 th Cir.2003). –Held: “the Corps’s regulatory interpretation of the term ‘water of the United States’ as encompassing non-navigable tributaries of navigable waters does not invoke the outer limits of Congress’s commerce power or alter the federal-state framework.” –“the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained…” –Corps is able to regulate wetlands adjacent to roadside ditches because “discharges into non-navigable tributaries and adjacent wetlands have a substantial effect on water quality in navigable waters.”

18. Subsequent case law following SWANCC and another look by the Supreme Court Split in the Circuits Split in the Circuits –Some Circuits have followed Deaton and read SWANCC narrowly –Others have read it expansively United States v. Rapanos grated certiorari United States v. Rapanos grated certiorari –Wetlands were found to have a hydrological connection to “navigable waters” even though they had to use a ditch and a non-navigable river to finally reach a true navigable water. Corps wetlands jurisdiction could be redefined once again Corps wetlands jurisdiction could be redefined once again

19. Questions