Constitutional Limits to Wetlands Regulation

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Constitutional Limits to Wetlands Regulation

• By Chris Smith

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Presentation Overview

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

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The Commerce Clause

• 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

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The Clean Water Act

• Purpose
• to restore and maintain the chemical, physical,
  and biological integrity of the Nations water
  33 U.S.C. 1251(a) (2002).
• Navigable waters
• waters of the United States, including the
  territorial seas Id. at 1362(7)

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Corps Definition

• 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

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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
• Riverside began filling land for housing
  development
• 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.

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United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985)

• Congress sought to define coverage of the CWA
  broadly
• Corps regulations do not require wetlands to be
  frequently flooded
• Saturation is sufficient, provided wetlands
  vegetation exists
• The term navigable should be given limited
  meaning
• Court deferred to Corps determination because it
  was not unreasonable

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1986 Migratory Bird Rule (MBR)

• 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)

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Hoffman Homes, Inc. v. Administrator, EPA, 999
F.2d 256 (1993).

• One of the first courts to consider section 404s
  reach to isolated wetlands
• Issue an isolated, one-acre wetland, separated
  from a small creek by 750 feet
• 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

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United States v. Lopez, 514 U.S. 549 (1995).

• Restricting Congress Commerce Clause power
• 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

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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.
• Petitioners wanted to fill some abandoned sand
  and gravel pits to create a landfill
• Corps asserted jurisdiction under the MBR

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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.
• 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
• Held the MBR was not supported by Congress
  intent in passing the CWA
• Punting on the Commerce Clause question

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How the Corps and EPA reacted to SWANCC

• There was considerable confusion after SWANCC
• 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.

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Advice to the National Home Builders Association
based on SWANCC

• Since the SWANCC opinion was not clear it can be
  read expansively or narrowly
• 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

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Advice to the National Home Builders Association
based on 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

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Subsequent case law following SWANCC and another
look by the Supreme Court

• United States v. Deaton, 332 F.3d 698 (4th
  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

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Subsequent case law following SWANCC and another
look by the Supreme Court

• United States v. Deaton, 332 F.3d 698 (4th
  Cir.2003).
• Held the Corpss 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 Congresss 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.

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Subsequent case law following SWANCC and another
look by the Supreme Court

• Split in the Circuits
• Some Circuits have followed Deaton and read
  SWANCC narrowly
• Others have read it expansively
• 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

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Questions