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Constitutional Limits to Wetlands Regulation

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Constitutional Limits to Wetlands Regulation By: Chris Smith Presentation Overview The Commerce Clause Brief discussion CWA wetlands regulations History of the ... – PowerPoint PPT presentation

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Title: Constitutional Limits to Wetlands Regulation


1
Constitutional Limits to Wetlands Regulation
  • By Chris Smith

2
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

3
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

4
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)

5
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

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
  • 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.

7
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

8
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)

9
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

10
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

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.
  • Petitioners wanted to fill some abandoned sand
    and gravel pits to create a landfill
  • 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.
  • 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

13
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.

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
  • 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
  • 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 (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

17
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.

18
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

19
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