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Eagle Eye on Ponds
John Eft has a message for any landowners who think a recent Supreme Court ruling on isolated wetlands means they no longer need to consult the Army Corps of Engineers before filling ponds and puddles on their property: Think again.
In January the Court ruled that the Corps could no longer use the "Migratory Bird Rule" to extend its regulation over "waters of the United States" to include isolated, nonnavigable, intrastate ponds. Under the bird rule, the Corps had asserted that through the Clean Water Act, which is based on the Interstate Commerce Clause of the U.S. Constitution, it had jurisdiction over ponds that are used - or could be used - by migratory birds that cross state lines in their travels. The Court held that such use alone does not provide sufficient grounds for federal jurisdiction.
The ruling created more questions than it answered, say attorneys. Chief among these is "whether the court was setting forth a broad rule that applies to all nonnavigable waters or does it apply only to isolated waters," according to the Environmental Protection Agency's Hugh Barroll. EPA has issued a legal interpretation memo (also signed by Corps attorneys), which relies on the narrower reading of the court's ruling. Under this interpretation, the Corps continues to have jurisdiction over wetlands that ultimately drain into tributaries of navigable waterways, and waters that appear to be isolated are to be scrutinized more carefully before jurisdiction is determined.
Lawyers say that although the Corps has used the bird rule since 1986 to regulate the filling of wetlands, it is only one type of connection to interstate commerce that could provide a foundation for federal jurisdiction. "Since we can no longer rely on the bird rule to determine jurisdiction, we are again looking at the criteria we used before," says Eft. Such criteria include whether or not the water in question is a tributary of a navigable waterway or adjacent to such a waterway or tributary - which of course raises questions about how to define "tributary" and "adjacent." For example, the Corps defines a tributary as an identifiable stream, with a bed and a bank, so swale systems would not be covered despite the fact that they may drain into tributaries during storms. However, says Eft, the question of whether small streams that drain into storm drains are really creeks, and therefore subject to jurisdiction, is an open one. The court did not address several other provisions of the bird rule, including one that gives the Corp jurisdiction over waters that are or could be used as habitat for endangered species. According to Eft, "reasonable people could differ on what the court meant," regarding this provision.
The interpretation memo is currently the only official guidance on the court's ruling. According to Barroll, the Corps is considering developing formal "programmatic guidance" that would clarify some of the issues raised by the decision. However, he also notes that "there is some question as to whether the new administration will even want to develop such guidance." In the meantime, the issues will be decided on a case-by-case basis.
Eft says that in California's Region 9 at least, one result of the decision has been that the Corps is coordinating more closely with EPA than in the past. "We are letting them look at marginal cases, and holding regular meetings to make sure that our approaches are consistent," he says. Overall, he emphasizes that the agencies are keeping a sharp eye on waters that may be affected by the decision. "We want to dispel any feeling on the part of landowners that they do not need to talk to us before they fill."
Contact: John Eft (415) 977-8646 CH
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