Freshwater Wetlands - Hydro-Environmental Analysis: Freshwater Environments - page 521

will either withdraw the proposed regulation or post the inal regulation, along with the agency's
response to public comments, in the Federal Register together with the date when the regulation
will become effective. On that date, the regulation has the force of law (Gardner 1990, 2011) and is
eventually published in the Code of Federal Regulations.
The agency can also, and commonly does, affect guidance or interpretative rules that describe
how the agency plans on interpreting and implementing the statutes or regulations. These guidance
documents do not have the force of law and the agency is not required to, and commonly does not,
post the guidance in the Federal Register for public review before being implemented. However, as
described by Gardner (2011), “many of the rules governing wetlands are found in guidance docu-
ments; these are where the real details are.”
19.5.1.1 Federal Law and the Courts
The federal law of the United States consists of the U.S. Constitution, laws enacted by Congress,
and decisions of the U.S. Supreme Court and other federal courts. So, for example, after regulations
that have the force of law are implemented by agencies, based on interpretation of the federal statute
(e.g., the CWA), issues can be brought to court and the U.S. Supreme Court or other federal courts
may agree or disagree with that interpretation.
It is not easy to bring a suit against a federal agency to challenge a regulation. Gardner (2011)
indicates that the two chief requirements are the requirements of standing and ripeness. Standing
generally means that the plaintiff must demonstrate that there is suficient connection to and harm
from the regulation to support his or her participation in the case. That often makes it dificult for
third parties, such as environmental groups, to challenge federal regulations. Gardner (2011) indi-
cates that establishing standing typically requires the establishment of “injury in fact” or harm; that
there is “causation” so that the harm is traceable to the regulation (in this case); and “redressability”
so that the court's decision would have some practical effect. The “ripeness” requirement simply
means that the court may decide that the time is not yet right or “ripe” to hear the case.
Challenging a regulation in court typically means challenging the agency's interpretation of the
federal statute. One of the most important principles in administrative law is called the Chevron def-
erence, established by the U.S. Supreme Court in Chevron U.S., Inc. v. Natural Resources Defense
Council, Inc. 467 U.S. 837 (1984). In that case, th e issue was raised as to how the courts should treat
agency interpretations of statutes that mandated that agency to take some action. The U.S. Supreme
Court held that the courts should defer to the agency's interpretations of such statutes unless they are
unreasonable, after which this principle is referred to as the Chevron deference. There are two parts
to the Chevron deference (Gardner 2011). The irst is to determine whether Congress addressed the
issue in plain language, and if so then that intent must be followed. If the intent was not clear, then
the court must determine if the agency's interpretation is reasonable. If the latter is the case, then the
court may provide their interpretation of the intent of Congress and render a decision.
If the case is heard by the U.S. Supreme Court or other federal court, the decision of that court
becomes federal law. As will be discussed shortly, a number of such decisions have dramatically
altered how wetlands in the United States have been deined under law and protected (or not).
19.5.1.2 “The Waters of the United States Saga” Part 1: CWA Section 404
A number of sections of the CWA have been discussed elsewhere, but in this section we will focus
on Section 404 and related sections. Section 404 of the CWA establishes a program to regulate the
discharge of dredged or ill material into “navigable waters.” We will return to the dredging and ill
issue shortly, but irst, given the topic of this chapter, a question is: what is a navigable water and
does it include wetlands?
The traditional deinition of a navigable water is that it is “navigable” for the purposes of com-
merce. The Corps has been responsible for maintaining navigable waterways since the 1890s
under the Rivers and Harbors Act and it has a wealth of experience, regulations, and procedures
for deining what is navigable and what is not. So, when irst mandated with the responsibility for