Freshwater Wetlands - Hydro-Environmental Analysis: Freshwater Environments - page 523

began illing an 80-acre mash and did not seek a 404 permit from the Corps. The case moved
through the court system and was argued in the U.S. Supreme Court in 1986. One of the major
issues was whether not allowing the development constituted “taking” just as if the government had
seized the property. The court ruled that “neither the imposition of the permit requirement itself nor
the denial of a permit necessarily constitutes a taking.”
An additional issue was whether the Corps had regulatory authority over “adjacent” wetlands or
waters adjacent to but not regularly looded by a navigable water (Gardner 2011). In this case, the
court ruled that the Corps' jurisdiction over the adjacent wetlands was reasonable since Congress
broadly deined “waters” covered by the CWA and that adjacent wetlands play an important role
in “protecting and enhancing water quality.” One of the issues then is, can adjacent be taken to
include isolated wetlands? (Bueschen 1997). The NRC (1995) suggested that there is little justiica-
tion for legislation and judicial decisions that hold isolated wetlands as less signiicant than adjacent
wetlands.
One of the components of the Corps regulations is that to be protected, an isolated wetland must
have a substantial connection to interstate commerce, as discussed by Bueschen (1997). Gardner
(2011) indicated that when the Corps attorney was asked under what constitutional authority did the
Corps regulate isolated wetlands, her response was “the Commerce clause,” stating that the pres-
ence of migratory birds at an isolated wetland could provide a suficient connection to interstate
commerce. Gardner (2011) indicated that the transcript of the oral argument reported parentheti-
cally that there was general laughter in response to the concept that migratory birds could create
a nexus to interstate commerce. But, following the decision, the Corps announced that it would
regulate activities in isolated waters (including wetlands) that “are or would be used as habitat by
other migratory birds that cross state lines” (Gardner 2011), which became known as the Migratory
Bird Rule.
19.5.1.3.2 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers
The Solid Waste Agency of Northern Cook County (SWANCC) was a consortium of 23 towns and
villages in the Chicago area that managed solid wastes on a regional basis. They wanted to develop
a landill for nonhazardous solid waste on a 533-acre parcel that had in the past been used for sand
and gravel mining. But, the sand and gravel pits had become a series of lakes and ponds of ideal
bird habitat, with 121 species reported, and home to the second largest blue heron rookery in north-
eastern Illinois (Gardner 2011). These ponds and lakes were isolated waterbodies, not connected or
associated with a navigable water.
SWANCC sought a Section 404 permit from the Corps, but the Corps determined that the area,
while not wetlands, qualiied as “waters of the United States” pursuant to the Migratory Bird Rule
and denied the permit. SWANCC iled suit against the Corps, which ultimately went to the U.S.
Supreme Court for a decision.
In a split decision (5-4), the U.S. Supreme Court decision in January 2001 struck down the appli-
cation of the Migratory Bird Rule to protect isolated waters. The rationale of the decision though
was broader, appearing to preclude federal assertion of Section 404 jurisdiction over isolated waters
on any basis. The court stated that “In order to rule for [the Corps], we would have to hold that the
jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that
the text of the statute will not allow this.”
The impact of this split decision was huge. The decision represented a major reinterpretation
of the CWA by emphasizing the importance of “navigability” in the deinition of “waters of the
United States” and implying that federal protection required a “signiicant nexus” to navigable
waters (or that the protection should lie with the states). As such, it effectively removed isolated
waters (including wetlands) from protection under the CWA, estimated to make up 40%-60% of all
freshwater wetlands (Kusler 2004, cited by Gardner 2011). The impact was illustrated in “Lawful
Loss,” an article published in Texas Parks and Wildlife magazine (Harvey 2006), which stated that
3000 acres of coastal wetlands formerly protected under the CWA in the Houston area are now