An Opening for Meaningful Reform? Forthcoming Rules Governing Federal Oversight of Wetlands Could Produce More Sensible Environmental Policy. (Environment)

Article excerpt

RECENT LEGAL DEVELOPMENTS HAVE called into question the scope of the federal government's jurisdiction over the nation's wetlands. Section 404(a) of the Clean Water Act (CWA) authorizes the U.S. Army Corps of Engineers to issue permits for the discharge of dredged or fill material into "waters of the United States." Section 404(b) requires the U.S. Environmental Protection Agency, "in conjunction with the Corps," to promulgate environmental guidelines that control the Corps' permitting decisions.

Section 404 originally assigned the Corps the authority to issue permits for the discharge of dredge or fill material into "navigable waters." The term stems from the Rivers and Harbors Act of 1899, the forerunner to the CWA. In the CWA, the term "navigable waters" was retained but broadly described as "waters of the United States" as the Act was intended to address environmental problems as opposed to simply protecting navigable waters.

By 1977, the Corps had adopted a broad regulatory definition of "waters of the United States" that included "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce." As written, virtually all wetlands came under federal jurisdiction under Section 404.

In January of 2001, the U.S. Supreme Court placed limits on that federal authority in its decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. The Court threw out the Corps' long-asserted claim that it has Section 404 jurisdiction over isolated, non-navigable intrastate waters when they are used by migratory birds. Though the Court's holding in the case was narrowly framed, the broader language in the opinion has raised questions about the scope of the decision and, by inference, the types and number of wetlands no longer subject to federal regulation.

This past January, the Corps and EPA issued "guidance" on the Supreme Court's decision and published an Advance Notice of Proposed Rulemaking on the Clean Water Act regulatory definition of "waters of the United States." The guidance states that the Corps and EPA "are now precluded from asserting CWA jurisdiction.., over waters such as isolated, nonnavigable intrastate vernal pools, playa lakes, and pocosins."

While many in the regulated community argue that the Advanced Notice provides too little guidance for field staff or applicants attempting to determine whether a particular aquatic feature is still subject to CWA jurisdiction, there is little doubt that the developments mark a significant change in federal regulation of wetlands.

FEDERAL PERMITTING

The Clean Water Act authorizes two different types of wetland permits: general and individual. General permits are streamlined permits that are issued nationwide (NWPs) or regionally (RGPs) for activities that have only minimal individual and cumulative impacts. Examples of activities covered by NWPs include minor road crossings, utility line backfills, and bank stabilization projects.

An activity that has more than a minimal impact on wetlands or that is not covered by some general permit must receive an individual permit in order to proceed. In this process, the Corps evaluates the applicant's specific proposal as part of a standard process that typically requires public notice and a high degree of scrutiny of the proposed project.

The main issues that must be resolved in this process include the following:

* Does the applicant have no practicable alternative that would avoid impacts to the waters of the United States, and has the applicant minimized unavoidable impacts?

* Does the mitigation proposal adequately compensate for any adverse impacts of the project?

* Does the project contribute to significant degradation of the aquatic ecosystem? …