U.S. Army Corps of Engineers Civil Works Controversies - Wetlands Jurisdiction

Wetlands Jurisdiction

One of the major responsibilities of the Corps of Engineers is administering the wetlands permitting program under Section 404 of the Federal Water Pollution Control Act of 1972. (also known as "The Clean Water Act"). This Act authorized the Secretary of the Army to issue permits for the discharge of dredged and fill material.

Section 10 of the Rivers and Harbors Act of 1899 (codified in Chapter 33, Section 403 of the United States Code) gave the Corps authority over navigable waters of the United States. As navigable waters are defined as "navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently being used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce", the Corps has broad authority to enforce this, including licensing of bridges over navigable waters, and the maintenance of pierhead and bulkhead lines.

There is some disagreement over the extent of the Corps' reach into the wetlands, whether USACE or the US Environmental Protection Agency (EPA) should have jurisdiction, and how the wetlands should be regulated. Often, it is difficult to describe the problem or make jurisdictional determinations. Many times, people are frustrated because the process isn't transparent or easy. In some cases, it appears that Corps (and EPA) regulators are searching for excuses to justify decisions in allegedly difficult circumstances.

The US Supreme Court has addressed environmental regulation by the Corps of Engineers three times in the last two decades. In 1985, the Supreme Court ruled 9–0 that the Clean Water Act extended to wetlands adjacent to open waters. They left open the question about wetlands not adjacent to Federal waters (United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)) (see Bayview Homes in Regulatory takings). In 2001, the Court further decided 5–4 that the CWA does not cover areas that had filled with water (Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001)). The Corps of Engineers had claimed authority over the site by saying that migratory birds used the pond as habitat but were overruled by the Supreme Court because they were claiming powers not granted by Congress by attempting to extend its jurisdiction to ponds with no connection to navigable waters.

The Court's most recent ruling was in June 2006 in Rapanos v.United States. At issue was the way the Federal government regulates the nation's wetlands under the Clean Water Act. The law has been contentious with property owners because it requires a permit for filling and dredging wetlands that empty into navigable waters and their tributaries. Developers have long challenged the Corps' right to regulate wetlands that are not free-flowing into navigable waters. Narrowly avoiding gutting of the Clean Water Act, the Supreme Court voted 5–4 to send the case back to the lower courts for a ruling.

Chief Justice John Roberts wrote, "It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis."

Wetlands jurisdiction by the Corps of Engineers will, for the foreseeable future, remain contentious.