Supreme Court considering wetlands cases

The U.S. Supreme Court heard oral arguments in two cases last week that could determine the extent to which the Army Corps of Engineers can regulate wetlands.

Both cases stem from the U.S. Court of Appeals for the Sixth District, and concern the authority of the Corps to regulate wetlands that are removed from navigable waters, such as a drainage ditch. In both cases, the appellate court upheld the authority of the Corps of Engineers to require permits for filling or discharging pollutants into drainage ditches that flow into navigable waters.

Court observers say that this is the first major environmental case to come before the Court under its new Chief Justice John Roberts, and will be a test of the Clean Water Act passed by Congress in 1972. One of the parties to the case, Michigan developer John Rapanos, faces a potential fine of $185,000 and three years probation for having filled in some 54 acres of wetlands, some of which were 20 miles from the nearest navigable water.

Observers speculate that the Supreme Court may stop short of addressing the authority of the Corps and instead direct them to develop a better definition of tributaries.

Another case involving wetlands and the transportation industry is pending before the U.S. Court of Appeals for the District of Columbia Circuit. That case challenges the so-called “Tulloch rule,” which involves a 1993 decision by the Corps of Engineers and U.S. Environmental Protection Agency (EPA) to extend the legal definition of “discharge of dredged material” in wetlands development decisions to include the re-deposition of material caused by earthmoving equipment incident to land clearing and other excavation activities. The agencies’ intent was to use “incidental fallback” as a basis for requiring federal permits under the CWA. The challenged regulations affect activities including ditch digging channelization and excavation.

The construction industry has argued that the Clean Water Act (CWA) was never meant to regulate activities that only result in an “incidental fallback” of materials into the waters of the U.S. and highlighted the negative impacts of the Corps proposal on the transportation construction industry.