July 12, 2001
New rules for birds, bogs and bulldozers
By KATIE L. WALTER
Shannon & Wilson
In early 2001, an abandoned gravel pit near Chicago became the focus of a U.S. Supreme Court ruling. The Army Corps of Engineers tried to deny development of the site, arguing that birds represented interstate commerce and thus wetlands on the site required protection under the Clean Water Act (CWA). The court sided with the developers, making it legal to fill “isolated” wetlands like those found at the pit.
What does this scenario have to do with Puget Sound businesses? A lot — because in theory, now developers will not need permits from the corps to fill small, isolated bodies of water.
Note the phrase “in theory.”
The real situation is that we can expect confusion to reign for some time due to definitional difficulties, contradictory mandates and overlapping regulations at various agency levels.
Puzzled about ponds
At the outset, the Supreme Court’s Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) ruling will cause a rush to define “isolated” as it applies to wetlands. In addition to being cut off from other bodies of water, qualifying wetlands must not be navigable or contribute to interstate commerce.
The complexity of defining “isolated” is best illustrated with an example. Imagine that a seasonal pond was created 80 years ago in your neighborhood when a landslide occurred near a creek. Many types of waterfowl now make their home there, along with other mammals and amphibians. The pond has no inflow or outflow, and the only navigation it sees is when children launch rafts to watch a frog-jumping contest held every year at the pond.
Since the pond has been protected under the Clean Water Act, adjacent property prices are very low. So a developer buys up all available lots for a song. He makes plans to drain half of the pond and build luxury condos. He assumes that obtaining permits for fill work will be easy thanks to the SWANCC decision. After all, everybody knows that a pond is isolated by definition. Right?
Wrong. There’s still the potential interstate commerce issue to be resolved, since relatives come from other states to watch the kids’ frog competition and spend money at the community’s concession stand.
If this scenario seems far-fetched, just wait. You can bet that neighborhoods will use any conceivable navigational or interstate commercial activity, no matter how small or infrequent, to save their beloved wetlands and wild places. The Supreme Court ruling only eliminates migratory birds as interstate stakeholders. Virtually any other type of usage, from fishing derbies to butterfly watching events, could still be a valid reason for establishing interstate commerce, and thus corps jurisdiction, under CWA regulations.
Problems are also bound to arise when the developer applies for permits at the state and local level, where regulations have not necessarily followed suit with the SWANCC ruling.
All local jurisdictions are required under the Washington State Growth Management Act (GMA) to develop critical area regulations, almost all of which protect existing wetlands. Local agencies have never cared whether a wetland was isolated or not. And they probably will not alter their stance. In addition, the National Marine Fisheries Service (NMFS) just implemented a 4(d) rule that requires protection of all aquatic habitats that could benefit salmon, including isolated wetlands.
As a result, local agencies are now more stringent than the corps, and will surely require larger buffer zones and generally higher standards of mitigation from anyone entertaining ideas for development.
Put another way, smaller wetlands may fall below the corps’ radar. But they’ll still be a top priority for local agencies, who consider wetland preservation to be an important component of the aquatic ecosystem and worthy of protection from development. Would-be developers will thus become tangled in multiple layers of requirements, all of which conflict. The legal and scheduling implications are enormous.
Still, all this could easily change, and quickly. Many local agencies are taking a second look at their critical area regulations because of the recent listing of the Chinook salmon as threatened under the Endangered Species Act. Some may choose to rewrite their environmental codes while they’re at it. With sufficient pressure from vested interests, they might very well decide that federal levels of protection are adequate, and soften local regulations to match corps standards. It’s the old domino effect in action, with the first tile tumbling at the federal level.
Meanwhile, back at the corps
One might assume that corps officials are now heaving a big sigh of relief, being let off the hook for permitting small, isolated wetlands. But such is not the case. In fact, people at the Army Corps of Engineers are confounded by the SWANCC ruling and what seem to be conflicting marching orders.
“For years we have been charged with protecting the nation’s wetlands, based on CWA’s goals of ending water pollution,” said T.J. Stetz, environmental ecologist at the Seattle District Corps of Engineers. “But now we are in a quandary. We are not at all certain how to interpret the new ruling and fulfill our mission. We’re hoping that future communications from headquarters will clarify the issue for us, and give us a better idea of how to carry out corps objectives.”
The dissenting opinion issued by the Supreme Court recognized the Catch-22 elements of permitting isolated wetland development. “The court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water,” Justice Stevens wrote. “In its decision today, the court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each... Simple common sense cuts against the particular definition of the corps’ jurisdiction favored by the majority.”
Federal regulators may still be trying to understand the technicalities involved in the SWANCC ruling. Nevertheless, we can count on them to look for ways to minimize the potential environmental impact of the decision. Unfortunately for everyone, the burden on regulators will only be increased, as case after case is brought up for consideration as an isolated wetland.
The bottom line
The SWANCC ruling represents a huge loophole in the CWA. Like the Tulloch ruling several years ago that allows excavation in wetlands, it serves to water down environmental restrictions and reduce federal oversight. We can anticipate a number of predictable outcomes:
In other words, confusion will be the order of the day. Lawyers will get lots of new cases. Projects will take an even longer time to complete. But Washington citizens will no doubt band together in increasingly creative ways to ensure the long-term existence of neighborhood ponds, pools and wetland habitat.
Katie L. Walter, a professional wetland scientist, is a principal biologist at Shannon & Wilson, a Seattle geotechnical and environmental consulting firm. More information can be obtained from the company’s Web site: www.shannonwilson.com.
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