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Clean Water and Wetlands

Expert perspective, SPEA professor Christopher Craft: “Last week, the Supreme Court heard two cases regarding the Clean Water Act and wetlands protection. The cases, both from Michigan, question the extent of federal jurisdiction over wetlands not directly connected to navigable waters and ‘Waters of the United States.’ In one case, a developer filled a wetland without applying for a permit. In the second case, a developer was denied a permit to fill a wetland that was separated from a ditch by a berm.

“At present, most wetlands are protected by Section 404 of the Clean Water Act (CWA), which prohibits placing fill material in them without a permit. The U.S. Army Corps of Engineers (USCOE) is responsible for issuing dredge and fill permits by regulating navigable waters though the Commerce clause—waterways are important for interstate commerce. In previous high court rulings (United States v. Riverside Bayview Homes in 1985), federal protection was extended to wetlands that were not adjacent to navigable waterways but had connections to such waterways through non-navigable streams and waterways.

“The question of what constitutes a connection to navigable waters was reviewed by Supreme Court again in 2001. In the case of the Solid Waste Agency of Northern Cook County (SWANNC) v. United States Army Corps of Engineers, the Court ruled that the USCOE overreached it authority when it regulated a hydrologically isolated quarry as a wetland. The ruling was based on the rationale that the isolated quarry lacked a ‘significant nexus’ to true navigable waters.

“In the two Michigan cases, the Court will determine whether federal regulation of ‘Waters of the United States’ extends upstream of navigable waterways and, if so, how far upstream, or whether legal control and regulation of such waterways belongs to the states.

“Similar to the SWANNC decision, it is thought that the Supreme Court will reduce the scope of federal protection of some wetlands, that is, those that lack a 'significant nexus' to navigable waters. This includes wetlands in upper reaches and headwaters of catchments and watersheds.

“Of greater concern is how the ruling will affect the discharge of pollutants, sewage, toxic chemicals and other constituents into our nation’s waterways. Presently, discharge of pollutants into our nation’s waterways is protected by Section 402 of the CWA. If the Court decides to narrowly define ‘Waters of the United States,’ it could open the door to unregulated and legal discharge of pollutants into our nation’s waterways, which would not be good for anyone living downstream, and that is most of us.”

The SPEA Toolkit: Christopher Craft is an associate professor at SPEA in terrestrial and wetland ecosystem restoration, and wetlands ecology. He also heads the Heartland Laboratory for Wetland Research.

Click here to find out more about Christopher Craft.

Click here to read more about the Heartland Laboratory for Wetland Research.

Click here to read about the case arguments before the Supreme Court.

Findlaw.com has coverage of two previous cases mentioned here:
United States v. Riverside Bayview Homes

Solid Waste Agency of Northern Cook County (SWANNC) v. United States Army Corps of Engineers