SWANCC
    Borden Ranch Partnership v ACOE
    Related Links

 

Extension of Public Comment Period on SWANCC ANPRM

EPA WaterNews for February 25, 2003. In response to the U.S. Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.  EPA and the Department of the Army jointly issued an Advance Notice of Proposed Rulemaking (ANPRM) on Jan. 15, 2003.  The ANPRM seeks information on factors related to the jurisdictional status of isolated intrastate non-navigable waters under the CWA, invites comments as to whether any other clarifications are needed to the existing jurisdictional regulations, and seeks information on the potential aquatic resource impacts of SWANCC as well as information on state water resource protection programs for isolated waters. The ANPRM was issued with a 45-day comment period closing on Mar. 3, 2003.  In light of requests from the public for an extension of that public comment period, EPA and Army on Feb. 24, 2003, signed a notice that will be published in the Federal Register providing an additional 45 days for public comment.  As a result, the ANPRM comment period now closes Apr. 16, 2003.  Additional information on SWANCC and the ANPRM may be found on EPA's website at http://www.epa.gov/owow/wetlands/swanccnav.html.

Subcommittee Hearing on "Agency Implementation of the SWANCC Decision"

On Thursday, September 19 at 10:00 a.m. the US Representatives' Committee on Government Reform's Energy Policy, Natural Resources, and Regulatory Affairs Subcommittee held a hearing on "Agency Implementation of the SWANCC Decision." The Committee on Government Reform has provided the testimony of participants on their website, http://reform.house.gov/reg/hearings/index.htm#September192002. Unfortunately the testimony of Patrick Parenteau and Gary Guzzi has not been posted to the Committee's website. However, ASWM has posted them; click on the links below:
Testimony from Patrick Parenteau, Vermont Law School
Testimony from Gary Guzzi, former general council to EPA
Newspaper articles reflecting some of what was discussed in the hearings are located on the ASWM website at http://www.aswm.org/wbn/archive/02/021014a.htm

Federal SWANCC Guidance Remains On Hold: Rulemaking Under Consideration

Federal Guidance on SWANCC has not been issued. The Administration announced at the September 19 Subcommittee hearing (above) that the it is considering a significant shift in its interpretation of the SWANCC decision and may engage in rule making. The change, if pursued, would be toward a much broader reduction in Clean Water Act jurisdiction than has been recently articulated in the Department of Justice briefs issued in cases addressing "isolated" waters following the Supreme Court decisions. In joint testimony the Corps and EPA stated:
"For many years, EPA and the Corps have interpreted their regulations to assert jurisdiction over non-navigable tributaries of traditional navigable waters. Following SWANCC, Federal courts have raised questions concerning the extent of CWA jurisdiction over non-navigable tributaries. These questions include the jurisdictional status of intermittent and ephemeral streams and waters that pass through man-made conveyances, and wetlands adjacent to these waters. The Army and EPA are examining whether a rulemaking should be pursued to address these questions." See http://reform.house.gov/reg/hearings/091902swancc/epaandcorps.htm for the full statement.
The approach under consideration by some parties within the Administration is apparently articulated in an article in the September 2002 issue of Environmental Law Review titled: "Could SWANCC be Right? A New Look at the Legislative History of the Clean Water Act," (32 ELR 11042).

The proposed changes affect the definition of waters for all programs in the Clean Water Act including point source discharge permits as well as wetland fill permits.

State by State Estimates on Potential Effect of SWANCC

The report: Geographically Isolated Wetlands: A Preliminary Assessment of their Characteristics and Status in Selected Areas of the United States, describes isolated wetlands in detail and also includes regional state by state tables identifying the percentage of wetlands that may be removed from jurisdiction (depending on what guidance or rule making is undertaken by the Federal agencies). These analyses represent a very small part of the overall wetland acreage in each state, so they should not be characterized as a state-wide analysis. However, the report does provide valuable information and indicates that the extent of waters removed from Clean Water Act jurisdiction may be substantial. The report can be found at: http://wetlands.fws.gov/Pubs_Reports/isolated/report.htm.

ASWM Releases Position Paper on Resolving Issues Resulting from SWANCC Ruling

12/18/01. In response to the turmoil the January 9, 2001 SWANCC ruling has caused the Section 404 regulatory program, the Association of State Wetlands Managers (ASWM) and Association of State Floodplain Managers have released a position paper outlining their concerns and declaring their support for clear regulatory guidance. The two organizations are urging EPA to develop specific guidance to insure that the narrow legal interpretation embodied in the SWANCC Memo does not get lost as it filters down to the field offices of the Corps and EPA. The position paper outlines 6 key steps to resolve the current situation, including clarification that the definition of “tributaries” includes groundwater tributaries and man-made structures, as well as all surface tributaries whether mapped or unmapped. To review the position paper that was sent to EPA Administrator Christine Whitman, visit http://www.aswm.org/swancc/position.pdf

Report Reviews Wetland Protection in California Post-SWANCC

The California Research Bureau has just completed a report on the SWANCC decision and its implications for California. The 134-page report, authored by Jennifer Ruffolo, was prepared at the request of State Senator Shelia Kuehl, Chair of the Senate Natural Resources and Wildlife Committee. The paper reviews wetlands, their functions and values, and national and California wetland losses. It describes (briefly) federal regulation and case law, then discusses the SWANCC opinion and dissent. It evaluates California wetlands laws and programs to determine which, if any, can fill the gap created by SWANCC, and tries to identify just which types of wetlands in California might be outside of Clean Water Act jurisdiction. It concludes with a comparison of the risks and costs of regulating isolated wetlands and some regulatory and non-regulatory policy options. A limited number of hard copies are available at the Research Bureau. It is also available at the state library web site, www.library.ca.gov/crb/02/03/02-003.pdf There is a short summary of the paper on the web at http://www.library.ca.gov/html/statseg2a.cfm [posted 3/31/02]

DU Report Available Online: “The SWANCC Decision: Implications for Wetlands and Waterfowl”

This report by Ducks Unlimited examines the possible implications to wetlands that are important to waterfowl across the Nation. Ducks Unlimited researchers considered other state and federal laws and regulations that would protect isolated wetlands in the absence of Section 404. Researchers also considered how factors responsible for wetland loss varied regionally, focusing especially on areas that are continentally important to waterfowl. The Executive Summary reports “East Coast and Great Lakes states generally have laws that offer moderate to strong protection of isolated wetlands even in the absence of Section 404, although there are exceptions. Protection is weak to non-existent in the Mississippi Alluvial Valley (MAV) and Prairie Pothole Region (PPR). However, the majority of isolated wetlands located in these regions occur on agricultural land where most producers are enrolled in Farm Bill programs and wetlands are afforded some protection under Swampbuster. In the western half of the country state wetland protection laws are generally weaker and a high percentage of wetlands are found on non-agriculture land. In general, isolated wetlands play a minor role in meeting the needs of waterfowl in areas that are important for migration and wintering. In contrast, the SWANCC decision could have significant consequences for breeding waterfowl, especially in the PPR and migrating waterfowl, especially in the Rainwater Basin. Within these states, Section 404 and Swampbuster represent complimentary wetland protection programs that have proven highly effective in reducing wetland loss. As a result, Swampbuster now remains as the only effective legal or regulatory deterrent to wetland drainage.”  To review the complete Executive Summary or download the Report, visit http://www.ducks.org/conservation/404_report.asp  

Report: Consistent Methods for Identifying Waters that may no longer be regulated under the Clean Water Act following the SWANCC decision. Click here

Memorandum concerning the SWANNC decision prepared by Jon Kusler, Esq. for the Association of State Wetland Managers (ASWM) - PDF format

The revised memorandum concerning the SWANCC decision prepared by Jon Kusler, Esq. for the Association of State Wetland Managers (ASWM) may be quoted or sent on to others if credit is provided. The memorandum first describes the SWANCC decision and its implications for federal Clean Water Act regulation of wetlands. Next it considers the ability of existing state and local regulations to regulate waters that may no longer fall under federal Clean Water Act jurisdiction. It concludes with a discussion of options for filling the gaps in wetland regulation and the possible implications of the decision to the states. ASWM welcomes any comments on the memorandum. We also welcome more precise figures concerning acreages, numbers and types of isolated wetlands affected by the decision. Please state your assumptions concerning "tributary" and "adjacency". We hope you find the memorandum useful.

EPA/Corps Legal Interpretation
EPA Withdrawal of Wilson Guidance
Supreme Court Rules in Favor of SWANCC
NRDC Denounces Supreme Court Decision
NAHB Pleased with Supreme Court Decision
Defenders of Property Rights: Supreme Court Clips Wings of Migratory Bird Rule

1/23/01. On Monday, January 22, 2001, the US Environmental Protection Agency and US Army Corps of Engineers issued a 10-page legal interpretation of SWANCC v. USACOE jointly signed by the Counsels of EPA and COE. A legal interpretation differs from guidance because it is an analysis of the current situation rather than directions on how to do things in the future. The document provides clarification on how the agency staff should implement the Section 404 program in response to the Surpeme Court decision. The document is posted at the Association of State Wetland Managers website at http://www.aswm.org/swancc/legal.pdf until we are notified that it has been added to the agencies' websites.

Also in response to the Supreme Court decision, effective Friday, January 19, 2001, the Corps and EPA withdrew the Wilson guidance issued May 28, 1998 and supplemental guidance issued June 26, 1998. This guidance had been issued in response to the Fourth District decision in the case of United State vs. Wilson addressed Clean Water Act jurisdiciton over isolated water bodies.

SUPREME COURT RULES IN FAVOR OF SWANCC

Solid Waste Ag. of N. Cook County v. US Army Corps of Engineers No. 99-1178 Full text: http://laws.findlaw.com/us/000/99-1178.html CLEAN WATER ACT (No Regulatory Coverage of Wetlands Not Adjacent to Navigable Waters) "The United States Supreme Court held 5-4 (opinion by Rehnquist; dissent by Stevens) that s404 of the Clean Water Act does not extend regulatory coverage to wetlands not adjacent to navigable waters."

For the complete text of the decision visit http://a257.g.akamaitech.net/7/257/2422/14mar20010800/www.supremecourtus.gov/oral_arguments/argument_transcripts/99-1178.pdf. The following are a series of press releases related to the decision.

NRDC Denounces Supreme Court Decision http://www.nrdc.org/media/default.asp#0109cwa
"Those who want to pave over the last remaining vestiges of undeveloped wetlands will consider this decision -- which will destroy the second largest Great Blue Heron breeding colony in northeastern Illinois -- to be a great victory," said Daniel Rosenberg, attorney with NRDC’s Clean Water Project.

NAHB Pleased with Supreme Court Ruling http://www.nahb.org/news/wetlandcourt.htm
Can a federal agency restrict land use in any of the 8 million U.S. isolated wetlands not connected to any water body simply because a migrating bird could land in those wetlands? In its 5-4 decision, the Court said "no."

Defenders of Property Rights: "Supreme Court Clips Wings of the Migratory Bird Rule"
http://www.defendersproprights.org/ "How anyone could consider a gravel pit that is unconnected to any other body of water a "navigable water" simply because it collects rain water and a bird lands on it, is beyond me," said Nancie G. Marzulla, President of the Washington, D.C.-based Defenders of Property Rights, "and fortunately for land owners, it is now beyond the Corps as well."