What is a wetland?
State and local governments were hoping a recent U.S. Supreme Court decision would clarify when public projects on or near wetlands require permits from the U.S. Army Corps of Engineers. Many county officials also were hoping the ruling would scale back the corps’ frequent practice of regulating gutters, ditches and irrigation systems. A split decision, however, left unanswered questions that local officials have long-struggled with, including the federal government’s definition of a wetland.
Under the Clean Water Act, which gives the federal government authority to control discharge of pollutants into navigable waters, a project proposed for construction in wetlands must be reviewed by the corps and the U.S. Environmental Protection Agency. Sometimes, the developer must get a permit, which can be expensive, or restore existing wetlands or create a new one.
Counties often apply for wetlands permits for public infrastructure projects, including road improvements. However, the federal government considers lakes and rivers to be navigable waters, as well as their smaller tributaries, which have included man-made ditches and streams, some of which do not contain water. Under that interpretation, projects miles away from any navigable waters may be regulated. The Washington-based National Association of Counties (NACo) argues that municipal streets and gutters and man-made ditches should be regulated locally and not federally.
States view the decision as a threat to the environmental protection of many streams and remote wetlands, according to the Washington-based National Governors Association (NGA). “Because of the lack of consensus in the Supreme Court opinions over what waters and wetlands are subject to federal jurisdiction, some ephemeral and intermittent streams and waterways, as well as wetlands that are remote and not directly abutting major waterways, might be without federal protection but still subject to state laws and regulations,” according to an NGA-authored article.
In the two cases under review by the Supreme Court, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, private developers in two areas in Michigan argued against the corps’ decision to block development in suspected wetlands because of their proximity to ditches that eventually led to rivers. The Supreme Court said that the federal government can block building on wetlands if it can prove that a continuous waterway connection exists.
The high court’s ruling has not really defined what that is, says Julie Ufner, NACo’s associate legislative director. It is unclear, she says, if ditches or other man-made streams that do not hold water all year qualify for protection.
Others believe the decision gives some relief. “[Now] we can establish that there are boundaries, and up to this point, I don’t think we had that,” says Robert Cope, commissioner in Lemhi County, Idaho. “Man-made ditches and irrigation systems should not be considered waters of the United States, and now the Supreme Court is moving in that direction.”
Corps spokesman David Hewitt says the administration is still looking at the decision. “We need to sit down with our technical staff and lawyers, along with the Justice Department, to figure out where to go from here.”
The author is the Washington correspondent for American City & County.