Environmental Law Alert- Wetlands

8/7/2019 Environmental Law Alert- Wetlands

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Environmental Law AlertApril 2003

Wetlands Update: New Guidance Clarifies

Wetlands Regulation

By Christopher D. Hopkins, Esq.

Ever since the Supreme Courts decision in Solid Waste Agency of NorthernCook County v. U.S. Army Corps of Engineers, et al., courts havestruggled

with the jurisdictional reach of the CleanWater Act over wetlands which arenot adjacent tonavigable waters. Two recent developments, a JointMemorandum by the Environmental Protection Agency(EPA) and the ArmyCorps of Engineers (Corps) and FD&P Enterprises Inc. v. U.S. Army Corps ofEngineers, a New Jersey federal court case, have further clarified federaljurisdiction over these wetlands and will help provide certainty for New Jerseydevelopers and businesses grappling with wetland issues.

Background

The Clean Water Act provides that navigable waterways or waters of the

United States are subject to its provisions. The Supreme Court, in UnitedStates v.Riverside Bayview Homes Inc., has also confirmed that wetlandsdirectly adjacent to navigable waterways are considered to be a water ofthe United States and are covered by Clean Water Act protections. TheCorps, the agency charged with administering the federal wetlands programunder the Clean Water Act, hasjurisdiction over these waters. Until recently, the Corps also assertedjurisdiction over isolated wetlands which were not adjacent to navigablewaterways, claiming those to be waters of the United States, through whatwas dubbed The Migratory Bird Rule. This rule provided the Corps withjurisdiction over isolated waters whenever there was a presence omigratory birds. However these isolated waters were subsequently

eliminated from federal regulatory authority by the Supreme Court in SolidWaste Agency of Northern Cook County v. U.S.Army Corps of Engineers, etal. (SWANCC). The Court held that the Corps jurisdiction does not extend toisolated, intrastate waters where jurisdiction was based solely on thepresence of migratory birds. In reaching this conclusion, the Court drew adistinction between the wetlands at issue in Riverside Bayview and those atissue in SWANCC. The Court reasoned that the significant nexus betweenthe navigable water and the wetlands in Riverside Bayview allowed for Clean


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Water Act jurisdiction, whereas the wetlands at issue in SWANCC were simplyisolated ponds that were not adjacent to any open water.

New Guidance Clarifies Wetlands Regulation UnderThe Clean Water Act

In response to the Supreme Courts ruling in SWANCC, the EPA and the Corpsissued a newclarifying guidance in January 2003, indicating how to determine if a wetlandis regulated under the Clean Water Act. Isolated water bodies that arenavigable are still subject to jurisdiction, as are wetlands adjacent tonavigable waterways. The guidance reaffirms the lack of EPA or Corpsjurisdiction over intrastate, non-navigable waters where the sole basis forasserting jurisdiction isthe actual or potential use of the waters as a habitat for migratory birds. Theguidance also notes that the SWANCC decision raises questions as to whetherjurisdiction remains over isolated waters because they are used by interstate

travelers for recreation, contain organisms that could be sold interstate orcontain water used by industry in interstate commerce. EPAs and Corps staffare to obtain approval from headquarters before asserting jurisdiction overthese waters. The guidance also requires headquarters approval beforejurisdiction is asserted over non-navigable tributaries, noting that federalcourt decisions have been split as to whether non-navigable tributaries ofnavigable waters are subject to the Clean Water Act.

Federal Jurisdiction Over Wetlands Made MoreDifficult In New Jersey

While noting that jurisdiction over non-navigable tributaries varies by region,the January 2003 guidance states that the reasoning in Riverside Bayview, asfollowed by a number of post SWANCC courts, supports jurisdiction overwetlands adjacent to non-navigable tributaries to navigable waters, such ascreeks and streams. However, since SWANCC, courts have struggled with thejurisdictional reach of the Clean Water Act and some courts have expressedthe viewthat only wetlands adjacent to navigable waters are to be regulated by thefederal government. Thus, it remains unsettled as to what is sufficient toestablish a significant nexus between wetlands abutting a non-navigabletributary and a navigable waterway such that Clean Water Act jurisdiction isproper. The law in New Jersey on this issue was relatively clear until SWANCC.

The Third Circuit traditionally extended Clean Water Act jurisdiction towetlands adjacent to non-navigable tributaries which flowed into navigablewaters based on their hydrological connection. However, the SWANCCdecision severely limited the scope of the Clean Water Act and called intoquestion the hydrological connection test in establishing a significant nexusbetween these waters. While the Third Circuit has not yet addressed theissue, the New Jersey District Court in FD&P Enterprises Inc.v. U.S. ArmyCorps of Engineers, 2003 WL 124761 (D.N.J. 2003), recently confirmed thatthe significant nexus between wetlands and navigable waters controls


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whether there is Clean Water Act jurisdiction over those waters and held thatthe significant nexus must constitute more than a mere hydrologicalconnection.

New Jersey Federal Court Case Highlights

FD&P Enterprises, a freight company, wanted to build an intermodal railfacility in Jersey City. The project involved filling in 53 acres of wetlands alongPenhorn Creek, a non-navigable tributary of the Hackensack River. Thecompany sought a federal permit for the activity under Section 404 of theClean Water Act. The Corps denied the permit on the grounds that filling inthe wetlands would harm the river by causing discharges of sediments andchemicals. Furthermore, the Corps noted that the location of the project is ina floodplain and filling in the wetlands would displace flood storage capacityand increase the likelihood of flooding. FD&P maintained that the wetlandsprovided no environmental benefit to the river. In addition, FD&P noted thattheir construction of catch basins and storm water retention ponds wouldeventually benefit the river by trapping sediments. FD&P appealed the permitdenial and moved forsummary judgment. The District Court considered the divergent views ofother jurisdictions on the impact SWANCC has on Clean Water Act jurisdictionover wetlands abutting non-navigable tributaries. The Court noted that areading ofSWANCC which would confine Clean WaterAct jurisdiction solely to navigable waters and those waters one stepremoved from navigable waters could ultimately serve to undermine thebasic purposes of the Clean Water Act. Instead, the Court held that it mustdetermine whether there is a substantial nexus between the FD&P propertyand the Hackensack River. The Court stated that if the relevant standard waswhether

there was a hydrological connection, the matter could be disposed of easilyon summary judgment as water flows from the wetlands through PenhornCreek and into the Hackensack River. However, the Court held that SWANCCeliminated the hydrological connection test and stated that it was temptedto grant summary judgment to FD&P. If, as FD&P stated, the filling of thewetlands will not be detrimental to Hackensack River, then the Court notedthat there is no substantial nexus and therefore no Clean Water Actjurisdiction. However, the Court ultimately held that summary judgment wasinappropriate because the Corps presented sufficient evidence such that ajury could find that the filling of the wetlands will have a substantial injuriousimpact on the Hackensack River. If filling the wetlands harms the river, theCorps will have jurisdiction over the wetlands.

Conclusion

The Courts holding in FD&P Enterprises makes it more difficult for EPA andthe Corps to assert jurisdiction over wetlands adjacent to non-navigabletributaries. No longer is a hydrological connection a rubber stamp for federaljurisdiction over wetlands adjacent to non-navigable tributaries. Thus, there isno bright line test in determining jurisdiction over these wetlands. Rather,


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each jurisdictional determination is a fact sensitive inquiry. Federal regulatorsmust now demonstrate that the proposed activity is ecologically capable ofundermining the quality of the navigable waterway.

Regardless of the jurisdictional issues surrounding federal 404 permits, it isimportant for developers and businesses to be aware that there are many

other environmental permits that may be needed for their projects. Now,more than ever, it is important to retain competent environmenconsultants, engineers and lawyers familiar with wetland regulations indetermining the scope and location of construction projects.

For more information regarding the regulation of Wetlands or other CleanWater Act compliance issues, please contact Christopher D. Hopkins, Esq. at908.322.6121. We would also be pleased to provide you with advicerespecting your other environmental compliance issues.

About The Law Office of Christopher D. Hopkins, LLC

The Law Office of Christopher D. Hopkins, LLC is a boutique law firm located in Scotch

Plains, New Jersey committed to providing the highest quality of legal services in theselect areas of real estate, land use and environmental law. The firm is committed to

working collaboratively with clients to achieve practical, cost effective results- whether it

be in complex litigation, transactions, cleanups and/or development projects. The firmprovides transactional and litigation counsel to a broad spectrum of clients including

private and public corporations, trade associations, nonprofit institutions, banks, real

estate investment trusts and individuals in New Jersey, New York and Pennsylvania.

Contact Information

The Law Office of Christopher D. Hopkins, LLC1812 Front Street

Scotch Plains, NJ 07076

TEL: 908.322.6121FAX: 908.322.5701

Email: [email protected]

Website http://www.chopkinslaw.com
mailto:[email protected]://www.chopkinslaw.com/http://www.chopkinslaw.com/mailto:[email protected]://www.chopkinslaw.com/

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Environmental Law Alert- Wetlands