Wetlands

From Water Wiki

Both the federal government and states are free to define "wetlands," which are generally (not precisely) understood to be areas in which water saturates the surface or near-surface often enough to support particular vegetation and soil types suited to wet environments. Wetlands provide many environmental benefits: purifying water, habitat for many species of plants and animals, and storage of water during floods.

Wetlands, though,  and in particular the swamp shown at right in the Roanoke River basin, have not historically been viewed in such flattering terms:
"...the horrible desert, the foul damps ascend without ceasing,corrupt the air and render it unfit for respiration...never was rum -that cordial of life - found more necessary than in this dirty place". ^[1]

Wetlands pose a classic category problem for the law, since the law of property and rights in land is fundamentally different from the law of property and rights in water. So what to do about an area that is both land and water? A clear answer to this question continues to elude the United States' system of environmental regulation.

Wetlands in federal law

The Clean Water Act of 1972 (CWA), 33.U.S.C. §§ 1311(a), 1342(a), forbids the discharge of dredged or fill material into “navigable waters” without a permit, and defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7). The U.S. Army Corps of Engineers (Corps) administers this “Section 404” permit requirement, along with some states that have been delegated responsibility for Section 404 permits. In 1977, the Corps adopted regulations extending the definition of “waters of the United States” out to the limits of Congress’ commerce power. 42 Fed. Reg. 37144, n.2 (1977). Rapanos v. United States, 126 S.Ct. 2208 (2006), is the third major case to reach the United States Supreme Court raising questions about the permissible extent of federal jurisdiction over dredging and filling waters and wetlands. The Court unanimously agrees that Congress can and has extended its jurisdiction beyond navigable waters traditionally defined as “navigable in fact.” Beyond this, however, the Court in Rapanos could agree on very little else.
Two cases were consolidated in Rapanos, together presenting a variety of scenarios in which the government claimed jurisdiction over wetlands near ditches or man-made drains that eventually empty into traditionally navigable waters. The District Court and the United States Court of Appeals for the Sixth Circuit upheld the government’s position in both cases as to the parcels at issue in the Supreme Court, finding federal jurisdiction. The Court of Appeals reached these decisions under its reading of the Supreme Court’s prior major decisions on the extent of federal CWA § 404 jurisdiction, Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675 (2001) (rejecting Corps’ regulation of isolated ponds that were used by migratory waterfowl and requiring a “significant nexus” between regulated waters and navigable-in-fact waters) and United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455 (1985) (upholding the 1977 Corps regulations as applied to wetlands adjacent to navigable-in-fact waterways). In a 5-4 plurality decision, the Rapanos Court reversed and remanded the cases, but without articulating a single standard for future courts to follow.
The plurality opinion, by Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, proposed a new standard for federal jurisdiction, a standard not suggested by any of the litigants nor by any of the over-forty amicus briefs filed in the case. The plurality standard relies on a dictionary definition of “waters” to conclude that the phrase “the waters of the United States” includes only “relatively permanent, standing or flowing bodies of water” that are “found in ‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features.’” 126 S.Ct. 2208, 2221. This standard would expressly exclude “intermittent” and “ephemeral” streams, although it would “not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” Id. at n.5. Furthermore, the plurality asserts that a “mere hydrologic connection” is not enough to make a wetland be “adjacent” to “waters of the United States” and thus be covered by the Corps’ regulations. Instead, the plurality would require that a federally regulated wetland have “a continuous surface connection” with a relatively permanent body of water connected to traditional interstate navigable waters, making it hard to determine where the “water” ends and the “wetland” begins. Id. at 2227. The plurality was expressly concerned to find an interpretation of “waters of the United States” that would cut back on the geographic extent of federal jurisdiction over land use decisions. Id. at 2215, 2218, 2223.

Wetlands in North Carolina law

The most general State definition of “wetlands” covers “’waters' as defined by G.S. 143-212(6) and are areas that are inundated or saturated by an accumulation of surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands classified as waters of the state are restricted to waters of the United States as defined by 33 CFR 328.3 and  40 CFR 230.3.” 15A NCAC 2B.0202 (1999).

Notes

1. ↑ William Byrd, Histories of the Dividing Line Betwixt Virginia and North Carolina at 66, 70, ed. William K. Boyd (Raleigh, N.C.: The North Carolina Historical Commission, 1929) (Byrd’s comments were written on or around March 15 and March 17, 1728).