September 2023 - Parks & Recreation - 30

LAW REVIEW
structed officials
typically adapted for life in saturated
soil conditions.
Agency guidance further injuristo
assert
diction
over wetlands " adjacent "
to non-navigable tributaries when
those wetlands had " a significant
nexus to a traditional navigable
water. " A " significant nexus " was
said to exist when " wetlands, either
alone or in combination with similarly
situated lands in the region,
significantly affect the chemical,
physical, and biological integrity "
of those waters. 2007 Guidance 8.
In looking for evidence of a " significant
nexus, " field agents were
told to consider a wide range of
open-ended hydrological and ecological
factors. The Corps released
what would become a 143-page
manual to guide officers when they
determine whether property meets
this definition of wetlands.
Arduous CWA Permitting
Process
When a landowner wants to build
on their property, the EPA recommends
asking the Corps for a jurisdictional
determination, which is a
written decision on whether a particular
site contains covered waters.
33 CFR §§320.1(a)(6). The Corps,
however, maintained that it had no
obligation to provide jurisdictional
determinations while announcing
exceptions to the legal effect of
some previous determinations.
Even if the Corps was willing to
provide a jurisdictional determination,
the Court noted a property
owner might find it necessary to
retain an expensive expert consultant
who is capable of putting together
a presentation that stands a
chance of persuading the Corps.
Even then, a landowner's chances
30 Parks & Recreation | SEP T EMBER 2 0 2 3
of success are low, as the EPA admitted
the Corps finds in favor of
CWA jurisdiction
75 percent of the time.
According to the Court,
approximately
the
costs of obtaining such a permit
are " significant. " The EPA and the
Corps both had admitted that " the
permitting process can be arduous,
expensive, and long. " Further, success
in obtaining a permit was far
from guaranteed. In its regulation,
the Corps had asserted discretion
to grant or deny permits based on
a long, nonexclusive list of factors
that ends with a catchall mandate
to consider " in general, the needs
and welfare of the people. " 33 CFR
§320.4(a)(1) (2022).
After enduring the
delay and
expense required to exhaust the
administrative appeals process, the
Court acknowledged a landowner
could challenge the Corps jurisdictional
determination in federal
court. In the alternative, a landowner
could choose to seek a permit
from the Corps, but this process
could take years and cost an
exorbitant amount of money. As a
result, in the opinion of the Court,
many landowners had simply chosen
not to build.
Riverside Bayview Homes
In the case of United States v. Riverside
Bayview Homes, Inc., 474 U. S.
121, 106 S. Ct. 455, 88 L. Ed. 2d
419 (1985), the Court noted the
Corps had asserted authority under
the CWA over wetlands that " actually
abutted on a navigable waterway. "
In construing the meaning of
" the waters of the United States, "
the Supreme Court in this 1985
opinion had expressed concern
that wetlands seemed to fall outside
" traditional notions of 'waters,' "
| PARK S ANDRECRE AT ION . OR G
Solid Waste Agency of
Northern Cook County
In 2001, in the case of Solid Waste
Agency of Northern Cook County.
v. Army Corps of Engineers, 531 U.
S. 159, 121 S. Ct. 675, 148 L. Ed.
2d 576 (SWANCC), the Supreme
Court had rejected the Corps assertion
of jurisdiction over several isolated
ponds located wholly within
the state of Illinois, holding the
CWA does not " extend to ponds
that are not adjacent to open water. "
In
response, the Corps and the
EPA had issued
guidance
that
sought to minimize SWANCC's
impact, taking the view that the
Court's holding was " strictly limited
to waters that are 'non-navigable,
isolated, and intrastate.' " As a
result, the agency guidance stated:
" field staff should continue to exercise
CWA jurisdiction to the full
extent of their authority " for " any
waters that fall outside of that category. "
According to the Court, the
agencies had never defined exactly
what they regarded as the " full
extent of their authority, " encouraging
" local field agents to make
decisions on a case-by-case basis. "
As a result, the Court found
a system of " vague " rules had
emerged that depended on " locally
developed practices. " Moreover,
deferring to the agencies' localized
decisions, the Court noted " lower
courts blessed an array of expansive
interpretations of the CWA's
reach " :
Within a few years, the agencies
had interpreted their jurisdiction
but deferred to the Corps, reasoning
that " the transition from water
to solid ground is not necessarily or
even typically an abrupt one. "
September 2023 - Parks & Recreation

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