What is a Wetland
Since 1972, the federal Clean Water Act has prohibited the dredging or filling of “navigable waters in the US, without first obtaining a permit from the US Army Corps of Engineers. Since 1972, the Corps has sought to expand its jurisdiction from “navigable water” (i.e. those of sufficient size to permit commercial boat traffic) to other “wetlands.” It accomplished this in to main ways: First, it expanded coverage to to trenches, spillways, streams and ditches that feed navigable waters. Then, in 1986, the Corps issued the Migratory Bird Rule, that imposed the Corps’ jurisdiction on any body of water that might reasonably be expected to provide habitat for migratory water fowl. This was a significant expansion, and provided a procedural impediment to developers, farmers, and others across the country.
In 2001, the US Supreme Court struck down the Migratory Bird Rule (Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 121 S.Ct. 675 (known as the “SWANCC Case”)). This left many wondering whether which wetlands were still covered under the Clean Water Act. Specifically, many wondered whether the Corps interpretation of the Clean Water Act to give it jurisdiction over the ditches and streams feeding navigable bodies of water would be upheld.
It appears that the answer to this question is “yes.” In April, the Supreme Court turned down three cases challenging this interpretation (meaning the the lower courts’ decision upholding this interpretation were left standing), and now it appears that a Michigan real estate developer is headed to federal prison for his 1995 conviction for filling in a wetland 20 miles from a navigable water without a permit. As usual, the Indiana Law Blog has excellent coverage of the issue here and here.
