wetlands

Wetland Policy Timeline

Jurisprudence

Caselaw relevant to wetlands

1971 Zabel v. Tabb ruling affirms that the COE can consider environmental impacts when reviewing RHA permits, under its Public Interest Review rules
1/1/1974 In US v. Ashland Oil, the 6th Circuit court holds that CWA enforcement is a constitutionally-valid exercise of Commerce Clause powers.
3/25/1975 Supreme Court ruling in NRDC v. Callaway finds that wetlands are "waters of the United States" and covered by the 1972 FWPCA, overturning the 1974 COE rules.
1981 In an early and important "takings" case, the Federal Claims Court finds in Deltona Corp. v. US that Clean Water Act regulations do not extinguish all value on a wetland property, and so Section 404 permits do not constitute a federal taking of private assets.
7/2/1982 in Sporhase et al. v. Nebraska, the Supreme Court affirms that groundwater can be considered an "article of interstate commerce," and that Nebraska could raise no prejudicial regulation against its sale. The case marked a historic turn against the Progressive political philosophy that had generally accorded a wide berth to state planning authority over resources, and laid the legal groundwork for neoliberal attempts to create markets in environmental goods and services.
12/22/1982 Coalition of environmental groups file suit against the Corps (NWF v. Marsh), charging that the May 1982 regulations violate the CWA.
1/28/1983 Federal government files a motion to dismiss NWF v. Marsh for reasons of unripeness and deference to agency decisions.
2/14/1983 Plaintiffs in NWF v. Marsh file to oppose government's motion to dismiss, and ask for partial summary judgment.
2/10/1984 NWF v. Marsh is resolved in a settlement decision, issued by the District Court of DC, requiring the Corps to issue new regulations which will impose a de minimis on the controversial nationwide permits, disallow general permit applicants from applying after-the-fact, and acknowledging that EPA's 404(b)(1) Guidelines are mandatory in permit review. EPA and Corps also agree to collaborate on regulation defining "fill." Entire paragraphs of regulatory language are specified verbatim in this settlement decision.
10/11/1984 Plaintiffs in NWF v. Marsh file a motion to declare Corps in breach of the Marsh settlement agreement, on the basis of the grandfathering clause of the 10/5/84 regulations.
12/17/1984 DC District court declares that the Corps 10/5/84 regulations do not constitute a breach of the Marsh settlement agreement.
1985 Supreme Court ruling in United States v. Riverside Bayview Homes, Inc. (474 U.S. 121) affirms the COE's "adjacency" rule, declaring that non-navigable, though adjacent, waters can still be "waters of the United States". The issue of non-adjacent waters was left open. (NRC 1995). This was the first case on wetlands heard by the Supreme Court (Vileisis 1997).
6/25/93 In US v. Pozsgai, the 3rd Circuit court affirms Ashland Oil and Riverside Bayview, affirming that Congress intended the broadest possible interpretation of "navigability" and "adjacency" when considering the coverage of the CWA.
7/19/1993 The 7th Circuit Court decision Hoffman Homes, Inc. v. USEPA determines that the Corps' Migratory Bird Rule is a valid protection of isolated wetlands as elements of interstate commerce.
12/30/1993 The 7th Circuit again gives Clean Water Act enforcement wide procedural leeway, in Rueth v. USEPA, by finding that the EPA's rule that considers isolated wetlands "waters of the United States" is a reasonable administrative determination.
1993 Second and final denial of SWANCC permit application
1994 SWANCC files suit against Corps.
1994 States' rights to impose additional conditions of any kind on Corps-issued Section 404 wetland permits is upheld by the Supreme Court in PUD No. 1 of Jefferson County v. Washington Dept. of Ecology.
1997 US v. Wilson in the DC Circuit, and US v. Banks in the 11th Circuit, both hold that adjacency may be established through a non-surface water connection, but reaffirm the necessary connection with navigability and commerce.
8/22/1997 In a bookend to the 1981 Deltona case, The Federal Claims Court finds in Good v. US that wetlands regulatory law has become so pervasive that there can be no investment-backed expectation to develop any wetland property by filling it, an important defense against "takings" claims against the federal wetland regulatory agencies.
1998 Circuit court ruling in National Mining Association v. US Army Corps of Engineers holds that the COE may not require a permit for activities that result only in "incidental fallback" of dredged material into a wetland, clearly exempting all non-filling drainage activities from CWA coverage.
1/9/2001 Supreme Court Decision Solid Waste Agency of Northern Cook County v. US Corps of Engineers ruling handed down, determining that the COE's "Migratory Bird Rule" is an invalid interpretation of its powers under the CWA, more or less directly contradicting the Seventh Circuit's decision in Hoffman Homes. Most "isolated wetlands" are now nonjurisdictional.
3/12/2001 Ninth Circuit Court ruling in Headwaters, Inc. v. Talent Irrigation District determines that any water that chemically affects a navigable stream can be considered a "water of the United States"; significant for a broad reading of "WOTUS" post-SWANCC.