Member Article

If you have ever had a project on land on which wetlands or other “waters of the U.S.” were present, you know that project was more expensive because of the costs of permitting and mitigation for wetland losses, or the presence of wetlands may have resulted in abandonment or significant revision of the project to minimize losses of wetlands or other waters of the U.S. In their prior two “waters of the U.S.” decisions, Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) (commonly referred to as “SWANCC”), and Rapanos v. U.S, 547 U.S. 715 (2006), the Supreme Court appeared to be narrowing the scope of that term. But subsequently issued guidance from the Corps and EPA, in many cases, resulted in expansion of the jurisdictional reach of the Clean Water Act.

Now another case involving the meaning of “waters of the U.S.” has been commenced in the federal court system. The Pacific Legal Foundation, a nonprofit public interest legal organization, recently filed a challenge to a jurisdictional determination by the U.S. Army Corps of Engineers. The challenge was filed in U.S. District Court in New Mexico on behalf of landowners Peter and Françoise Smith.

The case involves a determination by the Corps of Engineers that an arroyo on the Smiths’ property is “waters of the United States.” The arroyo was described as, essentially, a dry creek bed in which water flowed only during and immediately after major storms – which occur in that part of New Mexico about three times a year. Corps rules defining “waters of the United States” include intermittent streams and other ephemeral types of waterbodies “the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce.”

The Smiths purchased their property as a place to build their retirement home. In preparing the property for building, the Smiths had begun to clear the arroyo of trash, dead trees, and shrub-scrub vegetation. They also “smoothed out the ground in the bottom of the arroyo” to allow access by trucks and a tractor. The Corps, in response to a complaint by a neighbor, conducted an inspection of the property, and determined that the arroyo constituted “waters of the United States.” A Notice of Violation was thereupon issued to the Smiths, citing unauthorized activity in those “waters.”

The Smith case, assuming it winds its way all the way to the Supreme Court, gives the Court one more opportunity to further explain exactly what is meant by “waters of the U.S.” While the facts in this case at first seem a bit extreme for broader application, the courts may use it as a platform to build on the earlier SWANCC and Rapanos decisions, to finally bring some clarity to this critical issue. Given the unusual facts of this case, the decision could affect everything from swamps to desert.

Craig A. Bromby is a partner in the Raleigh, N.C., office of Hunton & Williams LLP and a leader within the firm’s environmental law group. His practice focuses on administrative law and environmental compliance, particularly matters involving water quality, wetlands, stormwater, industrial wastewater and development-related regulations.