SC Lawyer, March 2005, #5. An uneasy rebirth for the Clean Water Act: How changes in federal case law impact isolated wetlands in South Carolina.

• Author: By Cale Jaffe

South Carolina Lawyer

2005.

SC Lawyer, March 2005, #5.

An uneasy rebirth for the Clean Water Act: How changes in federal case law impact isolated wetlands in South Carolina

South Carolina LawyerMarch 2005An uneasy rebirth for the Clean Water Act: How changes in federal case law impact "isolated" wetlands in South CarolinaBy Cale JaffeIn 2001, the United States Supreme Court ruled against the Army Corps of Engineers in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), a well-publicized case involving the breadth of the Clean Water Act (CWA). Following the Court's decision, South Carolina's journalists, legislators and lawyers all commented on the apparent end of the Corps' authority over so-called "isolated" wetlands - those which are not directly adjacent to traditional, navigable waters. Yet, like reports of Mark Twain's first death, the news of the Corps' demise has been greatly exaggerated. Two decisions by the U.S. Court of Appeals for the Fourth Circuit - United States v. Deaton 332 F.3d 698 (4th Cir. 2003), cert. denied, 124 S.Ct. 1874 (2004), and Treacy v. Newdunn Associates 344 F.3d 407 (4th Cir. 2003), cert. denied, 124 S.Ct. 1874 (2004), - have upheld the federal government's authority to regulate wetlands that possess at least a remote, "hydrological connection" to navigable waters. On a case-by-case basis, however, determining whether a "hydrological connection" exists can be difficult. As a result, while the federal permitting program is far from dead, its application in South Carolina is now more confusing and unpredictable.

Surprisingly, the import of the Deaton and Newdunn opinions has failed to permeate the public's consciousness. Instead, the mistaken belief that SWANCC eviscerated the Corps' authority over isolated wetlands has pervaded accounts in the lay press. The Beaufort Gazette erroneously stated that "all isolated freshwater wetlands are now unregulated as a result of a U.S. Supreme Court decision in 2001." Jessica Flathmann, State Weighs Regulation of Isolated Wetlands, Beaufort Gazette, March 29, 2004. Along the same lines, an editorial in the Charleston Post & Courier commented that "basic protections to isolated wetlands [were] lost when the U.S. Supreme Court ruled that their regulation shouldn't be a federal responsibility." Editorial, Let Grand Jury Aid Environment, Charleston Post & Courier, March 24, 2004.

These misperceptions have exaggerated the real-world problem of determining if the Corps possesses jurisdiction over a given parcel of property under the CWA. As explained in more detail below, the federal jurisdictional question focuses on whether a wetland is hydrologically connected to traditional, navigable waters. The analysis of this question is inherently fact-specific. As a result, there is no easy way to tell if an area falls under the Corps' authority. Every permitting decision must be considered on its own merits. Moreover, even if the Corps determines that a property is non-jurisdictional, biologists, naturalists and water quality experts might disagree. These advocates could then challenge the Corps' determination through a citizen-suit action, relying on the Deaton and Newdunn rulings. From a developer's perspective, these conflicting possibilities make budgeting for projects nearly impossible.

The value of South Carolina's

wetlands

South Carolina's aquatic habitats are astoundingly diverse. From the Piedmont to the Lowcountry, there are more than 11,000 miles of freshwater rivers and streams and approximately 200 miles of world-famous coastline. Pete Laurie & David Chamberlain, South Carolina Aquarium Guide to Aquatic Habitats of South Carolina 1 (Univ. of South Carolina Press 2003) [hereinafter "Aquatic Habitats of South Carolina"]. An integral part of these aquatic treasures are isolated wetlands, which cover as many as 350,000 acres statewide. See Southern Environmental Law Center, At Risk: South Carolina's "Isolated" Wetlands, 2003-2004 3 (citing the South Carolina Department of Health and Environmental Control) [hereinafter "At Risk: South Carolina's 'Isolated' Wetlands"]. As explained in the Aquatic Habitats of South Carolina, "the constant presence of water as it moves inexorably from the mountains to the sea - stopping, starting, and backtracking along the way - weaves these habitats into a single interrelated system." Aquatic Habitats of South Carolina , supra at 2.

The existence of this "single interrelated system"...