Land previously considered undevelopable may soon become economically feasible to develop due to a recent Supreme Court decision.

In a stunning defeat for the U. S. Army Corps of Engineers (USACE), the U. S. Supreme Court ruled in January 2001 that the USACE does not have the power to regulate certain construction and fill activities, specifically those in isolated wetlands.

Under the "migratory bird rule" adopted in 1986, the USACE asserted regulatory authority over isolated wetlands and open bodies of water, even though these did not meet the criteria for navigable waterways nor were adjacent or tributary to such. This resulted in an increase in permit applications, expensive and time-consuming mitigation measures, a decrease in developable acreage, and civil and criminal penalties for those caught filling regulated wetlands.

The impacts of this ruling are widespread. Although the Supreme Court ruling specifically targeted an abandoned sand and gravel pit, the opinion affects all isolated and open bodies of water, provided they are not considered navigable or intrastate waters, or located adjacent to or tributary to such.

Many approved and pending permit applications will be affected. The USACE and the EPA are in the process of preparing a guidance document that details revised permit criteria. They will detail their interpretation of "isolated," "navigable," "tributary to," and "adjacent to."

Until this guidance document is finalized, the USACE recommends that those desiring a permit, or an exemption, should continue to submit their wetland delineation reports to them for review and processing. If a wetland is clearly determined to be isolated and concurrence on such is obtained from the USACE permitting office, construction may proceed. Otherwise, the documents will be held until guidelines are finalized.

The Buffalo District will post the documents on their web site (www.lrb.usace.army.mil) when they are available.
If you have land that was previously designated as a federal wetland and you are interested in learning more about the impacts of this ruling, contact Carl Eller,P.E. at (585) 334-1310 or celler@fisherassoc.com.