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Fall 2001 The federal Clean Water Act authorizes the Army Corps of Engineers to require permits for the discharge of dredged or fill material into "navigable waters." Under the "migratory bird rule," the Corps asserted its jurisdiction over even isolated intrastate waters if they provided a habitat for migratory birds. A consortium of municipalities mounted a challenge to the legality of the migratory bird rule when it posed a hurdle for the consortium's plan to use an abandoned sand and gravel pit for a solid waste disposal site. The site was far from any navigable waterway, but migratory birds used some trenches that had evolved into permanent and seasonal ponds. The U.S. Supreme Court ruled that the Corps had overstepped the limits of its regulatory authority. No longer may the Corps regulate the development of isolated wetlands and waters that are not adjacent to navigable waterways. By some estimates, such isolated wetlands constitute 20% of all wetlands in the country, and thousands of applications pending before the Corps could be affected by the ruling. Landowners and developers with isolated wetlands on their lands should pause, however, before firing up the bulldozers. Questions remain about whether the Corps retains jurisdiction over smaller streams, creeks, and tributaries that do not empty directly into a navigable waterway. In addition, the Supreme Court ruling was confined to federal law, and some states and local governments have their own restrictions on development of wetlands.
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