A battle is shaping up between those in the housing and development industries and the federal government over whether a federal agency can restrict land use in an isolated wetland not connected to any water body if a migrating bird lands in that wetland.

The National Association of Home Builders (NAHB) and the Peninsula Housing and Building Association of Newport News, Virginia, have filed suit against the United States Army Corps of Engineers and United States Environmental Protection Agency over just that question.

The suit, filed just a few weeks ago in the United States District Court for the Eastern District of Virginia, challenges the Corps' and EPA's legal position that federal land use control encompasses "isolated wetlands" if a migrating bird comes to rest in those areas.

NAHB wants the court to address whether the "migratory bird test" can justify federal regulation of isolated waters. Under this "test," the Corps and EPA assert control if an isolated wetlands is used by migratory birds.

Because the Corps defines wetlands and waters broadly-an area can be dry at the surface year in and year out and still qualify as a "wetland" for regulatory purposes-and because all places on earth are susceptible to bird use, the agencies' bird test extends federal authority over millions of shallow depressional areas.

Corps' data from a 1995 study shows that there are 8,309,502 discrete isolated depressional areas in the U.S. that meet the federal wetlands definition. The average size of these low spots is one-quarter acre.

By using the migratory bird test to claim jurisdiction, the federal government has interjected itself into all of these small, isolated areas and has displaced the traditional authority of states and localities over land use, according to NAHB.

The complaint by NAHB and the Peninsula Housing and Building Association is focused on three legal arguments.

First, the test is illegal because it was never subject to the notice and comment rulemaking procedures required by the Administrative Procedure Act. Second, the test is illegal under the Clean Water Act because Congress did not intend for federal land use authority to extend to isolated waters, not even if they are used by migrating birds.

The associations argue that the test is unconstitutional because it exceeds the Corps' and EPA's regulatory authority under the Commerce Clause of the Constitution.

The associations' complaint is the result of Corps and EPA guidance issued to Corps field offices in the wake of another federal court case, United States v. Wilson. In the Wilson case, a Maryland landowner was prosecuted for criminal violations of the Clean Water Act arising from soil disturbances made without a permit.

The wetlands at issue were miles away from the Chesapeake Bay. Nonetheless, the federal government argued that the Wilson wetlands were "adjacent" to interstate waters because they ultimately drained into the Chesapeake Bay through an attenuated series of ditches, culverts, and shallow creeks.

The United States Court of Appeals for the Fourth Circuit overturned Wilson's conviction, ruling that the Corps exceeded the authority granted to them by Congress under the Clean Water Act. In its decision, the court also noted that a hypothetical impact on interstate commerce is not enough to justify such a legal action.

To limit their defeat as much as possible, the Corps and EPA issued a document interpreting Wilson in the narrowest manner. This document, the target of NAHB's January 22nd suit, instructs that the federal government can assert jurisdiction in the Fourth Circuit states of Maryland, Virginia, North Carolina and South Carolina where a migratory bird stops at an isolated wetland.

For everywhere else in the country, an even more tenuous link is all that the Corps and EPA requires; the two agencies assert federal control if a bird could use the area at issue.

Published: February 8, 1999

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