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The devastation wrought by hurricanes Katrina and Rita in the Gulf Coast could influence litigation over the protection of U.S. wetlands-swamp and marsh areas that help minimize flooding-through the use of new legal strategies, environmental experts assert. One approach could include the use of the commerce clause to roll back a key 2001 U.S. Supreme Court ruling that limited Clean Water Act protections. In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), the high court ruled that the act does not extend to isolated wetlands. The court rejected arguments that a case involving an abandoned sand and gravel pit raised issues that came within Congress’ power to regulate intrastate activities that substantially affect interstate commerce. “The idea that protection of resources that include intrastate resources that are part of a larger ecological web doesn’t affect interstate commerce breaks down when one sees how Katrina showed that when ecosystems die a death by a thousand cuts, it can have catastrophic consequences for the economy and interstate commerce,” said James Murphy, wetlands and water resources counsel for the National Wildlife Federation. But Duane J. Desiderio, staff vice president for legal affairs at the National Association of Home Builders, said he does not think Katrina will change “the framework by which courts address commerce clause issues.” He said that the aftermath of the hurricane provides “nothing new to view the aggregate principle in any different light.” Patrick A. Parenteau, director of Vermont Law School’s environmental and natural resources clinic, said that a line of “strong opinions” in the 4th, 6th, 7th and 9th circuits have formed a majority trend since SWANCC that interprets the top court’s opinion narrowly-even to expand the Army Corps of Engineers’ jurisdiction to enforce the Clean Water Act in whole tributary systems. However, the New Orleans-based 5th U.S. Circuit Court of Appeals-which covers Mississippi, Louisiana and Texas-has gone its own way, favoring development over wetlands. In its latest ruling-less than a week before Katrina made landfall-the 5th Circuit affirmed a district court ruling that the corps had jurisdiction over only 19.7 acres of the 146-acre wetland Port of Houston project to construct a 10-berth cargo and cruise ship terminal on undeveloped land adjacent to the Bayport Shipping Channel on the northwest coast of Galveston Bay, Texas. City of Shoreacres v. Waterworth, No. 04-20527 (5th Cir. 2005). Desiderio said that the 5th Circuit reads SWANCC “more within the spirit in which we think it was intended.” Derb S. Carter Jr., senior attorney at the Charlottesville, Va.-based Southern Environmental Law Center, said it is clear that overdevelopment and the loss of wetlands in the Gulf Coast region contributed to the severity of the hurricane damage. But he added that varying interpretations of SWANCC in the courts over the extent of the corps’ wetland jurisdiction, and a lack of clear agency guidance, compounds the problem. “You’ve got the legal question now of what areas are protected after the SWANCC decision, whether a particular area is protected. What that means is that thousands of determinations have to be made by the Corps of Engineers staff in the field every day,” Carter said. Mark F. Sudall, chief of the U.S. Army Corps of Engineers’ regulatory branch, said the corps now is concerned mainly with “issuing emergency permits, pumping out New Orleans and repairing the levees,” and has not begun yet to consider long-term policy issues and strategies. Sudall said the guidance is straightforward enough from corps headquarters. SWANCC makes clear that isolated, intrastate, non-navigable wetlands-including those involving interstate commerce factors related to migratory birds or endangered species-are not in the corps’ jurisdiction. Concurrence for asserting jurisdiction over areas where other interstate commerce connection factors are raised, of which there have been only about 10 so far, has to be cleared through headquarters, Sudall said. Acknowledging criticisms of the corps’ project-by-project determinations, Sudall added that the corps currently is adopting a National Research Council recommendation that it “consider projects on a watershed basis,” which, he said, means placing projects in the context of the watershed in which they are located.

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