Counting the Hands on <i>Borden Ranch</i>

January 2004
Citation:
34
ELR 10040
Issue
1
Author
Timothy S. Bishop, Cristina Tilley and Aditya Bamzai

The federal permitting programs of the Clean Water Act (CWA) may be in for an overhaul, judging from a trio of CWA cases that has reached the U.S. Supreme Court in the past three years. The Court's attention to the CWA is welcome news to American farmers, developers, landowners, and state policymakers. During the lengthy hiatus following the Court's 1985 decision in United States v. Riverside Bayview Homes, Inc. (upholding §404(a) regulation of wetlands "adjacent" to "navigable waters"), the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) expanded federal powers by hazarding ever-broader and less plausible readings of the Act. Environmental activists piled on with aggressive citizen suits in friendly judicial forums. The CWA began to look less like a law protecting the "navigable waters" by requiring permits for specified polluting activities and more like a general law regulating land and water use throughout the nation. Escaping the Court's scrutiny, federal agencies managed to displace a broad array of traditional state and local powers. But the tide appears to have turned. The Court has granted in quick succession three certiorari petitions challenging broad interpretations of the scope of the CWA's permitting programs: Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, Borden Ranch Partnership v. U.S. Army Corps of Engineers, and South Florida Water Management District (SFWMD) v. Miccosukee Tribe of Indians of Florida. It seems the Court has recognized that the CWA implemented by regulators and activist judges is unfaithful to the U.S. Congress' original vision.

Tim Bishop and Cristina Tilley are litigators with Mayer, Brown, Rowe & Maw in Chicago, specializing in Clean Water Act and other environmental litigation and appeals. Bishop argued Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Borden Ranch Partnership v. U.S. Army Corps of Engineers for petitioners before the U.S. Supreme Court and will argue for petitioner in South Florida Water Management District v. Miccosukee Tribe of Indians of Florida in January 2004, cases discussed in this Article. Aditya Bamzai is a student at the University of Chicago Law School.
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Counting the Hands on <i>Borden Ranch</i>

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