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Supreme Court Invalidates Corps' Migratory Bird Rule Volume 21, Number 1, 2001 WATER LOG A Legal Reporter of the Mississippi-Alabama Sea Grant Consortium Supreme Court Invalidates Corps Migratory Bird Rule Solid Waste Agency v. United States Army Corps of Background Eng’rs, 2001 WL 15333 (2001). The Solid Waste Agency of Northern Cook County (SWANCC)1 purchased an abandoned sand and gravel John L. Treadwell, 2L quarry in order to construct a non-hazardous waste land- fill. Before construction could commence, SWANCC In a 5-4 decision, the United States Supreme Court had to dredge and fill several excavation trenches and held that the Corps exceeded its jurisdiction when it ponds that had become home to migratory birds during extended the definition of navigable waters to include the site’s abandonment. When SWANCC initially intrastate waters inhabited by migratory birds. Because inquired about the need for a 404(a) permit, the Corps the Corps failed to demonstrate Congress’ acquiescence denied authority over the site because it did not contain to the migratory bird rule, the Court refused to grant wetlands. However, the Corps claimed jurisdiction when administrative deference to Corps’ interpretation of the it was later informed that several species of migratory Clean Water Act (CWA). birds inhabited several ponds around the quarry. The See Migratory, page 7 ERC Approves Natural Gas In This Issue . Supreme Court Invalidates Corps’ Pipeline through Migratory Bird Rule . 1 FERC Approves Natural Gas Pipeline through Gulf Marine Habitat . 1 Gulf Marine Habitat Action Plan Calls for a Reduction in the Dead Zone . 2 Letter from the Editor . 3 David N. Harris, Jr., 2L Long-term Goals of Action Plan . 3 On February 22 the Federal Energy Regulatory Commission EPA Proposes “Special Ocean Sites” . 4 (FERC) granted approval to Gulfstream Natural Gas Pipeline, Bush’s Proposed Budget Makes Deep Cuts . 5 Supreme Court Rejects Challenge to L.L.C. for construction of a 744 mile natural gas pipeline in the the Clean Air Act . 6 1 Gulf of Mexico. The pipeline will stretch from the southern tip of Final “Tulloch” Regulation to Strengthen Mississippi and Alabama to Florida crossing through Gulf of Wetlands Protection . 9 Mexico essential fish habitat and marine reserve areas.2 The pipeline Humane Society Challenges President’s will supply natural gas to sites of future gas powered electric gener- Decision . 10 ation plants planned to meet Florida population growth over the The MASGLP Web Site is Sporting a New Look . 14 next 30 years. Gulfstream plans to begin construction in June after Lagniappe . 15 submitting mitigation plans to counter damage to the marine envi- Upcoming Conferences . 16 ronment in the Gulf. See Pipeline, page 12 Page 2 WATER LOG 2001 Vol. 21:1 Action Plan Calls for a Reduction in the Dead Zone Jimmy Hall, 3L and causing aquatic species to either perish or aban- don the area. Alarmingly, the amount of nitrogen On January 18, 2001, the Mississippi River/Gulf of entering the Northern Gulf has reached an all time Mexico Watershed Nutrient Task Force (Task Force) high, resulting in the dead zone averaging more than submitted an Action Plan to Congress detailing 14,000 square kilometers over the past five years, measures aimed at reducing the size and duration of nearly double that of a decade ago. As a result of this Comparative Size of Hypoxia Area (1985-2000) 20,000 15,000 14,128 10,000 Square Kilometers Square 5,000 < 5,000 no data 0 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 l995 1996 1997 1998 1999 2000 5-year running 2015 average goal for (1996-2000) 5-year running average the hypoxic zone in the northern Gulf of Mexico. disturbing increase, Congress passed the Harmful The hypoxic zone, often referred to as the "dead Algal Boom and Hypoxia Research and Control Act, zone," occurs each summer when an excessive requiring the Task Force to form the Action Plan amount of nitrogen originating in the Missis- implementing measures for "reducing, mitigating, sippi/Atchafalaya River Basin (River Basin) flows and controlling hypoxia in the northern Gulf of into the northern Gulf, depleting the oxygen levels, Mexico."1 The Action Plan focuses on reducing the nitro- gen loads in the northern Gulf by calling on the WATER LOG is a quarterly publication reporting on States, Federal agencies, and Indian Tribes to imple- legal issues affecting the Mississippi-Alabama coastal area. Its goal is to increase awareness and under- ment practical, cost-effective measures aimed at standing of coastal problems and issues. diminishing the runoff and discharge of nutrients in the upper River Basin. The Action Plan is based To subscribe to WATER LOG free of charge, contact: Mississippi- Alabama Sea Grant Legal Program, 518 Law Center, University, upon five principles; 1) encouraging actions that are MS, 38677, phone: (662) 915-7775, or contact us via e-mail at: voluntary, practical and cost effective, 2) utilizing [email protected] . We welcome suggestions for topics you existing state and federal regulatory programs, 3) would like to see covered in WATER LOG. following adaptive management schemes, 4) identi- Editor: Tammy L. Shaw, J.D. fying funding needs and resources, and 5) providing Associate Editor: Kristen Fletcher, J.D., LL.M. measurable outcomes outlined in the three long- term goals (See box at bottom of adjoining page). Publication Design: Waurene Roberson The Task Force admits that the Action Plan is a Research Associates: complicated proposal due to scientific uncertainty, Jimmy Hall, 3L David Harris, 2L Stacy Prewitt, 3L April Roberts, 3L the extent of the area involved and the number of John David Shaw, 2L John Treadwell, 2L States, Tribes and Federal agencies implicated. For information about the Legal Program’s research, ocean and coastal Nevertheless, this complexity is mitigated by incor- law, and issues of WATER LOG, visit our homepage at porating conventional programs such as the Clean http://www.olemiss.edu/orgs/masglp Water Act, Water Resource Development Acts, Farm SDdZ p 3 Vol. 21:1 WATER LOG 2001 Page 3 tically straddles the Mississippi-Alabama state line and Letter from the Editor have spent many happy days in the coastal towns of both states. I remember when the Alabama coast was Hello Water Log Readers, made up of quiet beachfront towns and I have watched Since joining the Mississippi-Alabama Sea the Mississippi Gulf Coast grow and change in so many Grant Legal Program in March of 2000, ways. There are many unique opportunities and special I have anticipated this moment problems to be addressed in managing the rich and am thrilled and honored to resources of Alabama, Mississippi and the Gulf of take over the helm as Editor of Mexico. Water Log. With this program’s strong I look forward to carrying on the Water Log tradi- leadership and steadfast dedication to informing readers tion of keeping our readers up to date on recent judicial on legal issues that affect the coasts, I am confident that decisions, new state and federal legislation and regulato- Water Log will continue to be an important and infor- ry changes and a variety of other issues that impact our mative publication. We constantly strive to make each coasts and our nation. I invite you to contact me with issue useful and practical and I hope to make our work your suggestions and comments, or just to say “hello” more of a collaborative effort by inviting insights and and I look forward to serving as your editor. ideas drawn from the vast interests and expertise of our subscribers and readers. Sincerely, As an Alabama native, I have a special affinity for the gulf coast area. I grew up in a small town that prac- Tammy Shaw Dead Zone, from page 2 Bills and the Coastal Wetlands Planning, Protection, and monitoring, the drafters believe that the hypox- and Restoration Act into the Action Plan. ic zone can be controlled, noting that even the The Action Plan is designed to be flexible, slightest reduction in nutrients entering the north- affording significant discretion to each State, Tribe ern Gulf will benefit the marine life in the affected and Federal agency in the development of programs area. tailored to the amount of nutrients being discharged from specific areas. Given the Plan's flexibility, and ENDNOTE: the continuing commitment to scientific research 1. Public Law 105-383 section 604. Long-term Goals of Action Plan • Coastal Goal: By the year 2015, subject to the availability of additional resources, reduce the 5-year running average areal extent of the Gulf of Mexico hypoxic zone to less than 5,000 square kilometers through implementation of specific, practical, and cost-effective voluntary actions by all States, Tribes, and all categories of sources and removals within the Mississippi/Atchafalaya River Basin to reduce the annual discharge of nitrogen into the Gulf; • Within Basin Goal: To restore and protect the waters of the 31 States and Tribal lands within the Mississippi/Atchafalaya River Basin through implementation of nutrient and sediment reduction actions to protect public health and aquatic life as well as reduce negative impacts of water pollution on the Gulf of Mexico. • Quality of Life Goal: To improve the communities and economic conditions across the Mississippi/Atchafalaya River Basin, in particular the agriculture, fisheries, and recreation sectors, through improved public and private land management and a cooperative, incentive-based approach. To read the final action plan, visit www.epa.gov/msbasin/actionplan.htm. Page 4 WATER LOG 2001 Vol. 21:1 EPA Proposes Special Ocean Sites Kristen M. Fletcher, J.D., LL.M. ecosystems, the permanence of the effects, and other locations and methods for disposal.4 If the EPA, or in In January, the EPA proposed amendments to existing some cases the state authority, determines that the dis- regulations implementing the ocean protection provi- charge will result in unreasonable degradation of the sions of Clean Water Act § 403 which provides that marine environment, then additional restrictions are permits for discharging into ocean waters must meet imposed including stipulations for temporal criteria EPA guidelines.
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