A Study of Control Over Ecologically Sensitive Lands Using the Endangered Species Act

This section of chapter 9 covers controlling the use of ecologically sensitive lands through the Endangered Species Act, the Clean Water Act, and the Coastal Zone Management Act. The first case, National Association of Homebuilders v. Babbitt (D.C. Court of Appeals, 1997), deals with interpretation of the Endangered Species Act, where Homebuilders and San Bernardino filed suit against Bruce Babbitt (Secretary of the Interior). Homebuilders wanted to build a hospital complex where an endangered fly lived. They were granted a permit, but when the county wanted to expand the highway to create a better entrance to the complex, FWS denied.

Homebuilders claimed the application of the statute to the Fly exceeded Congress’ authority under the Commerce Clause since it was not involved in interstate commerce, it was just a local land use issue. The court found that the fly is involved in a ‘channel of interstate commerce’ because the prohibition against takings of an endangered species is necessary to enable the Federal government to control the transport of the endangered species in interstate commerce.

In the second case, Northwest Environmental Defense Center v. Brown (U.S. Court of Appeals, 2011), NEDC alleged that the defendants had violated the CWA by not obtaining permits from the EPA for stormwater runoff flowing from logging roads into systems of ditches and channels and then into forest streams and rivers, transferring sediments into those streams and rivers. Brown argued that this discharge was exempted from the permit requirement by the Silvicultural Rule, a regulation promulgated under the CWA.

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The Court of Appeals ruled that polluted runoff from logging roads is subject to regulation under the Clean Water Act. However, in March of 2013, the Supreme Court reversed the decision of the lower court and held that NPDES permits are not required for stormwater discharges from pipes, ditches and channels along logging roads since logging or logging roads was not classified as an “industrial activity”. The next case, SWANCC v. U.S. Army Corps of Engineers (U.S. Supreme Court, 2001), SWANCC (a consortium of 23 suburban Chicago cities and municipalities) purchased a 553-acre parcel of property for the purposes of developing a landfill disposal site nonhazardous solid waste. SWANCC contacted the Army Corps of Engineers to determine whether a fill permit was required under the Clean Water Act. After learning that the site contained several species of migratory birds, the Corps refused to issue a permit to SWANCC, who then filed suit under the Administrative Procedure Act challenging the Corps’ assertion of jurisdiction over the site and the merits of the permit denial.

The issues: May the provisions of the Clean Water Act be extended to intrastate waters? Does Congress have the authority under the Commerce Clause to exercise such power? The S.C. ruled in a 5-4 decision the Court held that the provision of the CWA, which requires those discharging fill material into navigable waters to obtain a permit from the Corps, does not extend to isolated, abandoned sand and gravel pits with seasonal ponds, which provide migratory bird habitats. The next case, Florida Key Deer v. Brown (U.S. District Court, 2005), the National Wildlife Federation and Florida Wildlife Federation brought suit under the Endangered Species Act and the Administrative Procedure Act, on behalf of eight endangered and threatened species in the Florida Keys. The plaintiffs sought to compel FEMA to enter ESA consultation with FWS regarding FEMA’s implementation of the National Flood Insurance Program (NFIP) in the Florida Keys. Following a court order of consultation, FWS found FEMA’s administration of the NFIP in the Florida Keys to be jeopardizing the eight endangered species. The plaintiffs moved for a permanent injunction against FEMA’s issuance of flood insurance for any new development in the habitats of certain species in Monroe County, Florida. Florida Key Deer further argued that the court lacked the authority to prohibit FEMA from issuing new flood-insurance policies within the habitats because FEMA lacked the discretion to limit the availability of flood insurance in an otherwise-eligible community.

The court ruled in favor of Florida Key Deer, ordering FEMA to consult with the United States Fish and Wildlife Service to determine whether the implementation of its National Flood Insurance Program in Monroe County, Florida is likely to jeopardize the continued existence of the endangered Florida Key deer. In the last case, Terrazas v. Blaine County (S.C. of Idaho, 2009), Terrazas submitted an application to the county to subdivide their property, but the board denied the application on the ground that the proposed subdivision would disturb the Mountain Overlay District (MOD), defined in the MOD ordinance as 1) hillside slopes exceeding 25 percent and the areas above such slopes, and 2) hillside slopes exceeding 15 percent located in the Scenic Corridor and the areas above such slopes. Terrazas argued that the Board was estopped from applying the MOD ordinance because Terrazas had relied on the Administrator’s opinion; Terrazas’s due-process rights were violated; the MOD ordinance was unconstitutionally vague, as Board and Commission members had said they had difficulty interpreting the ordinance; and the Board’s decision was arbitrary and capricious and violated equal protection. The Idaho S.C. ruled in favor of the board’s decision, and no rights were violated.