Dredge and fill four

Protecting isolated wetlands

In January 2001, the United States Supreme Court issued an important Clean Water Act ruling regarding “isolated” wetlands. The Supreme Court, in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, concluded that Congress had not granted the Corps jurisdictional Clean Water Act authority over “isolated” wetlands used by migratory birds (known informally as the Migratory Bird Rule).

Prior to what is now known as the “SWANCC decision,” the Corps had promulgated a broad regulatory definition of “waters of the U.S.” that afforded federal protection for almost all of the nation’s wetlands, including “isolated” wetlands and other intermittent waters. These waterways provide significant landscape functions such as flood attenuation, water quality maintenance and wildlife habitat, particularly for migratory waterfowl.

Yet, the decision, as interpreted by some Corps regulators, may leave many “isolated” wetlands and other water resources unprotected by the CWA. A few states have developed their own laws to specifically regulate isolated wetlands, though some of the state “fixes” are not as strong as the pre-SWANCC 404 protection.

The broader consequences of the SWANCC decision

In January of 2003, the EPA and the Corps began a rulemaking process to officially narrow the scope of Clean Water Act protections. At that same time, they issued guidance for the Corps district offices that focuses Clean Water Act protection primarily on interstate, navigable waters.

The proposed narrower definition of what constitutes “waters of the United States” removed from Clean Water Act protection “isolated” wetlands (such as prairie potholes and pocosins) as well as nonnavigable tributaries of traditionally navigable waters, intermittent and ephemeral streams, and waters that pass through human-made conveyances. According to this new interpretation, wetlands may be defined as “isolated” if they lack a direct surface connection to other bodies of water — despite the fact that they are almost always connected to other waters by groundwater or seasonal surface overflows and contribute to the ecosystem’s health by filtering many pollutants for downstream waters.

At the time of publication (2005) of the book this course is based on, the Bush Administration had decided not to go ahead with the controversial rulemaking, but the guidance document remains in place. As a result, the Corps district and field offices are issuing many letters of “no jurisdiction” when they believe that no 404 permit is required for projects that might adversely affect isolated wetlands.

Even if state law regulates the wetlands now excluded from CWA protection, the process and protections associated with the state permitting process are seldom as thorough or as protective as the Corps 404 permitting process. Numerous challenges have been brought across the country to assert the more narrow ruling by the Supreme Court, and thus secure greater CWA protections for isolated wetlands.

Update on the isolated wetlands/waters debate

Since 2005 there has been additional legal and policy action around “isolated’ wetlands. For more background and information on the latest cases and policy development, please explore the following links:

Clean Water Act Definition of “Waters of the United States” – EPA Website
On June 5, 2007, the Environmental Protection Agency (EPA) and the Department of the Army issued guidance clarifying Clean Water Act (CWA) jurisdiction following the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States. The agencies received 66,047 public comments on the Rapanos Guidance from States, environmental and conservation organizations, regulated entities, industry associations, and the general public. EPA and the Department of the Army jointly reviewed the comments and released a revised version of the guidance on December 2, 2008 in consideration of those comments and consistent with the agencies' experience implementing the guidance. The revised guidance, the court decisions, relevant memoranda and studies can be found on the U.S. EPA's Definition of "Waters of the United States website

Clean Water Act Jurisdictional Handbook – Environmental Law Institute
With the support of the Turner Foundation, and the assistance of numerous experts in wetlands science and law, the Environmental Law Institute has prepared a handbook that analyzes the case law, compiles the relevant scientific studies, and provides a set of jurisdictional checklists. The Clean Water Act Jurisdictional Handbook will assist anyone faced with a jurisdictional question involving a wetland or stream to understand what factors will allow them to find Clean Water Act jurisdiction.

Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress Must Fix It
Courting Disaster has more than 30 case studies from around the country of how the Clean Water Act has been misapplied since 2001. The report was authored by Earthjustice, Environment America, Clean Water Action, National Wildlife Federation, Natural Resources Council, Sierra Club and Southern Environmental Law Center

Clean Water Action's Clean Water Restoration Act website
This website provides background and a summary of the legislation that was introduced in 2009.

Clean Water Restoration Act – tracking
OpenCongress tracks the progress of the legislation, and you can use this to track the Clean Water Restoration Act. OpenCongress is a free and open-source joint project of two non-profit organizations, the Participatory Politics Foundation and the Sunlight Foundation.