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Issue:
Whether the United States federal government,
through the powers delegated to the U.S. Environmental Protection
Agency ("USEPA") and the Army Corps of Engineers ("ACE") should
maintain jurisdiction over those bodies of water more commonly
called "isolated wetlands."
Background:
On January 10, 2003, the ACE and USEPA
issued an Advance Notice of Proposed Rulemaking in order to obtain
comment on issues associated with the scope of waters that are
subject to the Clean Water Act in light of the U.S. Supreme Court
decision in Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC"). In
SWANCC, the Supreme Court ruled that the ACE has no authority to
regulate intrastate, isolated, non-navigable waters on the grounds
that such waters provide habitat for migratory birds. In
application, the ruling has created both confusion and environmental
peril because it leaves open to interpretation the question of which
wetlands are not to be regulated at the federal level: all isolated
wetlands that are not otherwise navigable or adjacent to navigable
waters or only those connected to interstate commerce by the
Migratory Bird Rule. Developers and industries are arguing that most
non-navigable waters are isolated (and, therefore, are not subject
to federal jurisdiction and regulation) unless they have a
full-time, year-round surface water connection to a navigable water.
An example of the type of wetland that the Advanced Notice sought
comment on whether they should subject to federal jurisdiction are
isolated wetlands known as vernal pools. While in fact, vernal pools
are generally hydrologically interconnected with, and adjacent to,
tributaries to waters of the U.S. Other examples of wetlands and
waters that might be excluded from federal jurisdiction include
intermittent streams and their adjacent wetlands, waters above
manmade conveyances such as ditches or culverts, sloughs and
mudflats. Depending on how an "isolated" wetland is defined, this
category of waters that may no longer be subject to federal
jurisdiction could be a very large category of waters.
RtE Position:
Our position is that isolated wetlands
should be within the jurisdiction of the federal government and
subject to regulation by both EPA and ACE. Both the law and science
support the fact these waters are Waters of the United States under
the Clean Water Act. Isolated wetlands are not truly "isolated" and
are, in fact, connected to jurisdictional surface waters and
important to interstate commerce. Isolated wetlands are an integral
part of the aquatic environment and therefore, should be subject to
the most stringent protections provided by the federal government
through the USEPA's and ACE's delegated authority under the Clean
Water Act. To provide otherwise, will simply undermine the intent of
the federal Clean Water Act, and put water quality as well as
wildlife at risk.
Links:
- RtE-WetlandsLetter.doc
- Rock the Earth February 26, 2003 Comment Letter to EPA
regarding the Advance Notice of Proposed Rulemaking on the Clean
Water Act Regulatory Definition of "Waters of the United States."
- RtE-Isolated Wetlands Fact Sheet (PDF)
- An Isolated Wetlands Fact Sheet prepared by Rock the Earth
- http://www.epa.gov/owow/wetlands/facts/contents.html
- EPA Wetlands Fact Sheet
- http://www.epa.gov/watertrain/wetlands/values.htm
- Functions and Values of Wetlands
- http://wetlands.fws.gov/Pubs_Reports/isolated/geoisolated.htm
- U.S. Fish and Wildlife Service Assessment of Isolated Wetlands
- http://supct.law.cornell.edu/supct/search/display.html?terms=SWANCC&url=/supct/html/99-1178.ZO.html
- Text of U.S. Supreme Court Decision in SWANCC
- Public Comments Record
- Public Comments on Advanced Rulemaking
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