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.

Update:
In April 2011, EPA and the Army Corps of Engineers issued a proposed guidance regarding the identification of waters protected by the Clean Water Act.  This guidance is open to public comment until July 1, 2011.  Thereafter, the agencies expect to propose revisions to existing regulations to further clarify which waters are subject to Clean Water Act jurisdiction, consistent with recent Supreme Court decisions.  

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