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Supreme Court Removes Wetlands Protections On January 9, 2001 the United States Supreme Court dealt a heavy blow to the nation's wetlands protection program with its decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The Court ruled that the Army Corps had improperly denied the waste authorities' proposal to build a landfill in a system of ponds that provided habitat for migrating birds. The Court held that the Corps lacks authority to assert jurisdiction over isolated waters based on their use by migratory birds. In addition, the Court held that Congress had not intended the Corps' Clean Water Act authority to apply to the breadth of isolated waters as defined in the Corps' regulations. The Sierra Club strongly disagrees with the Court's decision, and concurs with Justice Stevens' view that the majority of Justices ignored both legal precedent and the intent of Congress to provide protection of all isolated wetlands. As a result of the ruling, the northern Illinois solid waste authorities and their supporters in the litigation -- the National Association of Homebuilders, the American Farm Bureau Federation, the Defenders of Property Rights, and the Pacific Legal Foundation - have managed to sabotage the nation's wetlands protections by severely undermining the federal government's ability to protect valuable prairie potholes, vernal pools, swamps and bogs from being turned into waste pits and parking lots. Not only does this decision seriously compromise the protection of migratory bird habitat, but it handicaps local efforts to safeguard wetlands in order to restore water quality, prevent flooding and protect other critical habitat. The ruling could also compromise other federal water quality programs. The ruling certainly will place a new burden on the states, which rely to varying degrees on federal wetlands protections to help purify water quality, retain floodwaters and provide habitat protection functions that benefit their citizens. Developers will be arguing that much as 50% of our nation's valuable wetlands can now be destroyed without even getting a permit. The full impact on the ground will vary widely from state to state and will largley be determined by future court cases, but some early estimates of the impact in the state of Wisconsin range as high as 80% of their wetlands are no longer protected. EPA and Army Corps Interpretation The Sierra Club concurs with the legal interpretation that the EPA and the Army Corps issued, on January 22, 2001. We believe that their conclusions as to which "waters of the United States" remain subject to the permitting requirements of Section 404 of the Clean Water Act is soundly reasoned. In summary, the agencies have found that all navigable and interstate waters, all tributaries of those waters, all impoundments that are not isolated, and all wetlands adjacent to those waters, remain protected under the Act. Other waters which may no longer be protected include: intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds. The agencies have determined, however, that only those isolated waters listed above that only affect interstate commerce by virtue of their use as habitat by migratory birds are certainly no longer considered 'waters of the United States'. The agencies left room for case-by -case determination that isolated wetlands continue to be protected if their use, degradation, or destruction could affect other 'waters of the United States' or if they support other activities that have an interstate commerce connection, including recreation, fishing and industrial use. Now What? The Sierra Club is promoting both immediate and longer-term steps to confront the new challenges created by the SWANCC decision. Short-term damage control
Long-term solutions The Sierra Club strongly believes that Congress can no longer ignore the need for comprehensive Clean Water Act protection of wetlands. Even before the SWANCC decision curtailed the Section 404 program, we have urged Congress to clarify that Clean Water Act protections of wetlands should apply to all activities that would damage or degrade all wetlands. Now, more than ever, it is necessary for Congress to act to make clear that the nation is committed to comprehensive wetlands protection. Some have hailed the recently released U.S. Fish and Wildlife Service figures showing a decline over the 1986 to 1997 period to an average annual loss of only about 60,000 acres. The Sierra Club does not see that number as cause for celebration, when President George Bush Senior committed, over 10 years ago, to halting the net loss of wetlands and achieving net restoration! Latest Developments What you can do: Please contact your members of Congress to express your support for comprehensive protection of wetlands under the Clean Water Act. For more information and questions, contact: Ananda Hirsch, ananda.hirsch@sierraclub.org or Robin Mann, robin.mann@sierraclub.org. Up to Top |
