Letter to Federal Officials on the Issue
of Isolated Wetlands
December 7, 2001
Christine Todd Whitman, Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W. (1101A)
Washington, D.C. 20460
Mike Parker
Assistant Secretary of Army (Civil Works)
108 Army Pentagon
Washington, DC 20310-0108
Dear Administrator Whitman and Assistant Secretary Parker:
We strongly urge the Environmental Protection Agency and Army Corps of Engineers to issue joint guidance as soon as possible which
narrowly interprets the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County (SWANCC) vs. Army Corps of Engineers.
The SWANCC decision limited federal jurisdiction over certain non-navigable, isolated wetlands and other waterbodies under the Clean
Water Act.
The SWANCC decision was based on the narrow argument that federal agencies could not use the migratory bird rule as the sole basis with
which to justify continued Clean Water Act jurisdiction over isolated wetlands and other waterbodies. Therefore, SWANCC only affects
agencies' authority to utilize this specific rule alone to assert regulatory authority over wetlands and other waters.
This interpretation of the Court's opinion is consistent with recent rulings of lower federal courts and positions taken by the
Department of Justice.
Adopting a policy or guidance that gives an overly-broad reading to the Court's decision in SWANCC would run counter to the letter
and spirit of the Clean Water Act itself. When Congress adopted the Act in 1972, it made clear its objective "to restore and maintain
the chemical, physical, and biological integrity of the Nation's waters." The Act directs EPA and other federal agencies to give "due
regard," to "improvements which are necessary to conserve such waters for the protection and propagation of fish and aquatic life and
wildlife [and] recreational purposes..." Any interpretation that does more than discard the use of the Migratory Bird Rule as the sole
basis for Clean Water Act jurisdiction conflicts with the law as well as with the will of Congress when it adopted these far-reaching
protections for the nation's waters.
I also emphasize that groundwater hydrology can be a very important feature connecting areas that may appear to be isolated, and further,
that these features can be of great importance to the ecosystems of both wetlands and adjacent upland areas. To lose such functions
because of an unjustifiably permissive interpretation of law is unacceptable and irresponsible. This ill-advised policy could jeopardize
water resource benefits provided by such wetlands to property owners and the public alike.
State officials have already expressed concern that the Supreme Court decision will force them to extend their role in regulation of
wetland destruction. The State of Wisconsin has already moved forward and begun to implement an expanded state role in the regulation
of wetland destruction, however, this will place a greatly increased financial burden on the state. In addition, there is a disparity
in existing wetlands regulations between the states; some have adequate programs, others do not. To make matters worse, in the absence
of guidance to interpret this ruling, Corps districts across the country are taking widely varying approaches to questions of
jurisdiction, frequently resulting in an overly-broad interpretation of the SWANCC ruling and confusion about where federal
jurisdiction ends.
We strongly urge you to issue joint guidance or rule-making that retains as much legal protection as possible for isolated wetlands and
other waterbodies. This will allow protection of millions of wetlands that provide critical habitat for migratory waterfowl, store
floodwater, and improve water quality through filtration of sediments and nutrients. As you know, wetlands are some of the most
biologically productive and sensitive ecosystems in the United States. We hope that you will work hard to avoid the further loss
of wetlands and the devastating environmental and economic consequences that a broad interpretation of
this case may bring.
Sincerely,
David Kyler
Executive Director
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