Decision on Jurisdiction Over Isolated Wetlands Breeds Disappointment
The nation’s home builders voiced significant disappointment last week over a decision by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) not to issue a new rule that would help redefine their jurisdiction over “waters of the U.S.”
“EPA and the Corps have shirked their rulemaking responsibility by relegating this critical environmental decision regarding isolated wetlands to the courts,” said NAHB President Kent Conine. “This is bad for business and bad for wetlands,”
Conine added that the decision completely ignored issues raised by the U.S. Supreme Court's SWANCC ruling and “leaves builders, developers and landowners in limbo.”
In 2001, the U.S. Supreme Court ruled in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers that Clean Water Act (CWA) regulations do not extend to isolated wetlands. The court further said that jurisdictional decisions should be based on the traditional concepts of navigability or a significant connection to navigable waterways.
Since that decision, the regulatory agencies have failed to provide a comprehensive approach to making jurisdictional decisions on wetlands. Instead, they have been instructing district field staff to interpret local court decisions and they have continued to assert jurisdiction over isolated wetlands without definiting them or clarifying their jurisdiction over them.