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Army Corps of Engineers' reaction to recent Supreme Court decision could accelerate already significant losses resulting from earlier Court holding in SWANCC

WASHINGTON, D.C.///June 22, 2006///In the wake of the Supreme Court decisions earlier this week in the Rapanos and Carabell cases, Environmental Integrity Project (EIP) Director Eric Schaeffer issued the following statement today:

"These decisions potentially expose over half of wetlands in the U.S. to development.  If the Corps overreacts to the Court's mandate, this decision could significantly extend the five-year-old Solid Waste Agency of Northern Cook County  v. U.S. Army Corps of Engineers (SWANCC) holding, which removed 'isolated' wetlands from Army Corps jurisdiction and opened over 20,000 wetland acres to development in just the past two years alone."

The Court remanded the cases with a warning from Justice Kennedy's decisive concurrence that the Army Corps needs to reexamine their jurisdiction determination policy, incorporating a more explicit demonstration of a 'significant nexus' between wetlands and 'navigable waters.'  The Association of State Wetland Managers has expressed concern that (depending upon how narrowly the 'significant nexus' requirement is interpreted) half or more of the wetlands nationwide, and as much as 90 percent in some states, will no longer be protected by the Clean Water Act.  Eliminating only intermittent streams or drainage areas from Army Corps jurisdiction could exempt between 40 and 60 percent of remaining wetlands in the U.S., and more than 80 percent in dry western states.  Hopefully, the Army Corps will use its expertise to demonstrate the connections between wetlands and more traditional navigable waters, thereby avoiding the potentially devastating consequences attending wetland deregulation.

As a result of the earlier SWANCC decision, the Army Corps expressly declined to exercise jurisdiction over thousands of wetland acres.  From January 2004 until May 2006, the Corps made 2,794 non-jurisdictional determinations in the 15 most affected states.  These determinations opened between 16,000 and 23,500 wetland acres to development.  Approximately 75 percent of these non-jurisdiction determinations made by the Army Corps apply to wetland areas which are, or could be, habitat for migratory bird species and 12.5 percent apply to endangered species habitat. 

These Army Corps determinations represent only a fraction of the wetland affected by the SWANCC decision as there is no legal requirement to obtain an official jurisdictional determination.  The estimated impact of the SWANCC decision through the spring of 2006 is available online at http://www.enviromentalintegrity.org.

Once the Corps (or a developer) determines there is no federal jurisdiction over a wetland, the area is subject only to state regulation, which in many areas is nonexistent because of lack of financial resources and/or political will.  As the numbers of unregulated and unprotected wetland acres grow, we continue to lose valuable ecosystem services and wildlife habitat to 'development.'  The future of wetlands in the U.S. depends upon the Army Corps 'reaction to this decision.' 
ABOUT THE GROUPS

The Environmental Integrity Project (http://www.environmentalintegrity.org) is a non-profit and non-partisan organization dedicated to stronger enforcement of existing federal and state anti-pollution laws, and to the prevention of political interference with those laws.  EIP's research and reports shed light on how enforcement and rulemaking affect public health. EIP also works closely with communities seeking enforcement of environmental laws.

CONTACT:   Ailis Aaron Wolf, (703) 276-3265 or aaaron@hastingsgroup.