Wetlands:

On January 9, 2001, the U.S. Supreme Court struck down the Corps’ so-called "migratory bird rule," one of the major sources of power used by the Corps to regulate wetlands. This rule essentially stated that the destruction of any body of water (even a very small pond that might only occasionally have water in it) has an impact on "interstate commerce" if that wetland might be used by migratory birds. As a result, the Corps required contractors/owners to obtain a 404 permit if such wetlands were impacted. The Court did not reach the constitutional issue in the case, but did state that a simple statutory interpretation of the federal Clean Water Act (CWA) restricted the Corps to only regulate "navigable waterways," which clearly does not include isolated wetlands. The Court followed the reasoning in a “friend of the court” brief filed by ARTBA in the case (Solid Waste Agency of Northern Cook County v. Corps) along with the Nationwide Public Projects Coalition. Since the ruling, the Corps has indicated it will still attempt to regulate "isolated wetlands" and anti-growth groups have appealed to Congress and state legislatures to pass legislation to re-regulate such wetlands. ARTBA is working to ensure that the Court’s decision is enforced and has created a legislative guide, which is available on ARTBA’s web site, in conjunction with the National Wetlands Coalition to help states pass sensible wetlands legislation if they are confronted with this issue. On January 10, 2003, EPA and the Corps issued guidance that restrains Corps districts from requiring 404 permits for certain isolated wetlands. They also issued an Advanced Notice of Proposed Rulemaking on the issue, which ARTBA filed comments on April 16.

• ARTBA Comments on Corps' Guidance Letter Concerning Jurisdiction Over Ditches 02/11/08
• ARTBA Comments on Corps'/EPA Rapanos Guidance 01/21/08
• ARTBA Statement to the House Transportation & Infrastructure Committee regarding the 35th Anniversary of the Clean Water Act: Successes and Future Challenges 10/18/07
• ARTBA Comments on August 1 hearing of the Senate Subcommittee on Fish, Wildlife and Water, “Interpreting the Effect of the U.S. Supreme Court’s Recent Decision in the Joint Cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers on ‘The Waters of the United States.’” 08/08/06
• ARTBA Amicus Brief in Supreme Court Rapanos/Carabell Wetlands Case 12/02/05
• ARTBA's comments on the Advance Notice to Proposed Rulemaking (ANPRM) on the "Clean Water Regulatory Definition of Waters of the United States 04/16/03

For information on regulatory issues, please contact at (202) 289-4434.

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