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Environmental Protection Agency and the Army Corps of Engineers Clarified Jurisdiction
Over Isolated Waters Following the SWANCC (Solid
Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers) Ruling.
- Please Contact
Environmental Protection Agency (EPA) and Express Your Support of the definition
of "Isolated Waters" and "Waters of the United States" in the SWANCC Ruling. The
President's FY 2004 Budget Proposal Was Released on February 3, 2003.
In
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers the
United States Supreme Court on Jan. 9, 2001, ruled 5-4 that federal authority
under the Clean Water Act does not extend to isolated waters. The Court's decision
effectively leaves the protection of isolated waters to state and local governments.
"Isolated" waters are those waters, including wetlands, which are not connected
or adjacent to interstate or navigable waters. The definition of the term "waters
of the U.S." in the SWANCC ruling should give substantial meaning to the statutory
language in the Clean Water Act restricting Federal jurisdiction only to "navigable
waters" and should recognize, preserve, and protect the primary responsibility
of states, local governments and private property owners to plan the development
and use of private land and water resources in our nation. On
January 15, 2003, the Environmental Protection Agency and the Army Corps of Engineers
issued an Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory
definition of "waters of the United States." to clarify jurisdiction over isolated
waters following the SWANCC case. ANPRM
Federal Register Notice, 68 FR 1991 (1/15/03 .PDF)
(If you can't
read .pdf files please click
here to download Adobe Acrobat Reader) The
new guidance clarifies the following: -
In light of SWANCC, field staff should not assert CWA jurisdiction over isolated
waters that are both intrastate and non-navigable, where the sole basis available
for asserting CWA jurisdiction rests on any of the factors listed in the "Migratory
Bird Rule."
- Field
staff should continue to assert jurisdiction over traditional navigable waters
(and adjacent wetlands) and, generally speaking, their tributary systems (and
adjacent wetlands).
- In
light of SWANCC, field staff should seek formal project-specific HQ approval prior
to asserting jurisdiction over isolated non-navigable intrastate waters based
on other types of interstate commerce links listed in current regulatory definitions
of "waters of the U.S."
The
National Grange's philosophy on the conservation policy is summarized in our policy
book: "The
zealous pursuit of unrealistic and unnecessary environmental and conservation
goals can cause not only economic damage to industries that are important to our
country, they can also distort the important role that private property rights
play in maintaining our liberty. We do not believe that Americans must sacrifice
their prosperity or surrender their constitutional rights in order to preserve
our environment. Property rights should incorporate greater expectations of fairness
and due process for individuals within the context of our relationship with government
and society." Action
Plan --- Please express your support of the definition of "isolated waters"
and "waters of the U.S.", which is consistent with the opinion of the SWANCC ruling
electronically or by mail. The Advance Notice was published in the Federal Register
on January 15, 2003. Comments are due no later than March 3, 2003. Submit
your comment on the ANPRM to the online EDocket
Mail to: Water Docket,
Environmental Protection Agency, Mailcode 4101T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention Docket ID No. OW-2002-0050 If
you have any questions or comments please contact Legislative Research Analyst
Chil-Sook Hwang by fax: 202-347-1091
or by phone: 1-888-4GRANGE, ext 109. Thank you for your grassroots participation
in the National Grange Legislative program. Want
to Subscribe To  ? For
all subscription and circulation inquiries, Contact: Jonathan
Hill. | 
