Courts Missed Opportunity On Wetlands, Made Situation Worse

NCPA Study Suggests Private Sector, Not Federal Regulation, Best Stewards

DALLAS (October 25, 2006) - The U.S. Supreme Court missed a golden opportunity to give landowners, federal regulators and the states clear guidance about which wetlands are under federal control and what actions can be taken to protect and/or develop them.  According to a new study by the National Center for Policy Analysis (NCPA), far from clearing the legal air, the highest court made the issue cloudier - all to the detriment of the environment and the economy.

"The unsettled state of the law makes compliance next to impossible," said NCPA Senior Fellow H. Sterling Burnett, who co-authored the study.

The 1972 Clean Water Act expanded federal authority over "navigable waterways" to prevent pollution.  But with a vague definition of navigable waterways, the Clean Water Act was vulnerable to wide interpretation and soon very little water was left outside the scope of the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) regulation.  For example:

  • A Supreme Court ruling radically expanded the Clean Water Act to encompass regulation of any discharge into wetlands that eventually drain into navigable waterways.
  • The Migratory Bird Rule became known as the Glancing Goose Test because federal regulator claimed that if a migratory bird glanced down and spotted a small pond, soggy ground or a temporarily flooded pasture, even if it didn't stop, federal control and regulations extended to that water.

As a result, the Corps and EPA have pursued civil and criminal prosecutions for small, technical violations of the Act in order to intimidate property owners and developers into compliance.  Some federal court decisions have limited the federal government's powers over isolated wetlands, but their rulings have been inconsistent.  According to the study, the Supreme Court could have made clear what did and did not constitute a violation of the law, but instead chose to let lower courts decide on a case-by-case basis.  

The study also notes that for those wetlands over which the federal government has legitimate authority, evidence indicates that states and private property owners are more than capable of protecting them, and in many instances are better suited.

"With so many ways to protect wetlands, there is ample reason to believe they will continue to receive protection, even if the regulatory scope is limited," said Daniel Simmons, director of the natural resources task force of the American Legislative Exchange Council who co-authored the study.