New EPA Wetland Regulations A Victory For Private Property Owners

Agencies Must Now Demonstrate Strong Burden of Proof to Protect Seasonal Wetlands


DALLAS (June 6, 2007) - The Environmental Protection Agency and U.S. Army Corps of Engineers have issued guidelines for determining whether seasonal wetlands fall under government jurisdiction, finally giving landowners, federal regulators and state officials clearer guidance about which wetlands are under federal control, according to NCPA Senior Fellow H. Sterling Burnett.  The EPA will now have to prove on a case-by-case basis a "significant nexus" between intermittent streams and nearby navigable waterways.

"This is fantastic news for private property owners," said H. Sterling Burnett, senior fellow with the NCPA. "In the past, the EPA would stop development of seasonal wetlands on the barest of connections to navigable waterways. These guidelines will help reinforce Constitutional limits on the federal government's power over private property in general and privately held wetlands in particular."

The 1972 Clean Water Act expanded federal authority over "navigable waterways" to prevent pollution.  However, the Act was vulnerable to wide interpretation because the definition of navigable waterways was so vague that very little navigable water was left outside the scope of the federal regulation.

As a result, the Corps and EPA have prosecuted small, technical violations of the Act, intimidating property owners and developers to comply.  Some federal court decisions have limited the federal government's powers over isolated wetlands, but their rulings have been inconsistent.

"While environmentalists are sure to claim this is a setback," continued Burnett, "in reality, the new guidelines are an attempt to finally codify the Supreme Court's position on Constitutional limits for regulating wetlands.  The new guidelines should let property owners know, in advance, what they can do with their property without running afoul of the law or federal regulators.

"Unfortunately, many in Congress seem intent on pushing the idea that when it comes to regulating wetlands, all property that contains water falls under the ever expanding grasp of Congress.  The EPA guidelines are good news for those who believe that the Constitution places legitimate limits on government and, in the end, that should be good for private property owners and the environment, as well."