Federal officials have decided not to issue a new regulation outlining their authority over "isolated" wetlands, The joint announcement on Dec. 16 from the. Army Corps of Engineers and the Environmental Protection Agency is a somewhat belated response to a 2001 Supreme Court decision that said the Corps could not claim jurisdiction over intrastate, non-navigable wetlands that weren't connected to another water body.
In January, 2003, the Corps and EPA said they planned to issue an advanced notice of proposed rulemaking seeking comments on the scope of the agencies' wetlands authority. At the same time, the agencies issued guidance to their field staffers telling them not to asset regulatory authority over isolated wetlands without checking first with headquarters. At the time, officials from the National Association of Home Builders on one side and the Sierra Club on the other criticized the guidance.
NAHB President Kent Conine slammed the agencies' decision not to issue a new rule, calling it "bad for business and bad for wetlands." Sierra Club President Carl Pope offered backhanded praise, saying that reaction from states, members of Congress and others "left the Bush administration with little choice but to rescind its misguided proposal...."
EPA had estimated early this year that up to 20% of the country's 100 million acres of wetlands were isolated, but added that non-navigable, intrastate wetlands would be an unspecified share of that 20%.
In the Jan. 9, 2001, Supreme Court decision at issue, "Solid Waste Agency of Northern Cook County v U.S. Army Corps of Engineers," the justices ruled, 5-4, that the Corps overstepped its wetlands authority. The Corps had asserted jurisdiction over a 533-acre abandoned sand and gravel pit in northern Illinois because ponds and a migratory bird habitat had developed there. The Cook County, Ill., solid waste agency had wanted to dispose of non-hazardous solid waste on the tract.