Protecting Wetlands Just Got Harder

The ruling places greater limits on Army Corps’ jurisdiction over “non-navigable, isolated, intrastate bodies of water,” effectively transferring the responsibility and cost of wetland protection for these bodies of water to state agencies.

The legal issues involved with the ruling are complex and subject to interpretation, in large part because the Court’s holding was narrow but its discussion was not. The Army Corps and EPA have already provided interpretation for their agencies’ staff in the form of a joint legal memorandum; further interpretation will undoubtedly result from future court rulings on specific cases. The impact on wetlands will vary widely from state to state for two reasons. First, some states have their own wetlands regulations and staffed agencies that regulate the bodies of water in question; others do not. (There are currently 14 states with such regulations, mostly on the East and West coasts. Wisconsin is on the verge of passing legislation largely in response to this case; Illinois—the state where the case originated—does not have such regulation and is unlikely to pass it anytime soon.) Second, the portion of total wetlands that meet the definition of “non-navigable, isolated, intrastate bodies of water” ranges from a low of 5% in Virginia, to as much as 80% or more for Midwestern “prairie pothole” states such as Wisconsin.