January 11, 2001

Environmental Protection Agency Administrator Carol M. Browner says this week's U.S. Supreme Court decision on isolated wetlands "weakens American's ability to protect" wetlands. The decision, though, was met with applause from the American Farm Bureau Federation. Browner turned around and issued a new regulation to tighten up on dredging operations related to wetlands.

"The need to safeguard wetlands is also why I am taking additional action today under the Clean Water Act. That action will close a loophole in existing law to help ensure greater protection for America's remaining wetlands," Browner said. The high court's ruling "will make it even more difficult to effectively protect against the loss of wetlands, (but) we hope that aggressive efforts will continue to be made under existing laws to prevent future losses of this vital resource. This decision further underscores the need for Congressional action to strengthen the laws that protect wetlands."

AFBF, the North Dakota Farm Bureau and the National Cattlemen's Beef Association filed a brief with the court, claiming that the Army Corps of Engineers cannot rely on the so-called "migratory bird rule" to assert jurisdiction over isolated wetlands. The court agreed with assertions that the Corps' jurisdiction was without authority under the Clean Water Act.

"The decision clearly reaffirms for farmers and ranchers across the nation that governmental agencies cannot arbitrarily move to expand federal water regulations. The court saved millions of additional acres of agricultural land from falling under the Corps' regulatory thumb. This should effectively end the Corps' most liberal stance on the isolated wetlands issue," said AFBF.

"The Corps' decision to claim jurisdiction over isolated ponds and wetlands because of a presence of a few migratory birds was clearly an unauthorized, unwarranted expansion of the Clean Water Act - and was beyond congressional intent when it wrote the act. And, the court rightly found that Congress had not consented in the development of this rule, as the Corps argued. Farm Bureau believes this opinion affirms local control and the rights of local people to make land-use decisions," the statement continued.

Browner claims the dredging decision addresses "a major regulatory loophole in the Clean Water Act by clarifying the types of activities that can harm wetlands, streams, and other waters, and are subject generally to Clean Water Act regulation."

Her latest rule modifies the definition of "discharge of dredged material" in order to clarify what types of activities EPA and the Corps believe are likely to result in discharges that should be regulated. The Corps and EPA regard the use of mechanized earth moving equipment to conduct land-clearing, ditching, channelization, in-stream mining, or other earth-moving activity in waters of the U.S. as resulting in a discharge of dredged material, unless project-specific evidence shows that the activity results in only "incidental fallback." The rule also provides a definition of what constitutes "non-regulable incidental fallback" EPA says is consistent with a recent District of Columbia Circuit court decision.