The Clean Water Act and Protection of Isolated Wetlands

In 2001 the U.S. Supreme Court issued a decision, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers. The decision reduces the protection of isolated wetlands under Section 404 of the Clean Water Act (CWA), which assigns the U.S. Army Corps of Engineers (Corps) authority to issue permits for the discharge of dredge or fill material into "waters of the United States." Prior to the SWANCC decision, the Corps had adopted a regulatory definition of "waters of the U.S." that afforded federal protection for almost all of the nation's wetlands. Therefore, a narrow and literal reading of the SWANCC decision meant that "isolated, non-navigable, intrastate waters," would no longer be afforded CWA protection if use by migratory birds was the sole basis for asserting federal jurisdiction.

Ducks Unlimited responded by using their team of scientists to evaluate the potential impacts of the Court's decision in light of other federal regulations, state-based protections, geographic distribution, and other factors. They found that the SWANCC decision could have significant consequences for wetland conservation in the U.S., particularly in areas important for breeding and migratory waterfowl.

DU's Report- Potential Impacts of Decision on Habitats (9/01)

In light of the jurisdictional questions that SWANCC raised, the EPA and Corps issued an "Advanced Notice of Proposed Rulemaking (ANPRM)". Thus, Ducks Unlimited staff submitted a 27-page comment to EPA and USACE with their perspective on these critical issues.


DU's Comments on the ANPRM (4/03)

In 2003, thousands of DU members and supporters took action by writing more than 20,000 letters to Washington, D.C. decision-makers in support of protecting isolated wetlands in the United States. DU President, John Tomke met with President Bush and other wildlife conservation leaders at the White House in December 2003. During the meeting, President Tomke mentioned the thousands of letters that have been sent in support of wetlands protection and how important the issue is to sportsmen and women and all outdoor enthusiasts.

Shortly after that meeting, the Bush Administration announced that no new rule would be developed to implement a 2001 Supreme Court decision regarding wetlands.

On Earth Day 2004, the President announced a new wetlands initiative, shifting from a policy of "no net loss" to a policy of "overall increase" in wetland acreage each year. To achieve this goal, the President pledged to restore and protect 3 million acres of wetlands over the next five years by committing more federal funding to key conservation programs including the Wetlands Reserve Program and the North American Wetlands Conservation Program.

The no new rule announcement and "overall increase" pledge by the Bush Administration are important and positive steps, but there are still unresolved issues. Our staff in Washington, D.C. is working hard with the Administration and others to ensure long-term protection for wetlands in the United States. To send a letter to the Administration and Congress expressing your concerns, click here.

DU Fact Sheet on the SWANCC Decision