Extent of federal government’s regulation of isolated wetlands still unclear

The extent of federal jurisdiction over isolated wet areas on private property has been an issue since the mid-1970s. The regulatory agencies (U.S. Army Corps of Engineers and the Environmental Protection Agency) and the federal courts have generally taken an expansive view of the scope of the federal government’s ability to regulate activities that impact these wetlands. That means that a farmer, rancher or other landowner generally can not conduct activities such as land clearing, drainage or customary farming practices without first obtaining a federal permit. The key to whether the feds could require a permit is whether the wet area is “sufficiently connected” to interstate commerce. In 2001, the U.S. Supreme Court said that the presence of migratory waterfowl on an isolated wetland is not enough, by itself, to give the feds jurisdiction. But, what if there is some other connection to interstate waters through hydrology or by some other means? Where is the line to be drawn?

We thought we were going to get an answer to that question when the U.S. Supreme Court, in the fall of 2005, decided to hear two cases involving Michigan developers that developed isolated wet areas without a federal permit. On June 19, 2006, the Court rendered an opinion covering both of the cases. Unfortunately, no majority opinion was issued, so the matter is still very much up in the air

For an in-depth analysis of the Court’s opinion in Rapanos, et ux., et al. v. United States Army Corps of Engineers, Nos. 04-1034 and 04-1384, 2006 U.S. LEXIS 4887 (U.S. Jun. 19, 2006), see U.S. Supreme Court muddies the waters on isolated wetlands.