By Wisconsin Wetlands Association, originally printed in the June 27, 2006 issue of Wetland News!
“The more things change, the more things stay the same,” may be the best way to describe the June 26, 2006 Supreme Court decision on whether the Clean Water Act provided the Army Corps of Engineers with the authority to regulate tributaries to navigable water and wetlands adjacent to those tributaries. While no regulatory protections were formally stripped, the decision does place a higher burden on the Army Corps of Engineers to prove there is a “significant nexus” to navigable waters in order to claim jurisdiction for tributaries and their adjacent wetlands. The divided decision also affirms that there are strong differences of legal opinion on the intended reach of the Clean Water Act and that, ultimately, legislative clarification is needed to guarantee full federal protections for all of the nation’s waters.
Though it’s likely the significant nexus test can be met for the types of tributaries and adjacent wetlands under question in this case, the decision will be subject to further interpretation and potentially more legal battles. Fortunately, any waters not regulated under federal law in the aftermath of this decision will still be subject to regulatory oversight in the state of Wisconsin.
That safeguard is built into Wisconsin Act 6, which passed the Wisconsin legislature with unanimous bi-partisan support in 2001 and instituted state protections for all wetlands left unprotected by current or future federal actions or court decisions. The Wisconsin legislature, (especially former Representative (now Senator) Neil Kedzie, and Senators Jim Baumgart, Rob Cowles and Dale Schultz) deserves our continued praise and appreciation for their vision and foresight in the implementation of this important wetland protection law.
Additional information on the decision is available on the Association of State Wetland Managers Inc.website: