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Natural Environment

SUBJECT: Supreme Court Ruling on Isolated Wetlands

FROM: James Shrouds, Director, Office of Natural Environment

TO: Division Administrators
Federal Lands Highway Division Engineers
Directors of Field Services

DATE: January 12, 2001

As you may have read in the news, the Supreme Court on January 9th released a decision regarding the applicability of Section 404 permits to isolated wetlands. This decision will have the effect of taking certain wetlands out of the jurisdiction of the U.S. Army Corps of Engineers (USACE) regulatory program. However, until the USACE and the Environmental Protection Agency issue implementing guidance on the ruling, we will not know the extent of wetlands excluded. Until guidance is issued, State Departments of Transportation (DOT) should continue identifying and delineating all wetlands, which would have been considered jurisdictional prior to the Court's recent ruling. The USACE headquarters Regulatory Branch, has told us that guidance to their field offices will be issued as soon as possible; however, we expect there to be some confusion regarding the extent of the Court's decision on the processing of permits. With respect to permit applications under review, we anticipate some delay while the Corps develops the implementing guidance.

Concerning work on permit applications began prior to the ruling but now ready for immediate submittal, we recommend including all wetlands that were delineated for the proposal. If a DOT believes that some or all of the delineated areas in the application fall under the effect of the court ruling, those wetlands should be pointed out to the USACE for possible exclusion from permit requirements.

There are numerous State and local regulatory requirements covering wetlands that are not affected by the Court's decision. Also, the Court's decision has no impact on compliance with the Endangered Species Act relative to isolated wetlands that are habitat for listed species. The FHWA still has a mandate for wetlands protection and conservation as directed by Executive Order 11990, Protection of Wetlands, which makes no distinction between isolated and adjacent wetlands.

The FHWA Chief Counsel's office is preparing a more detailed analysis of the ruling that will be forwarded in the near future. Also, we will issue additional policy guidance concerning FHWA's implementation of the Executive Order.

The decision is attached. Open it with acrobat. It is 41 pages long. The decision can also be found on the web at www.supremecourt.gov/opinions/boundvolumes.aspx It is on page 159 of Volume 531.