This decision comes in response to a highly contentious 5-4 ruling by the Supreme Court (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers) in January 2001, which determined that the Clean Water Act (CWA) covers only "navigable waters," and cannot be applied to isolated, non-navigable ponds and wetlands in a single state that have been protected only because of the presence of migratory birds. According to EPA’s Advanced Notice of Proposed Rulemaking (ANPRM), the court decision may affect other provisions of the CWA beyond wetlands, including the National Pollutant Discharge Elimination System permit program and state water quality certification.

"Invoking this court decision is just an excuse to allow developers, mining companies, and other polluting industries to fill in wetlands and to dump waste into small streams,” said Nancy Stoner of the Natural Resources Defense Council. Removing isolated wetlands -- which make up nearly one fifth of the nation’s wetlands -- from federal protection leaves them vulnerable to pollution and development, since most states do not have programs in place to adequately defend them.

As part of the ANPRM, EPA and the Army Corps of Engineers issued a joint statement of guidance directing field staff to begin scaling back the protection of wetlands. EPA will be accepting comments on the ANPRM for 45 days.