For more than three decades of the Clean Water Act, wetlands “adjacent” to navigable waters could only be dredged or filled if a developer had a permit from the U.S. Army Corps of Engineers. Today’s decision fails to provide clarity for wetlands protection under the Clean Water Act.

“Ducks Unlimited’s mission of restoration, conservation and management of wetlands is needed more than ever following this decision,” said Ducks Unlimited Executive Vice President Don Young. “We continue to lose more than 80,000 acres of wetlands annually in this country, and this decision has the potential to accelerate that loss.

“Wetlands are critical to waterfowl and more than 900 species of wildlife that use wetlands habitat at some time during their lives,” Young continued. “People, too, need these wetlands to reduce flooding damage and help clean our water supplies. Hunters and anglers also understand the value of these wetlands as nurseries for fish and wildlife and great places to hunt and fish.”

The case reached the Supreme Court after two Michigan developers lost lower court cases to build a shopping mall and condominiums on wetlands. The Court did not reverse the decisions against the developers.

The justices themselves were far apart in their opinions concerning the case. Four justices wanted to maintain protection of these wetlands. Four justices favored reducing protection for these wetlands unless they were directly connected to continuously flowing waters like rivers and lakes.
 
Justice Anthony M. Kennedy didn’t agree with either group but did favor sending the cases back to the lower court for further consideration of the connections between the wetlands at issue and the adjacent waters.

Chief Justice John Roberts wrote, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

“We believe that the Administration and Congress will have to take some action to bring clarity to the future of wetlands protection in the United States,” said DU Senior Group Manager of Conservation Programs Alan Wentz. “In order to fulfill DU's mission we will be at the table with the federal Administration and with Congress seeking solutions that serve the needs of waterfowl.”

Joining Ducks Unlimited and the National Wildlife Federation in an amicus brief filed in the case last January were the American Fisheries Society, American Sportfishing Association, Bass Pro Shops, Boone & Crockett Club, Izaak Walton League, Michigan United Conservation Clubs, Orvis, Pheasants Forever, The Wildlife Society, Theodore Roosevelt Conservation Partnership, Trout Unlimited and the Wildlife Management Institute.

The groups supported the Bush Administration’s position in the case that Congress intended to protect adjacent wetlands and tributaries under the Clean Water Act when it was passed in 1972.

Contact: Scott Yaich
 Ducks Unlimited Director of Conservation Programs
901-758-3874
syaich@ducks.org

With more than a million supporters, Ducks Unlimited is the world’s largest and most effective wetland and waterfowl conservation organization.  The United States alone has lost more than half of its original wetlands—nature’s most productive ecosystem—and continues to lose more than 80,000 wetland acres each year.