The court did not agree and upheld federal protection of the endangered fly's habitat. The Homebuilders court concluded that the development that would occur in the fly's habitat would be constructed using materials and people from outside the state and thus have an effect on interstate commerce. Moreover, the court found that the protection of habitat prevents the destruction of biodiversity and protects current and future interstate commerce that relies on it. Finally, the court noted the adverse effects on interstate commerce that would result from a state adopting lower standards of endangered species protection in order to attract development. All of these ties to interstate commerce are available to be argued for any activity proposed in an isolated wetland.
Uncertainty also exists on other fronts.
They could also challenge the Corps decision directly. The Attorney General has issued an opinion that the State has the legal authority to protect wetlands determined by the Corps to not be subject to jurisdiction under Section 404. Thus, activities in an isolated wetland determined by the Corps not to be jurisdictional because of no effect on interstate commerce, could be subject to a State enforcement action. I anticipate that clear guidance will be slow in coming, if it comes at all. Uncertainty and indecision will prevail.