Wetlands

By William L. Andreen

Background

The Issue How can we achieve our stated national goal of protecting our remaining wetlands?

When the first English colonists settled along the banks of the James River in 1607, there were approximately 221 million acres of wetlands marshes, swamps, bogs, and various kinds of bottomlands in the area that now comprises the lower forty-eight states. Since that time, Americans have filled, drained and dredged wetlands in remorseless fashion. Less than half of that original acreage (roughly 105 million acres) survive today in the continental United States, of which 95 percent are inland freshwater wetlands, while the remaining five percent are saltwater wetlands. Six states California, Ohio, Indiana, Illinois, Iowa, and Missouri have lost 85 percent or more of their original wetlands, while twenty-two other states ranging from New York to Alabama to Idaho have lost 50 percent or more.

Due to prolific plant life, wetlands rank among the most productive ecosystems in the world. They produce tremendous amounts of vegetation that provide cover for fish and wildlife, nesting areas for birds, and nourishment for many aquatic invertebrates, shellfish, and forage fish, which, in turn provide food for larger fish. Wetlands serve as a home for a wide array of rare plants and numerous endangered and threatened animal species. Wetlands also improve water quality by removing nutrients and trapping sediments before they flow into open waters. In addition, wetlands provide flood protection all along America's rivers and streams by serving as storage basins during periods of high water. And especially important in light of the devastation wrought by Hurricane Katrina, intact coastal wetlands are effective storm buffers, which absorb wave action and reduce storm surge. Finally, wetlands serve as a natural recharge point for groundwater (which is often used for drinking water, especially along our coasts), and they help to even out stream flows (thus lessening the effects of occasional drought conditions).

The immense value of wetlands, however, was discovered rather late in the day. The nineteenth and early twentieth centuries witnessed the conversion of millions of acres of wetlands to croplands and the harvesting of millions of acres of forested wetlands. This kind of destruction intensified during the twentieth century as water projects such as dams, canals, and channelization projects became larger and as modern technology enabled farmers and others to more easily drain or fill wetland areas. From the mid-1950s through the mid-1970s, wetland losses in the United States averaged 550,000 acres per year.

The enactment of section 404 of the Clean Water Act in 1972 and the implementation of its new permitting program brought about a dramatic decline in the destruction of wetlands. From the mid-1970s to the mid-1980s, wetlands losses in the continental United States fell to about 290,000 acres a year half the earlier rate. And beginning in the mid-1980s, federal efforts to protect wetlands improved, due in part to new conservation initiatives created by various farm bills, with the result that annual wetlands losses dropped to approximately 58,500 acres between 1986 and 1997.

What People Are Fighting About

The continuing loss of some 58,000 acres of wetlands every year flies in the face of a Presidential-level policy established in 1989 that sets a national goal of "no net loss" of wetlands. The continuing net loss of wetlands is due to a number of factors.

What's At Stake? A continued commitment by Congress and the Administration to policies that protect endangered species from extinction.

• The U.S. Army Corps of Engineers, which is the primary regulatory authority for the wetlands program, permits approximately 24,000 acres of wetlands to be filled each year with the concomitant requirement that some 42,000 acres of wetlands be restored, created, enhanced, or sometimes merely preserved as compensatory mitigation. However, many of these mitigation projects have not been carried out, even though required by Corps-issued permits, and compliance inspections have been rare. Even when mitigation projects have been initiated, many mitigation sites are not performing well.
  
  
• Enforcement against illegal dredges and fills has not been aggressive enough.
  
  
• A 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"), opened a virtual Pandora's Box of uncertainty about the jurisdictional reach of section 404 when it held that the protections of the Clean Water Act did not apply to isolated, non-navigable, intrastate wetlands solely based on their use by migratory birds that cross state lines.
  
  
• While SWANCC could be applied in narrow fashion (as the Corps and the U.S. Environmental Protection Agency originally did in a 2001 guidance memorandum), a new 2003 guidance memorandum simply declared, without qualification, that isolated wetlands were outside of the protections provided by the Clean Water Act. And, even more damaging, the memorandum requires Corps districts to submit to headquarters for approval any decision asserting jurisdiction over an isolated water (due, for example, to the water's relationship with interstate commerce a recognized basis for the assertion of section 404 jurisdiction) but not decisions declining to assert jurisdiction. This strategy has predictably led to under-regulation of wetlands and other waters clearly within the reach of the CWA.

Not surprisingly, many legal challenges to wetlands jurisdiction have followed in the wake of SWANCC, with the challengers arguing, for example, that wetlands adjacent to non-navigable tributaries of navigable waters are not protected by the Clean Water Act and that wetlands adjacent to navigable waters lack protection in the absence of a hydrological connection to a navigable water. Litigation addressing these issues has created considerable uncertainty, and the protection of millions of acres of our remaining wetlands depends upon the outcome of litigation currently pending before the U.S. Supreme Court. Meanwhile, over the past three years, Congress has cut forty percent of the funding for the agricultural conservation programs that discourage the conversion of wetlands to dry land and encourage wetland conservation and restoration through subsidies.

CPR's Perspective

The protection of our remaining wetlands remains a crucial ingredient of our nation's long-standing commitment to improving water quality and preserving our rich biodiversity. The protection of wetlands should also form a foundation for a new, more ecologically-friendly, and ultimately more humane strategy for dealing with the dangers posed by floods, hurricanes, and similar natural disasters. Wetlands, those areas that are saturated or inundated by ground or surface water often enough to support a prevalence of wetland vegetation, are as much waters of the United States as any flowing stream. They are vital public resources whose loss adversely affects the well-being of the entire community.

Decisions on the Table + Whether the Corps will revise its guidance so as not to discourage the field staff from asserting lawful jurisdiction over wetlands. + Whether Congress will adequately fund EPA, Corps, and Department of Agriculture programs to ensure conservation of our remaining wetlands. + Whether Congress will commission a study to evaluate the impact of current policies on wetland conservation. + Whether Congress will revisit wetlands jurisdiction to eliminate the narrowing effect of the SWANCC decision.

To address the current challenges to the health of the nation's wetlands, a number of steps should be taken:

• The withdrawal of the 2003 Corps and EPA guidance memorandum, which due to its lack of clarity and the fact that it discourages the field staff of the Corps from asserting jurisdiction over areas that are clearly subject to the Clean Water Act has undermined the effective implementation of the Act.
  
  
• Additional staffing resources for the U.S. Army Corps of Engineers in order to enable it to fully analyze permit applications, monitor existing permit conditions including mitigation conditions, and enforce the law.
• Additional budgetary resources for the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service in order to equip them to fully exercise their oversight and commenting responsibilities under section 404.
  
  
• Vigorous enforcement of the wetlands provisions of the Clean Water Act by the federal government.
  
  
• The establishment and adequate funding of state regulatory programs to protect wetlands that are no longer protected by federal law.
  
  
• Restoration of adequate funding levels for the wetlands conservation programs administered by the U.S. Department of Agriculture.
  
  
• The enactment of federal legislation that would close the loophole created by the SWANCC decision and end the efforts by developers and others to use the SWANCC decision as a device for paring back the protection of our nation's remaining wetlands. Such legislation would delete the word "navigable" from the Clean Water Act to make it absolutely clear that the Act is intended to protect all of the waters of the United States. The amendment would also set forth an explicit legislative foundation for Congress' assertion of federal jurisdiction over isolated waters and would clearly extend jurisdiction over activities that destroy wetlands by draining them, rather than just by filling them.
  
  
• Initiation of a thorough and impartial scientific study to determine, among other things: the current condition of America's wetlands; recent trends of wetlands losses not only in terms of acreage but also in terms of quality; the effectiveness and respective contributions of the various regulatory and non-regulatory programs aimed at wetlands preservation; whether the general permit program needs reform (since some 12,000 acres of wetlands loss occurs every year through general permits); and the actual environmental cost in terms of the loss of high value wetlands and in terms of the overall net loss of wetlands of the Corps' program which authorizes so-called "mitigation" to justify the issuance of section 404 permits.