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Nature's Hazards.

Why Cover Wetlands

Wetlands are worth covering not only because they are a keystone
in many ecosystems and provide huge "value added" to people’s
lives. They are also worth covering because they are controversial
and a lot is going on in the struggle to preserve, use, or destroy
them.

After a Supreme Court decision in 2001 cut back federal jurisdiction
over wetlands, federal agencies under the Bush administration
in January 2003 proposed new rules to follow up and carry
out that decision. Final regulatory action is expected soon.
Wetlands provide many benefits: flood control, water purification,
groundwater recharge, feeding and breeding habitat for fish
and wildlife, erosion control and, of course, recreation and beauty.

Some of those benefits can be quantified in dollars. Some can’t.
EPA in 1991 estimated that wetland-related recreational activities
such as hunting, fishing, bird watching, and photography pumped
some $59 billion into the U.S. economy. The Pacific Coast Federation
of Fishermen’s Associations estimated that almost $79
billion per year was generated from wetland-dependent species in
1997, or about 71 percent of the nation’s entire $111 billion commercial
and recreational fishing industry.

Historically, however, some have viewed wetlands as merely
empty lands, available for other public or economic use. When
Europeans first settled what is now the United States, there were
an estimated 220 million acres of wetlands in the "lower 48" -
more than half of which have been lost. Alaska holds an estimated
170 million acres of wetlands, comprising more than 40 percent
of the state’s territory. More than 99 percent of those wetlands
remain intact.

Wetlands are lost and degraded in any number of ways. It is
not just about shopping malls. Commercial and residential development
is one of the human activities that destroys wetlands. Wetlands
produce rich soil and are often cleared and drained for farmland.
Road construction and impoundments can destroy wetlands
by altering hydrologic regimes. Other wetlands are lost to resource
extraction, industrial sites, waste disposal, dredge disposal, forestry,
silviculture, and mosquito control.

The nature of wetlands varies according to area, as do the threats
to them. Many of the coastal wetlands of Louisiana are threatened
by land subsidence, much of which is caused by oil and gas extraction.
The sea level rise expected to accompany global greenhouse
warming will also destroy some coastal wetlands.

Wetlands are a perennial hot issue. There is very likely a wetlands
development permit case somewhere near you involving
passionate and conflicting claims by environmentalists and developers.
Reporting on these stories means boning up on things
ranging from biology and hydrology to economic impacts and the
intricacies of federal, state, and local wetlands regulations.

Story Ideas

1. What are the most important wetlands in your area? What benefits
do they provide? What is their history? What is their future?

2. How does the wetlands loss rate in your area compare with
rates in other parts of the country? What are the main causes of
wetlands loss in your area?

3. How many of the wetlands in your area are "isolated"? How will
the Supreme Court’s 2001 decision affect permitting where you are?

4. Who are some of the major Section 404 permit applicants in
your area? What is the outlook for their applications? What are
the pros and cons? What "mitigation" (e.g., creation of artificial
wetlands) is proposed?

5. Do ecosystems and industries in your area benefit from wetlands
elsewhere? Do other areas benefit from wetlands near you?

6. What, if any, federally owned land units near you feature major
wetlands (start with wildlife refuges)? Talk to the managers of
these lands about problems, issues, news, rules, budgets, or unusual
ecosystem features.

Background and Context

In 1997, the Fish & Wildlife Service (FWS) estimated that there
were 105.5 million acres of wetlands in the continental U.S. Of
this total, 100.5 million acres (95 percent) were freshwater wetlands
and 5 million acres (5 percent) saltwater wetlands.

FWS estimated the wetland loss rate in 1997 at 58,500 acres
- annually an 80 percent reduction from the previous decade. Even
so, there was a net loss of 644,000 acres of wetlands between
1986 and 1997. The major causes of wetland losses were urban
development (30%), agriculture (26%), forestry (23%), and rural
development (21%).

History of Wetland Regulation

The stance of U.S. government and society toward wetlands has
evolved since the time that the U.S. was a frontier nation with seemingly
unlimited natural resources, and waterways were one of the
few economical forms of transportation across its vast distances.

Wetlands then were generally considered a nuisance or waste. Filling
them in was considered progress - replacing mosquito hatcheries
and malaria incubators with farms or cities.

The historical role of the U.S. Army Corps of Engineers was to
support transportation on inland waterways by (among other things)
dredging channels in rivers and harbors. The dredged sediment had
to be disposed of somewhere, and it often was used as "fill" material
to create dry landforms in places that once were coastlines, estuaries,
or wetlands. The Corps’ role was deeply established in laws like
the Rivers and Harbors Act of 1899. Federal regulatory authority
could be based solidly on the Commerce Clause of the Constitution,
since navigable waters were essential to interstate commerce.

Attitudes about wetlands had changed by the advent of the modern
environmental movement, as understanding grew of the many
environmental benefits of wetlands, and the many environmental
risks from disposal of contaminated dredge spoil.

The Clean Water Act of 1972 (specifically section 404) revolutionized
federal regulation of wetlands by prohibiting discharge of
dredged or fill material into navigable waters without a permit from
the Corps for a specific disposal site. The law gave the newly created
environmental agency, EPA, authority to veto a disposal site if
it found that discharges would have an unacceptably adverse effect
on municipal water supplies, shellfish beds and fishery areas, wildlife,
or recreational uses.

Thus began three decades of joint Corps-EPA regulation. Section
404, which had evolved over decades from laws meant to remove
obstacles to navigation, was "re-purposed" into an instrument for
protecting water quality and wetlands. Moreover, the Clean Water
Act’s main thrust of minimizing discharge of pollutants into waters
was also "re-purposed" for wetland protection by defining fill as a
pollutant.

Embedded in the law’s very structure was a creative tension between
the two missions and the two agencies.

The idea that Section 404 was meant to protect wetlands was
affirmed and strengthened by court decisions and legislation in the
1970s. As political winds have blown back and forth over those decades,
the balance of power between EPA and the Corps has shifted
too. Subsequent legislative, regulatory, and legal decisions have
greatly expanded the definition of wetlands and the scope of the 404
program. In recent years, however, the pendulum has begun to swing
the other way.

What is a wetland? Biologists and hydrologists might answer
that one way and lawyers another. Section 404 tied permits to the
"discharge" of material into "navigable waters." But the law soon
evolved to include waters and wetlands "adjacent" to navigable
waters. Navigability seemed on its way to obsolescence as a basis
for wetland regulation.

As originally written, Section 404 didn’t explicitly regulate the
draining of wetlands - just the filling of them. The connection between
the two had long been implicitly assumed, even though it did
not always exist in specific cases. Then in 1993, EPA and the Corps
finalized the "Tulloch Rule," which extended the reach of 404 to
draining activities like dredging and ditching. It posited the likelihood
of "incidental fallback" of material dug or dredged as equivalent
to a discharge.

The real regulatory landscape is far more complex that can be
described here. Other federal agencies, such as the Fish & Wildlife
Service or the U.S. Geological Survey, may be involved. Most decisions
are issued by Corps district offices, which are unique fiefdoms
unto themselves. Permits issued by EPA and other agencies (e.g., a
hydropower license issued by the Federal Energy Regulatory Commission)
must comply under Section 401 with the wetland preservation
goal. States are involved in the permitting as much Clean Water
Act authority is delegated to them.

While major wetland-filling actions require case-specific Corps
permits, the Corps can also issue generic permits for different classes
of activity that fall below certain thresholds. These are called nationwide,
statewide, or regionwide permits.

Recent Wetland News

- On June 19, 1998, the U.S. District Court of Appeals for the
District of Columbia struck down the Tulloch Rule. The court
held that the government had stretched the law too far in regulating
"incidental fallback" and prohibited the Corps from enforcing
the rule.

- On May 10, 1999, EPA and the Corps issued a new rule withdrawing
assertion of jurisdiction over "incidental fallback" and
continuing to assert it over the redeposit of dredged material into
waterways. ( http://www.epa.gov/OWOW/wetlands/tulfin.pdf)

- On March 9, 2000, the Corps replaced Nationwide Permit 26,
which had previously authorized projects affecting isolated and
headwaters wetlands. Instead of the three acres that could have
been impacted under NWP 26, the replacement permits lowered
the threshold to one-half acre, pushing many projects into individual
permit review. This frustrated developers and pleased environmentalists.
( http://meso.spawar.navy.mil/Newsltr/Refs/65f12817.txt)

- On January 9, 2001, the U.S. Supreme Court issued a decision
reversing a decades-long trend in federal regulatory authority over
wetlands. In Solid Waste Agency of Northern Cook County
(SWANCC) v. United States Army Corps of Engineers, the Court
ruled that the Corps’ 404 authority did not extend to isolated wetlands
if they are not "adjacent" to navigable waters. It held that
the Corps exceeded its statutory authority by asserting CWA jurisdiction
over the ponds that SWANCC wanted to fill based solely
on the use of those "non-navigable, isolated, intrastate" waters by
migratory birds. ( http://www.epa.gov/owow/wetlands/2001supremecourt.pdf)

- On January 11, 2001, President Clinton issued Executive Order
13186, "Responsibilities of Federal Agencies to Protect Migratory
Birds." Citing authority from various laws and treaties, it
required many federal agencies to develop formal agreements with
the Fish & Wildlife Service for using their powers (e.g. 404 permits)
to protect migratory birds. ( http://www.epa.gov/owow/wetlands/regs/eo.html)

- On January 10, 2003, the Corps and EPA issued an Advance
Notice of Proposed Rulemaking (ANPRM), aimed at re-assembling
what was left of the regulatory structure in the wake of the
Supreme Court decision in SWANCC. Together with a suite of
related EPA-Corps actions, it re-asserted traditional 404 jurisdiction
over non-isolated waters, but still left up for grabs many aspects
of traditional authority. The emphasis under the Bush administration
seemed to veer more toward public lands, voluntary
action on private lands, devolution of authority to the states, and
financial incentives (like "Swampbuster") for private landowners.
The deadline for public comment on the ANPRM was extended
until April 16, 2003. ( http://www.epa.gov/owow/wetlands/swanccnav.html)

- Bills introduced in Congress this year (S 473 by Sen. Feingold;
HR 962 by Rep. Oberstar) would undo the SWANCC decision by
redefining "waters of the United States" to explicitly include intrastate
and isolated wetlands, and do away entirely with the navigability
concept. The prospects for this bill, backed heavily by Democrats,
are still uncertain in the GOP-ruled 108th Congress.

Sources and Resources

U.S. EPA
Press contact: John Millett, (202) 564-7842, millettjohn@epa.gov
EPA Wetlands homepage: (http://www.epa.gov/owow/wetlands/)

Army Corps of Engineers
Press contact: David Hewitt, (202) 761-0289, david.w.hewitt@usace.army.mil
Release: (http://www.hq.usace.army.mil/cepa/releases/swancc.htm)
Directory of Districts (http://www.usace.army.mil/where.html#State)
Regulatory Decisions: ( http://www.usace.army.mil/inet/functions/cw/cecwo/reg/citizen.htm)

Fish & Wildlife Service
- National Wetlands Inventory. Includes customizable maps of wetlands
and downloadable data files.
- "Report to Congress on the Status and Trends of Wetlands in the
Conterminous United States 1986 to 1997"
(http://wetlands.fws.gov/bha/SandT/SandTReport.html)

- Isolated Wetlands Report
(http://wetlands.fws.gov/Pubs_Reports/isolated/geoisolated.htm)

National Association of Home Builders
Press contact: Donna Reichle (202) 266-8473
Release of March 3, 2003: (http://www.nahb.org/news_details.aspx?newsID=317)
Release of Jan. 6, 2003: (http://www.nahb.org/news_details.aspx?sectionID=3&newsID=272)
Release of Dec.17, 2002: (http://www.nahb.org/news_details.aspx?newsID=255)
Release of Jan. 10, 2003: http://www.nahb.org/news_details.aspx?newsID=275)
Wetlands policy statement: (http://www.nahb.org/generic.aspx?genericContentID=3473)
Congressional Research Service: "Nationwide Permits for Wetlands
Projects: Permit 26 and Other Issues and Controversies" by Claudia
Copeland, Updated January 21, 1999 (97-223 ENR),
(http://www.ncseonline.org/NLE/CRSreports/Wetlands/wet-7.cfm?&CFID=3159399&CFTOKEN=74767317)

Association of State Wetland Managers
Contact: Jeanne Christie (301) 292-4815
- Report: "The SWANCC Decision and State Regulation of Wetlands"
(http://www.aswm.org/fwp/swancc/aswm-int.pdf)
- "Wetlands Protection Fades," The New York Times, Feb. 11, 2003,
by Douglas Jehl (http://www.nytimes.com/2003/02/11/national/11WETL.html?ex=1045964405&ei=1&en)