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.

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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 cool ecosystem features.

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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 court 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.

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-- 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. (See downloadable Adobe Acrobat^tm file at: 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. (See: 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. (See downloadable Adobe Acrobat^tm file at: 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. (See: 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. (See: 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.

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

Army Corps of Engineers
Press contact: David Hewitt, (202) 761-0289, E-mail: 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 -- Adobe Acrobat^tm document).

Wetlands Protection Fades
Article from 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)

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