|
©
Michael Furtman, 2002. Hung Out To Dry Wetland Protection in the Wake of SWANCC By
Michael Furtman As
a born optimist, it takes a lot to depress me, but my drive across
prairie Minnesota was enough to trigger dark thoughts. Minnesota
lies on the southeastern rim of the prairie pothole region—that once
fabulous aggregation of wetlands and grasslands that stretched northwest
to the midlatitudes of Alberta and Saskatchewan. Prairie
potholes are isolated wetlands, and I was in search of one. They range
in size from less than one acre to several hundred. Shallow, fertile,
and home hundreds of species of birds, mammals, invertebrates, and
amphibians, they are essentially the rain- and snow-recharged
depressions left by retreating glaciers ten thousand years ago. My
search was difficult because 90 percent of Minnesota’s prairie
potholes are now gone. For nearly 50 years the state and federal
governments sponsored the drainage of these wetlands—an effort that
was impressive in its efficiency. As I tooled down the back roads near
Windom, Minn., just a stone’s throw from equally barren Iowa, I could
not help but notice the lacework of ditches and the long, sweeping
depressions that had once been potholes but were now black dirt. I also
noticed that the water in these ditches was dark—literally swimming
with topsoil that was inching its way toward Heron Lake, once the most
important waterfowl resting grounds in this part of the Mississippi
Flyway, now filling with silt. Nowhere
could wildlife be seen, but corn stubble or disked fields stretched to
the horizon. Only when I stumbled across one of the rare federal
Waterfowl Production Areas could I see anything resembling an original
prairie There, as if shipwrecked on a remote island, ducks, geese,
shorebirds, and pheasants eked out a living. And
the dark thought that my drive triggered was this: What would happen to
the few remaining isolated wetlands now that federal wetland protection
was gone? The
SWANCC Decision
As
shocking as that thought may be, it is true. In early 2001, millions of
acres of isolated wetlands were surprisingly – and suddenly –
stripped of protection. A
little background first. Federal wetland protection stems almost
exclusively from the Clean Water Act of 1972. Although the wetland
advocates of that time wanted the U.S. Fish and Wildlife Service to act
as the regulatory agency to enforce wetland rules, that authority was
eventually conveyed to the U.S. Army Corps of Engineers. Under Section
404 of the Act, wetland filling or draining required a Corps permit.
Initially these rules were applied to “waters of the United States,”
which included wetlands on or along “navigable” and interstate
waters, as well as those wetlands whose function (or destruction)
impacted these waters. Over
the years the Corps increasingly tightened its regulations. During the
term of the first President Bush, protection for isolated
wetlands—wetlands that do not flow above or below ground to other
waters or are not adjacent to “waters of the United States”—was
added. Citing what it called the “Migratory Bird Rule,” the Corps
argued that because isolated wetlands are utilized by myriad migratory
bird species, and that the hunting or viewing of these species creates
considerable economic activity, it had the Constitutional authority to
regulate these wetlands because the Commerce Clause allows the federal
government to regulate those things that affect interstate commerce. This
rule was responsible for greatly slowing wetland drainage for 15 years. Then
along came SWANCC. The
Solid Waste Agency of Northern Cook County (SWANCC), a consortium of 23
suburban Chicago cities, set out to create a solid-waste disposal site
in the location of abandoned gravel pits that had reverted to
successional forest and contained scattered ponds. When SWANCC requested
permits from the Corps, the agency denied them because the wetlands were
heavily used by birds. Subsequently, SWANCC sued the Corps and lost in
both district court and the court of the appeals. The case eventually
landed in the lap of the Supreme Court. Then,
on January 9, 2001, in a 5‑4 vote that reflected the same jurist
split that selected George W. Bush as President, the Supreme Court
overturned the lower courts’ decisions, stating that the Corps had
acted improperly in denying the permits and that the Corps could no
longer use the Migratory Bird Rule to regulate isolated wetlands.
Indeed, the majority opinion even stated that Congress had never
intended that the Clean Water Act apply to these waters. With
the stroke of a pen, the Supreme Court wiped out federal wetland
protection for isolated wetlands in the United States, throwing the
challenge of protecting them—if they are to be protected at all—to
the states. In
The Wake Of SWANCC Reactions
to this ruling were predictably divided. Farm interests, real estate
groups, and homebuilders associations applauded the new lack of
regulations. Property rights advocates were similarly overjoyed. “How
anyone could consider a gravel pit that is unconnected to any other body
of water a ‘navigable water’ simply because it collects rain water
and a bird lands on it is beyond me, and fortunately for land owners it
is now beyond the Corps as well,” said Nancie G. Marzulla, president
of the Washington, D.C.-based Defenders of Property Rights. As
elated as these groups were, environmental and conservation groups were
alarmed. “It
was a disaster,” says Dave Zentner, past national president of the
Izaak Walton League, referring to the ruling. “The potential for the
loss of 60‑80 percent of prairie potholes is there, and that’s
not just ‘Henny-Penny, the sky is falling’ rhetoric, because the
only thing left to protect these wetlands are Farm Bill provisions, and
no one ever knows if they’ll be renewed.” What
Zentner is talking about is the Swampbuster provision of the Farm Bill.
Swampbuster functions as an economic disincentive rather than a
regulatory program. Landowners who convert a wetland for agricultural
production are denied certain farm program subsidies. But just as that
provision can be written into the bill’s reauthorization (due in
2002), it can also be eliminated. If the latter happens The
threat goes beyond prairie potholes. Vernal pools (shallow,
intermittently flooded, cool season wet meadow or forest wetlands) are
threatened in the Northeast, as are playas (shallow depression similar
to a prairie pothole found in the Southwest) and pocosins (a type of bog
found in the Southeast). Although playas are usually located on
agricultural land, and thus gain Swampbuster protection, few of the
other kinds are. The
court’s ruling also left everyone in the dark as to which wetlands the
Corps could regulate. Clearly, “isolated” wetlands were now off the
table. But just what, exactly, defined “isolated”? To
clarify matters, the Corps issued new directives within just weeks of
the Supreme Court’s ruling. It told its field agents that all
navigable and interstate waters and their tributaries, and all
non-isolated impoundments, and adjacent wetlands, remain protected.
Intrastate lakes, rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds are not protected. Once
it was clear that isolated wetlands were up for grabs, many people were
ready to start draining. Mike Williams, a South Dakota Ike and one of
the League’s national directors, works in watershed restoration and
saw area farmers flock to regulatory agency offices. “We’ve had a
number of farmers come in, wanting to drain wetlands,” he says.
“They heard the Supreme Court said if wetlands weren’t tied to a
river, they could drain them, and they were ready to drain.” Thankfully,
Swampbuster provisions thwarted the anxious farmers’ plans. States
To The Rescue?
The
conservative majority of the Supreme Court clearly stated that
protecting isolated wetlands—in absence of any specific Federal
legislation—was up to the states. But do the states offer solutions? The
majority of states—34 out of 50—offer no specific wetland
protection. Most have water quality anti-degradation policies,
which generally apply to wetlands. But most lack In
general, Atlantic and Pacific coast Although
many states began discussing wetland protection rules of their own, only
Wisconsin has acted, passing legislation on May 7th, 2001. The new law
is a compromise, but conservationists are generally satisfied. Aside
from the few states offering some protection, And
Swampbuster isn’t the answer. While agriculture has historically
caused most wetland loss, more are lost today to urban and suburban
development—and it isn’t likely that shopping malls will qualify
under the next farm bill’s Swampbuster provision. From the mid 1950s
to mid 1970s, agricultural was responsible for 81 percent of the losses
while urban development accounted for 8 percent. From 1982‑92,
development accounted for 57 percent of the estimated 790,000 acres
lost, while agricultural conversions declined to 20 percent. No
Net Loss And Other Nonsense
In
1989, the first Bush administration established a no net loss of
wetlands policy. Unfortunately, by that time, 53 percent of U.S.
wetlands were destroyed. According to a U.S. Fish and Wildlife Service
(USFWS) study on the status of U.S. wetlands, between 1950 and 1970 the
annual rate of net loss was 458,000 acres, which dropped to 290,000
acres per year through the 1970s and ’80s. And despite the promise of
“no net loss,” the USFWS study showed that prior to the SWANCC
decision America was still losing at least 58,000 acres of wetlands
annually. As
Mike Williams puts it, “No net loss is down the tubes as far as I’m
concerned.” Conservationists
like Williams worry that, although wetland loss has slowed, this slowing
came about with Section 404 protection for isolated wetlands.
Though additional states may yet pass good wetland laws, most still have
none. As you read this, people are most certainly taking advantage of
this moratorium on protection, draining, filling, and otherwise
destroying isolated wetlands. To
top it off, wetland status reports look only at aggregate numbers. They
don’t tell of wetlands degraded by farm and urban runoff, and they
count replacement wetlands in the total. Some state laws, and some Corps
permits, require wetland mitigation—wetlands built to replace
those destroyed. But replacement wetlands almost never function as well
as nature’s own and they don’t have to be the same type of wetland
that was destroyed. “I’m
concerned that the concept of ‘no net loss’ looks at total acreage,
not wetland type,” says Leah Miller of the League’s Save Our Streams
(SOS) program. “Some are easier to create. Complicated types, like
bogs, take hundreds or thousands of years to develop. If you destroy a
bog and replace it with a marsh, you’ve changed the ecotype and
destroyed something we don’t know how to make.” Miller’s
assertions are reflected in the opinion of the National Academy of
Sciences. According to a NAS study, many constructions of substitute
wetlands were often delayed or never finished. Even when completed, the
projects failed to duplicate the functions of the natural wetlands that
they replaced. Finally,
the USFWS study doesn’t reveal that much wetland replacement is
occurring outside the original watershed. Although it’s a good thing
to require wetland replacement, if wetlands are not replaced in the
watershed of their origin, then that watershed is damaged. Until
recently, wetland mitigation was supposed to follow a sequential order:
first, avoid the loss, then mitigate the loss on-site, then replace it
nearby, and finally, when none of this was possible, replace wetlands
elsewhere. Although these rules weren’t always strictly followed, they
now seem Under
these new rules, developers no longer must restore or create new
wetlands for every acre they drain or fill. Instead of requiring
acre-for-acre restoration on each project, the new regulations require
only that there be no net loss of wetlands in any of the Corps’ 38 U.S. districts, which
are determined by watersheds rather than state boundaries. The
Bush Administration issued these new guidelines despite opposition from
two of its own environmental agencies. The Environmental Protection
Agency had filed formal comments criticizing the changes, but was
ignored. The U.S. Fish and Wildlife Service had written even more
scathing criticisms, but according to the Washington Post, Secretary of
the Interior Gail Norton would not allow them to be forwarded to the
Corps of Engineers because she agreed with the rule changes In
other words, even those wetlands still protected despite the SWANCC
decision—perhaps those that protect your town from flooding or keep
your favorite trout stream cool and clean—can now be destroyed and
replaced anywhere within a Corps district boundary. Rolling
Up Our Sleeves
“With
Fists Doubled” has been a League mantra for years, indicating our will
to fight for what is right. In light of SWANCC and wetland rule changes,
citizen activists have a more important role than ever in protecting
wetlands. “First,
we need to understand that this is really a habitat issue, not only for
wildlife species that are very visible, but for creatures we don’t
often see,” says Gwyn Rowland, director of the League’s SOS program. “Second,”
she adds, “I think that what we’ve seen in the past year is that it
really takes the initiative of grassroots conservationists to get the
attention of state legislatures, as they did in Wisconsin. Without this
passion, it won’t happen.” The
SOS program, through its American Wetlands Campaign, is educating people
on the value of wetlands, as well as helping them chart a course for
wetland protection. The campaign celebrates and publicizes each May as
American Wetlands Month. This year the theme is protecting isolated
wetlands. Programs like this are critical in providing citizens with the
knowledge and tools needed in the fight to protect wetlands. Grassroots
activism can make a difference. Since state or local laws can be
stricter than federal laws, determined citizens can forge strong local
wetland protection No
substitute federal action, local laws can at least protect local
resources. Citizens in Iowa City, Iowa, recently passed a local wetland
ordinance, and buoyed by that success and with the knowledge gained,
they are looking to push for a statewide law. But
even with wetland rules in place, citizen watchdogs must make sure they
are followed. “The
Corps is grossly underfunded and understaffed,” says Mike Williams.
“In South Dakota they only have two inspectors.” Alert
citizens can inform state or federal regulators of suspicious activities
in wetlands Activists can also evaluate and comment on wetland permit
requests regional Corps offices receive. Unfortunately, this isn’t as
easy as it sounds because wetland rules are complex. So
how can the League simplify participation? One Ike chapter, the W. J.
McCabe Chapter in Duluth, Minn., built a Web page that alerts members to
projects with potential local impacts. The page offers a summary of the
project and provides an e-mail link to the responsible Corps office. In
this way, chapter members can more easily take part. Other
Ikes have organized similarly. Jim Sweeney, a member of Indiana’s
Griffith Chapter, founded a group called Wetland Watch after many area
wetlands were being filled. Members
participate in river management commissions, talk to the county surveyor
on a regular basis, and also comment on permit applications. There’s
more. Ikes who live in states without wetland protection don’t have to
take this situation lying down. For instance, South Dakota Ikes are
quietly preparing for a long battle to get that notoriously anti-wetland
state to pass a wetland’s protection law. “One
solution is that each state is going to have to establish some kind of
control over wetlands,” says Williams. “Consequently, we’re
working on a plan with the other groups for comprehensive wetland
protection, beginning with a survey of the people of South Dakota of
their impressions of the value of wetlands. We’re also working to
start an education campaign for wetlands. We’re looking down the
road—perhaps in 2004—to pass a law.. There will be lots of legwork
before that, but we believe that when the public understands the
importance of wetlands, we can win.” And if some now think that federal protection for isolated wetlands is no longer a possibility, Ikes refuse to go quietly along with that notion. Several League representatives have been working with representatives in Congress to draft legislation to restore the protection lost via SWANCC. Though it will require bipartisan support to survive this administration, many feel the effort is worthwhile, given that the League has always been successful in working with both political parties.
If the drive across the corpse of Minnesota’s prairie depressed me, it served a vital purpose. One need only drive a few miles into South Dakota, where wetland loss still lags far behind Minnesota, to see what we stand to lose. The comparison is staggering. It reminded me that whether the Supreme Court’s ruling was correct or not—and many scholars believe the majority was wrong—their actions served as a wake-up call. As I drove through the barren landscape. I knew then that we’d grown complacent; we thought the wetland battle was over. In reality, the losses continued even before SWANCC, and even mitigation measures are flawed. Now,
we are all again on alert. Perhaps we can wrestle with this issue one more
time, and this time do it right. We have the advantage today that the
average American supports wetlands and has some basic understanding of
their functions and benefits. But
to be successful we must be heard over the voices of the developers and
drainers. How’s
your voice? ***** Sidebar For
More Information One
of the best evaluations of the SWANCC decision can be found at the Ducks
Unlimited Web site (www.ducks.org/conservation/404_report.asp).
Although its emphasis is on the impact of the decision on waterfowl, it
provides excellent information on the general nature of Section 404
protection, as well as an analysis of state level protections. How
does Section 404 work? A good description of it and of public
participation can be found at the Environmental Protection Agency Web site
(www.epa.gov/owow/wetlands/facts/fact10.html). The
Izaak Walton League also has a wealth of wetland information at its
Website. Just go to www.iwla.org and
click on the Save Our Streams link. (Author’s
Note: A version of this article appeared in Outdoor America, the
publication of the Izaak Walton League of America.) ©
Michael Furtman, 2002. No distribution or reprinting without the
author’s written consent.
|