Mixed blessings for US wetlands

A report by the Interior Department released on 9 January shows that the rate of wetlands loss dropped by 80% over the last decade, whilst a Department of Agriculture study also shows significant reduction in wetland losses. However, on the same day, the Supreme Court ruled that the Clean Water Act cannot be used to stall the draining of isolated ponds and marshes that are not connected to ‘navigable waters’, whilst the Environmental Protection Agency (EPA) moved to prevent this.

The Department of the Interior’s Fish and Wildlife Service’s report, Status and Trends of Wetlands in the Conterminous United States 1986 to 1997, shows the rate of wetland loss in the United States has decreased to an estimated annual loss of 58,500 acres, representing an 80% reduction compared to the previous decade. However, the national goal of no net wetlands losses still has not been met and the study shows that between 1986 and 1997, forested wetlands and freshwater emergent wetlands continued to show the most losses. Open water ponds have been increasing, yet there is concern that the long-term trend in the loss of vegetated wetlands may result in long-term adverse consequences.

The Department of Agriculture’s National Resources Inventory, a report on the health of America’s private lands, found an average annual net loss from all sources of 32,600 acres of wetlands from 1992 to 1997. It showed that the western half of the United States is nearing no net loss while the eastern part saw the largest wetlands loss. The two reports differ in that the latter provides information purely on privately owned lands whilst the Department of the Interior’s report examines wetlands losses and gains on all lands nationally. Both departments mentioned policies adopted by the Clinton administration for the improved protection of wetlands, which house for more than 40% of the nation’s endangered and threatened species and are found in every state. One of the most successful initiatives is the Department of Agriculture’s Wetlands Reserve Program, a voluntary scheme offering financial support to landowners for wetlands restoration projects. In 1998 alone, some 212,000 acres were included in the programme. The world’s biggest ecological restoration project, a $7.8 billion scheme to restore Florida’s Everglades, was also recently announced (see related story).

“This is the greatest overall decline in the rate of wetlands loss since records have been compiled by the federal government,” said the outgoing Agriculture Secretary Dan Glickman. “While we celebrate this tremendous progress, we have not yet met our goal of no net loss, so we need to be sure that we continue our efforts to protect the environment and be careful not to move backward.”

“This is very good news. Federal programs and policies encouraging wetlands conservation and restoration should be directly credited,” said the outgoing Interior Secretary Bruce Babbitt. “At one time wetlands were considered wastelands but attitudes have changed. Today we know wetlands are beneficial for both people and wildlife because they protect drinking water, habitat, beaches, recreation areas, and much more.”

Both Babbitt and Glickman were unaware at the time, however, that the Supreme Court had decided by a majority of only one that the Army Corps of Engineers could not prevent the development of a wetland on the grounds that it would violate the federal Clean Water Act. The court decided that the Army Corps was acting unlawfully when it prohibited a group of 23 local governments from building a regional garbage dump on a tract of swampy land in Northern Cook County near Chicago under the Clean Water Act. The Corps argued that pollution from the landfill would have detrimental impacts on protected waterfowl using the site.

By ruling that the Act only gives the government the authority to regulate the use of “navigable waters”, the Supreme Court dismissed the Corps argument as the area at issue consisted of isolated ponds. “Permitting the (government) to claim federal jurisdiction over ponds and mudflats would … result in a significant impingement of the states’ traditional and primary power over land and water use,” wrote Chief Justice William Rehnquist, whose view was shared by four of the other eight judges.

Also on the same day, the Environmental Protection Agency (EPA) and the Army Corps of Engineers, moved to clarify the types of activities that can harm wetlands, streams, and other waters, and therefore, would be subject to Clean Water Act regulation, thus closing the Act’s major loophole, exploited in this case. EPA Administrator Carol M. Browner said that the loophole in the law had led to the loss of 20,000 acres of wetlands in the last two years and that the new rule would “improve protection for tens of thousands of acres of wetlands from destruction each year”.

The new rule modifies the definition of ‘discharge of dredged material’ in order to clarify what types of activities EPA and the Corps believe are likely to result in discharges that should be regulated. The Corps and EPA said that they regard the “use of mechanised earth moving equipment to conduct land-clearing, ditching, channelisation, in-stream mining, or other earth-moving activity in waters of the US as resulting in a discharge of dredged material, unless project-specific evidence shows that the activity results in only ‘incidental fallback’.”

But the EPA and the Corps emphasised that while the new rule is an important step to protect wetlands, there is no regulatory action that can fully close the loophole in the Clean Water Act.

“Although today’s ruling will make it even more difficult to effectively protect against the loss of wetlands, we hope that aggressive efforts will continue to be made under existing laws to prevent future losses of this vital resource,” commented Browner. “This decision further underscores the need for Congressional action to strengthen the laws that protect wetlands.”

“There’s no question that the Supreme Court decision is a serious setback for the cause of wetlands protections and restoration,” Babbitt later said, also adding that Congress should now “consider whether there should be amendments to the Clean Water Act.”

“The decision today puts in jeopardy perhaps a fifth of the water bodies in the United States, ranging from portions of the Everglades to the country’s most important breeding grounds for ducks,” said Tim Searchinger of the US NGO, Environmental Defense. He added that the ruling gives the court a “broad, vague new doctrine to strike down environmental laws it doesn’t like.”