CPR Perspective: Wetlands

Protecting Wetlands for Future Generations

•  Corps-Mandated Mitigation Left Undone. The U.S. Army Corps of Engineers, 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.
• Feeble Enforcement. Enforcement against illegal dredges and fills has not been aggressive enough.
• Supreme Court Decisions Undercutting the Effort. Two recent Supreme Court decisions have narrowed the jurisdictional reach of section 404 by stressing the term “navigable” in the Clean Water Act (CWA). 
  • The Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC") began this narrowing process when it held that section 404 of the CWA did not apply to isolated, non-navigable, intrastate wetlands based solely on their use by migratory birds that cross state lines.
  • Then in 2006, the Supreme Court reviewed two cases in which the lower courts held that certain wetlands not adjacent to navigable waters were covered by the CWA. Rapanos v. United States. While four justices would have upheld these holdings, five justices disagreed. Those five justices, however, could not agree upon a common jurisdictional test.  Four justices, in a plurality opinion, found that the Act extends only to “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters and to wetlands with a continuous surface connection to such waters. Justice Kennedy agreed with the judgment but concluded that wetlands may be regulated if they “either alone or in combination with similarly situated lands in the region” have a “significant nexus” with traditional navigable waters. Rapanos has produced considerable confusion. Many, but not all lower courts, have held that Justice Kennedy’s concurrence, representing the narrowest ground for decision, is the controlling test. The EPA and the Corps, however, have followed the suggestion made in a dissenting opinion that either the plurality approach or Justice Kennedy’s approach may be applied, whichever one would support an assertion of jurisdiction, since the dissenters would have upheld jurisdiction in the case.
• The Corps and EPA’s Interpretation of the Court’s Rulings. A guidance document issued by EPA and the Corps in 2008 raises a number of concerns. First, the guidance limits the agencies in determining whether a “significant nexus” exists to an aggregation of similar wetlands along a particular tributary rather than taking a broader, regional approach as discussed in Justice Kennedy’s opinion. This will obstruct efforts to take a broader, watershed approach to protecting aquatic resources and may leave many headwaters and associated wetlands unprotected.   Second, the jurisdictional terms used in the opinion — “relatively permanent” and “significant nexus” — are legal terms, not scientific concepts. Applying these legal terms in the field will be a difficult enterprise involving both data collection and additional analysis in an effort to evaluate, both geographically and temporally, the relationship of a water to a traditionally navigable water. Such determinations, if done correctly, will take much case-by-case effort and will create considerable burdens for both the agencies and citizens.

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

• Enacting federal legislation that would close the loopholes created by the SWANCC and Rapanos decisions and end the efforts by developers and others to use these decisions as devices for paring back the protection of our nation's remaining wetlands. Such legislation would delete the word "navigable" from the CWA to make it absolutely clear that the CWA is intended to protect all of the waters of the United States including isolated waters and wetlands, as well as headwaters and intermittent waters. The amendment would also set forth an explicit legislative foundation for Congress's assertion of federal jurisdiction over these waters and would clearly extend jurisdiction over activities that destroy wetlands by draining them, rather than just by filling them.
• Revising the 2008 Corps and EPA guidance memorandum, which provides that only similarly situated wetlands along a particular tributary will be analyzed in deciding whether a “significant nexus” exists with a traditionally navigable water.
• Adding staffing resources for the U.S. Army Corps of Engineers to enable it to make jurisdictional determinations (which are now often very complicated exercises), fully analyze permit applications, monitor existing permit conditions including mitigation conditions, and enforce the law.
• Adding staffing resources for the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service to equip them to fully exercise their oversight and commenting responsibilities under section 404, including EPA’s obligation to review the more difficult jurisdictional determinations made by the Corps.
• Vigorously enforcing the wetlands provisions of the CWA by the federal government.
• Establishing and then providing adequate funding for state regulatory programs to protect wetlands that are no longer protected by federal law.
• Restoring adequate funding levels for the wetlands conservation programs administered by the U.S. Department of Agriculture.
• Initiating 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.

• Robert W. Adler, Jessica C. Landman, & Diane M. Cameron, The Clean Water Act: 20 Years Later (1993).
• William L. Andreen and Shana Jones, The Clean Water Act: A Blueprint for Reform (Center for Progressive Reform) (2008), available at http://progressivereform.org/articles/CW_Blueprint_802.pdf.
• William L. Andreen, “Developing a More Holistic Approach to Water Management in the United States,” 36 Environmental Law Reporter (Environmental Law Institute) 10,277 (2006).
• William L. Andreen, “Water Quality Today: Has the Clean Water Act Been a Success?,” 55 Alabama Law Review 537 (2004).
• Alyson C. Flournoy, “Supply, Demand, and Consequences: The Impact of Information Flow on Individual Permitting Decisions under Section 404 of the Clean Water Act,” 83 Indiana Law Journal 537 (2008).
• Alyson C. Flournoy, “Section 404 at Thirty-Something: A Program in Search of a Policy,” 55 Alabama Law Review 607 (2004).
• Alyson C. Flournoy, “Preserving Dynamic Systems: Wetlands, Ecology and Law,” 7 Duke Environmental Law & Policy Forum 105 (1996).
• Robert R.M. Verchick, “Toward Normative Rules Agency Interpretation: Defining Jurisdiction under the Clean Water Act,” 55 Alabama Law Review 845 (2004).