© 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 so, there would be nothing to keep farmers from draining these wetlands unless states have rules to prohibit it—and few states do.

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 any specific regulatory enforcement . And, in any case, such nebulous language doesn’t seem to apply to filling or draining a wetland. 

In general, Atlantic and Pacific coasts  states have moderate to strong laws regarding isolated wetlands. With the exceptions of Michigan, Minnesota, and Wisconsin, the states between the coasts offer little protection for isolated wetlands. 

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,—much of which is far from perfect—unless the isolated wetlands are covered under Swampbuster, not much stands in the way of their loss. 

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 seems moot. Although the current President Bush maintains he still supports his father’s pledge of no net loss, in January of 2002 his administration issued troubling new guidelines. 

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? 

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.