Isolated Wetlands: Where To Draw the Line?

A Conversation with Whit Gibbons

Introduction:

The main objective of the Clean Water Act of 1972 is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Passage of the CWA coincided roughly with our collective realization of the central role wetlands play in protecting our water. Before that time wetlands were considered to be expendable if not a downright nuisance and governments encouraged people to drain and fill them for mosquito control, and agricultural and residential development. By the 1980s the United States had lost about half of the wetlands that had existed in 1780. We now know wetlands can improve water quality, provide natural flood control, reduce the effects of droughts, recharge groundwater aquifers, and stabilize shorelines. Wetlands support a wide variety of plants and animals including rare and endangered species, migratory birds, and the young of commercially valuable fishes. People are now coming to appreciate not only the important functions of wetlands but their aesthetic and recreational values as well.

The good news is, the rate of loss of wetlands has decreased. From 1986 to 1997 the annual rate of wetland loss was 58,545 acres per year, about one-fifth the annual rate for the previous decade. In 1989 President Bush stated the goal of no net loss of wetlands for his administration. Government agencies, particularly the Army Corps of Engineers were directed to require compensatory mitigation when they issued permits to develop wetlands. From 1993 to 2000 about 24,000 acres of wetlands were permitted to be filled each year, and 42,000 acres were required to be restored or rebuilt as compensation. Theoretically we gained 1.8 acres of wetlands for every acre we lost. However the Corps does not keep adequate records to determine if the new wetlands actually exist and function or whether they are pretend wetlands.

A comprehensive review of wetland losses was published by the National Research Council in 2001, which is the source of most of the above information, and which recommended a lengthy list of activities and research needed to protect wetlands in a serious way. It will cost a lot of money to allow the EPA and the Corps and state agencies to do their jobs protecting wetlands. The current administration has other uses in mind for our tax dollars.

In January 2001 the Supreme Court in SWANCC v. U.S. Army Corps of Engineers ruled that isolated intrastate non-navigable waters could not be protected under the Clean Water Act based on the presence of migratory birds. This decision is a major reinterpretation of the Act, re-emphasizing the importance of navigability in the definition of waters of the United States, and ignoring the contribution isolated wetlands make to clean water, that is, ignoring the point of the Clean Water Act. The entire September 2003 issue of the journal Wetlands is devoted to assessing the impact of this Supreme Court decision on efforts to protect wetlands and to implement the CWA. The Court’s decision limited the scope of the CWA by limiting the definition of “Waters of the United States”, a narrow definition that may make sense legally (the Court was not unanimous in this ruling), but which makes little or no sense in the context of what the law was intended to do: promote clean water. There are other protections for isolated wetlands in place, notably the Swampbuster provision of the Food Security Act, which denies federal subsidies to farmers who drain wetlands, but this decision reduces the level of protection for isolated wetlands significantly.

Wetlands, especially isolated wetlands, harbor a significant portion of any region’s biological diversity, both plant and animal. Research on isolated wetlands has shown that the terrestrial periphery and the terrestrial corridors that connect isolated wetlands are vital for much of the animal community. If you consider the many functions that wetlands perform, if you think about wetlands in the context of their watershed, if you acknowledge their above ground and underground connections, you will have a hard time arguing that any wetland is isolated.

We spoke with Whit Gibbons, a member of the NRC committee on wetlands, about his research on wetlands and about new ways to think about wetlands.

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