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Wetlands - Government Wetland Programs

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Clean Water Act

The goal of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the nation's water." Wetlands are considered part of the nation's water and are covered by the Act.

SECTION 404.

Section 404 of the Federal Water Pollution Control Act of 1972 (PL 92–500), commonly called the Clean Water Act, authorizes the Army Corps of Engineers to issue permits for "discharge" into the nation's waters and is the primary federal authority for the protection of wetlands. "Discharge" is defined as the addition of dredged or fill materials to U.S. waters. These discharges include material removed from one portion of a water body (dredging) for placement in another portion of the same or another water body (overboard disposal, or placement of dredged material on wetlands adjacent to the area of dredging), and materials brought from other sources to be used as fill. "Fill" is defined as any material used for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a water body. Examples are soil and debris used to fill in wetlands and rubble placed overboard to create fishing reefs. Under Section 404, the Corps does not regulate dredging (removal of materials from water) but only the addition of materials to water.

Section 404 jurisdiction encompasses all navigable waters of the United States, plus their tributaries and adjacent wetlands, and includes ocean waters within three nautical miles of the coastline and isolated waters where the use, degradation, or destruction of these waters could affect interstate commerce or foreign commerce. The Corps evaluates the impact of proposed projects that involve wetlands, considering comments from the EPA, the USFWS, the National Marine Fisheries Service, and the affected states. Regulations established under Section 404 require that any project affecting more than one-third of an acre of wetlands or 500 linear feet of streams must be approved by the Corps.

SECTION 404 JURISDICTION QUESTIONED.

Between 2000 and 2002, legal challenges arose over the extent of the Army Corps of Engineers' authority under Section 404 of the Clean Water Act (CWA) and the meaning of certain terms used in the Act (such as "waters of the United States" and "navigable waters"). In its Clean Water Act Information Brief (The Supreme Court's SWANCC Decision, December 2002), the United States Department of Energy detailed one such challenge.

According to the brief, the Solid Waste Agency of Northern Cook County (SWANCC) wanted to develop a nonhazardous solid waste disposal facility on a site that contained isolated ponds and wetlands. The Corps denied the Agency a Section 404 permit to fill those wetlands because they were used by migratory birds. Lower courts found in favor of the Corps, and SWANCC appealed the finding to the United States Supreme Court.

On January 9, 2001, the United States Supreme Court issued its decision (Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531U.S. 159, 2001). The court determined that the Corps' authority under the Clean Water Act did not extend to isolated wetlands if they were not "adjacent" to navigable waters. It held that the Corps exceeded its statutory authority by asserting CWA jurisdiction over the ponds that SWANCC wanted to fill based solely on the use of those "non-navigable, isolated, intrastate" waters by migratory birds.

Other legal challenges detailed in the Department of Energy's information brief include Idaho Rural Council v. Bosma (143 F. Supp. 2d 1169, 1179 [D. Id. 2001]). In this case, the court found that springs connected to non-navigable streams and groundwater connected to surface water were both waters of the United States. In United States v. Buday (138 F. Supp. 2d 1282 [D. Mont. 2002]) the court found that the United States had jurisdiction to regulate a discharge to a tributary of a navigable water.

The implications of the Supreme Court's decision in SWANCC have prompted a move to restore protection to America's wetlands. On February 27, 2003, Democratic congressmen John D. Dingell of Michigan and James Oberstar of Minnesota introduced the Clean Water Authority Restoration Act of 2003 to the United States House of Representatives. According to a news release from Congressman Dingell's office on February 27, 2003, wetlands are in jeopardy because of the Supreme Court's decision in SWANCC and Bush administration regulatory actions. The Clean Water Authority Restoration Act is intended to restore the original intent of the Clean Water Act and to reestablish protections for "isolated" wetlands throughout the United States. According to Congressman Dingell's news release, the Clean Water Authority Restoration Act includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over waters and wetlands. It also reaffirms the original intent of the Congress by creating a statutory definition of "waters of the United States" based on longstanding definitions in the Army Corps of Engineers regulations. The legislation also deletes the term "navigable" from the Act to reinforce that the original concern of the Congress in the 1972 Act related to pollution rather than navigability. The Clean Water Authority Restoration Act made no progress in the House during that legislative session. It was reintroduced in March 2005 and was referred to the Committee on Environment and Public Works.

The EPA and the U.S. Army Corps of Engineers remain committed to helping Americans comply with the Clean Water Act's requirements for protection of the nation's wetlands. According to a January 10, 2003, EPA news release, the EPA and the Corps issued clarifications for the rules the federal government uses to protect wetlands that are regulated under the Clean Water Act. At the same time, the EPA announced its intention to publish an Advance Notice of Proposed Rule Making (ANPRM) to solicit from the public data and information to clarify the extent of Clean Water Act coverage in light of the Supreme Court's decision in SWANCC.

TULLOCH RULE.

Another highly litigated regulation adopted under Section 404 is the Tulloch rule. This regulation was adopted as the result of a successful challenge brought against the Army Corps of Engineers by several environmental interest groups to stop the draining of wetlands in North Carolina. The Corps district engineer named in the lawsuit was Colonel Tulloch. The rule provides that any "incidental fallback" constitutes a discharge that requires a permit if the deposit is part of an activity that destroys or degrades a wetland. Incidental fallback is soil or other materials that drop from the dredges, backhoes, shovels, or other excavating devices into virtually the same place from which they were removed. This expansion of the definition of "discharge" brought all wetland ditching and excavation under 404 jurisdiction, including activities such as sand and gravel mining, which were previously not within Corps jurisdiction. The new rule effectively stopped almost all draining and dredging of wetlands.

In 1998 the Tulloch rule was overturned by the D.C. Circuit Court on the grounds that the Corps had exceeded its authority in adopting the Tulloch rule. The court stated that Section 404 was clearly intended to regulate the addition of dredged or fill materials, and not their removal. The Corps and several environmental groups appealed the ruling, but the decision of the lower court was upheld in 1998 twice by federal appeals court decisions. The appeals court further admonished the Corps and the EPA that if they believed that they needed to regulate the removal of materials in wetlands, the appropriate remedy was congressional action, not arbitrary regulation. The Corps and the EPA declined to pursue the issue with the Supreme Court.

SECTION 401.

Section 401 of the Clean Water Act empowers the states to approve, condition, or deny a permit or activity approved by the Army Corps of Engineers by refusing to issue "401 certification," that is, the state's concurrence with the project. Congress granted the states this authority because of state complaints that their objections to massive Corps and other federal projects were not considered, and that these federally approved projects were often not in the best interests of the state.

No 404 permit may be issued by the Corps without 401 certification or waiver of the certification by the state. The 401 certification applies not only to Section 404 permits issued by the Corps, but also to any application for a federal license or permit that might result in discharge of any type to navigable waters. In some states, Section 401 authority forms the basis for all state activities to protect wetlands.

Swampbuster Program

The Swampbuster provision of the 1985 Food Security Act (PL 99–198), as amended by the Food, Agriculture, Conservation, and Trade Act of 1990, withholds federal farm program benefits, such as price supports, special loans, disaster relief, crop insurance, and conservation easements, from any person who:

  • Plants an agricultural commodity on a converted wetland that was converted by drainage, dredging, leveling, or any other means after December 23, 1985
  • Converts a wetland for the purpose of or to make agricultural commodity production possible after November 28, 1990

Farmers are asked to report on whether they plan to or have altered any "wet area" when they apply for their farm benefits. The Natural Resources Conservation Service assists farmers in making wetland determinations with regard to the Swampbuster program.

The 1996 Farm Bill

The 1996 Farm Bill (PL 104–105) reauthorized one program, the Conservation Reserve Program, and created a new program, the Wetlands Reserve Program. The two programs are designed to protect and restore wetlands.

WETLANDS RESERVE PROGRAM.

The Wetlands Reserve Program (WRP) is a voluntary USDA program created by the 1996 Farm Bill and has been implemented in forty-nine states. The program provides farmers with financial incentives, such as fair market price for land, to retire marginal farmland, and in many cases, restore and protect wetlands. According to a September 2004 USDA fact sheet, the program had enrolled a total of 1.47 million acres. Retiring cropland through the WRP has benefited the recovery of threatened or endangered species, as well as protected wetlands. The WRP was reauthorized under the Farm Bill of 2002 and is to extend through 2007.

CONSERVATION RESERVE PROGRAM.

The Conservation Reserve Program (CRP) was originally authorized in the 1985 Farm Bill as a soil conservation strategy that included paying farmers to retire marginal cropland from production for ten years. Its political support came from its potential to reduce expensive crop surpluses. Under the Conservation Reserve Program the Farm Service Agency pays farmers to plant over their cropland with natural vegetation. Unlike the Wetland Reserve Program, farmers do not have to permanently retire their land under this program, but instead can do so for ten-year intervals. As a wetland protection and restoration strategy, the program has been successful beyond anyone's expectations. Many thousands of acres of cropland have been restored to a natural state that in many cases includes wetlands.

The CRP was reauthorized in the 2002 Farm Act, extending the program through 2007. According to a September 2004 USDA report on the Conservation Reserve Program, more than thirty-four million acres of cropland have been retired through the program.

State Programs

Many states have enacted their own state laws to protect wetlands. These laws may complement or be more stringent than federal regulations. For example, Maryland has had state laws to protect tidal wetlands since the early 1970s. In 1989 Maryland adopted its Nontidal Wetlands Act to provide the same protections to freshwater wetlands.

In addition to using their Section 401 authority, states have included wetland protection in their water quality standards, passed laws protecting ecologically important wetlands such as the Dismal Swamp in Virginia and North Carolina, established mitigation banking, and created public education programs to increase public awareness of the value of wetlands. Several states have set up special funds to buy important wetlands.

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