Developments in Wetland Protection

under the Clean Water Act

Mark Ostendorf

Outline Background The Clean Water Act

Section 404 Mitigation Banking

Important Court Cases Current Developments

Clean Water Restoration Act (Bill) Wetlands Conservation Investment Act (Bill)

Defining a Wetland Properties of a Wetland

Hydrology Hydric Soils Adapted Vegetation

Areas saturated or inundated by water with relative frequency and duration and is able to support adapted vegetation Marshes, swamps, bogs, fens…

Function of Wetlands Prevent Erosion Slow Flooding Filter Sediment and Pollution Diverse Habitat

The Environmental Movement Silent Spring—Rachel Carson (1962) By the 1970’s, the public had become

increasingly aware of its affect on the environment

Passage of several environmental regulations National Environmental Policy Act of 1969 Clean Air Act of 1970 Endangered Species Act of 1973

CWA Legislation Federal Water Pollution Control

Amendments of 1972

Clean Water Act of 1977

Water Quality Act of 1987

Clean Water Act of 1972 Original objectives

Elimination of pollution discharges Protection of wildlife for recreation Control of Toxic Pollution Establish waste treatment facilities

In General Regulate discharges into “navigable waters of

the United States”

Establishing CWA “Waters” Defense Council (NRDC) v. Calloway 1975

“navigable waters” could actually incorporate navigable waters, their tributaries, and wetlands

United States v. Riverside Bayview Homes 1985 CWA covers waters adjacent to US waters

Section 404 of CWA “Dredge and Fill” Permit

Discharge of dredge and fill material into waters of the U.S.

Administrating agencies: U.S. COE EPA

Section 404 Permitting A Feasible Alternative is Not Available Nation’s Waters Not Significantly

Degraded Conditions:

Avoid wetland impacts Minimize potential impacts Compensate for unavoidable impacts

Mitigation Banking

Emerging Market Solution Wetlands dredged or filled under Section

404 require compensation for unavoidable impacts Mitigating wetlands somewhere onsite or

nearby Mitigation Banking

Compensating for removed wetlands offsite with a crediting system

Mitigation Banking Result of “No Net Loss” policies under

Bush, Sr., administration Bank - restore, create, enhance or

preserve wetlands to offset development elsewhere Also maintain wetland quality

Credits are purchased by developers Consolidation of smaller wetlands into

larger wetlands

Mitigation Banking Advantages

Development no longer required onsite Cost to the individual developer Credits can be purchased BEFORE

development Disadvantages

Failure Rate Loss of biodiversity in smaller wetlands Size and Distribution are both important

Recent Court Cases Solid Waste Agency of Northern Cook

County (SWANCC) v. COE 2001 Migratory Bird Rule overturned CWA does not cover isolated waters

Rapanos v. COE 2006 CWA does not cover waters with temporary

water flow CWA does not cover waters without a direct

connection to US waters

Impact Fewer Waters Covered by CWA and

Section 404 Some Wetlands are not navigable or directly

connected to other water bodies Fewer wetlands requiring mitigation

Reaction Introduction of bills addressing wetlands

Clean Water Restoration Act Wetlands Conservation Investment Act

Responses in Congress Clean Water Restoration Act of 2009

Introduced in the Senate Sent to committee Meant to restore CWA to its state prior to

SWANCC and Rapanos Intent: To clearly define “waters of the U.S.”

Key Provisions The term “Navigable” would be stricken

from the CWA To return the authority lost after the

SWANCC and Rapanos decisions Further Defining “Waters of the U.S.”

All interstate waters and all intrastrate waters Exemptions from previous CWA unchanged

Mitigation Banking Wetlands Conservation Investment Act

Introduced in House and Senate September and December 2009

Sent to Committee To incorporate wetland mitigation credits into

Internal Revenue Code.

Provisions Adds capital gain or loss treatment of the

sale or exchange of mitigation credits earned by restoring wetlands

Amends Income Tax Code

Conclusions Clean Water Restoration Act

Opponents: State and local rights, property rights

Partisan disagreement Wetlands Conservation Investment Act

Subject to less attention and disagreement Bipartisan support for mitigation banking in the

past

Conclusions Legislation Clarifying Wetland Regulation

is needed

Direction depends on passage of bills

The End

Selected References Bosselman, F. (Summer 2009). Swamp swaps: the "second nature" of

wetlands. Environmental Law. 39:577. Retrieved Feb. 10, 2010 from Lexis-Nexis Academic Database

Clean Water Restoration Act (Apr. 2, 2009). 111th Congress, 1st Sessions.787

Natural Resources Defense Council v. Calloway (1975). Washington D.C. District Court. 392 F. Supp. 685.

Rapanos, J.A. et al. v. United States Army Corps of Engineers, et al. (2006). Supreme Court of the United States. 547 U.S. 715.

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001). Supreme Court of the United States. 531 U.S. 159

Stavins, R. (Jan. 27, 2010). Unintended Consequences of Government Policies: The Depletion of America’s Wetlands. Science and Technology News Forum. Ethiopian Review. Retrieved Feb. 10 from http://www.ethiopianreview.com/scitech/33286.

United States v. Riverside Bayview Homes, Inc. 474 U.S. 121 (1985) Wetlands Conservation Investment Act (2009). 111th Congress, 1st

Sessions. H.R. 3609 and S. 2876.