America's Wetlands in Danger
Legal Loophole Leaves "Isolated" Wetlands in Peril, Says New Report
Editor's Note on Isolated Wetlands: In January 2001, the U.S. Supreme Court ruled that federal officials
cannot protect landlocked ponds, wetlands, or mud flats when their only connection to navigable waters is
by way of migratory birds. However, in many districts, the Corps of Engineers is allowing the draining and
filling of these areas without evaluating the benefits they may provide by being connected to nearby navigable
waters, most notably in our region through groundwater. It is well known that water below the ground surface
provides an important source of supply that supplements surface water and replenishes aquifers. Especially
during droughts, groundwater dispersed from isolated wetlands can help support the wildlife habitat of larger
wetland areas that remain protected under the Clean Water Act. The following article explains more about the
importance of these areas and why protecting them is critical.
It is estimated that thousands of acres of isolated wetlands have been unjustifiably lost due to incorrect
application of the court ruling. We urge you to voice your concerns about protecting isolated wetlands by
contacting elected and appointed officials in Atlanta, Savannah, and Washington. Please call the Center for
further information.
A new report from two of the nation's leading environmental groups warns of serious threats to people and
wildlife stemming from a 2001 Supreme Court decision narrowing thescope of federal environmental protection
for the nation's wetlands.
The National Wildlife Federation (NWF) and the Natural Resources Defense Council (NRDC) say the ruling invites
the destruction of millions of acres of so-called isolated wetlands, eliminating their important role in
providing flood control, natural waterpurification and essential wildlife habitat.
The report, Wetlands at Risk: Imperiled Treasures, details the vital role played by isolated wetlands across
all regions of the country, highlighting the important functions at risk.
The report calls for federal legislation to clarify Congress' view that the protection of isolated wetlands
is critical to water quality, public safety, wildlife and other public interests, including hunting and
fishing
and that the Clean Water Act protects isolated wetlands and other waters.
The clarification is essential because tens of thousands acres of wetlands of all types continue to be lost
each year in spite of Clean Water Act protections.
"America can't afford to squander all the benefits these wetlands provide," said Julie Sibbing NWF's wetlands
legislative representative. "The court may have opened the door to misguided wetlands destruction, but
Congress can shut it again."
Isolated wetlands get their designation from their lack of a direct surface connection to other water bodies,
though they are critically necessary to the healthy functioning of the overall ecosystem.
Because isolated wetlands are often small or may exist only for a short period each year, their importance is
often not appreciated by policy makers and the public. The lack of awareness of their environmental importance
makes isolated wetlands especially vulnerable to loss through development.
Congress included protections for wetlands in the 1972 Clean Water Act. However, in January 2001 a divided
Supreme Court held that a federal agency had exceeded its regulatory authority under the law when it tried to
block construction of a landfill site that would destroy some 17 acres of seasonal ponds that provide habitat
for hundreds of migratory birds. (Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of
Engineers) The court held that habitat protection for the birds was not enough to warrant government
jurisdiction over the ponds and raised the question whether the Clean Water Act protects "non-navigable,
isolated, intrastate" waters.
The court's ruling has created confusion by leaving open to interpretation the question of which wetlands
are in fact "isolated."
Some have read the decision to mean that isolated wetlands - possibly comprising as much as 30 percent of
America's wetlands are, in fact, excluded from protection under the Clean Water Act. [This includes many in
Georgia, thanks to the Savannah District Corps of Engineers.]
Under the Clean Water Act, the Environmental Protection Agency has the primary responsibility for protecting
the nation's waters. In the absence of clear guidance from EPA interpreting this ruling, U.S. Army Corps of
Engineers district offices across the country are taking widely varying approaches to jurisdictional
questions, in some instances declining to protect waters that are still covered by the Clean Water Act.
In addition to supporting new legislation, NWF and NRDC are urging the Bush administration to act quickly
and definitively to ensure that federal agencies fully understand the limits of the court's ruling and their
inherent responsibility to safeguard the nation's water resources.
"The Supreme Court's ruling makes the future uncertain for millions of acres of wetlands, but the Bush
administration can clear up the confusion," said Daniel Rosenberg, and attorney with NRDC's Clean Water
Project. "It all depends on how the administration views wetlands, either as natural treasures worthy of
protection or as places best suited for landfills, strip malls, parking lots, and subdivisions."
© 1996-2002 National Wildlife Federation. All rights reserved. Approval for reprinting granted to the Center
by special request
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