U.S. Tightens Loophole in Wetlands Protections

By Cat Lazaroff

WASHINGTON, DC, January 11, 2001 (ENS) - In the wake of a Supreme Court decision restricting wetland protections, the federal government moved this week to close a major regulatory loophole in the Clean Water Act. The new rules could save thousands of acres of wetlands.

On Tuesday, the Supreme Court ruled that the federal government does not have the authority to regulate the dumping of solid waste into small, isolated wetlands and ponds (see ENS story from January 9, 2001, "Good News, Bad News for U.S. Wetlands").

san clemente

Development, like these houses along San Clemente Creek in California, has destroyed thousands of acres of shoreline and streamside wetlands (Photo by Robert Campbell, courtesy Army Corps of Engineers)
Later that same day, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued a final rule that clarifies the types of activities that can harm wetlands, streams and other waters, and are therefore subject to Clean Water Act regulation.

The action will improve protection for tens of thousands of acres of environmentally valuable wetlands and other waters across the United States.

"The Clinton-Gore Administration is committed to protecting America's environment," said EPA Administrator Carol Browner. "Wetlands are essential to preserving clean and healthy water for all Americans. Unfortunately, due to a legal loophole that has been exploited, an additional 20,000 acres of wetlands have been lost in this country over the last two years. The action we take today strengthens the protection of these vital resources for future generations."

To protect wetlands, EPA and the Corps first clarified in August 1993 that Clean Water Act permits were required for any redeposits of dredged material associated with activities in wetlands and other jurisdictional areas. Referred to as the "Tulloch" rule, that definition was challenged by a number of trade associations and overturned in January 1997 by the U.S. District Court for the District of Columbia.

The Court determined that environmentally destructive activities such as diking and dredging do not require permits if they are conducted so as to result in only "incidental fallback" - described by the Court as material that falls back to about the same place as the initial removal.


Wetlands help prevent flooding in coastal areas (Two photos courtesy U.S. Environmental Protection Agency)
Affirmed in June 1998 by the U.S. Court of Appeals, the Court's decision left a loophole in the wetlands regulatory program. After the Court decision, upwards of 20,000 wetland acres were targeted for ditching, draining and destruction, and about 150 miles of streams were channelized.

The new wetlands rule issued Tuesday modifies the definition of "discharge of dredged material" to clarify what types of activities are likely to result in discharges that should be regulated. Included in the new definition are the use of mechanized earth moving equipment to conduct landclearing, ditching, channelization, in stream mining and other earth moving activity.

Exceptions will be provided when developers can show evidence specific to individual projects that the activity results in only "incidental fallback." The rule also provides a definition of "incidental fallback" that is consistent with the appeals court decision.

The final rule, initially proposed in August 2000, is expected to prevent the destruction of tens of thousands of acres of wetlands each year.

Since the late 1700s, over half the nation's wetlands have been lost to development and other activities. These losses are widespread as well - almost half of all states have lost more than 50 percent of their historic wetlands resources.

draining wetlands

Millions of acres of wetlands have been drained for agricultural irrigation
Federal environmental and natural resource agencies have committed to an annual net gain of 100,000 acres of wetlands beginning in 2005 through voluntary and incentive based wetlands restoration programs.

Wetlands are a collective term for marshes, swamps, bogs and similar wet land areas located between dry land and bodies of water. They are an invaluable part of the ecosystem, filtering and cleansing the nation's waters, helping to retain flood waters, harboring emerging fish and shellfish populations and supporting a diverse array of wildlife.

Destruction of wetlands can increase flooding and runoff potential, harm neighboring property, cause stream and river pollution, and result in the loss of valuable habitat.

Environmental groups hailed the new regulations.

"We are pleased that the Clinton Administration is continuing in its commitment to clean water," said Robin Mann, chair of the Sierra Club's national wetland committee. "This rule will hopefully remedy the 1998 ruling of the DC Circuit Court that led to increased assaults on our nation's wetlands."


Agricultural wetlands can filter runoff from crops and livestock paddocks, protecting water quality (Photo by Ron Nichols, courtesy U.S. Department of Agriculture)
But the EPA and the Corps emphasized that while the new rule is an important step to protect wetlands, there is no regulatory action that can fully close the loophole in the Clean Water Act. The Clinton Administration has called on Congress to strengthen the Clean Water Act and close the loophole completely.

The new regulation will likely face opposition from development groups. In August, when the rule was first proposed, Robert Mitchell, president of the National Association of Home Builders, said the administration is trying to circumvent the Tulloch court decisions on regulation of wetlands.

"The administration's decision is fundamentally flawed," Mitchell said. "Not only does it clearly circumvent and violate the spirit of three federal court decisions, it also exacerbates the current inefficiencies of the Corps' regulatory program. If the agencies believe that the Clean Water Act inadequately protects wetlands, they should turn to Congress, not illegally tinker with the law. Tulloch is not a 'legal loophole,' as the administration contends - it's the law of the land."

More information is available at: http://www.epa.gov/ow (click on "What's New")