Protecting Wetlands

Is the government doing enough?

The nation’s millions of acres of wetlands are valuable

natural resources. Ponds, lakes, swamps, bogs, bays

and marine estuaries not only shelter countless fish,

birds and animals but also filter pollutants from

water and soak up floodwaters. Since the United States was settled,

more than half of its wetlands have been lost, and crucial areas

like Louisiana’s coast and the Florida Everglades are eroding daily.

Although the U.S. is now gaining more wetlands every year than

it is losing, scientists say too many acres of crucially needed wetlands are still being lost. For several decades national policy has

called for protecting wetlands, but the powerful construction,

energy and agriculture industries say current environmental regulations make projects too expensive. Conservationists, sportsmen and

many state officials argue that stronger regulations are still urgently

needed. Meanwhile, recent Supreme Court decisions have intensified debate over how broadly the federal government can oversee

activities affecting wetlands.

I

N

S

I

D

E

THE ISSUES ......................795

BACKGROUND ..................802

CHRONOLOGY ..................803

CURRENT SITUATION ..........808

AT ISSUE ..........................809

OUTLOOK ........................811

BIBLIOGRAPHY ..................814

THE NEXT STEP ................815

THISREPORT

Herons and hundreds of other migratory bird species

thrive in the sprawling Prairie Pothole Region in the

upper Midwest, the most productive breeding 

habitat in North America for waterfowl.

CQResearcher

Published by CQ Press, a division of SAGE Publications

www.cqresearcher.com

CQ Researcher • Oct. 3, 2008 • www.cqresearcher.com

Volume 18, Number 34 • Pages 793-816

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD
794 CQ Researcher

THE ISSUES

795 • Does the Clean Water

Act protect most wetlands?

• Are federal agencies

doing enough?

• Does mitigation work?

BACKGROUND

802 Overlooked Resources

American settlers saw wetlands as useless swamps.

804 Early Conservation

President Theodore 

Roosevelt saved dozens 

of wetland tracts.

805 Exploitation to Protection

Development of water 

resources led to the 1972

Clean Water Act.

806 Legal Resistance

Supreme Court rulings affected wetlands protection.

CURRENT SITUATION

808 Which Waters?

Legislation seeks to clarify

protected waters.

810 Louisiana Sinking

Coastal marshes are the

most threatened wetlands.

811 Wetter or Dryer?

Global climate change is a

wild card for wetlands.

OUTLOOK

811 Valuing Wetlands

Americans value wetlands,

but less so when they impede construction projects.

SIDEBARS AND GRAPHICS

796 Despite Wetland Gains,

Concerns Remain

The quality of the wetlands

being saved worries environmentalists.

797 Forests Contain Most of

U.S. Wetlands

About 66 million acres of

wetland are in forests.

799 A Wetlands Glossary

800 ‘Duck Factory’ Nurtures

Waterfowl

The Prairie Pothole Region 

produces half the continent’s

waterfowl.

803 Chronology

Key events since 1890.

804 Why Wetlands Matter

They provide valuable

“ecosystem services.”

806 Complex Plans Aim to 

Restore Everglades

But politics and funding are

still obstacles.

809 At Issue

Should Congress pass the

Clean Water Restoration Act?

FOR FURTHER RESEARCH

813 For More Information

Organizations to contact.

814 Bibliography

Selected sources used.

815 The Next Step

Additional articles.

815 Citing CQ Researcher

Sample bibliography formats.

PROTECTING WETLANDS

Cover: U.S. Fish and Wildlife Service/Herb Stein

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Protecting Wetlands

THE ISSUES

On wet spring nights

across the Northeastern United States,

wood frogs and salamanders

go on the march. These amphibians spend most of their

lives buried in forest undergrowth, but they need to

breed in watery places where

no fish will eat their eggs. So

they migrate to vernal pools

— ponds that form during the

wet seasons and range from

a few feet to several acres

across. If all goes well, their

offspring will hatch and grow

large enough to breathe air before the pools dry up in summer. Some species, such as

fairy shrimp, spend their entire life cycles in the pools,

leaving eggs behind that stay

dormant through dry months

and hatch when the pools reappear a year later.

Vernal pools are wetlands — areas

where the soil is always or usually saturated with water and that support plants

and animals adapted to moist conditions.

Many states protect vernal pools because

they provide habitat for rare animals. For

example, in Massachusetts it is illegal to

dump materials into state-certified vernal

pools, install septic systems nearby or

cut down more than half of the trees

within a 50-foot radius. 1

Other wetlands play similar roles.

Estuaries (mixed salt- and freshwater

zones where rivers flow into the sea)

are among Earth’s most productive

ecosystems.

“Shallow marsh channels are important habitat for fish,” says Doug

Myers, science director of People for

Puget Sound, a Seattle conservation

group. “Chinook salmon rear their

young in estuarine deltas, coves and

lagoons in the Northwest. And birds

migrating along the Pacific Coast stop

to feed along the mud flats.”

Many wetlands that are far from

coastlines also are important. For example, lakes carved by glaciers across

the upper Midwest, known as prairie

potholes, are critical breeding and nesting areas for millions of ducks, geese

and other waterbirds. (See map, p. 800.)

Until the 1970s Americans widely

regarded wetlands as swampy places

that were useless unless they could

be drained or filled in. Before settlers

arrived, the continental United States

contained more than 220 million acres

of wetlands. Today less than half of

that area (107 million acres) remains. 2

Some of America’s most famous and

valued wetland areas, such as Florida’s Everglades and Louisiana’s Gulf

Coast, are also its most degraded.

For the past 20 years policymakers

have tried to prevent more net losses

of wetlands. President George

W. Bush raised the bar in 2004,

arguing that the United States

could achieve net annual increases by creating and restoring more acres than it developed. But environmentalists,

outdoor advocates and regulators say that not all wetlands

are equal, and that more action is needed to protect and

restore high-quality wetlands.

“We see a lot of threats to

wetlands around Puget Sound,

including urban growth, shoreline development and polluted

stormwater runoff from paved

areas,” says Myers. “It’s death

by a thousand cuts.” Nutrient

pollution from farms (excess

fertilizer and animal waste) and

septic systems washes into lakes

and bays nationwide, generating huge algae blooms that deprive aquatic organisms of sunlight and dissolved oxygen. 3

And many advocates fear

that recent U.S. Supreme

Court rulings limiting federal jurisdiction over wetlands have made some

more vulnerable to development.

Wetland protection affects a range

of industries that often excavate or

drain land, including commercial and

residential construction, agriculture, mining and energy. Under Section 404 of

the Clean Water Act, when a project

involves dredging or filling in the “waters of the United States” — a category that includes many wetlands — a

permit must be obtained from the U.S.

Army Corps of Engineers. The Corps

then must consult with the Environmental Protection Agency (EPA), which

has veto power over permit decisions.

This process can be lengthy and

expensive. A 2002 study of 103 permit

applications found that the average

general permit for lower-impact activities cost $28,915 to prepare and took

313 days to gain approval. Individual

BY JENNIFER WEEKS

Getty Images/David McNew

Condominiums and shopping centers encroach on the

Los Cerritos Wetlands near Long Beach, Calif. The 400-

acre site, which once covered 2,400 acres, is considered

vital for birds migrating on the Pacific Flyway.
796 CQ Researcher

permits for higher-impact projects cost

$271,596 on average and took more

than two years. 4 Developers who proceed without permits face civil penalties of up to $32,500 per day and criminal penalties up to $50,000 per day

plus three years in prison. 5

Many trade groups say they support reasonable wetlands protection

but that current standards are too broad

and the permitting process too cumbersome. “While [the permits’] environmental purposes are laudable, they

do add to the cost and delay the completion of the public and private infrastructure that literally forms the foundation of our nation’s economy,”

Associated General Contractors of

America CEO Stephen E. Sandherr told

the House Transportation and Infrastructure Committee in July 2007. 6

Contractors, growers and other such

groups would like to see the Corps

and EPA eliminate or limit federal protection for small, isolated and temporary wetlands.

But environmentalists argue that destroying wetlands could end up costing the country much more, because

wetlands provide billions of dollars

worth of ecological services that benefit the public. Often referred to as

“nature’s kidneys,” they filter out pollutants from water and trap suspended particles. They also absorb flood

waters and release them slowly, like

natural sponges. According to one estimate, wetlands cover less than 3 percent of Earth’s surface but provide up

to 40 percent of annual, renewable

ecosystem services such as purifying

water and cycling nutrients. 7

After Hurricane Katrina caused at

least $125 billion in damages along

Louisiana’s Gulf coast in September

2005, several studies indicated the storm

surge would have been lower if large

swathes of coastal wetlands had not

been obliterated by Mississippi River

flood-control projects and coastal oil

and gas development. 8 In 2007

Louisiana approved a master plan for

protecting and restoring its coast that,

if fully funded, is expected to cost

more than $50 billion and take up to

30 years to complete. 9

Since the 1980s regulators have used

a process known as “mitigation” (preserving, enhancing or creating wetlands to compensate for destroying

others) as a tool to balance wetland

conservation and development. Initially, owners who wanted to fill in

wetlands had to do mitigation projects

on the same site or nearby. To make

the process more flexible, however,

agencies developed mitigation banking, in which developers buy credits

from a wetland “bank” (acres restored

by a third party) to compensate for

acres that they drain or alter.

The National Mitigation Banking Association, a trade group, calls mitigation banking “a unique concept . . .

that unites sound economic and environmental practices.” 10 But skeptics

say the process often helps developers rather than maximizing the quality

of U.S. wetlands.

“If a developer fills in wetlands for

an urban project and restores something 50 miles away, flooding may be

caused in the city where the wetlands

used to be. There’s no net loss of

wetlands, but you have a big loss of

[ecological] value” says Jon Kusler, associate director of the Association of

State Wetland Managers (ASWM).

As scientists, government officials

and business leaders debate how to

balance wetland protection with development, here are some issues they

are considering:

PROTECTING WETLANDS

Despite Wetland Gains, Concerns Remain

In the last half-century, the nation has gone from losing nearly half 

a million acres of wetlands a year to a net annual gain of 32,000 

acres a year from 1998-2004. The quality of the new wetland, 

however, worries many environmentalists. They note, for example, 

that while there were significant gains in freshwater ponds, crucial 

intertidal wetlands (mainly deepwater bay bottoms and open 

ocean) declined by about 4,740 acres a year.

Source: T.E. Dahl, “Status and Trends of Wetlands in the Conterminous United 

States 1998 to 2004,” U.S. Fish and Wildlife Service, December 2005

Average Annual Net Wetland Gain/Loss for the

Lower 48 States, 1954-2004

-500,000

-400,000

-300,000

-200,000

-100,000

0

100,000

1950s-1970s 1970s-1980s 1980s-1990s 1998-2004

-458,000

-290,000

-58,550

32,000

(in acres)
Available online: www.cqresearcher.com Oct. 3, 2008 797

Does the Clean Water Act protect

most wetlands?

Like other keystone environmental

laws, the 1972 Clean Water Act (CWA)

sought to create clear national standards for environmental quality instead

of leaving most responsibility to the

states. 11 But environmental groups and

industry have argued for years over

which wetlands fall under federal control. Conservationists say that most wetlands play important ecological roles

and should be protected. Businesses

counter that federal jurisdiction expanded in the 1980s and ’90s to include unimportant wetlands that Congress never intended to regulate. State

and local regulators are often caught

in the middle.

Initially the Corps of Engineers interpreted the CWA’s limits on discharging dredged or fill material into

“navigable waters” narrowly, applying them only to bodies such as

rivers and canals that could be used

for interstate commerce. However, a

federal court ruled in 1975 that the

law covered all U.S. waters within

the scope of Congress’ constitutional power to regulate under the Commerce Clause. 12 In response, the

Corps rewrote its regulations to also

cover possible construction or degradation affecting tributaries of navigable waters, plus wetlands such as

prairie potholes, mud flats and

sloughs, “which could affect interstate commerce.” 13

The Supreme Court addressed the

issue in its 1985 Riverside Bayview

Homes, Inc. v. United States ruling, which

affirmed that Congress could regulate

wetlands adjacent to navigable waters.

Since water flowed between these systems, the opinion reasoned, activities

that harmed the wetlands could also

impair the navigable waters. 14

But in a seminal 2001 case, Solid

Waste Agency of Northern Cook County

[SWANCC] v. U.S. Army Corps of Engineers, the high court held that federal

jurisdiction did not cover certain isolated wetlands the Corps had sought to

protect because they were used or could

be used by migratory birds. (The Corps

had said the wetlands were important

to interstate commerce because people

traveled to view and hunt the birds.) 15

Chief Justice William H. Rehnquist’s

majority opinion found “no persuasive

evidence” that Congress intended to

regulate “non-navigable, isolated, intrastate waters.” This wording suggested to some observers that other wetlands, regardless of whether they were

suitable for birds or not, might fall outside federal protection as well.

“The Rehnquist court took the case

intending to write a constitutional decision that limited Congress’ power under

the Commerce Clause,” says Vermont

Law School Professor Patrick Parenteau.

“They couldn’t muster five votes for that

position, so they fell back to a vague

statutory decision. Ever since, there’s

been a battle over whether SWANCC

really announced new, limited principles of constitutional authority.”

In the wake of SWANCC, many

regulators and state courts assumed that

small, isolated wetlands lying entirely

within one state fell beyond federal

protection but that most other types

were covered. “People weren’t regulating everything they had before, but

coverage was still pretty broad,” says

Kusler of the Association of State Wetland Managers. The Bush administration

proposed new guidelines in 2003 that

would have narrowed coverage but

Forests Contain Most of U.S. Wetlands

About 66 million acres — or 59 percent — of the 111 million acres of 

wetland in the United States are in forests. Another 22 percent are on 

agricultural and range lands. More than one-third of threatened and 

endangered species in the U.S. live only in wetlands, and half spend 

at least part of their lives there. Besides supporting wildlife, wetlands 

also control pollution and flooding, protect the water supply and 

provide recreation.

Note: Percentages do not add to 100 due to rounding.

Source: National Resources Inventory, Natural Resources Conservation Service, 2002

Wetlands by Land Use, 2002

Forest

59%

Crop, 

pasture and 

protected 

wildlife 

habitat 15%

Other 

rural land

14%

Rangeland

7%

Water area

3% Developed land

1%

CQ Press/Olu B. Davis
798 CQ Researcher

withdrew them after receiving thousands of critical comments. 16

Then in 2006 the Supreme Court

decided Rapanos v. United States, which

combined two cases involving tracts

in Michigan. 17 One case examined

whether the Corps could regulate wetlands next to a man-made ditch that

ultimately flowed into navigable waters. The other concerned a wetland

that bordered a tributary that ultimately flowed into navigable waters

but was separated

from the tributary by

a four-foot-wide

manmade barrier.

In a split verdict

(4-1-4), Justice Antonin Scalia and three

other justices concluded the Corps had

overreached in both

cases. Scalia argued

that “waters of the

United States” should

include only bodies

of water that were

relatively permanent,

such as streams and

lakes and wetlands

with a “continuous

surface connection”

to those waters —

but not wetlands that

had only intermittent

or distant physical

connections to U.S. waters. Four other

justices took the opposite position, supporting Corps jurisdiction in both cases.

Justice Anthony Kennedy took a

middle stance, rejecting the Corps position but with a perspective different

from Scalia’s. Kennedy proposed a

case-by-case approach for determining federal jurisdiction, based on

whether wetlands had a “significant

nexus” to traditional navigable waters.

A wetland met this test if it significantly affected the chemical, biological or physical quality of navigable

waters, either alone or in combination with other wetlands.

Given the split verdict, legal doctrine dictated that Kennedy’s opinion

was the controlling guideline for

lower courts because his concurrence

provided the fifth vote for vacating

lower court decisions that had supported the Corps.

Property-rights advocates praise Rapanos for putting overdue limits on

federal wetland controls. “The decision told federal regulators that they

just can’t regulate everything,” says

Russ Harding, director of the property rights network at Michigan’s Mackinac Center for Public Policy and a

former state environmental regulator.

“It was a good decision, but I would

have hoped for a brighter line and

more clarity about what is subject to

federal authority.”

The decision alarmed conservationists, who worry it will worsen ongoing losses of isolated wetlands. “We’re

very concerned about how many wetlands are losing federal protection,”

says Scott Yaich, director of conservation operations for Ducks Unlimited, a sportsmen’s group that works to

protect waterfowl habitat. “EPA and

the Corps interpreted SWANCC to remove 20 million acres of wetlands

from jurisdiction under the Clean Water

Act. The Corps’ post-Rapanos guidance

removes up to 60 million acres from

federal control.”

All sides agree that recent Corps guidance, intended to translate abstruse Rapanos terms like “significant nexus” and

“relatively permanent waters” into policy, has made the permitting process slower and more cumbersome.

According to the guidance, wetlands that meet

either the Scalia or

Kennedy tests fall under

federal jurisdiction. Moreover, Corps field offices

across the nation are interpreting the new rules

in different ways, says

Leah Pilconis, senior counsel at the Associated General Contractors of America. “Not knowing exactly

what is required and having decisions made inconsistently wastes time

and money in the construction process,” she

says. “It raises interest

costs, makes scheduling

harder and delays completion dates.”

The AGC and other

trade associations want the Corps to

narrow its criteria for determining federal jurisdiction and reduce paperwork

requirements. Scientists have a broader problem with the current approach:

They reject the idea that only some

wetlands have a “significant nexus” with

waters of the United States.

“Wetlands are all connected,” says

Joy Zedler, a professor of botany and

ecology at the University of Wisconsin, who chaired a 2001 National

Academy of Sciences study on wetland restoration. “The Supreme Court

is free to make non-science-based decisions, so it can say that wetlands

PROTECTING WETLANDS

Priscilla and Jeff Wilson wait out the flood in St. Charles, Mo. after the

Mississippi River inundated the Midwest last June. In 2005, after

Hurricane Katrina battered Louisiana’s coast, several studies indicated

the storm surge would have been lower if coastal wetlands 

had not been obliterated by Mississippi River flood control 

projects and coastal oil and gas development.

Getty Images/Joe Raedle
Available online: www.cqresearcher.com Oct. 3, 2008 799

have to be connected above the ground

to U.S. waters. But that position doesn’t

withstand scientific scrutiny, because

there are underground connections.

We can’t project into the future, because we don’t know how rainfall patterns will shift and where floodwater

patterns will flow. So it makes sense

to avoid damaging systems that may

be critically connected.”

Are federal agencies doing enough

to protect wetlands?

In terms of sheer acreage, federal

inventories show that the United States

has gained more wetlands than it has

lost in recent years — a net increase

of about 32,000 acres annually between 1998 and 2004. 18 (See graph,

p. 796.) The increase grew out of a

goal President Bush set on Earth Day

in 2004 of protecting, improving and

restoring or creating 3 million acres or

more of wetlands (at least 1 million

acres in each category) by 2009. The

White House Council on Environmental

Quality says the goal has been met

ahead of schedule, although Bush’s

targets do not reflect wetland losses

that occurred at the same time. 19

Critics say development and pollution are still destroying valuable areas.

For example, an investigation by The

St. Petersburg Times found that between 1990 and 2005 Florida lost 84,000

acres of wetlands to development.

Moreover, many replacement wetlands

that developers were required to create were expensive failures, and the

Corps rarely verified information in

permit applications or inspected wetlands after permits were approved. 20

“Peer-reviewed science is supposed

to be the determining factor in our permitting process, but it doesn’t translate

very easily into regulations,” says Jason

Lauritsen, assistant director of the

Audubon Society’s Corkscrew Swamp

Sanctuary near Naples, Fla. “The broader the scientific gaps are, the more politics can come into play, and decisions

tend to favor property owners.”

For years wetland advocates and

fiscal conservatives have called for reforming the Corps, which they say is

too committed to wasteful, large-scale

construction projects that often harm

the environment. 21 Many past Corps

projects, such as Mississippi River

flood control levees, have worsened

flooding by cutting off water and sediment flows from adjoining floodplains,

leaving these areas to dry out and

sink. This year EPA vetoed a $220 million Corps proposal to drain 67,000

acres of wetlands along the Yazoo

River in Mississippi in order to provide

flood control in a sparsely populated

rural area. 22

But critics concede that the Corps

is gradually becoming a better environmental steward and is carrying out

some valuable restoration projects. For

example, in the 1960s when the Corps

straightened Florida’s winding Kissimmee River — the headwaters of the

Everglades — it turned it into a 56-

mile canal and drained 30,000 acres of

wetlands in the process. Today the

Corps is restoring the Kissimmee’s meandering course and removing structures that controlled its flow. Although

the project is still under way, it has already improved water quality and tripled

bird counts around the river. (See sidebar, p. 806.) 23

“The Corps is greener than it was

10 or 15 years ago, although it’s hard

to say exactly how green,” says Kusler

of the State Wetland Managers AssoBog: A wetland ecosystem that is highly acidic and has an

accumulation of decomposed plants known as peat.

Carbon sink: A system that absorbs and stores carbon dioxide from the atmosphere. Forests, oceans and wetlands all can

act as carbon sinks.

Carbon sequestration: Storing carbon in a natural sink or

a geologic reservoir underground.

Dredging: Removing sediment from a channel to make it

deep enough for navigation.

Estuary: An environment where land, freshwater and seawater (saline) habitats overlap.

Levee: A raised embankment built to keep a river from

overflowing its banks.

Marsh: An environment where terrestrial and aquatic habitats overlap; a wetland dominated by grasses.

Mitigation: Actions that are undertaken to reduce the impact of an activity, such as buying credits from a wetland bank

to make up for wetlands that are filled in for development.

Mudflat: A muddy, low-lying strip of ground usually submerged, more or less completely, by the rise of the tide.

Peat: Organic material (leaves, bark, nuts) that has decayed

partially. It is dark brown with identifiable plant parts and can

be found in peatlands and bogs.

Salt marsh: Flat land flooded by tidal saltwater.

Saltwater intrusion: The invasion of freshwater bodies by

denser saltwater.

Swamp: A wetland with trees and shrubs.

Taking: A government action that deprives property owners of their rights, either by claiming the property for public

use or by passing regulations making it impossible for them

to develop the land.

Watershed: All the water that drains into a particular body

of water (stream, pond, river, bay, etc.)

Wetland: Land saturated with water and containing plants

and animals adapted to living on, near or in water.

A Wetlands Glossary
800 CQ Researcher

ciation. “It came to that role kicking

and screaming, but now it ranks restoration goals higher than it used to.”

However, he points out, Corps regulations still include many exemptions

for activities like draining wetlands, as

well as discharges of dredge-and-fill

material that occur in the course of

ongoing farming, ranching or forestry

activities (for example, plowing or maintaining drainage ditches). “The [Clean

Water Act’s] 404 program still isn’t doing

an adequate job,” Kusler contends.

Expert advisers like the National Research Council say the problem is

broader. In the council’s view, the

United States does not have a clear,

well-focused policy for managing water

resources. 24 Many federal and state

agencies share responsibility for water

issues, and their agendas often conflict. In these situations, the National

Academy of Public Administration observed, agencies make separate decisions about individual projects without

considering how these steps affect large

ecological systems like river basins. 25

Other agencies also shape wetland policy. The U.S. Fish and Wildlife Service

(FWS) manages national wildlife refuges

and promotes conservation on private

lands. As part of the 404 process, FWS

prepares “biological opinions” (BiOps)

assessing how proposed developments will affect the habitat of endangered or threatened species.

In Florida, the FWS has objected to

many proposed wetland development

permits. But in 2005 it fired biologist

Andrew Eller, who argued the agency

was using misleading data to make it

look as though the endangered Florida

panther — whose habitat is threatened by development — was at a

lower risk than it actually was. 26 In

response to a legal complaint, FWS

corrected its information and reinstated

Eller. Now, however, in at least some

cases the agency relies on developers

to provide data for BiOps. 27

“The standard set of questions on

404 permit applications was developed by FWS. Applicants fill it out,

and we analyze it,” says Bill Wilen, a

senior biologist with the service’s National Wetlands Inventory office. “It

saves FWS time and effort by highlighting potential impacts.”

Another FWS wetland initiative, conserving land in the prairie pothole region — Iowa, Minnesota, the Dakotas

and Montana — is falling short of the

agency’s goals because land prices are

rising. Since 1959 FWS has acquired or

protected about 3 million acres of wetlands and grasslands in the area, which

provides nesting and breeding habitat

and stopover space during migration

for hundreds of species of birds. In

2007 the Government Accountability

Office (GAO) reported that while FWS

was managing these lands effectively,

at the current pace it would take the

service until 2050 to reach its target of

protecting 12 million acres.

Most options for speeding up the

process require congressional approval,

however. For example, Congress could

raise the price of the federal Duck

Stamp that hunters must purchase, which

has been $15 since 1991. It also could

appropriate more money from Treasury’s

Land and Water Conservation Fund,

which helps pay for acquiring land, water

and wetlands. 28

According to biologist Wilen, FWS

agrees with GAO’s conclusions. “We

have very sophisticated models that

help us decide where we’d like to purchase land, and we prioritize so we

can get the best bang for the buck.

FWS wants to get it done, but right

now we just don’t have the cash to

go faster,” he says.

PROTECTING WETLANDS

‘Duck Factory’ Nurtures Waterfowl

The Prairie Pothole Region — also known as the “Duck Factory” of 

North America — produces more than half the continent’s waterfowl. 

Created by retreating glaciers 12,000 years ago, the 300,000-squaremile region once contained 25 million wetlands, or about 83 sites per 

square mile — a density unmatched anywhere in North America.

Source: U.S. Fish and Wildlife Service, Kulm Wetland Management District, Kulm, N.D.
Available online: www.cqresearcher.com Oct. 3, 2008 801

Rising oil and food costs

and expanding biofuels production have been driving

up land prices, making it

harder to protect wetlands. 29 World oil prices

are projected to average

$116 per barrel in 2008,

up from $72 in 2007, triggering price hikes for agricultural commodities because the fertilizer used

to grow them is made

from fossil fuels. 30 At the

same time, the U.S. and

other industrialized nations

are scaling up production

of biofuels made from plants

to reduce their reliance on

imported oil. Using grain

— mostly corn — to make

fuel also drives up prices

for commodities.

Rising grain prices drive

farmers to plant more crops

on marginal acres — including land formerly enrolled in the Agriculture

Department’s Conservation

Reserve Program (CRP),

which pays farmers to set

environmentally sensitive

land aside as wildlife habitat. About 34 million acres

are protected under the CRP, or just

under 10 percent of U.S. cropland. More

than 400,000 acres were converted to

cropland in North Dakota alone in 2007.

31 “Conservation is in for a long swim

against a strong current,” said Jim Ringelman, conservation director in the

Prairie Pothole Region for Ducks Unlimited. 32

Does mitigation work?

Since thousands of acres of wetlands are developed each year, the

only way to prevent net losses is to

restore, improve or create more acres

of new wetlands. This process, known

as mitigation, has become central to

the wetland permitting process. Many

experts say that mitigation done correctly can improve the environment

and that the process is improving with

advances in wetland science. But critics reply that it creates too many easyto-build, low-value wetlands. To work

well, they argue, mitigation should replace not only lost acres but the specific functions of natural wetlands.

In the 1970s and ’80s the Corps

and EPA required developers to avoid

damaging wetland functions, minimize

damage or replace these functions onsite or nearby. These conditions also

applied to farmers who converted wetlands to cropland after 1985 under the

Swampbuster program, which restricts

wetland drainage for agriculture.

On-site mitigation

makes work harder for

builders, who have to work

around wetlands, and farmers who cultivate all of their

acres. “If their holdings are

already farmed, mitigating

on site just means trading

one wet spot for another,”

says Rick Robinson, environmental affairs director

for the Iowa Farm Bureau

Federation (IFBF).

Many field studies in the

1980s and ’90s found that

mitigation projects required

under the 404 program

were not meeting their targets, and that some were

never finished. According

to a 2001 National Research

Council report, only 70 to

76 percent of the mitigation required in studies it

reviewed was implemented, and half did not meet

permit requirements. The

committee concluded that

“there is a substantial net

loss in wetland area from

the wetlands permitting

program,” and that wetlands that were built had

low value. 33

Under pressure to make permitting more flexible, federal and state

agencies developed “mitigation banking,” in which bank operators create

or restore “banks” of wetlands and

sell mitigation credits to customers

seeking wetland development permits. This approach sought to make

permitting more efficient, concentrate

more resources on large land parcels

and allow regulators to target important wetlands for restoration or

improvement. *

* Mitigation banking is similar to pollution

credit programs, which allow industrial polluters to buy unused pollution credits from

non-polluters.

Central Florida’s once-meandering Kissimmee River is being

“unstraightened” as part of the $10 billion Everglades restoration

project. The U.S. Army Corps of Engineers channelized the river

in 1971 to control periodic flooding, but the project dried out

thousands of acres of critical habitat and deprived the 

Everglades of seasonal water supply. Remnants of the river’s

winding path can be seen next to a straightened section.

Aurora/Getty Images/Peter Essick
802 CQ Researcher

Starting in the early 1990s, mitigation banking became an active market.

By 2005 the Corps estimated that some

450 mitigation banks were operating across

the country, with more planned. 34 Some

were run by private companies, others by government agencies with major

mitigation responsibilities, such as state

transportation departments, or conservation groups. Credit prices ranged from

as low as $4,000 per acre in rural areas

to $100,000 or more in urban or suburban areas. 35

“Environmentalists should love mitigation banking,” says the Mackinac Institute’s Harding. “On-site mitigation isn’t

very effective because it tends to produce lots of small isolated wetlands that

are expensive to create. Banking lets developers move ahead with projects more

quickly and creates new viable habitat.”

In addition, states typically do not allow

banks to sell most of their credits until

they actually carry out their wetland projects. And bank owners retain long-term

responsibility for the health of their wetlands, even after they sell the restoration credits, so they have a financial interest in creating viable wetlands. 36

To help farmers meet Swampbuster

requirements, the Iowa farm bureau

created the first mitigation bank in the

state in 2002, working with the state

Department of Natural Resources (DNR).

The bank, located in prairie pothole

territory, converted 70 acres of corn

and soybean fields into wetlands and

has sold most of its available credits

for roughly $14,000 apiece. 37

“It’s been going very well,” says

Robinson. “Agriculture isn’t where the

big mitigation banking money is, because farmers have smaller environmental impacts than developers and

less money to pay, but we’ve had

overwhelming interest from farmers.”

But Audubon’s Lauritsen sees flaws

in the process in Florida. “If you develop a wetland that was wet for three

months of the year, mitigation banking doesn’t make you replace it with

one that is also wet for three months

each year. That has an ecological impact on wildlife,” he argues. “We need

better techniques for recognizing the

functions of different types of wetlands and recovering what we’ve lost

— especially shallow wetlands, which

are the easiest to drain and build on.”

Better site selection would help, Lauritsen says. “There’s a lot of promise in

mitigation banking done the right way,”

he says. “We have a lot of agricultural

property, planted with citrus and row

crops, which still has wetland soil and

is flooded in the spring before the pumps

are turned on. You could restore those

properties without spending a lot of

money, and produce a lot of dividends.”

According to the most recent FWS

inventory, there was a net loss of many

important types of wetlands between

1998 and 2004, including salt marshes

and mangrove forests. They were replaced mainly by freshwater ponds,

which increased by almost 700,000 acres

(12.6 percent), due mainly to the creation of artificial ponds for purposes

such as stormwater control or decorative landscaping. “These ponds are not

an equivalent replacement for vegetated wetlands,” the FWS notes. 38

“Ponds are popular because they’re

easy. If you excavate in a wet place,

you’ll get plants and animals living there,”

says the University of Wisconsin’s Zedler.

“Other types like sedge meadows that

are wet in some seasons and dry in

others are harder to achieve. But ponds

are simple systems, and they don’t provide all of the ecological services that

we’re losing.”

Although mitigation can be useful,

many wetland advocates say, they see

little value in a no-net-loss goal unless the focus shifts from quantity to

quality. “Saying that it’s OK to trade

prairie potholes for stormwater retention basins is like making farmers

trade their pickup trucks for compact

cars and telling them that they haven’t

had any net loss of transportation,”

says Yaich of Ducks Unlimited. “They

wouldn’t be happy.”

BACKGROUND

Overlooked Resources

F or most of the nation’s history,Americans have viewed wetlands

as worthless. Settlers saw wetlands,

loosely referred to as mires, fens or

swamps, as insect breeding grounds

that impeded travel and farming.

Starting in the 1820s, the Army

Corps of Engineers dammed and

dredged many productive marshes and

bottomlands (river flood plains) to improve navigation on U.S. rivers. Under

the Swamp Land acts of 1849, 1850

and 1860, Congress transferred more

than 64 million acres categorized as “wet

and unfit for cultivation” to 15 states,

mostly in the South and Midwest, to

allow the land to be drained for flood

control and agriculture. Many of the

tracts ended up in private hands or

were given to railroad companies. 39

Port development in San Francisco,

Seattle and other cities led to the diking

and filling of coastal marshes.

Contrary to their image, natural wetlands teemed with life. Marshes around

the Chesapeake Bay supported fisheries

that produced millions of pounds of crabs

and oysters yearly in the late 1800s.

Prairie potholes — then called sloughs

— across the upper Midwest were rich

nesting and feeding grounds for birds.

Little House on the Prairie author Laura

Ingalls Wilder, whose family homesteaded

in South Dakota in the 1880s, described

bird life on a nearby marsh:

“Millions of rustling grass-blades

made one murmuring sound, and thousands of wild ducks and geese and

herons and cranes and pelicans were

talking sharply and brassily in the wind.

All those birds were feeding among

the grasses of the sloughs. They rose on

flapping wings and settled again, crying

PROTECTING WETLANDS

Continued on p. 804
Available online: www.cqresearcher.com Oct. 3, 2008 803

Chronology

1890-1900s

Conservationists protect some

wetlands, but many are lost.

1890

Congress gives Army Corps of 

Engineers control of dredging and

filling “navigable waters.”

1905

Florida begins draining Everglades

for agriculture and development.

•

1930s-1940s

Wetland conservation efforts expand, along with development.

1934

Congress authorizes Duck Stamps

to fund wetlands conservation.

1936

Agriculture Department begins

helping farmers drain wetlands.

1948

After disastrous floods, Congress

permits water to be channeled from

the Everglades for flood control.

•

1960s-1980s

Wetland protection expands.

1969

National Environmental Policy Act

requires impact studies for major

federal projects, such as dams.

1972

Clean Water Act gives Corps of Engineers responsibility for regulating

development in wetlands. . . .

Coastal Zone Management Act

seeks to protect coast areas.

1973

Endangered Species Act restricts

development of wetlands.

1977

President Jimmy Carter orders federal

agencies to minimize wetland loss.

1980

Environmental Protection Agency

(EPA) embraces concept of saving

some wetlands to compensate for

destroying others.

1985

Swampbuster program eliminates

subsidies for farmers who convert

wetlands for agriculture. . . .

Supreme Court rules in U.S. v.

Riverside Bayview Homes that the

Corps can regulate wetlands adjacent to navigable waters.

1987

National Estuary Program directs EPA

to protect important coastal bays.

1988

President George H. W. Bush endorses “no net loss” of wetlands

as national policy.

1989

Louisiana sets aside oil revenues

for coastal restoration.

•

1990s-Present

Politicians support wetlands,

but property-rights advocates

and industry argue federal

controls are too broad.

1990

Congress calls for a plan to restore

Louisiana’s coastal wetlands.

1995

U.S. House requires government

compensation if endangered species

or wetlands regulations reduce

landowners’ property values by

more than 20 percent.

2000

Comprehensive Everglades Restoration Plan is launched.

2001

In SWANCC v. U.S. Army Corps of

Engineers, Supreme Court restricts

the Corps’ jurisdiction to navigable

waters, their tributaries and adjacent

wetlands.

2002

Louisiana and the Corps propose

a $14 billion coastal restoration

plan. Bush administration downscales it drastically.

2004

President George W. Bush pledges

to increase overall wetlands

acreage annually.

2005

Hurricanes Katrina and Rita destroy

some 240 square miles of coastal

wetlands in Louisiana and Mississippi.

2006

In divided verdict, the Supreme Court

proposes a “significant nexus” test to

determine whether isolated wetlands

are connected to navigable waters.

2007

President Bush vetoes a $23 billion

water bill, which includes funds

for Everglades and Louisiana

coastal restoration.

2008

Heavy spring rains cause record

flooding along the Mississippi

River; Hurricanes Gustav and Ivan

cause further flooding and property damage along Gulf Coast. . . .

Florida announces plans to buy

187,000 acres of the Everglades

from U.S. Sugar Corp. for $1.75

billion to aid restoration efforts.
804 CQ Researcher

news to each other and talking among

themselves among the grasses, and eating busily of grass roots and tender

water plants and little fishes.” 40

After the Civil War, the Corps took

on new responsibility for flood control

and regulation of dumping and filling

in harbors. In 1899 the Rivers and Harbors Act required developers to obtain

a permit from the Corps for any activity that would excavate, discharge

material into, or obstruct “navigable

waters,” including coastal waters, lakes,

rivers and streams. The Corps’ main

focus, however, was construction, not

conservation. 41

States promoted wetland development

by creating so-called drainage districts,

or local groups with the power to issue

bonds, drain land for approved uses and

tax all landholders who benefited from

this service. Many Midwestern districts

installed massive drain-tile systems using

underground networks of ceramic pipes

that channeled water away from fields

to drainage ditches and streams. By

1935, farmers in Illinois had installed

enough drain tiles to circle the world

six times. 42 “Michigan wouldn’t have

been settled if it hadn’t been drained,”

says the Mackinac Institute’s Harding.

Early Conservation

By the early 20th century, conservation advocates were campaigning to save important natural resources

from over-hunting and development.

They found a friend in President Theodore

Roosevelt, who used his executive power

PROTECTING WETLANDS

Over the past several decades, U.S. laws and regulations have become more protective of wetlands in

recognition of the billions of dollars worth of valuable “ecosystem services” they provide by nurturing wildlife,

protecting against storms and serving as “nature’s kidneys.” 1

Depending on a wetland’s type and location, these services

may include:

Supporting wildlife — Wetlands provide habitat and feeding grounds for animals, birds, fish and shellfish. About threequarters of the fish and shellfish harvested commercially in the

United States depend on coastal estuaries for shelter at some

point in their lives, such as spawning or growth before they

migrate to open waters. 2 U.S. commercial fisheries generate

roughly $25 billion in annual revenues for fishermen, processors and distributors. 3 In April 2008 the Commerce Department declared that the West Coast salmon industry had collapsed because historically low numbers of salmon were returning

from the oceans to spawn; scientists said loss of freshwater

habitat was a factor. 4

Many species of shorebirds feed or nest in wetlands, including tidal mudflats, beaches and freshwater marshes. These

areas are crucial stops for millions of birds that migrate north

and south along the Atlantic and Pacific flyways, including some

that travel to Central America or the Caribbean in winter and

to Alaska and Canada in summer. Other species that travel up

through the central United States depend on flood plains along

the lower Mississippi River or prairie potholes in the upper

Great Plains.

Cleaning up the water — Plants slow water down as it

flows through wetlands, which causes dirt and other particles

to settle out and sink to the bottom. Many types of microorganisms in wetlands, such as bacteria and algae, break down

dead organisms and wastes. Wetland plants take up excess nutrients, such as nitrogen and phosphorus from farm runoff, that

otherwise would contribute to algae blooms and create “dead

zones” in the water. So-called constructed (artificial) wetlands

are often used to filter and clean polluted water from farms,

homes and commercial developments.

Controlling floods — Wetlands are natural sponges that

can soak up large quantities of rainwater, storm surge or melting snow, store it and then release it slowly over time. This

makes them valuable flood-control systems, especially in urban

areas where water runs off quickly from paved surfaces. And

coastal wetlands can act as speed bumps that slow incoming

storms. Some studies have estimated that four miles of wellvegetated wetlands can reduce storm surge by roughly one

foot, although much depends on the type of wetlands and the

dimensions of the storm. 5

Regulating global climate — As plants grow they absorb

carbon dioxide (CO2), the main greenhouse gas that traps heat

in the atmosphere and contributes to global climate change. When

plants die and decompose, their carbon content is released back

into the air. But if plant material is buried in soil — especially

cool, wet soils like peat, where decomposition rates are slow —

the carbon is stored. Wetlands store large amounts of carbon,

but there is great uncertainty about how this process will be affected by climate change. (See “Current Situation,” p. 811.)

1 Unless otherwise cited, this section is based on Joy B. Zedler and Suzanne

Kercher, “Wetland Resources: Status, Trends, Ecosystem Services, and Restorability,” Annual Review of Environment and Resources (2005), pp. 39-74.

2 “Habitat Connections: Wetlands, Fisheries and Economics,” National

Oceanographic and Atmospheric Administration, www.nmfs.noaa.gov/habitat/habitatconservation/publications/habitatconections/habitatconnections.htm.

3 Business Wire, Dec. 5, 2005.

4 “ ‘Fishery Failure’ Declared for West Coast Salmon Fishery,” National Oceanographic and Atmospheric Administration, May 1, 2008.

5 “Wetlands Break Waves, Quell Surge,” LaCoast.gov, www.lacoast.gov/WATERMARKS/2006-03/2protectMainland/; Louisiana Sea Grant Program, “Louisiana

Hurricane Resources,” www.laseagrant.org/hurricane/archive/wetlands.htm.

Why Wetlands Matter

They provide valuable “ecosystem services.”

Continued from p. 802
Available online: www.cqresearcher.com Oct. 3, 2008 805

to designate 51 tracts of land in 17

states and territories as National Bird

Reservations between 1903 and 1909.

Many tracts included islands, lakes,

marshes and other wetlands. Thirty-one

of these “Roosevelt Reservations” later

became units of the National Wildlife

Refuge system. 43

The invention of steam shovels and

mechanized earth-moving equipment facilitated carving up landscapes on a bigger scale. In 1928, a year after flooding

along the Mississippi River inundated

thousands of miles of land from Illinois

to the Gulf of Mexico, Congress put the

Corps in charge of flood control and

navigation along the river’s entire length.

The Corps began installing levees, stabilizing riverbanks and realigning channels

to control flood waters, a program that

stretched through the next several decades.

It also built a system of 29 locks and

dams on the upper Mississippi extending for 670 miles from Minneapolis to

St. Louis, to create a nine-foot-deep channel for easy navigation.

These projects profoundly affected

wetlands along the river. Levees prevented river waters from spilling over,

drying out previously fertile bottomlands.

In other places the navigation system

raised water levels, putting floodplains

under water. In Louisiana levees prevented the Mississippi and its tributaries

from flooding and depositing sediments

across the delta plain, accelerating erosion along the state’s coastline.

Another catastrophic 1928 storm,

in Florida, caused massive Lake Okeechobee to flood thousands of surrounding acres, killing some 2,500

people. In response President Herbert

Hoover directed the Corps to dike the

lake. This cut off freshwater flow from

the lake down through the Everglades

during rainy seasons, lowering the

water table and drying out soils,

which spurred further logging and

farming on former wetlands.

“The Everglades were dying,” wrote

journalist Marjorie Stoneman Douglas

in her 1947 bestseller, The Everglades:

River of Grass. “The endless acres of

saw grass, brown as an enormous shadow where rain and lake water had

once flowed, rustled dry.” 44

Just after Douglas’ book was published, President Harry S Truman dedicated a 1.3-million-acre tract as Everglades National Park. But at the same

time the Corps was designing the

Central & Southern Florida Project —

a massive flood control system intended to tame areas around the new

park for agriculture and development.

Launched in 1948, the project created 1,000 miles of levees, 720 miles

of canals and 200 water-control structures to regulate freshwater flows and

channel rainy-season runoff out to sea,

further drying out the greater Everglades ecosystem.

Other federal agencies also promoted development on wetlands. In 1936

the Agriculture Department started sharing farmers’ costs for converting wetlands to cropland. The Civilian Conservation Corps and other Depression-era

relief initiatives also put unemployed

Americans to work draining wetlands.

To slow wetland losses the U.S. Biological Survey (which later became the

Fish and Wildlife Service) in 1934 launched

the federal Duck Stamp program. Revenues from the program were used to

buy wetlands that were important waterfowl habitat and add them to the National Wildlife Refuge system. Over the

next 70 years Duck Stamp sales to hunters

financed the purchase or lease of more

than 5 million acres. 45

Exploitation to Protection

By the 1960s economic growth wastaking a heavy toll on U.S. water

resources. Many rivers, lakes and streams

were heavily polluted with industrial discharges. Unrestricted private development was encroaching on scenic coastlines, often in ecologically sensitive areas.

For example, farm fertilizer and

phosphate detergent discharges into Lake

Erie spawned massive blooms of algae;

when the weeds died and decomposed,

the process depleted oxygen from the

water, leaving the lake so void of fish

life that it was widely viewed as biologically dead. In 1963 there was so

much industrialization and development

around San Francisco Bay that only four

of its 276 miles of shoreline were open

to the public, and adjoining towns like

Berkeley and San Mateo were planning

to fill in much of the bay to expand

their land areas. 46

Such developments spurred a new

wave of environmentalism and landmark laws including the Clean Water

Act of 1972, which created a national

permitting system for pollution discharges.

Section 404 of the CWA gave the Corps

of Engineers authority to regulate dredging and filling in wetlands, subject to

oversight by the new Environmental

Protection Agency, which had veto

power. Congress also passed the Coastal

Zone Management Act, which provided federal aid to states that developed

comprehensive plans for preserving and

restoring their coastlines.

A year later Congress enacted the

Endangered Species Act (ESA), which

restricted development of areas identified as critical habitat for endangered

or threatened species. Section 7 of the

act required federal agencies to consult with the Fish and Wildlife Service

to ensure that their activities would not

jeopardize listed species or damage

critical habitat.

While these laws offered new leverage for protecting wetlands, the Agriculture Department and other agencies

still supported wetland conversion. President Jimmy Carter, a critic of federal

water projects for both their costs and

environmental impacts, addressed this

conflict in a 1977 executive order that

directed all federal agencies to “take action to minimize the destruction, loss or

degradation of wetlands, and to preserve

and enhance the natural and beneficial

values of wetlands in carrying out the

agency’s responsibilities.” 47
806 CQ Researcher

Carter’s order eventually led to the

Swampbuster program, enacted in the

1985 farm bill. The program made farmers ineligible for federal aid or subsidies

if they converted certain types of wetlands to cropland. Like the 404 program,

however, Swampbuster allowed mitigation projects to compensate for activities

that destroyed wetlands.

Running for president in 1988, George

H.W. Bush pledged that his administration would work to achieve “no net

loss” of wetlands in the U.S. During

his administration (1989-1993) the Agriculture Department expanded the Conservation Reserve Program for preserving

environmentally sensitive wetlands. The

1990 farm bill then created a parallel

Wetland Reserve Program, which paid

farmers for restoring wetland functions

to marginal farmlands.

Behind the scenes, however, Vice

President Dan Quayle’s staff sought

to redefine wetlands so that only

areas that remained wet year-round

received federal protection. This proposal, which was opposed by the EPA

and ultimately failed, could have deregulated up to half of U.S. wetlands. 48

Legal Resistance

Expanding federal controls slowed

the net rate of wetland losses significantly in the 1970s and ’80s, but

PROTECTING WETLANDS

The history of Florida’s Everglades echoes the broader story

of U.S. wetlands. Long viewed as a swamp, drained and

developed for the past century, the Everglades now is only

about half as big as it was before World War II, and what’s left

is severely threatened by water pollution and constant development. However, the area still supports 68 threatened or endangered species of plants, animals and birds, including the Florida

panther, wood stork, American crocodile and leatherback turtle.

Indeed, the Everglades is not a swamp but an intricate system of interdependent ecosystems including sawgrass marshes,

mangrove forests, tropical hardwood hammocks and the marine environment of Florida Bay. The roughly 6,000-square-mile

area is vital to South Florida’s water supply.

In 2000 Congress approved the Comprehensive Everglades

Restoration Plan (CERP), scheduled to take about 40 years and

cost more than $10 billion (up from an initial projected cost

of $7.8 billion). The massive rescue operation, which includes

60 individual projects, aims to make more water available for

the Everglades by capturing flows that are currently diverted

and storing water so it can be released as needed. Some elements of the plan are moving forward, but costs are still rising, and many important elements have been delayed. 1

Two central problems are hurting the Everglades: It does not

receive enough water, and what does flow through is polluted.

But making the ecosystem healthy again is more complicated

than just opening spigots. Scientists are trying to determine how

much water the Everglades needs and how fast it should move.

“The Everglades has a very distinctive land form,” explains Greg

Noe, an ecologist with the U.S. Geological Survey. “It has elevated ridges and sloughs like the channels in corrugated cardboard,

which run north-south and then bend west at the lower end.” The

long interconnected sloughs, or ditches, contain many fish and small

aquatic organisms and are important feeding areas for wading birds.

Dense sawgrass grows up to 10 feet high on the ridges. There was

so much sawgrass that writer Marjory Stoneman Douglas famously

dubbed the Everglades a “river of grass” in 1947.

As water levels fall, sloughs dry out and become filled with

sawgrass. “One big CERP goal is to add enough water back

to restore that landscape, and also to improve water quality so

that you don’t harm the system by putting more water in,” says

Noe. “No one knows exactly what the right water depths are

— if it’s too deep you drown everything out, and if it’s too

shallow the sloughs fill in with sawgrass.”

But Noe believes that the CERP research plan can answer

these technical questions. “It’s the biggest restoration project in

the U.S. and probably the most complicated, because so many

organizations are involved, but everyone has a vested interest

in getting it right,” he says. CERP incorporates an approach

called adaptive management, in which scientists carry out selected projects, measure results, then refine their next steps

based on these findings. “If people weren’t willing to learn and

change the plan, I’d be worried,” says Noe.

Florida has lagged on cleaning up water that flows through

the Everglades. After a 1992 legal settlement with the federal government, the Florida legislature passed the Everglades Forever

Act in 1994, which required state regulators to ensure that water

entering the Everglades would contain no more than 10 parts of

phosphorus per billion by 2006 (phosphorus, a nutrient found

in agricultural runoff, is one of the main water pollutants in the

Everglades), and take other steps to achieve that standard. But

in 2003 the state extended the compliance deadline to 2016 in

a bill supported by the sugar industry but derided by environmentalists as the “Everglades Whenever” Act. 2

The state is still struggling to meet minimum national waterquality standards. A May 2007 memo by Major Gen. Don Riley,

director of civil works for the U.S. Army Corps of Engineers,

asserted that Florida “is not currently meeting [water quality] requirements for water that would flow into [the Lake Okeechobee

watershed] and it is not likely to come into compliance for several decades.” 3

But Florida has outdone the federal government on one aspect

of Everglades restoration: funding. Although the cleanup costs are

Complex Plans Aim to Restore Everglades

But politics and funding are still obstacles.
Available online: www.cqresearcher.com Oct. 3, 2008 807

some critics said development curbs

infringed on landowners’ rights by reducing property values. When government committed so-called regulatory takings (“taking” value without

actually seizing the property), they

argued, it owed owners financial compensation. 49

Several landowners who initiated

lawsuits in the mid-1980s won federal court rulings that wetland regulations were takings, and received monetary damages. 50 In one lawsuit filed

by a beachfront developer in South

Carolina, the Supreme Court held that

government action barring all economic

uses of land (assuming that those uses

were legal when the property was acquired) automatically constituted a taking. 51 This ruling signaled that if regulators did not make a significant effort

to be fair to landowners, they risked

having their rules struck down in court.

Some observers predicted that these

cases would stimulate more antiregulatory claims, but no such wave developed — possibly because federal

agencies got the message. “The ‘takings revolution’ fizzled, primarily because most wetland permits were

granted, so there was little to complain

about,” says Vermont Law School’s

Parenteau. And mitigation banking,

launched in 1990 and expanded under

President Clinton, offered developers a

new way to offset wetland losses.

supposed to be shared, Florida spent nearly $2.4 billion

on Everglades restoration projects from 2000 though 2007

while Congress provided only

$360 million. However, the

2007 Water Resources Development Act authorized three

important CERP projects with

total costs of $1.8 billion, including restoration of more

than 150,000 acres of wetlands, and President George

W. Bush’s fiscal 2009 budget

proposal includes $215 million for CERP activities. 4

Everglades supporters were elated in June when Gov. Charlie

Crist, R-Fla., announced a deal to buy out the holdings of U.S.

Sugar, one of two major sugar companies in Florida, including 300

square miles of agricultural land south of Lake Okeechobee. Crist’s

administration said the struggling company would be allowed to

farm the land for six more years, after which the state would use

it to restore freshwater flow from the lake to the Everglades.

The $1.75 billion sale may not be finalized until sometime

in 2009, but skeptics are pointing out that it may benefit the

powerful sugar industry as much as it advances Everglades

cleanup. 5 Some farmers argue that agriculture is being scapegoated as the root of the Everglades’ problems when development is equally at fault. 6

There’s no shortage of new development proposals around

the Everglades. In early 2008 Palm Beach County commissioners approved 10,500 acres of new rock mines north of

the Everglades, although the state Department of Environmental Protection was still reviewing whether mining would

affect local water quality or Everglades restoration. 7 And MiamiDade County commissioners voted to move the county’s “urban

development boundary” closer

to the Everglades, allowing the

Lowe’s hardware chain to build

a store and offices on 20 acres

of wetlands.

“It shoots our credibility,”

said Miami-Dade Mayor Carlos

Alvarez, who pledged to veto

the plan. 8

A September assessment by

the National Research Council

found that in spite of recent

progress, CERP was not moving

fast enough. “The project is

bogged down in budgeting, planning and procedural matters while the ecosystem that it was

created to save is in peril,” the council warned. 9

1 “South Florida Ecosystem: Some Restoration Progress Has Been Made, but

the Effort Faces Significant Delays, Implementation Challenges, and Rising

Costs,” U.S. Government Accountability Office, Sept. 19, 2007, p. 5; “Cash

for Everglades Restoration Dries, Up, The Associated Press, Nov. 21, 2007.

2 Michael Peltier, “Florida Governor Bush Signs Contentious Everglades Bill,”

Reuters, May 22, 2003.

3 Posted online by Public Employees for Environmental Responsibility,

www.peer.org/docs/ace/07_14_11_gen_riley_memo.pdf.

4 Audubon of Florida, “Everglades Report,” winter 2008; Daniel Cusick,

“Army Corps: Proposed Budget Offers an ‘Awkward Kiss on the Cheek’ for

Everglades,” E&E Report, Feb. 4, 2008.

5 Patrik Jonsson, “U.S. Sugar Buyout: Sweet Deal for the Everglades?” The

Christian Science Monitor, Aug. 20, 2008; Mary Williams Walsh, “Helping

the Everglades, or Big Sugar?” The New York Times, Sept. 14, 2008, p. BU1.

6 Jonsson, op. cit.

7 Paul Quinlan and Jennifer Sorentrue, “Miners Get OK to Dig in Western

Palm Beach County,” The Palm Beach Post, April 24, 2008, p. 1B.

8 “Good News for the Everglades: New Funding and a Mayor’s Stand Offer

Hope for Florida’s Treasure,” Sarasota Herald-Tribune, May 2, 2008, p. A10.

9 National Research Council, “Progress Toward Restoring the Everglades,”

second biennial report, Sept. 29, 2008, http://dels.nas.edu/dels/rpt_briefs/everglades_brief_final.pdf.

Great egrets thrive in Florida’s Everglades, along with 

68 threatened or endangered species of plants, 

animals and birds, including the Florida 

panther and American crocodile.

National Park Service Photo/Rodney Cammauf
808 CQ Researcher

PROTECTING WETLANDS

But wetland regulation was further

complicated by the Supreme Court’s

2001 SWANCC ruling that Congress

could not regulate isolated wetlands

based solely on the presence of migratory birds. 52 The ruling effectively deregulated some isolated wetlands,

and the language of the majority

opinion raised questions about where

federal authority stopped. Most state

courts, however, continued to define

federal jurisdiction quite broadly, and

several states passed bills setting up

comprehensive state-level protection

for wetlands.

President Bush, who had endorsed

his father’s goal of “no net loss” in

2002, expanded on it in 2004. “Instead

of just limiting our losses, we will expand the wetlands of America,” Bush

said. Critics endorsed the goal but

said reaching it would require many

steps, including a narrow reading of

the SWANCC ruling, stricter enforcement of mitigation requirements and

more funding for the National Wildlife

Refuge system. 53

The issue was further muddled

by the Supreme Court’s fragmented

Rapanos ruling in 2006. Justice

Kennedy’s proposal for a “significant nexus” test left lower courts to

determine case by case whether

wetlands were subject to federal jurisdiction. EPA and the Corps issued

guidance in 2007 to help regulators,

but these standards required additional paperwork that greatly complicated the process of reviewing

permit applications.

“Right now the 404 program is

probably in as much trouble as it’s

been in for years,” says Yaich of Ducks

Unlimited. “The guidance imposed

much more difficult tasks in response

to Justice Kennedy’s opinion, and the

system is bogged down. It’s the worst

of all worlds — we’re dealing with

applications very inefficiently, including many permits that are perfectly fine, and we’re not protecting

enough wetlands.”

CURRENT

SITUATION

Which Waters?

L egislators who are alarmed aboutwetlands losing federal protection

have introduced bills in both houses

of Congress to specify which waters

are subject to regulation. “By focusing

on the phrase ‘navigable waters’ in its

SWANCC and Rapanos decisions, the

Supreme Court muddied the jurisdictional understanding of the CWA,”

Rep. James L. Oberstar, D-Minn., chairman of the House Transportation

Committee, said in introducing the

House version of the Clean Water

Restoration Act, in 2007.

Oberstar’s legislation and its Senate

counterpart seek to clarify the issue

by replacing the term “navigable waters of the United States” in the Clean

Water Act with “waters of the United

States.” This step, they argue, makes

explicit that Congress intended to provide broad protection for water bodies — even non-navigable streams and

isolated wetlands — the way the CWA

was commonly interpreted prior to the

SWANCC ruling in 2001.

Many state regulators, as well as

environmental and sportsmen’s groups,

have endorsed the legislation. “Agency

guidance issued in 2007 has left in

doubt the protection of ‘non-navigable’

headwater, intermittent and ephemeral

streams,” a coalition of hunting and

fishing groups wrote to Congress in

early 2008. “These streams provide

valuable habitat in their own right and

are critical to downstream water quality and aquatic habitat. Without Clean

Water Act protection, these streams are

now vulnerable to sewage and industrial pollution as well as dredging

and filling.”

The concern about non-navigable

waters was supported by a March 2008

memo from the EPA’s chief enforcement official, who said the Rapanos

opinion and EPA’s guidance for applying the opinion had led the agency

to downgrade or avoid pursuing about

500 potential violations of federal wetland law. The House Transportation

Committee and the Oversight and

Government Reform Committee both

are investigating EPA’s handling of

wetland enforcement cases.

“This sudden reduction in enforcement activity will undermine the implementation of the Clean Water Act and

adversely impact EPA’s responsibility to

protect the nation’s waters,” Oberstar

and Henry A. Waxman, D-Calif., chairman of the Government Reform Committee, told the agency in July. 54

But opponents, including trade associations, farm bureaus and conservative think tanks, argue that there

was wide disagreement about the scope

of the CWA before SWANCC and that

the Clean Water Restoration Act would

broaden federal water law far beyond

what Congress originally intended.

Under the CWRA, many critics say,

any puddle or rain gutter could be

subject to federal regulation. (See “At

Issue,” p. 809.)

“Expanding the jurisdictional definition could put the Corps in every ditch

and grass waterway in Iowa,” says Robinson of the Iowa Farm Bureau Federation. “Farmers understand Swampbuster

and USDA’s wetland protection programs, but bringing in the Corps will

make it much more confusing.”

The central problem is finding clear

principles to justify which waters should

be subject to federal versus state oversight. Science offers little help, since researchers say most wetlands are connected ecologically in various ways even

if they are physically isolated, so ultimately the debate comes down to warring interpretations of how far Congress

can regulate economic activities.

Continued on p. 810
no

Available online: www.cqresearcher.com Oct. 3, 2008 809

At Issue:

Should Congress pass the Clean Water Restoration Act? Yes

yes

BRETT HULSEY

SUPERVISOR, DANE COUNTY, WIS.

FROM TESTIMONY BEFORE U.S. HOUSE TRANSPORTATION

AND INFRASTRUCTURE COMMITTEE, APRIL 16, 2008

my county constituents place a high value on the

quality of our lakes, streams and drinking water.

They want clean, safe water for recreation — for

swimming, boating and fishing. They understand that protecting

drinking-water sources from pollution makes for better quality

water coming out their taps and protects our health and safety

at a lower cost. . . .

We have experienced five major floods costing local residents and the county $50 million since 1993. Our citizens

want to prevent flood damage in the most environmentally

protective and cost-effective ways possible to avoid the costs

of repairing homes and infrastructure damaged by flooding.

They also want to avoid the costs of cleaning up waters that

have been needlessly polluted by others.

We saw the importance of protecting headwater streams

and isolated wetlands during the Mississippi River floods of

1993, [which] killed more than 50 and cost at least $16 billion.

Our county is at the headwaters of the Yahara River that

flows to the Rock River and to the Mississippi, [which] drains

40 percent of the continental United States. After these floods,

I worked with [the Federal Emergency Management Agency]

and state agencies to purchase more than 10,000 homes and

structures and move them out of harm’s way. . . .

The [Environmental Protection Agency] estimates that some

20 million acres of wetlands — one-fifth of the remaining

wetlands in the lower 48 states — could lose protections

based on its interpretation of [the SWANCC and Rapanos decisions]. This would allow developers to drain wetlands, build

new homes that would then be flooded and have to be purchased by local governments and taxpayers. There is a compelling public reason to protect these wetlands and headwater

streams from development in the first place. . . .

Some have argued that the Clean Water Restoration Act somehow represents a vast expansion of Clean Water Act protections,

but . . . this change in the law would take us back to where the

Clean Water Act was before the SWANCC and Rapanos decisions.

It would restore the law’s scope, not expand it.

Some preposterous concerns are that this will mean roadside ditch and gutter regulation. The rain gutter on my house

was not regulated by the Clean Water Act before these court

decisions, and I am confident that it won’t be regulated after

the Clean Water Restoration Act is enacted. By the way, my

gutters flow to a rain barrel and rain gardens, allowing the

water to soak into the ground. No

LINDA C. RUNBECK

PRESIDENT, AMERICAN PROPERTY COALITION

FROM TESTIMONY BEFORE U.S. HOUSE TRANSPORTATION

AND INFRASTRUCTURE COMMITTEE, APRIL 16, 2008

h.R. 2421 has come in through the back door masquerading as a so-called simple clarification of theClean Water Act when it is not. Rather, this bill has

the potential to transform the Clean Water Act into a full-blown

national land use control act. In it, federal agencies are given

unlimited jurisdictional boundaries to intrude on every activity

where Americans are involved with water and land. . . .

The bill would open the door to federal regulation of even

insignificant, small depressions of mostly dry land, isolated wetlands, arroyos in the desert, sand flats, ditches and gutters, areas

scarcely recognizable as “waters of the U.S.” It doesn’t end there:

this bill would also, for the first time ever, authorize federal regulation of any “activities affecting water.” And to be clear, “activities” might have a direct impact or an indirect impact on waters.

So, regulated “activities” could take place on a hilltop or a

mountaintop 25 miles from water, and the feds would still have

the power to bring that activity to an immediate halt. . . .

The bill also offers a convenient scapegoat for Congress to

shift the costs (and the blame) associated with water cleanup

onto property owners and local governments. At the same

time, Congress fails to provide them any meaningful measuring stick, as the bill contains no national water-quality standards. . . . Absent any . . . cost-benefit analyses or effective

assessment mechanisms, this bill has the potential to exhaust

the resources of individuals and local governments. Finally,

after intruding on the freedoms and pocketbooks of millions

of Americans, this bill can provide us no assurance that the

nation’s water quality will be improved. . . .

In conclusion, given the local nature of ditches, gutters,

isolated wetlands, small depressions in fields and prairie potholes, the American people deserve something better than a

centralized national land use bill imposed on an unsuspecting

American public. Congress should take the time to get it

right. The right way would be to: 1) establish goals; 2) authorize completion of a comprehensive assessment of the

quality of the nation’s waters; 3) establish priorities, costs and

a realistic timetable for achieving water quality goals; 4) complete the task of bringing the remaining point sources into

compliance and 5) allow local governments and local citizens

the opportunity to develop local and regional alternatives that

will ensure the broadest public support in order to achieve

the desired results.
810 CQ Researcher

“Congress has to say clearly and directly how far it intends to push federal jurisdiction under the Commerce

Clause,” says Vermont Law School’s

Parenteau. “Otherwise, we’ll never have

an end to these arguments.”

Louisiana Sinking

L ouisiana’s coastal marshes are the

most threatened wetlands in the

United States. Since the 1930s, the state

has lost more than

1.2 million acres

(1,900 square miles)

of coastal habitat due

to storms, flood control programs and industrial development. Dams and

levees prevent the

Mississippi River

from flooding and

depositing sediments

on Louisiana’s coastal

plain. Thousands of

miles of barge access canals, excavated by companies

drilling offshore for

oil and gas, have

sliced through coastal

marshes and created

channels for saltwater intrusion from the

Gulf of Mexico.

About 13 square miles of Louisiana’s

coastline become open water each

year, and in 2005 Hurricanes Katrina

and Rita accelerated the process, destroying 240 square miles of wetlands.

Federal and state agencies have spent

almost $800 million since 1990 on coastal

restoration projects, such as reintroducing freshwater to declining marshes, protecting shorelines from erosion

and restoring barrier islands. 55 But

slowing wetland losses will require

much larger-scale efforts.

Coastal scientists say that Katrina

and Rita have pushed the situation to

a crisis point, and that if the state does

not start restoring wetlands faster than

it loses them — today five square miles

are lost for every one created — within 10 years much of the state’s coastline will be permanently gone. Without wetlands to soak up flood waters

and help buffer coastal areas, future

storms are likely to do even worse

damage along the Gulf Coast than recent hurricanes.

“People think we still have 20, 30, 40

years left to get this done. They’re not

even close,” said Kerry St. Pe, director

of the Barataria-Terrebonne National Estuary Program. “If we aren’t building land

I can walk on inside of 10 years, we’ll

be moving communities.” 56

Scientists began warning in the 1970s

that levees and canals were damaging

Louisiana’s coastline. In 1989 the state

created a trust fund with revenues from

oil and gas development to pay for

restoration projects, and in 1990 Congress authorized federal funding and

created a task force to manage the effort. But fishermen, developers and oil

and gas companies objected to many

projects that hurt their individual economic interests. For example, the state

had to fight a two-year legal battle with

oyster fishermen who opposed freshwater diversion projects. Ironically, these

measures — which siphoned freshwater and sediment from the Mississippi River to rebuild coastal marshes

— made many oyster beds more productive. 57

In 2002 Louisiana and the Corps presented the Bush administration with a

30-year, $14 billion master plan for coastal

restoration. The White

House cut the plan back

to less than $2 billion

over a decade. Congress

was considering an initial

$1.1 billion proposal when

hurricanes Rita and Katrina struck in 2005.

The National Research

Council, which was then

reviewing the scaledback Louisiana coastal

plan, reported in 2006

that while most pieces

of the blueprint were

sound, a broader plan

was needed that showed

how the pieces fit together and laid a base

for further work. The

study also called for better communication with

the public about how

various projects would

affect land use, plus a program to compensate families that had to be moved

during restoration. 58

In late 2007 Congress passed its first

water projects authorization bill in eight

years, overriding a veto by President

Bush, who described the $23 billion

legislation as fiscally irresponsible. The

bill provided $1.9 billion for Louisiana

coastal restoration projects, plus nearly $1 billion for hurricane protection

measures. It also created yet another

task force to recommend strategies for

PROTECTING WETLANDS

Continued from p. 808

The loss of wetlands habitat where salmon can spawn and rear their

young has contributed to the collapse of the West Coast commercial

salmon fishery, the Department of Commerce said recently. 

Historically low numbers of salmon are returning from 

the ocean to spawn, according to scientists.

Getty Images/Bill Shaefer
Available online: www.cqresearcher.com Oct. 3, 2008 811

conserving and restoring the state’s

coastal ecosystems. 59

Two more hurricanes, Gustav and

Ike, walloped the Gulf Coast in September 2008, causing such massive

crop losses from flooding that the state

sought $700 million in federal disaster aid specifically for farmers. 60

“Louisiana sugarcane growers have

received agricultural disaster assistance

twice over our more than 200 years of

production,” farmer Wallace Ellender IV

told the Senate Agriculture Committee.

“The fact that both of those assistance

packages were made necessary by intense hurricanes in this decade is a direct result of rampant coastal erosion.

Unless we invest in energetic coastal

restoration efforts soon, my farm may

be a beachfront property in a few short

years before slipping quietly beneath

the waves.” 61

Wetter or Dryer?

Global climate change is a wildcard for wetlands as temperatures rise and U.S. leaders look for

ways to reduce atmospheric concentrations of carbon dioxide, the main

greenhouse gas (GHG) generated as

a result of human activities. GHGs

contribute to global warming by trapping heat in the atmosphere and warming Earth’s surface. Wetlands are a potential solution, because they absorb

large quantities of carbon in plant matter and soils. But climate change could

also harm wetlands, either by flooding them or drying them out. 62 Before wetlands can become a solution

to climate change, scientists say, we

need to know more about how they

will be affected by rising temperatures.

Some national and regional policies for reducing GHG emissions

allow emitters to “offset,” or compensate for, the GHGs they release by

paying to grow forests that will pull

carbon out of the air. Some wetland

advocates would like to see wetlands

receive similar treatment. Under such

schemes, an electricity producer might

receive credit for restoring a specific

number of wetland acres where plants

and soils would absorb atmospheric

carbon to offset some emissions from

the company’s coal- or gas-fired

power plants. The system would be

like a mitigation bank, except that instead of selling credits for wetland

restoration the offset provider would

sell credits for storing carbon.

“Wetlands are one of the better sequestration sources out there. They’re

equal to or better than forests,” says

Myers of People for Puget Sound. His

organization is identifying local marshes that were diked and drained for agriculture, where selling carbon sequestration credits could accelerate restoration

work and provide additional funding.

But wetland chemistry is complicated. While wetlands store large quantities of carbon, they also emit other

greenhouse gases as bacteria break down

organic material, and warming may

speed these processes up. And as temperatures rise, climate models predict

that in many areas rain will fall harder and faster over shorter time periods,

so many ecosystems will be subject to

extreme wet and dry periods.

More drought could make wetlands

less useful as carbon sinks, says U.S.

Geological Survey ecologist Greg Noe.

“Carbon is very sensitive to drying in

wetlands,” Noe observes. “For example,

peat lands in the Everglades have lost

10 feet of soil over the past 50 years,

because as those areas became dryer

the soil was exposed to oxygen that

sped up the decomposition process.”

Overall, however, wetlands are worth

studying as carbon sinks, Noe says.

“They’re not perfect systems because

they’re very sensitive to changes in hydrology, but they do show a lot of

promise,” he says. “River systems are

one option. There’s lots of carbon in

them, and it might be fairly easy to restore them — for example, by breaching levees to recreate marshes.”

OUTLOOK

Valuing Wetlands

F or the past 30 years national policy has declared that wetlands are

valuable, but it is still hard to protect

individual wetlands when they impede

construction projects with dollar values attached.

“We need tools for factoring the

value of ecological services into local

economies so we can put our money

where our mouths are,” says the Florida Audubon Society’s Lauritsen. “Until

people understand the real values that

wetlands provide, protecting them will

be like putting our fingers in a dike.”

Regions that are subject to major

floods have the most to gain from

restoring wetlands, and some leaders

are pressing for action. After Hurricanes Gustav and Ike hit Louisiana in

September, Republican Gov. Bobby

Jindal said he would draw on state

oil and gas revenues for coastal

restoration. 63 And after heavy rains

caused severe flooding across the Midwest in June, killing 24 people and

forcing as many as 40,000 from their

homes, some observers argued that

more wetlands, not higher levees, were

the right strategy for next time.

“No matter how finely tuned our engineering is, Mother Nature did a better job,” argued an editorial in Illinois.

“The recent floods should prompt a serious push to restore Illinois’ lost wetlands — which also soak up pollution

— as an alternative to more man-made

steel and sand barriers.” 64

Other regions also see wetlands as

long-term investments. Federal and state

agencies are moving forward with a

50-year program to turn 15,000 acres

of former industrial salt ponds around

south San Francisco Bay back into

tidal marsh. Supporters say the nearly
812 CQ Researcher

PROTECTING WETLANDS

$1 billion project will produce cleaner water, more habitat for wildlife and

better flood protection for low-lying,

bayside cities like San Jose. “The bay

is precious, and tidal wetlands will

help make it more resilient,” wrote

Sen. Dianne Feinstein, D-Calif. 65

Polls show that Americans support

policies to keep rivers, lakes and streams

clean and ensure that drinking water

is safe. But conservationists will have

to convince Americans that all wetlands

are valuable, from the Everglades to

vernal pools in their own back yards.

“The public wants to protect wetlands, but Americans think about actually wet land, not drainage ditches

that hardly ever hold water,” says the

Mackinac Institute’s Harding.

Notes

1 “Vernal Pool Information,” www.massnature.com.

2 T. E. Dahl, “Status and Trends of Wetlands

in the Coterminous United States 1998 to 2004,”

U.S. Fish and Wildlife Service, 2006, p. 57.

3 For background see Mary H. Cooper, “Water

Quality,” CQ Researcher, Nov. 24, 2000, pp.

953-976.

4 David Sunding and David Zilberman, “The

Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes

to the Wetlands Permitting Process,” Natural

Resources Journal, vol. 42 (2002), pp. 73-76.

5 Testimony of Stephen E. Sandherr, Associated General Contractors of America, before

the House Transportation and Infrastructure

Committee, July 19, 2007, p. 3.

6 Ibid.

7 Joy B. Zedler and Suzanne Kercher, “Wetland

Resources: Status, Trends, Ecosystem Services,

and Restorability,” Annual Review of Environment and Resources, vol. 30 (2005), p. 56. 8 Erik Stokstad, “Louisiana’s Wetlands Struggle

for Survival,” Science, Nov. 25, 2005, p. 1266.

For estimated damages from Katrina, see Axel

Graumann, et al., “Hurricane Katrina: A Climatological Perspective,” U.S. Department of

Commerce, National Oceanographic and Atmospheric Administration, updated August 2006.

9 Louisiana Coastal Protection and Restoration Authority, Integrated Ecosystem Restoration and Hurricane Protection: Louisiana’s

Comprehensive Master Plan for a Sustainable

Coast (2007), www.lacpra.org. 10 www.mitigationbanking.org. 11 The CWA was originally titled the Federal

Water Pollution Control Act when it was passed

in 1972, but became known as the Clean

Water Act after it was amended in 1977.

12 NRDC v. Calloway, 392 F. Supp. 685 (D.D.C.

1975).

13 33 C.F.R., section 328.3(a)(iii).

14 474 U.S. 121 (1985).

15 531 U.S. 159 (2001).

16 Felicity Barringer, “In Reversal, E.P.A. Won’t

Narrow Wetlands Protection,” The New York

Times, Dec. 17, 2003, p. A35. 17 126 S. Ct. 2208 (2006). 18 Dahl, op. cit., p. 46.

19 “Conserving America’s Wetlands 2008: Four

Years of Partnering Resulted in Accomplishing the President’s Goal,” Council on Environmental Quality, April 2008.

20 Matthew Waite and Craig Pittman, “Satellite Photographs Show Losses,” St. Petersburg

Times, May 22, 2005, p. 11A; Craig Pittman

and Matthew Waite, “They Won’t Say No,”

St. Petersburg Times, May 22, 2005, p 1A. 21 For background see David Hosansky, “Reforming the Corps,” CQ Researcher, May 30,

2003, pp. 497-520.

22 Michael Grunwald, “A Green Day for Bush,”

Time, Feb. 2, 2008; Chris Talbot, “EPA Vetoes

Large Flood-Control Plan,” The Associated

Press, Sept. 3, 2008.

23 Florida Department of Environmental Protection, “Kissimmee River Restoration Continues,” June 17, 2005; “Working With Nature:

Corps Restoration Projects Benefit People, Communities, and Wildlife,” Corps Reform Network,

undated, www.corpsreform.org/sitepages/downloads/ProjectsInTheField-Reports/CRN-pfFS-Pjcts_

Restoration.pdf.

24 National Research Council, New Directions

in Water Resources Planning for the U.S.

Army Corps of Engineers (1999), p. 7; “Prioritizing America’s Water Resources Investments,” National Academy of Public Administration, pp. 115-116.

25 National Academy of Public Administration, op. cit., p. 115. For a study urging the

Corps to do more planning in a watershed

context, see National Research Council, Compensating for Wetland Losses Under the Clean

Water Act, 2001.

26 For details see “Campaigns: Florida Panther,” Public Employees for Environmental

Responsibility, www.peer.org/campaigns/

whistleblower/panther/index.php.

27 Ted Williams, “Bait and Switch,” Audubon,

March-April 2008.

28 “Prairie Pothole Region: At the Current

Pace of Acquisitions, the U.S. Fish and

Wildlife Service Is Unlikely to Achieve Its

Habitat Protection Goals for Migratory Birds,”

U.S. Government Accountability Office, GAO07-1093, Sept. 2007.

29 For background on biofuels, see Adriel

Bettelheim, “Biofuels Boom,” CQ Researcher,

Sept. 29, 2006, pp. 793-816 and Jennifer Weeks,

“Buying Green,” CQ Researcher, Feb. 29, 2008,

pp. 193-216.

30 “Short-Term Energy Outlook,” U.S. Energy

Information Administration, Sept. 9, 2008.

31 Mary Clare Jalonick, “USDA Urges Farmers to Keep Setting Aside Land,” The Associated Press, July 29, 2008.

32 “DU Says CRP Losses Astounding,” Ducks

Unlimited, Jan. 4, 2008, www.ducks.org/

news/1456/DUsaysCRPlossesastou.html.

33 National Research Council, op. cit., pp.

113-121.

34 U.S. Environmental Protection Agency, “Mitigation Banking Factsheet,” updated April 18,

2008, www.epa.gov/owow/wetlands/facts/fact

16.html.

35 James Salzman and J. B. Ruhl, “ ‘No Net-Loss’

— Instrument Choice in Wetlands Protection,”

About the Author

Jennifer Weeks is a CQ Researcher contributing writer in

Watertown, Mass., who specializes in energy and environmental issues. She has written for The Washington Post,

The Boston Globe Magazine and other publications, and

has 15 years’ experience as a public-policy analyst, lobbyist and congressional staffer. She has an A.B. degree

from Williams College and master’s degrees from the University of North Carolina and Harvard.
Available online: www.cqresearcher.com Oct. 3, 2008 813

Duke Law School, Science, Technology and

Innovation Research Paper Series, Sept. 2005,

p. 9; Jessica Wilkinson and Jared Thompson,

“2005 Status Report on Compensatory Mitigation in the United States,” Environmental

Law Institute, 2005, p. 28.

36 National Research Council, op. cit., 2001,

pp. 82-92.

37 “Iowa Wetland Mitigation Bank, Inc.,” www.

ifbf.org/newsissues/environment/Brochure1106.

pdf.

38 “Status and Trends of Wetlands in the

Coterminous United States 1998 to 2004,” U.S.

Fish and Wildlife Service, 2005, pp. 44, 74-

76.

39 “A Century of Wetland Exploitation,” U.S.

Geological Survey, Northern Prairie Wildlife

Research Center, Aug. 3, 2006.

40 Laura Ingalls Wilder, By the Shores of Silver

Lake (1971), p. 77.

41 Hosansky, op. cit.

42 Alison Carney Brown, “Miles of Tiles,”

Chicago Wilderness Magazine, Spring 2004.

43 William Reffalt, untitled background article

for U.S. Fish & Wildlife Service, www.fws.gov/

refuges/centennial/pdf2/pelicanIsland_reffalt.pdf.

44 Marjorie Stoneman Douglas, The Everglades:

River of Grass, 60th anniversary edition (2007),

p. 349.

45 www.fws.gov/duckstamps/Info/Stamps/

stampinfo.htm.

46 John Hart, San Francisco Bay: Portrait of

an Estuary (2003), pp. 33-36.

47 Executive Order 11990, Protection of Wetlands, May 24, 1977, www.epa.gov/owow/wetlands/regs/eo11990.html.

48 Joseph Alper, “War Over the Wetlands: Ecologists v. the White House,” Science, Aug. 21,

1992; John H. Cushman Jr., “Quayle, in Last

Push for Landowners, Seeks to Relax Wetland

Protections,” The New York Times, Nov. 12,

1992, p. A16.

49 For background see Kenneth Jost, “Property Rights,” CQ Researcher, June 16, 1995, pp.

513-536. For background on the “takings” ruling, Kenneth Jost, “Hawaii Law Tests ‘Regulatory Takings’ Doctrine,” in “Property Rights,”

CQ Researcher, March 4, 2005, pp. 197-220.

50 Florida Rock Industries v. United States,

791 F. 2d 893 (1986), 45 Fed. Cl. 21 (1999);

Loveladies Harbor Inc. v. United States, 21

Cl.Ct. 153 (1990), 28 F. 3d 1171 (1994).

51 Lucas v. South Carolina Coastal Council,

505 US 193 (1992).

52 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers,

et al., 531 U.S. 159 (2001).

53 Julie M. Sibbing, “Nowhere Near No-NetLoss,” National Wildlife Federation, www.nwf.

org/wildlife/pdfs/NowhereNearNoNetLoss.pdf;

James Salzman and J.B. Ruhl, “‘No Net-Loss’

— Instrument of Choice in Wetlands Protection,” Duke Law School Science, Technology

and Innovation Research Paper Series, Sept.

1, 2005.

54 “Internal EPA Document Shows 500 Enforcement Cases Adversely Affected,” U.S.

House of Representatives, Committee on Oversight and Government Reform, July 7, 2008,

http://oversight.house.gov/story.asp?ID=2065.

55 “Coastal Wetlands: Lessons Learned From Past

Efforts in Louisiana Could Help Guide Future

Restoration and Protection,” U.S. Government

Accountability Office, GAO-08-130, Dec. 2007.

56 Bob Marshall, “Last Chance: The Fight to

Save a Disappearing Coast,” New Orleans

Times-Picayune, March 4, 2007, p. 1.

57 Jeffrey Meitrodt and Aaron Kuriloff, “Oyster Farmers Initially Backed Project,” New

Orleans Times-Picayune, May 4, 2003, p.

21; Bob Marshall and Mark Schliefstein, “Losing Ground,” New Orleans Times-Picayune,

March 5, 2007, p. 1.

58 “Drawing Louisiana’s New Map: Addressing

Land Loss in Coastal Louisiana,” National Research Council, 2006, pp. 3-12.

59 Bruce Alpert, “Congress Overrides Bush

Water Bill Veto,” New Orleans Times-Picayune,

Nov. 8, 2007, p. 2.

60 Jonathan Tilove, “Officials Tell Senate

Farmers Need Aid,” New Orleans TimesPicayune, Sept. 25, 2008, p. 11.

61 Testimony before the Senate Agriculture

Committee, Sept. 24, 2008, p. 6.

62 For background see “Wetlands and Global Climate Change,” Association of State Wetland Managers, www.aswm.org/science/climate_change/climate_change.htm.

63 “Jindal Calls for Action on Coastal Restoration,” WWLTV.com, Sept. 16, 2008.

64 “Take Long View in Assessing Flood Control,”

The State Journal-Register, July 23, 2008, p. 4.

65 Dianne Feinstein, “Bay Restoration at an

Exciting Point,” San Jose Mercury News,

Dec. 24, 2007.

FOR MORE INFORMATION

Associated General Contractors of America, 2300 Wilson Blvd., Suite 400, Arlington, VA 22201; (703) 548-3118; www.agc.org. The main trade association for the U.S.

commercial construction industry, including highway and municipal projects.

Association of State Wetland Managers, 2 Basin Road, Windham, ME 04062;

(207) 892-3399; www.aswm.org. Works to improve wetland regulation and

management; open to anyone involved with wetland resources.

Audubon of Florida, 444 Brickell Ave., Suite 850, Miami, FL 33131; (305) 371-

6399; www.audubonofflorida.org. State chapter of the National Audubon Society

that works to protect and restore ecosystems statewide; operates Corkscrew

Swamp Wildlife Sanctuary in Naples, Fla.

Ducks Unlimited, One Waterfowl Way, Memphis, TN 38120; (901) 758-3825;

www.ducks.org. A conservation group founded by sportsmen in 1937, during the

Dust Bowl, to protect wetlands and other places where waterfowl breed or migrate.

Iowa Farm Bureau Federation, 5400 University Ave., West Des Moines, IA

50266; (515) 225-5400; www.iowafarmbureau.com. Advocates for farmers, farm

families and Iowa’s rural heritage.

Mackinac Center for Public Policy, 140 West Main St., P.O. Box 568, Midland,

MI 48640; (989) 631-0900; www.mackinac.org. A think tank advocating marketoriented solutions to public policy problems in Michigan.

People for Puget Sound, 911 Western Ave., Suite 580, Seattle, WA 58104; (206)

382-7007; www.pugetsound.org. A nonprofit working to protect and restore lands

and waters around Puget Sound.

U.S. Army Corps of Engineers, 441 G St., N.W., Washington, DC 20314; (202)

761-0010; www.hq.usace.army.mil. World’s largest public engineering, design and

construction management agency builds and operates water projects nationwide.

FOR MORE INFORMATION
814 CQ Researcher

Books

Ernst, Howard R., Chesapeake Bay Blues: Science, Politics,

and the Struggle to Save the Bay, Rowman & Littlefield,

2003.

A professor of political science at the U.S. Naval Academy

shows how development and pollution devastated the nation’s

largest estuary and how politics slowed clean-up efforts.

Grunwald, Michael, The Swamp: The Everglades, Florida,

and the Politics of Paradise, Simon & Schuster, 2006.

A Time correspondent, who has written extensively about

the U.S. Army Corps of Engineers and water development

recounts the environmental history of the Everglades and

dissects Floridians’ relationship with their environment.

Save San Francisco Bay, Protecting Local Wetlands: A

Toolbox For Your Community, Save the Bay, 2000.

Although it focuses on California, this handbook provides a

thorough overview of federal and state controls, approaches

to local wetland regulation and ways tax incentives and other

measures can help foster healthy wetlands nationwide.

Articles

“Last Chance: The Fight to Save a Disappearing Coast,”

New Orleans Times-Picayune and Nola.com, March 4-6,

2007, www.nola.com/speced/lastchance/.

A three-part special series warns that many scientists believe the Gulf of Mexico could reach New Orleans’ suburbs

within a decade unless drastic action is taken to preserve

Louisiana’s remaining coastal marshes.

Barringer, Felicity, “Death Looms for a Flood-Control

Project,” The New York Times, April 9, 2008, p. A14.

In an unusual exercise of its veto power, the Environmental

Protection Agency (EPA) is preparing to veto the Yazoo

Pumps, a controversial flood-control project in southern Mississippi that would destroy or damage at least 67,000 acres

of wetlands.

Cave, Damien, “Harsh Review of Restoration in Everglades,” The New York Times, Sept. 30, 2008, p. A18.

A National Research Council report said efforts to rescue

the Everglades have failed because of bureaucratic delays,

funding shortages and overdevelopment.

Dahl, Thomas, “Beyond No Net Loss: Imagery Aids Wetland

Conservation,” Geoworld, September 2005.

The Fish and Wildlife Service is using high-resolution satellite

images and computerized mapping to keep better track of wetland status and trends.

Kay, Jane, “50-Year Plan for Turning South Bay Salt

Ponds to Tidal Wetlands,” San Francisco Chronicle, Dec.

12, 2007, p. A1.

In the largest wetlands restoration on the West Coast, state

and federal agencies are launching a 50-year effort to turn

salt ponds around San Francisco Bay back into healthy tidal

marshes.

Pittman, Craig, and Matthew Waite, “Vanishing Wetlands,”

The St. Petersburg Times, 2005-2006, www.sptimes.com/

2006/webspecials06/wetlands/.

An award-winning multi-part investigation finds that faulty

permitting and lax oversight are major causes of ongoing

wetland losses in Florida.

Tibetts, John H., “Rising Tide: Will Climate Change

Drown Coastal Wetlands?” Coastal Heritage, winter 2007.

Rising sea levels are already forcing some salt marshes to

migrate inland, exposing communities to increased flooding,

and climate change is likely to accelerate these effects.

Reports and Studies

“Biodiversity Values of Geographically Isolated Wetlands

in the United States,” Natureserve, Dec. 1, 2005, www.natureserve.org/publications/isolatedwetlands.jsp.

An EPA-funded study by a private conservation organization finds that geographically isolated U.S. wetlands support

86 species of endangered or threatened animals and plants,

half of which need isolated wetland habitat to survive.

“Drawing Louisiana’s New Map: Addressing Land Loss

in Coastal Louisiana,” National Research Council, 2006.

A peer-reviewed study of coastal restoration efforts proposed by the Corps of Engineers and the state of Louisiana

finds that a broader and more integrated plan is needed.

“Prairie Pothole Region: At the Current Pace of Acquisitions, the U.S. Fish and Wildlife Service Is Unlikely to

Achieve Its Habitat Protection Goals for Migratory Birds,”

U.S. Government Accountability Office, 2007.

Since 1959, the agency has protected about 3 million acres

in the vast region in the northern Great Plains, but it needs

to move faster to protect all of the wetlands and grasslands

that it has identified as important habitat for migratory birds.

Dahl, T.E., Status and Trends of Wetlands in the Coterminous United States 1998 to 2004, U.S. Department of

the Interior, Fish and Wildlife Service, 2005.

The most recent federal wetlands inventory finds that the

U.S. is now achieving small, annual, net gains in wetlands

but that most of the increase is in freshwater ponds.

Selected Sources

Bibliography
Available online: www.cqresearcher.com Oct. 3, 2008 815

Clean Water Act

Boyle, Katherine, “Group Using Poll to Make Point on

Clean Water Act Protections,” Environment and Energy

Daily, Jan. 18, 2008.

An environmental law firm is lobbying for legislation to

ensure that the Clean Water Act applies to all bodies of

water in the United States.

Caputo, Anton, “Report Spotlights the Growing Risks to Texas’

Wetlands,” San Antonio Express-News, Feb. 15, 2008, p. 3B.

A series of Supreme Court decisions has stripped 3.5 million

acres of wetlands in Texas from protection under the Clean

Water Act.

Descherer, Chris, “Water System Up the Creek?” Atlanta

Journal-Constitution, Dec. 18, 2006, p. 19A.

The Supreme Court believes that if a stream does not receive

water continually throughout the year then it isn’t protected

under the Clean Water Act.

Everglades

Gibson, William E., “House Overrides Veto of Everglades

Funds,” Sun-Sentinel (Florida), Nov. 7, 2007, p. 1A.

The House of Representatives has voted to override President

Bush’s veto of a water bill that would allow spending on the

restoration of the Everglades.

Grosskruger, Paul L., “Saving the Everglades One Small Project at a Time,” The Miami Herald, Dec. 8, 2007, p. A27.

The passage of the Water Resources Development Act gives

congressional authorization for Everglades projects that have

long lacked public support.

Pittman, Craig, “Restoration of Glades Falls Years Behind,”

St. Petersburg Times, July 3, 2007, p. 1A.

Crucial elements of the Everglades restoration project that

began in 2000 are already six years behind schedule and

the cost is approaching $20 billion.

Mitigation

Keller, Mike, “Banking on Wetlands,” Biloxi Sun Herald

(Mississippi), Nov. 5, 2006, p. G1.

Mitigation is opening up a new industry of restoring wetlands

in rural areas of Mississippi.

Pittman, Craig, and Matthew Waite, “How Billions Are

Made ‘Restoring’ Florida’s Wetlands,” St. Petersburg Times,

Dec. 17, 2006, p. 1A.

Congress has steered billions of dollars into mitigation

bankers’ pockets and has created new rules that could possibly

double the size of the industry.

Salinero, Mike, “Wetlands Replacement Plan Muddied By

Critics’ Unease,” Tampa Tribune, July 22, 2007, p. 1.

A 160-acre wetlands site in Florida is being handled by a

mitigation bank that would allow developers who want to

destroy wetlands to compensate for the damage by buying

credits in the form of wetland acreage.

Wallgren, Christine, “In Wetlands, Builders Can Pay to

Play,” Boston Globe, Dec. 21, 2006, p. Reg1.

Critics of wetlands mitigation say the process results in a

loss of local control over environmental development, possibly

shifting it to state governments.

Wildlife

Marshall, Bob, “Wetlands Wildlife at Risk,” Times-Picayune

(Louisiana), Aug. 5, 2007, p. 99.

Wetlands are key components of waterfowl nesting habitat,

but the developers’ lobby in Washington hasn’t assigned any

value to such fish and wildlife.

Perkins, Iveory, “$1.5 Million to Help Restore Detroit’s

Wildlife, Coast,” Detroit News, Oct. 17, 2006, p. 2B.

Coastal wetlands along the Detroit River International Wildlife

Refuge are undergoing a $1.5 million restoration project that

will clean wetlands and protect the area’s habitat.

Presecky, William, “Wetland Proves It’s For the Birds,”

Chicago Tribune, Dec. 14, 2007, p. B9.

The migration of birds to a man-made wetland in Illinois

shows the value of recreating and restoring wetlands, according

to local forest officials.

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