# Protecting Wetlands

Is the government doing enough? 

# T he 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. 

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CHRONOLOGY

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# T HIS 

# R EPORT 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. 

# CQ R 

# esearcher

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** 

R

ECIPIENT OF S OCIETY OF P ROFESSIONAL J OURNALISTS A WARD FOR
EXCELLENCE ◆ A MERICAN BAR ASSOCIATION S ILVER GAVEL A WARD

### 794 CQ Researcher 

# T

HE 

# I SSUES 

# 795 • Does the Clean Water Act protect most wetlands? • Are federal agencies doing enough? • Does mitigation work? 

# B

ACKGROUND 

# 802 Overlooked ResourcesAmerican 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 ResistanceSupreme Court rulings affected wetlands protection.



# C

URRENT 

# S ITUATION 

# 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.



# O

UTLOOK 

# 811 Valuing Wetlands 

### Americans value wetlands,but less so when they impede construction projects. 

# S IDEBARS AND 

# G RAPHICS 

# 796 Despite Wetland Gains, Concerns Remain The quality of the wetlandsbeing 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 

# F URTHER 

# R ESEARCH 

# 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 

# W ETLANDS

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# CQ ResearcherOct. 3, 2008 

### 795 Available online: www.cqresearcher.com 

# Protecting Wetlands

T HE 

# ISSUES 

# O n wet spring nightsacross the Northeastern United States, wood frogs and salamandersgo on the march. These amphibians spend most of theirlives 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 growlarge enough to breathe air before the pools dry up in summer. Some species, such asfairy shrimp, spend their entire life cycles in the pools, leaving eggs behind that stay dormant through dry monthsand hatch when the pools reappear a year later. Vernal pools are wetlands — areaswhere 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 fromcoastlines also are important. For example, lakes carved by glaciers across the upper Midwest, known as prairiepotholes, 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 andvalued 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 Statescould achieve net annual increases by creating and restoring more acres than it developed. But environmentalists,outdoor advocates and regulators say that not all wetlandsare 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 lakesand bays nationwide, generating huge algae blooms that deprive aquatic organisms of sunlight and dissolved oxygen. 3 And many advocates fear that recent U.S. SupremeCourt 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 andresidential construction, agriculture, mining and energy. Under Section 404 of the Clean Water Act, when a projectinvolves 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 Corpsthen 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 averagegeneral permit for lower-impact activities cost $28,915 to prepare and took 313 days to gain approval. Individual 

## B

Y 

## J ENNIFER 

## W EEKSGetty 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. 5Many trade groups say they support reasonable wetlands protection but that current standards are too broadand the permitting process too cumbersome. “While [the permits’] environmental purposes are laudable, theydo 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 toldthe House Transportation and Infrastructure Committee in July 2007. 6 Contractors, growers and other such groups would like to see the Corpsand 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 dollarsworth 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, likenatural 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 useda process known as “mitigation” (preserving, enhancing or creating wetlands to compensate for destroying others) as a tool to balance wetlandconservation 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 skepticssay the process often helps developers rather than maximizing the quality of U.S. wetlands. “If a developer fills in wetlands foran 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 tobalance wetland protection with development, here are some issues they are considering: 

# PROTECTING 

# W ETLANDS

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**

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

**-458,000 -290,000**  **-58,550 32,000**  **(in acres)**Oct. 3, 2008 

### 797 Available online: www.cqresearcher.com 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 overwhich wetlands fall under federal control. Conservationists say that most wetlands play important ecological roles and should be protected. Businessescounter 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 withinthe scope of Congress’ constitutional power to regulate under the Commerce Clause. 12 In response, the Corps rewrote its regulations to alsocover possible construction or degradation affecting tributaries of navigable waters, plus wetlands such as prairie potholes, mud flats andsloughs, “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 federaljurisdiction 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 toregulate “non-navigable, isolated, intrastate waters.” This wording suggested to some observers that other wetlands, regardless of whether they weresuitable for birds or not, might fall outside federal protection as well. “The Rehnquist court took the caseintending 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 SWANCCreally 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 typeswere covered. “People weren’t regulating everything they had before, but coverage was still pretty broad,” saysKusler 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 Researcherwithdrew 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 examinedwhether the Corps could regulate wetlands next to a man-made ditch thatultimately flowed into navigable waters. The other concerned a wetlandthat 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 threeother 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 otherjustices took the opposite position, supporting Corps jurisdiction in both cases. Justice Anthony Kennedy took amiddle stance, rejecting the Corps position but with a perspective different from Scalia ’ s. Kennedy proposed acase-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 navigablewaters, 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 vacatinglower 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 ’ revery 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 underfederal jurisdiction. Moreover, Corps field officesacross the nation are interpreting the new rules in different ways, saysLeah Pilconis, senior counsel at the Associated General Contractors of America. “ Not knowing exactlywhat is required and having decisions made inconsistently wastes timeand money in the construction process, ” she
says. “ It raises interest costs, makes schedulingharder and delays completion dates. ” The AGC and other trade associations want the Corps tonarrow its criteria for determining federal jurisdiction and reduce paperworkrequirements. 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 andecology at the University of Wisconsin, who chaired a 2001 NationalAcademy of Sciences study on wetland restoration. “ The Supreme Courtis free to make non-science-based decisions, so it can say that wetlands 

# PROTECTING 

# W ETLANDS

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 RaedleOct. 3, 2008 

### 799 Available online: www.cqresearcher.com 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 increaseof 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 wetlandsthat developers were required to create were expensive failures, and the Corps rarely verified information inpermit applications or inspected wetlands after permits were approved. 20

“ Peer-reviewed science is supposedto 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 andfiscal 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 andsink. 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 Corpsis 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. Althoughthe 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 Kuslerof 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 kickingand 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 forestryactivities (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 waterissues, and their agendas often conflict. In these situations, the NationalAcademy of Public Administration observed, agencies make separate decisions about individual projects without considering how these steps affect large ecological systems like river basins. 25Other 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 on404 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. “ Itsaves 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 orprotected 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 

# W ETLANDS

‘ 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.Oct. 3, 2008 

### 801 Available online: www.cqresearcher.com Rising oil and food costsand expanding biofuels production have been driving up land prices, making itharder 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 sensitiveland 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 con verted 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 thePrairie 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 withadvances in wetland science. But critics reply that it creates too many easyto-build, low-value wetlands. To workwell, 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, minimizedamage or replace these functions onsite or nearby. These conditions alsoapplied 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 workaround 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 programwere not meeting their targets, and that some were never finished. According to a 2001 National Research Council report, only 70 to76 percent of the mitigation required in studies itreviewed 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. 33Under 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 customersseeking wetland development permits. This approach sought to make permitting more efficient, concentrate more resources on large land parcelsand allow regulators to target important wetlands for restoration or improvement. *

* Mitigation banking is similar to pollutioncredit 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 ResearcherStarting 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 Somewere run by private companies, others by government agencies with major mitigation responsibilities, such as statetransportation departments, or conservation groups. Credit prices ranged from as low as $4,000 per acre in rural areasto $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 ’ tvery 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 untilthey actually carry out their wetland projects. And bank owners retain long-termresponsibility 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 thebig 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 threemonths 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 thefunctions 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 marshesand 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 purposessuch as stormwater control or decorative landscaping. “These ponds are notan 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 seelittle value in a no-net-loss goal unless the focus shifts from quantity to quality. “ Saying that it ’ s OK to tradeprairie 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 andbottomlands (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-bladesmade 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 

# W ETLANDS

Continued on p. 804Oct. 3, 2008 

### 803 Available online: www.cqresearcher.com 

# 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.

1972Clean 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.

1988President 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.

2000Comprehensive 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 restorationplan. 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 Ivancause 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 amongthemselves 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 fillingin harbors. In 1899 the Rivers and Harbors Act required developers to obtaina 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 

# B y 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 

# W ETLANDS



# O ver the past several decades, U.S. laws and regulations have become more protective of wetlands inrecognition 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 generateroughly $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. 4Many 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 particlesto settle out and sink to the bottom. Many types of microorganisms in wetlands, such as bacteria and algae, break downdead 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 thatcan 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 incomingstorms. 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 (CO 2), 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, ” NationalOceanographic 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. 802Oct. 3, 2008 

### 805 Available online: www.cqresearcher.com 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 andmechanized 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 anddams on the upper Mississippi extending for 670 miles from Minneapolis toSt. Louis, to create a nine-foot-deep channel for easy navigation. These projects profoundly affectedwetlands 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 floodplainsunder water. In Louisiana levees prevented the Mississippi and its tributaries from flooding and depositing sedimentsacross 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 ofsaw 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 milesof 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 1936the 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 launchedthe federal Duck Stamp program. Revenues from the program were used tobuy 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 

# B y the 1960s economic growth was taking a heavy toll on U.S. water resources. Many rivers, lakes and streamswere 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 fishlife 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 newwave 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 Corpsof 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 CoastalZone 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), whichrestricted development of areas identified as critical habitat for endangered or threatened species. Section 7 of theact 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 agenciesstill 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 the1985 farm bill. The program made farmers ineligible for federal aid or subsidiesif 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, GeorgeH.W. Bush pledged that his administration would work to achieve “ no net loss ” of wetlands in the U.S. Duringhis 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-roundreceived federal protection. This proposal, which was opposed by the EPAand ultimately failed, could have deregulated up to half of U.S. wetlands. 48


# Legal Resistance 

# E xpanding federal controls slowedthe net rate of wetland losses significantly in the 1970s and ’ 80s, but 

# PROTECTING 

# W ETLANDS



# T he 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 leftis 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 divertedand 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 approachcalled 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 throughthe 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 ina bill supported by the sugar industry but derided by environmentalists as the “ Everglades Whenever” Act. 2The 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 Okeechobeewatershed] 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.Oct. 3, 2008 

### 807 Available online: www.cqresearcher.com 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), theyargued, it owed owners financial compensation. 49 Several landowners who initiatedlawsuits 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 useswere 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 billionon Everglades restoration projects from 2000 though 2007 while Congress provided only $360 million. However, the2007 Water Resources Development Act authorized three important CERP projects withtotal costs of $1.8 billion, including restoration of morethan 150,000 acres of wetlands, and President George W. Bush ’ s fiscal 2009 budgetproposal 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 aroundthe Everglades. In early 2008 Palm Beach County commissioners approved 10,500 acres of new rock mines north ofthe 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 isbogged 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 

# W ETLANDS

But wetland regulation was further complicated by the Supreme Court ’ s 2001 SWANCC ruling that Congress could not regulate isolated wetlandsbased 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. “ Insteadof 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 whetherwetlands 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 withapplications very inefficiently, including many permits that are perfectly fine, and we ’ re not protecting enough wetlands. ” 

# C URRENT 

# S ITUATION

Which Waters? 

# L egislators who are alarmed about wetlands 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, theSupreme 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, makesexplicit 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 andare critical to downstream water quality and aquatic habitat. Without Clean Water Act protection, these streams arenow 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 about500 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, ”Oberstarand Henry A. Waxman, D-Calif., chairman of the Government Reform Committee, told the agency in July. 54But 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 shouldbe subject to federal versus state oversight. Science offers little help, since researchers say most wetlands are connected ecologically in various ways evenif 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

Oct. 3, 2008 

### 809 Available online: www.cqresearcher.com 

# At Issue:

Should Congress pass the Clean Water Restoration Act?

Yes 

# yes BRETT HULSEY SUPERVISOR , D ANE C OUNTY , W IS

.

FROM TESTIMONY BEFORE U.S. HOUSE TRANSPORTATION AND INFRASTRUCTURE COMMITTEE, APRIL 16, 2008 

# m y 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, buildnew 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 P

RESIDENT , A MERICAN P ROPERTY C OALITION

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 the Clean 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 eveninsignificant, 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 sametime, 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 itright. 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 anda 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 dueto 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 ofmiles of barge access canals, excavated by companies drilling offshore for oil and gas, have sliced through coastal marshes and createdchannels 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 Katrinaand Rita accelerated the process, destroying 240 square miles of wetlands. Federal and state agencies have spent almost $800 million since 1990 on coastalrestoration 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 worsedamage 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, directorof 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 forrestoration projects, and in 1990 Congress authorized federal funding andcreated a task force to manage the effort. But fishermen, developers and oil and gas companies objected to manyprojects that hurt their individual economic interests. For example, the state had to fight a two-year legal battle withoyster 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. 57In 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 whenhurricanes Rita and Katrina struck in 2005. The National Research Council, which was thenreviewing the scaledback Louisiana coastal plan, reported in 2006 that while most pieces of the blueprint were sound, a broader plan was needed that showedhow the pieces fit together and laid a base for further work. Thestudy also called for better communication with the public about how various projects wouldaffect 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 Louisianacoastal restoration projects, plus nearly $1 billion for hurricane protection measures. It also created yet another task force to recommend strategies for 

# PROTECTING 

# W ETLANDS

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 ShaeferOct. 3, 2008 

### 811 Available online: www.cqresearcher.com conserving and restoring the state ’ s coastal ecosystems. 59 Two more hurricanes, Gustav andIke, walloped the Gulf Coast in September 2008, causing such massive crop losses from flooding that the statesought $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 assistancepackages 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? 

# G lobal climate change is a wildcard for wetlands as temperatures rise and U.S. leaders look forways to reduce atmospheric concentrations of carbon dioxide, the main greenhouse gas (GHG) generated as a result of human activities. GHGscontribute to global warming by trapping heat in the atmosphere and warming Earth ’ s surface. Wetlands are a potential solution, because they absorblarge quantities of carbon in plant matter and soils. But climate change couldalso 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 belike 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. Hisorganization 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 mayspeed these processes up. And as temperatures rise, climate models predictthat 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 inthem, and it might be fairly easy to restore them

—for example, by breaching levees to recreate marshes. ” 

# O UTLOOK

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 impedeconstruction 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 leadersare 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 rainscaused 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 

# W ETLANDS

$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, “ TheEconomics 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 ofCommerce, 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: FourYears 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 inWatertown, 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.Oct. 3, 2008 

### 813 Available online: www.cqresearcher.com 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 YazooPumps, 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 satelliteimages 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 

# BibliographyOct. 3, 2008 

### 815 Available online: www.cqresearcher.com 

## 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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