Developments in Wetland Protection
under the Clean Water Act
Mark Ostendorf
Outline Background The Clean Water Act
Section 404 Mitigation Banking
Important Court Cases Current Developments
Clean Water Restoration Act (Bill) Wetlands Conservation Investment Act (Bill)
Defining a Wetland Properties of a Wetland
Hydrology Hydric Soils Adapted Vegetation
Areas saturated or inundated by water with relative frequency and duration and is able to support adapted vegetation Marshes, swamps, bogs, fens…
Function of Wetlands Prevent Erosion Slow Flooding Filter Sediment and Pollution Diverse Habitat
The Environmental Movement Silent Spring—Rachel Carson (1962) By the 1970’s, the public had become
increasingly aware of its affect on the environment
Passage of several environmental regulations National Environmental Policy Act of 1969 Clean Air Act of 1970 Endangered Species Act of 1973
CWA Legislation Federal Water Pollution Control
Amendments of 1972
Clean Water Act of 1977
Water Quality Act of 1987
Clean Water Act of 1972 Original objectives
Elimination of pollution discharges Protection of wildlife for recreation Control of Toxic Pollution Establish waste treatment facilities
In General Regulate discharges into “navigable waters of
the United States”
Establishing CWA “Waters” Defense Council (NRDC) v. Calloway 1975
“navigable waters” could actually incorporate navigable waters, their tributaries, and wetlands
United States v. Riverside Bayview Homes 1985 CWA covers waters adjacent to US waters
Section 404 of CWA “Dredge and Fill” Permit
Discharge of dredge and fill material into waters of the U.S.
Administrating agencies: U.S. COE EPA
Section 404 Permitting A Feasible Alternative is Not Available Nation’s Waters Not Significantly
Degraded Conditions:
Avoid wetland impacts Minimize potential impacts Compensate for unavoidable impacts
Mitigation Banking
Emerging Market Solution Wetlands dredged or filled under Section
404 require compensation for unavoidable impacts Mitigating wetlands somewhere onsite or
nearby Mitigation Banking
Compensating for removed wetlands offsite with a crediting system
Mitigation Banking Result of “No Net Loss” policies under
Bush, Sr., administration Bank - restore, create, enhance or
preserve wetlands to offset development elsewhere Also maintain wetland quality
Credits are purchased by developers Consolidation of smaller wetlands into
larger wetlands
Mitigation Banking Advantages
Development no longer required onsite Cost to the individual developer Credits can be purchased BEFORE
development Disadvantages
Failure Rate Loss of biodiversity in smaller wetlands Size and Distribution are both important
Recent Court Cases Solid Waste Agency of Northern Cook
County (SWANCC) v. COE 2001 Migratory Bird Rule overturned CWA does not cover isolated waters
Rapanos v. COE 2006 CWA does not cover waters with temporary
water flow CWA does not cover waters without a direct
connection to US waters
Impact Fewer Waters Covered by CWA and
Section 404 Some Wetlands are not navigable or directly
connected to other water bodies Fewer wetlands requiring mitigation
Reaction Introduction of bills addressing wetlands
Clean Water Restoration Act Wetlands Conservation Investment Act
Responses in Congress Clean Water Restoration Act of 2009
Introduced in the Senate Sent to committee Meant to restore CWA to its state prior to
SWANCC and Rapanos Intent: To clearly define “waters of the U.S.”
Key Provisions The term “Navigable” would be stricken
from the CWA To return the authority lost after the
SWANCC and Rapanos decisions Further Defining “Waters of the U.S.”
All interstate waters and all intrastrate waters Exemptions from previous CWA unchanged
Mitigation Banking Wetlands Conservation Investment Act
Introduced in House and Senate September and December 2009
Sent to Committee To incorporate wetland mitigation credits into
Internal Revenue Code.
Provisions Adds capital gain or loss treatment of the
sale or exchange of mitigation credits earned by restoring wetlands
Amends Income Tax Code
Conclusions Clean Water Restoration Act
Opponents: State and local rights, property rights
Partisan disagreement Wetlands Conservation Investment Act
Subject to less attention and disagreement Bipartisan support for mitigation banking in the
past
Conclusions Legislation Clarifying Wetland Regulation
is needed
Direction depends on passage of bills
The End
Selected References Bosselman, F. (Summer 2009). Swamp swaps: the "second nature" of
wetlands. Environmental Law. 39:577. Retrieved Feb. 10, 2010 from Lexis-Nexis Academic Database
Clean Water Restoration Act (Apr. 2, 2009). 111th Congress, 1st Sessions.787
Natural Resources Defense Council v. Calloway (1975). Washington D.C. District Court. 392 F. Supp. 685.
Rapanos, J.A. et al. v. United States Army Corps of Engineers, et al. (2006). Supreme Court of the United States. 547 U.S. 715.
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001). Supreme Court of the United States. 531 U.S. 159
Stavins, R. (Jan. 27, 2010). Unintended Consequences of Government Policies: The Depletion of America’s Wetlands. Science and Technology News Forum. Ethiopian Review. Retrieved Feb. 10 from http://www.ethiopianreview.com/scitech/33286.
United States v. Riverside Bayview Homes, Inc. 474 U.S. 121 (1985) Wetlands Conservation Investment Act (2009). 111th Congress, 1st
Sessions. H.R. 3609 and S. 2876.