America's Wetlands in Danger

Legal loophole leaves "isolated" wetlands in peril, says new report

07-23-2002 // NWF Media Team

A new report from two of the nation's leading environmental groups warns of serious threats to people and wildlife stemming from a 2001 Supreme Court decision narrowing the scope of federal environmental protection for the nation's wetlands. The National Wildlife Federation (NWF) and the Natural Resources Defense Council (NRDC) say the ruling invites the destruction of millions of acres of so-called isolated wetlands, eliminating their important role in providing flood control, natural water purification and essential wildlife habitat.

The report, Wetlands at Risk: Imperiled Treasures, details the vital role played by isolated wetlands across all regions of the country, highlighting the important functions at risk. The report also calls for federal legislation that would clarify Congress' view that the protection of isolated wetlands is critical to water quality, public safety, wildlife and other public interests, including hunting and fishing and that the Clean Water Act protects isolated wetlands and other waters. The clarification is essential because tens of thousands acres of wetlands of all types continue to be lost each year in spite of Clean Water Act protections.

"America can't afford to squander all the benefits these wetlands provide," said Julie Sibbing NWF's wetlands legislative representative. "The court may have opened the door to misguided wetlands destruction, but Congress can shut it again."

Isolated wetlands get their designation from their lack of a direct surface connection to other water bodies, though they are critically necessary to the healthy functioning of the overall ecosystem. Because isolated wetlands are often small or exist only for a short period each year, their importance is often not appreciated by policymakers and the public. The lack of awareness of their environmental importance makes isolated wetlands especially vulnerable to development.

Congress included protections for wetlands in the 1972 Clean Water Act. However, in January 2001 a divided Supreme Court held that a federal agency had exceeded its regulatory authority under the law when it tried to block construction of a landfill site that would destroy some 17 acres of seasonal ponds that provide habitat for hundreds of migratory birds. (Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers) The court held that habitat protection for the birds was not enough to warrant government jurisdiction over the ponds and raised the question whether the Clean Water Act protects "non-navigable, isolated, intrastate" waters.

The court's ruling has created confusion by leaving open to interpretation the question of which wetlands are in fact "isolated." Some have read the decision to mean that isolated wetlands - possibly comprising as much as 30 percent of America's wetlands - are, in fact, excluded from protection under the Clean Water Act.

Under the Clean Water Act, the Environmental Protection Agency has the primary responsibility for protecting the nation's waters. In the absence of clear guidance from EPA interpreting this ruling, U.S. Army Corps of Engineers district offices across the country are taking widely varying approaches to jurisdictional questions, in some instances declining to protect waters that are still covered by the Clean Water Act. In addition to supporting new legislation, NWF and NRDC are urging the Bush administration to act quickly and definitively to ensure that federal agencies fully understand the limits of the court's ruling and their inherent responsibility to safeguard the nation's water resources.

"The Supreme Court's ruling makes the future uncertain for millions of acres of wetlands, but the Bush administration can clear up the confusion," said Daniel Rosenberg, and attorney with NRDC's Clean Water Project. "It all depends on how the administration views wetlands, either as natural treasures worthy of protection or as places best suited for landfills, strip malls, parking lots, and subdivisions."

Related Resources
  • Supporting Document
    Wetlands At Risk: Imperiled Treasures (pdf)

    Thirty years after passage of the Clean Water Act, wetlands continue to be drained, filled and polluted at an alarming rate.

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