Wetland Protection

1
Wetland Protection

• Why should the Federal Government protect
  wetlands?
• Protect waterways as natures filter
• Flood control
• Wildlife habitat
• Endangered species
• Spawning habitat
• Recreation
• Aquifer Recharge

2
Wetland Protection

• Greater than ½ of nations wetlands have been
  lost much of remainder is degraded
• Many states safeguard wetlands
• Not Texas or other playa states
• Federal protection
• Since 1988 no net loss still lose 100,000
  acres/year

3
Wetland Protection

• Swamplands Acts 1849, 1850, 1855
• provided a mechanism for transferring title to
  federally owned swampland to private parties
  agreeing to drain the land and turn it to
  productive, presumably agricultural, use
• Everglades, Great Lakes, Louisiana
• Assisted with cost to drain and fill
• Ceded wetlands to states for drainage and
  reclamation
• Not reversed until Wetland Protection Act of
  1972

4
Wetland Protection

• Army Corps of Engineers, Department of Defense,
  is the key regulatory agency
• Protection grew out of efforts to protect
  navigability of nation waterways
• Rivers Harbors Act of 1899
• Principal purpose to protect navigation
• Section 10 prohibits anyone from dredging,
  filling, or otherwise altering or modifying
  navigable water without obtaining a permit from
  the ACOE

5
Wetland Protection

• Protection grew out of efforts to protect
  navigability of nation waterways
• Rivers Harbors Act of 1899
• To be protected a wetland must be navigable or
  become navigable with improvements
• Only some wetlands qualify
• But a secondary role in protecting wetlands

6
Wetland Protection

• Section 404 of the Clean Water Act
• Principal protection for wetlands
• No one can discharge dredged or fill materials
  into a jurisdictional wetland without a permit
  from the ACOE
• Applies to navigable waters defined as waters of
  the United States including the territorial seas
• Courts have interpreted this to encompass
  wetlands that would not have been considered
  navigable
• Downside regulates only a limited set of
  activities and contains a number of broad
  exemptions

7
Wetland Protection

• Section 404 of the Clean Water Act
• Extends only to discharges
• Exempts normal farming, ranching, and
  silviculture activities
• Since CWA passed legal tug-of-war between those
  that want to expand wetland protection and those
  that think wetland protection should be decreased

8
Wetland Protection

• Section 404 of the Clean Water Act
• Revolves around definition of navigable waters
• Constitutional basis is the Commerce Clause
• Used the phrase navigable but stretched to
  waters of the United States, which has required
  judicial interpretation
• Obscure

9
Wetland Protection

• Section 404 of the Clean Water Act
• Initially jurisdiction to include only navigable
  waterways, which included few wetlands
• Courts concluded that Congress intended to claim
  as much jurisdiction as commerce powers permitted
• ACOE issued new regulations in 1982 asserting
  jurisdiction over not only actually navigable
  waters but also adjacent wetlands, interstate
  wetlands, and intrastate wetlands, sloughs,
  prairie potholes, wet meadows, playa lakes, or
  natural ponds, the use of which could affect
  interstate or foreign commerce.

10
Wetland Protection

• Section 404 of the Clean Water Act
• United States v. Riverside Bayview Homes, Inc.
  U.S. Supreme Court agreed that the ACOE could
  regulate wetlands adjacent to navigable waters
• The 1982 definition was strict and few isolated
  wetlands met the jurisdictional criteria
• In 1986 (ACOE) and 1988 (EPA) the Migratory Bird
  Rule was used to extend 404 regulations to
  isolated wetlands migratory birds cross state
  and international boundaries and hunting is
  involved then the Commerce Clause should apply
• Other criteria must be met to be jurisdictional

11
Wetland Protection

• Section 404 of the Clean Water Act
• Other criteria must be met to be jurisdictional
• Hydric soils
• Hydric plants
• Hydrology
• Solid Waste Agency of Northern Cook County
  (SWANCC) v USACOE the Supreme Court by a 5-4
  vote declared that the Migratory Bird Rule
  exceeded the Corps statutory authority
• Resulted in loss of 404 protection for isolated
  wetlands
• Interpretation also based on intrusion into
  states right to regulate land use

12
Wetland Protection

• Section 404 of the Clean Water Act
• Regulates only discharge of material into
  wetlands
• Tulloch Rule regulation of dredging operations
  if potential for redeposition of dredged material
  exists
• Gone through court decisions

13
Wetland Protection

• Section 404 of the Clean Water Act
• Exemptions
• Normal farming, silviculture, and ranching
  activities
• Construction of farm or stock ponds or irrigation
  ditches

14
Wetland Protection

• Section 404 of the Clean Water Act
• Permitting Process
• CWA has little guidance, so it has evolved over
  time
• EPA was directed to develop appropriate
  guidelines to oversee ACOE activities
• If seeking a permit, must show that (1) there is
  no practicable alternative to the proposed
  activity that would have less impact on the
  aquatic ecosystem, (2) the proposed activity will
  not have significant adverse impacts on aquatic
  resources, (3) all appropriate and practicable
  mitigation will be employed, and (4) proposed
  activities will not violate other state or
  federal laws

15
Wetland Protection

• Section 404 of the Clean Water Act
• Permitting Process
• ACOE is supposed to scrutinize the activity to
  see if it would be contrary to the public
  interest
• Consider the effect of the activity on fish,
  wildlife, water quality, flood control,
  recreation, and aesthetics

16
Wetland Protection

• Section 404 of the Clean Water Act
• General Permits
• 100,000 activities/year that fall within 404
  jurisdiction
• Only 15 go through full regulatory review
  process
• Majority are covered by generic nationwide,
  regional, or programmatic permits known as
  General Permits
• If comply with the conditions of the General
  Permit then often do not even have to notify the
  ACOE

17
Wetland Protection

• Section 404 of the Clean Water Act
• General Permits
• There are gt35 nationwide general permits
• Wildlife related can be exempt
• NW 36 used to allow filling of up to 3 acres of
  wetlands without permits in 2000 replaced with
  NW 39, which authorizes filling of lt1/2 acre with
  requirements
• NW permits can result in wetland loss

18
Wetland Protection

• Section 404 of the Clean Water Act
• EPA has veto authority over permits
• As of 2000, only 11 of the gt150,000 permits
  issued since 1979 have been vetoed
• Constitutional Takings
• Many takings challenges as those denied permits
  usually sue arguing that they have been deprived
  of use of protected wetland
• Decisions vary depend on how much land and
  value of the wetland

19
Wetland Protection

• Section 404 of the Clean Water Act
• Incentive Programs
• Incentives can often be more effective than
  strict regulations
• USDA Conservation Programs
• Swampbuster
• Wetlands Reserve Program

20
Wetland Protection

• Supreme Court 2006
• Rapanos v United States
• Voided rulings against developers that wanted to
  fill wetlands near Lake St. Clair, MI
• 5-4 vote that fell one vote short of gutting the
  CWA (Justice Kennedy provided deciding vote)
• More challenges in the court system.

21
The Endangered Species Act

• World is experiencing the highest rate of species
  extinction since dinosaurs died out 65 MYA
• Current loss rate 3-4 orders of magnitude greater
  than historical
• Humans are the major cause of the current wave of
  extinctions
• Habitat loss, modification, and degradation,
  introduction of exotic species, harvest

22
The Endangered Species Act

• The Endangered Species Act is the strongest
  federal protection against species loss
• Flatly bans the hunting or killing of endangered
  species and protects against significant habitat
  loss
• Problems
• Does nothing about exotic species
• Waits until situation dire to install
  protections species at the edge of extinction
  difficult to restore
• Passed in 1973
• Not much fanfare at the time
• One of the most powerful natural resource laws

23
The Endangered Species Act

• The major controversy revolves around balancing
  the benefits of preserving a species against the
  economic costs of preservation
• Federal agencies cannot take any action that
  jeopardizes existence of an endangered species or
  alter species critical habitat no matter how
  valuable the action would be to society

24
The Endangered Species Act

• However, Congress has never fully funded the
  endangered species program indicating that other
  items are more important
• Many suits against the ESA
• The current law does not provide for the explicit
  balancing of costs and benefits
• Value of endangered species? Moral, ethical,
  economic??
• Most endangered species have no commercial value,
  which is why they are endangered

25
The Endangered Species Act

• In 1973, Congress expressed that species should
  be preserved for their potential genetic value
  (medicines)
• Biodiversity and ecosystem services are necessary
  for humans to survive
• Overall value in trillions but contribution of
  individual species is uncertain

26
The Endangered Species Act

• 2 Federal agencies split administrative
  responsibilities under ESA
• USFWS is responsible for protecting terrestrial
  and avian species and freshwater fish
• NMFS takes responsibility for marine species,
  including anadromous fish such as salmon

27
The Endangered Species Act

• Listing species
• Protects only those species listed by the FWS as
  either endangered or threatened
• Endangered if it is in danger of extinction
  throughout all or a significant portion of its
  range
• Threatened if it is likely to become an
  endangered species in the foreseeable future
• Most provision apply equally to endangered and
  threatened species

28
The Endangered Species Act

• Listing species
• Section 4
• FWS can list a species or an individual or
  organization can petition to list the species
• Now gt1800 species listed
• gt1250 found in the United States
• gt500 animals and nearly 750 plants
• Decide what a species is
• ESA does not define
• Authorizes to list not only individual species
  but also subspecies and for vertebrates, distinct
  population segments that interbreed when mature

29
The Endangered Species Act

• Listing species
• Try to keep economic and political consideration
  out of listing decisions
• Determine within 90 days of receiving petition if
  the petition merits full review
• Within 1 year of receiving petition must make
  determine whether to list the species
• Must list if natural or manmade factors make
  the species endangered or threatened and cannot
  consider the potential economic consequences of
  listing the species

30
The Endangered Species Act

• Listing species
• Policy of peer-review of expert opinion before
  making a listing determination
• Significant pressures not to list species, can
  avoid decision
• Need more information
• Warranted but precluded
• gt250 species candidate
• Congress issue moratoriums administration can
  delay
• Protections for other species can protect species
  in question

31
The Endangered Species Act

• Limits on Federal Agency Action
• Section 7, all federal agencies must consult with
  the FWS before taking any action that might
  affect either an endangered or threatened species
  and must insure that the action is not likely
  to (1) jeopardize the continued existence of the
  species or (2) destroy or modify critical habitat
• No consideration of cost

32
The Endangered Species Act

• Limits on Federal Agency Action
• TVA v. Hill changed the ESA forever as it now
  became a force in federal activities
• Tellico Dam and Snail Darter
• Citizens Suit to stop dam supported by Supreme
  Court
• Endangered Species Committee (God-Squad),
  cabinet-level committee to determine fate of
  species
• 1980 Congress exempted Tellico Dam from ESA in a
  military appropriations rider

33
The Endangered Species Act

• Limits on Federal Agency Action
• TVA v. Hill changed the ESA forever as it now
  became a force in federal activities
• Cannot use cost a as an excuse for not complying
  with requirements of section 7
• Strongest tool that environmental groups have to
  shape natural resource policy
• Also illustrates that no matter what the statutes
  state, cost and politics are the realities of
  regulation

34
The Endangered Species Act

• Limits on Federal Agency Action
• Of 186,000 reviewed federal projects under
  section 7, alterations or delays for lt3 and
  blocked lt0.05 most alterations were minor and
  undemanding

35
The Endangered Species Act

• Critical Habitat
• Very controversial
• ESA requires the FWS to designate critical
  habitat at the same time as listing as long as
  the designation is prudent and determinable
• Very expensive so usually postponed
• By 2002 lt15 of species had habitat designated
• Usually results in law suits

36
The Endangered Species Act

• Critical Habitat
• Cost can be a factor in the decision of how much
  and which habitat but not whether to declare or
  not
• Bill in Congress to change increase emphasis on
  economics and practicality and time to designate.

37
The Endangered Species Act

• Section 9
• No one, public or private, can take an endangered
  species of fish or wildlife
• 1981 a regulation that states if significant
  habitat modification or degradation occurs that
  actually kills or injures wildlife by
  significantly impairing essential behavioral
  patterns, including breeding, feeding, or
  sheltering constitutes unlawful harm
• More controversy on this regulation than any
  other

38
The Endangered Species Act

• Section 9
• Babbitt v. Sweet Home Chapter of Communities for
  a Great Oregon Supreme Court upheld regulation
  in 1995
• Incidental Take Permits
• To mitigate section 9s potential restrictions on
  the use of private property
• Authorized in 1982
• Under Section 10, the FWS can permit an otherwise
  unlawful taking of a species if (1) taking is
  incidental to an otherwise lawful activity and
  (2) the permit applicant has devised an
  acceptable Habitat Conservation Plan (HCP)

39
The Endangered Species Act

• Section 9
• Administrative Reform Efforts
• Faced with increasing hostility to ESA and
  Section 9, changes in policy were made in the mid
  1990s
• When a species is listed, activities considered
  likely or unlikely to violate Section 9 are
  provided
• No Surprises policy provide landowners with
  greater certainty by promising landowners who
  receive incidental take permits that the
  government will pay for any new habitat or
  actions that might be needed to meet unforeseen
  circumstances

40
The Endangered Species Act

• Section 9
• Faced with increasing hostility to ESA and
  Section 9, changes in policy were made in the mid
  1990s
• Safe Harbor Agreements encourage landowners to
  enhance, restore, or create habitat on their
  property if a landowner voluntary enhances,
  restores, or creates habitat, the landowner is
  free to return the land its initial condition at
  a later time
• CCAAs

41
The Endangered Species Act

• Section 9
• Criticisms
• Encourages landowners to destroy valuable habitat
• Unfair to force a limited group of landowners to
  bear the burden of protecting listed species
• Costs to society outweigh the value of the
  protected species
• Few Takings Challenges because rarely are
  property owners prevented from making any use of
  their land

42
The Endangered Species Act

• Recovery Plans
• Section 4 states that FWS give priority to
  developing and implementing recovery plans to
  species that are most likely to benefit
• Implement recovery plans
• Sections 7 and 9
• Section 6 provides funding to states to restore
  species
• Section 5 allows the FWS to acquire land and
  water
• Usually lack funds

43
The Endangered Species Act

• Does it work?
• Argument that few species recovered so must not
  work
• 33 delisted 7 extinct, 12 due to administrative
  changes, 14 because of recovery
• Delisting should not be deciding factor
• Only 7 gone extinct may be best indicator of
  success given existing threats

44
The Endangered Species Act

• Changes
• Start protection prior to nearly extinct
• Protection of biodiversity and ecosystems
• Involve states earlier
• Employ Adaptive Management Procedures
• Due for reauthorization but Congress has
  postponed