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Wetland Protection

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Title: 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
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