Issue in the Spotlight: Wetlands and stream protection under Clean Water Act
In October 2005, the Supreme Court announced it would hear three landmark cases regarding the Clean Water Act. At issue was the extent of the government’s Constitutional authority to regulate water bodies via the “navigable waters” clause. The Court heard those cases on February 21, 2006 and issued a split ruling on June 19, 2006. On August 1, 2006, the Senate Environment and Public Works held a preliminary hearing to discuss the ruling and consider the need for possible legislative “fixes” to the definition of “waters of the United States”. Following the Court’s ruling, it is clear that much input from aquatic scientists regarding the connectivity of aquatic ecosystems will be required in the coming months. If you would like to be involved in ASLO’s efforts to educate policymakers on this issue, please contact ASLO Director of Public Affairs Adrienne Sponberg at Sponberg@aslo.org.
ASLO has undertaken several activities on this important issue, including submitting an amicus brief for the Court’s consideration and conducting a wetlands science course on Capitol Hill, both in conjunction with the Ecological Society of America and Society of Wetlands Scientists (the Estuarine Research Federation also signed on to the amicus brief).
Below are the stories and reports regarding this issue that ASLO’s Public Affairs Office has published.
- Protection for wetlands and streams to be debated by Supreme Court in 2006 - Reprinted from L&O Bulletin 14(4): 79-80.
- ASLO submits amicus brief for Feb 21 Supreme Court wetland cases - From the ASLO Aquatic Policy Report: Feb and Mar 2006
- ASLO amicus brief to Supreme Court posted for viewing - From the ASLO Aquatic Policy Report: Feb and Mar 2006
- Wetlands trial highlights need for scientist engagement - Reprinted from L&O Bulletin 15(2): 43-44
- Supreme Court issues split decision on wetlands cases - From ASLO Aquatic Policy Report: Jun through Aug 2006
- Senate committee ponders future of Clean Water Act - From ASLO Aquatic Policy Report: Jun through Aug 2006
- ASLO teams up with ESA and SWS to bring wetland science to the Hill
Protection for wetlands and streams to be debated by Supreme Court in 2006
Reprinted from L&O Bulletin 14(4): 79-80.
Following Hurricane Katrina, public interest in the role of wetlands has skyrocketed. And with good cause: there is a growing body of evidence that wetlands can provide significant protection to coastal communities. While the value of wetlands is obvious to many scientists, the media and general public are just now beginning to appreciate the wisdom of Henry Thoreau’s belief that “a town is saved, not more by the righteous men in it than the woods and swamps that surround it.” Scientific studies are lending data to bolster Thoreau’s argument. In a recent issue of Science, Danielsen et al. reported that villages buffered by mangroves sustained significantly less damage than exposed villages. Computer models suggest that mangroves can reduce maximum flow pressure of a tsunami by more than 90% (Danielsen et al. 2005. The Asian Tsunami: A Protective Role for Coastal Vegetation. Science 310: 643.).
Ironically, just as the critical role of wetlands in coastal communities is grabbing headlines, federal protection of wetlands is in jeopardy. On October 11, the Supreme Court announced that it will hear three Clean Water Act cases next year. The rulings in those cases could have serious implications for the protection of all wetlands, streams, and small rivers. For thirty years, section 404 of the Clean Water Act, which prohibits the filling of navigable waters, has been consistently interpreted as providing protection to wetlands, rivers and streams. The most recent Supreme Court challenge to the statute--the Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (known as the SWANCC case)--resulted in a loss of federal protection of isolated wetlands in 2001. Prior to SWANCC, the Army Corps had issued regulatory guidance that interpreted the Act as providing protection to all waters of the United States. However, with SWANCC, the Court interpreted the jurisdiction to be limited to navigable waters, their tributaries, and wetlands adjacent to the waterways and tributaries, limiting the Corps ability to protect isolated wetlands.
The cases to be heard in January 2006 further challenge the interpretation of “navigable waters.” At issue in one of the cases is whether a private landowner in Michigan who filled a wetland on his property is legally liable. Environmental groups are concerned about the outcome of the case, in part because of the newly appointed Chief Justice. Chief Justice John Roberts is a strong proponent of private property rights, a fact that could figure prominently into the court’s decision. According to news reports, property-rights advocates had failed to persuade the court to hear similar cases in the past, leading some to believe that the addition of Chief Justice John Roberts might have influenced the court’s decision to hear the case.
In addition to having obvious implications for the protection of wetlands, the case could have broader ramifications for environmental protection in the U.S. A central tenet of most environmental regulation is that the federal government sets a minimum standard for protection and pollution limits. The goal is to prevent states from competing for polluting industries by having lower and lower environmental standards. States can, and some do, go beyond the federal levels of environmental protection legislated by most of the major environmental laws (with some exceptions). One well-known example of this would be the state of California’s emission laws. In the current cases, the question is whether the federal government has a right to regulate upstream of navigable waterways. Some developers and property-rights advocates argue that you can’t show that what is happening upstream will actually affect downstream in terms of degrading water quality. Environmentalists, however, need only to point to the dead zone in the Gulf of Mexico caused by the runoff of fertilizer into small tributaries of the Mississippi. A ruling that limits the government’s ability to regulate aquatic systems upstream of navigable waters could upset this basic principle of environmental protection.
While the average citizen is unable to “lobby” the Supreme Court, interested individuals can still make their opinions on wetlands protection known to policy-makers. Duane Desiderio, vice president of legal affairs at the National Association of Home Builders, recently told Greenwire that “it’s very rare for the court to accept three wetlands cases in the same week” and believes that the Court’s interest in the cases will encourage more analysis, both within the administration and on Capitol Hill. In fact, some within Congress have been working since the SWANCC decision to explicitly extend the Clean Water Act’s authority to all waters of the United States. Each congressional session since 2002, Rep. Jim Oberstar (D-MN) has introduced the Clean Water Authority Restoration Act. Oberstar’s legislation, and companion legislation introduced in the Senate by Sen. Russ Feingold (D-WI), would replace the term “navigable waters” throughout the Clean Water Act with “waters of the United States”. Neither bill has yet been granted consideration by the referred committees, however. While the number of cosponsors of the bills is encouraging--136 cosponsors for HR 1356 in the House and 10 cosponsors of S 912 in the Senate--committee staff handling the legislation say there is little hope that the legislation will be granted consideration by committee under the current congressional leadership. When asked what ASLO members can do to help ensure protection of wetlands, Rep. Oberstar’s staff handling the bill said simply: do a better job of educating the public and policy-makers about wetlands.
The ASLO Public Affairs Office is taking this advice to heart: educating the public and policy-makers about the role and ecosystem services of wetlands will be a top priority for the upcoming year. If you are interested in participating in this effort, please contact me at Sponberg@aslo.org.
ASLO submits amicus brief for Feb 21 Supreme Court wetland cases
From the ASLO Aquatic Policy Report: Feb and Mar 2006
The US Supreme Court has announced that it will hear two pivotal Clean Water Act cases on February 21 (for further background, see December issue of the ASLO Bulletin). The cases challenge the federal government’s regulation of wetlands based on the “navigable waters” clause of the Act.
With assistance from the Southern Environmental Law Center, ASLO has joined the Ecological Society of America, the Society of Wetland Scientists, and the Estuarine Research Federation, in submitting an amicus curae (friend of the court) brief to the court. In the brief, the societies argue that wetlands adjacent to tributaries perform functions essential to maintenance of water quality and the aquatic ecosystem; therefore, they are “inseparably bound up” with the integrity of adjacent and downstream waters. The brief concludes that the federal definition of “adjacent” wetlands accurately reflects the connection to adjacent and downstream navigable waters, and that definition encompasses the Rapanos and Carabell wetlands (the wetlands at issue in the court case).
More than 30 friend of the court briefs have been submitted to the Supreme Court, including a brief from US Reps. John Dingell (D-MI) and John Conyers (D-MI) and seven retired congressmen who helped write or revise the 1972 Clean Water Act. As authors of the law, the former representatives argue that the term “navigable waters” used in the Act was intended to include interior wetlands. A brief from the attorney generals of 34 states argues that disturbing wetlands in one state has effects in other states and that while impacts to one wetland may not have a substantial impact on water quality, the lack of federal oversight would lead to inconsistent regulations, jeopardizing shared state interests such as drinking water quality and flood control.
The Court’s decision could have major ramifications for the regulation and protection of wetlands and streams in the US. ASLO will continue to report upon the case in the bimonthly Aquatic Policy Reports.
ASLO amicus brief to Supreme Court posted for viewing
From the ASLO Aquatic Policy Report: Feb and Mar 2006
With assistance from the Southern Environmental Law Center, ASLO has joined the Ecological Society of America, the Society of Wetland Scientists, and the Estuarine Research Federation, in submitting an amicus curae (friend of the court) brief to the court. The brief is available for download here.
Wetlands trial highlights need for scientist engagement
Reprinted from L&O Bulletin 15(2): 43-44
In the December 2005 Bulletin, I wrote about the Supreme Court’s decision to hear several cases that could change the way streams and wetlands are regulated (if at all) by the United States. The Court heard oral arguments for the case on February 21; a decision has not been released at press time (nor has the date of a decision been announced).
ASLO has taken several steps to help ensure that our scientific understanding of wetland functions is considered as part of the case. First, with the legal expertise of the Southern Environmental Law Center (SELC), ASLO, along with the Ecological Society of America (ESA), the Society of Wetland Scientists (SWS) and the Estuarine Research Federation (ERF) submitted an amicus brief for the Court’s consideration (the brief is available for download on the ASLO website). The ASLO brief was one of many submitted; in total, over100 organizations submitted briefs. Many of these briefs cautioned the court against limiting the scope of the Clean Water Act, with each argument having a slightly different focus. The scientific societies argued that wetlands and small tributaries were vitally linked to the health of larger water bodies and therefore must be considered when regulating those larger bodies. Groups representing the fishing, hunting and recreation interests argued that wetlands and streams provide economic benefit through their wildlife functions. One brief was submitted and signed by the Attorneys General for 35 states. In that brief, the states argued that limiting federal jurisdiction would create regulatory chaos and would encourage states to adopt low standards to attract polluters, which would have negative impacts on neighboring and downstream states.
With so many interests submitting amicus briefs, ASLO members may wonder why ASLO (or any scientific society for that matter) would need to submit their own. A line of questioning by Justice Breyer provides the most compelling argument for that need. While the Corps of Engineers was arguing its case, the attorney referred to wetlands as “sponges” which help regulate the flow of water in adjacent water bodies. Justice Breyer responded:
“I understand that. Now, what specifically, since I think this is scientific, do I look at to verify what you just said, namely that a wet depression, even if there's no interchange, has a lot to do with flood control that a dry depression wouldn't have? That's a scientific statement. Where do I verify it?”
The Corps attorney replied that several of the amicus briefs contained that information, to which Justice Breyer responded that he did not see that statement directly contained in the briefs (acknowledging that perhaps he read them too quickly). He then asked the Corps attorney, “If I don't find empirical verification for that statement, what am I supposed to do with this case?”
Breyer’s line of questioning highlights the need for scientists to not only actively disseminate scientific facts to policy and lawmakers, but to do so clearly and in a manner that is most useful to that particular audience. I would be hard-pressed to find an ASLO member who would doubt or question the statement that wetlands act as sponges or as filters; there is no disagreement on that issue and those characterizations would be accepted as general consensus. However, as Justice Breyer noted, anecdotal evidence is hard to cite. When arguing a case that impacts the regulation of all streams and wetlands in the U.S., one needs solid citations from which to work. Even though the scientific community did step up and submit an amicus brief for this case, perhaps it wasn’t clear enough. Perhaps in our efforts to discuss the details, we forget to explain and verify information that, to us anyway, is obvious. And beyond this particular case, how many similar cases are being heard in state and district courts throughout the country? Certainly ASLO can’t submit amicus briefs to every court in the United States (not to mention other countries!).
While the Court’s decision has not yet been announced, it is clear from the arguments that there will be a need for extensive follow-up. In particular, the role of tributaries in watersheds will be a hot topic of discussion. At a recent forum focused on the Supreme Court cases, a representative from the Department of Justice noted several specific issues that would need clarification. One subset includes: the role of natural versus artificial tributaries, the importance of perennial versus intermittent versus ephemeral flow, the role of surface versus groundwater connections, and the role of closed basins. Clearly, scientists will have a lot to say on these matters (including citations of empirical work supporting those statements, of course). The question becomes – how do we best relay that information to the people who need it? And who should relay that information – individual scientists or is it a role most appropriate for disciplinary societies?
ASLO’s mission statement states that one of its purposes is to “advance public awareness and education about aquatic resources and research,” suggesting that regardless of who else is involved, ASLO should be a player. But to do so, the society needs to begin branching out beyond its traditional role as meeting organizer and primary literature publisher. ASLO has a fine record in publishing primary literature, but has no product geared at addressing the outreach emphasis of its mission statement. The Public Affairs Office has recently begun incorporating activities to fulfill this part of ASLO’s mission, including participation in the amicus brief as well as a planned 3-session mini-course on wetlands science for congressional staff. However, the challenges ahead are large and staff time is limited; larger, collective efforts with active participation of ASLO members are needed.
For example, ASLO could produce 2-3 page documents that describe the basic scientific consensus regarding hot topics in aquatic science, such as the role of tributaries in watersheds or the connection between nutrients and coastal water quality. For such a document to be useful however, it would need to be fully annotated and written in a manner that is clear and concise. A list of “experts” to contact for further information on particular subtopics would be particularly helpful. Perhaps most importantly, such a document would have to be actively distributed to the groups and audiences (in the U.S. and abroad) that would find it most useful. A suite of documents could provide a very valuable reference set for educators, policy-makers, members of the media and the general public. However, it would not be a small undertaking and would require the active participation of many members (to write and review the document) and an investment on behalf of ASLO in printing and dissemination costs. If you are interested in volunteering to work on this project, please contact me at Sponberg@aslo.org. The ASLO board recently gave preliminary approval for the Public Affairs Office to work on such an effort. Your participation can make it a success.
Supreme Court issues split decision on wetlands cases
From ASLO Aquatic Policy Report: June through August 2006
On June 19, the US Supreme Court issued a split verdict (4-1-4) on two landmark Clean Water Act cases, Rapanos v. United States and Carabell v. United States. The Rapanos case addresses whether or not the Army Corps of Engineers has jurisdiction over wetlands that are adjacent to non-navigable tributaries of traditionally “navigable” waters. In the Carabell case, the issue is whether the Corps has jurisdiction over wetlands not hydrologically connected to any “waters of the United States”. The cases were considered jointly by the court.
The verdict was hardly straightforward, with the Court issuing a total of five opinions. Justice Scalia issued the plurality opinion (along with Justice Roberts, Thomas and Alito), which supported a more restricted interpretation of the term “waters of the United States”. That interpretation would place limits on waters flowing intermittently or ephemerally and would exempt “isolated” waters from Clean Water Act authority. Additionally, only wetlands with a continuous surface connection to traditionally “navigable waters” would be protected under the Act. Chief Justice Roberts also wrote a separate opinion concurring with the plurality. Justice Kennedy wrote an opinion concurring in the judgment of the plurality, but differs on the need for a continuous surface connection. Instead, Kennedy sets up a “significant nexus” test that would require regulators to determine if wetlands have a significant nexus with navigable waters on a case-by-case basis.
Justice Stevens wrote the dissenting opinion; he was joined by Justices Souter, Ginsberg and Breyer. Breyer also issued a separate dissenting opinion. The dissent holds that the Corps’ existing wetlands regulations are the correct interpretation of the Clean Water Act.
In response to the ruling, the Corps and EPA are in the process of working on joint guidance clarifying Clean Water Act jurisdiction. The agencies issued immediate guidance to field staff shortly after the decision. Field staff will continue to process permit authorizations, but temporarily delay making jurisdictional calls beyond the limits of traditional section 10 navigable waters until further guidance is provided by Headquarters of both agencies.
The Court’s decision can be downloaded here (PDF).
Senate committee ponders future of Clean Water Act
From ASLO Aquatic Policy Report: June through August 2006
Aug 1 – The Senate Environment and Public Works Subcommittee on Fish, Wildlife and Water held a hearing to discuss the implications of the recent Supreme Court ruling on the Clean Water Act. Sen. Lincoln Chafee (R-RI) chaired the hearing. In his opening remarks, Chafee discussed the Commerce Clause of the U.S. Constitution, which provides Congress with the authority to regulate environmental matters. The Commerce Clause, and its interpretation, is the heart of the debate over the scope of the Clean Water Act.
Chafee, a strong conservationist, called for the hearing to help Congress assess the Rapanos ruling and determine whether legislative remedies are necessary. One such legislative remedy would be passage of S 912, the Clean Water Authority Restoration Act of 2005, introduced by Sen. Russ Feingold (D-WI). S 912 would specifically define “waters of the United States” based on the Corps regulatory definition. Ranking member Hilary Rodham Clinton (D-NY) echoed Chafee’s concern over the future of the Act. Using New York City’s drinking water supply as an example, Sen. Clinton said “how we define ‘the waters of the United States’ is not an abstract matter for New Yorkers. It has profound impacts for the quality of their drinking water, and on their water rates, as building a filtration plant would cost billions of dollars.” Sen. Jim Jeffords (I-VT) cited EPA figures that 59% of the length of shallow streams flow only part of the year. Under some interpretations of the Court’s recent ruling, these streams would no longer be regulated under the Clean Water Act.
It is important to acknowledge, however, that absence of Clean Water Act authority over these watersheds does not necessarily mean they will not be regulated at all. Several other federal statutes, as well as state and local regulations, address water quality in these water bodies. Full committee chairman James Inhofe (R-OK) believes the federal government has overstepped its bounds in regulating land use decisions and said “the Court did not go as far as I believe it should have”. In reference to state and local regulatory programs, he noted their presence in 35 states and said “states have not stepped up to protect these areas because they have not needed to. They have yielded their authority to a federal bureaucracy all too eager to expand its power to regulate local land use.”
Sen. Lisa Murkowski (R-AK) urged the Administration – not Congress — to clarify rules and regulations stemming from the Act: “The Act is clear – it is the implementation that is muddy.” Murkowski also argued that not all wetlands are equal: “Even the most casual observer – if willing to look at the science of wetlands management rather than the politics of it, must accept the idea that not all wetlands serve the same function, nor are they equally important in cleaning and conditioning water resources, nor are they equally important in mitigating storm damage.”
The hearing featured testimony from two panels of witnesses. The first panel consisted of the federal agencies involved in the cases: Benjamin Grumbles, Assistant Administrator for Water at the EPA, and John Paul Woodley, Jr., Assistant Secretary of the Army for Civil Works delivered joint testimony regarding EPA and the Corps’ response to Rapanos. John Cruden, Deputy Assistant Attorney General, testified regarding the legal issues surrounding the case. The second panel consisted of two law professors, Jonathan Adler from Case Western Reserve University and William Buzbee from Emory Law School; Chuck Clayton of the Izaak Walton League; and Keith Kisling of the National Association of Wheat Growers and the National Cattlemen’s Beef Association. The two law professors had vastly different interpretations of the ruling, and not surprisingly, Mr. Clayton and Mr. Kisling also differed in their opinion on the ruling.
The opening remarks and written testimony for the hearing can be viewed here. Sen. Chafee has indicated that his subcommittee will hold hearings on legislative proposals this fall. ASLO will continue to monitor this important issue and will provide updates via the Aquatic Science Policy Reports and Action Alerts, as appropriate.
ASLO teams up with ESA and SWS to bring wetland science to the Hill
This August, ASLO, along with the Ecological Society of America (ESA) and Society of Wetland Scientists (SWS), sponsored a course focused on the fundamentals of wetlands science, featuring both classroom and field study. Staff from nearly 20 congressional offices participated in the three-session science course.
The first two sessions were held inside, classroom-style, in lecture format but with plenty of time for informal give-and-take discussion and questions. Ben LePage, an ecologist at the URS Corporation, presented an introduction to wetlands science, addressing competing scientific and legal definitions of wetlands, wetland functions and historical loss of wetlands. He drew on examples from his work with corporate clients and local governments to answer staff questions about how to classify wetlands and how to effectively restore wetland hydrological function.
Amy Jacobs, a wetlands ecologist at the Delaware Department of Natural Resources and Environmental Control, continued the discussion with the interaction of people and wetlands. She illustrated the services wetlands provide to society, the threats to wetlands, and case studies of the actions people are taking to restore, create, and preserve wetlands. Staff questions ranged from the differences in function between restored and created wetlands, to how to engage constituent landowners to take a broader view of wetland services.
A field trip to freshwater wetlands and salt marshes in Edgewater, MD topped off the course. Pat Megonigal, a wetland biogeochemist at the Smithsonian Environmental Research Center, led the course activities, together with ASLO member Tom Jordan and Dennis Whigham.
Staff saw firsthand the differences in structure and function between natural and created freshwater wetlands in a suburban development. They learned to distinguish anaerobic wetland soils from upland ones, inspected a riparian buffer within an agricultural landscape, and kept a close eye out for wetland wildlife.
Moving on to a tidal salt marsh, Congressional staff investigated how scientists are measuring wetland elevation above sea level with cutting-edge instrumentation. They tested out predictions of how wetlands may respond to sea-level rise and rising atmospheric carbon dioxide levels.
Staff appreciated the rare opportunity to learn hands-on and directly from practicing scientists. In the coming months, Congress will increasingly need an understanding of wetland functions and services as it considers legislation to clarify federal wetlands regulation in the wake of the Supreme Court Rapanos and Carabell decisions in June 2006.
The course is part of ASLO’s campaign to better educate policymakers regarding the connectivity of aquatic ecosystems (see “Protection for wetlands and streams to be debated by Supreme Court in 2006” in ASLO Bulletin 14(4): 79-80. ASLO plans to follow up with future wetlands-related activities, particularly as the Corps of Engineers and Environmental Protection Agency begin the process of creating new guidance following the Court’s ruling on Rapanos and Carabell (see ASLO Aquatic Science Policy Report: June through August 2006 for further discussion.