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ENVIRONMENTAL POLICY AND LAW

Back to Session 8: Protecting Natural Resources:

Protecting Wetlands

What are Wetlands?

Wetlands Under Threat
   

Rivers & Harbors Act of 1899

Section 404, Clean Water Act
   

Navigable Waters

What Constitutes a "Discharge"
   

The Permitting Process, General Permits & EPA Vetoes

Regulatory Takings Challenges
   
Incentive Programs

 What are Wetlands?

The U.S. Army Corps of Engineers has a very specific definition it applies when determining if an area is a wetland. They define wetlands in the following fashion:

"Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

Wetlands are areas that are covered by water or have waterlogged soils for long periods during the growing season. Plants growing in wetlands are capable of living in saturated soil conditions for at least part of the growing season. Wetlands such as swamps and marshes are often obvious, but some wetlands are not easily recognized, often because they are dry during part of the year or "they just don't look very wet" from the roadside.

 

Some of these wetland types include, but are not limited to, many bottomland forests, pocosins, pine savannahs, bogs, wet meadows, potholes, and wet tundra. The information presented here usually will enable you to determine whether you might have a wetland. If you intend to place dredged or fill material in a wetland or in an area that might be a wetland, contact the local Corps District Office for assistance in determining if a permit is required.

 

Why is it necessary to consider whether an area is a wetland?

Section 404 of the Clean Water Act requires that anyone interested in depositing dredged or fill material into "waters of the United States, including wetlands," must receive authorization for such activities. The Corps has been assigned responsibility for administering the Section 404 permitting process. Activities in wetlands for which permits may be required include, but are not limited to:

The final determination of whether an area is a wetland and whether the activity requires a permit must be made by the appropriate Corps District Office.

 

How can wetlands be recognized?

The Corps uses three characteristics of wetlands when making wetland determinations: vegetation, soil, and hydrology. Unless an area has been altered or is a rare natural situation, wetland indicators of all three characteristics must be present during some portion of the growing season for an area to be a wetland. Each characteristic is discussed below.

 

However, there are some general situations in which an area has a strong probability of being a wetland. If any of the following situations occur, you should ask the local Corps office to determine whether the area is a wetland:

Many wetlands can be readily identified by the general situation stated above. For the boundary of these areas and numerous other wetlands, however, it is unclear whether these situations occur.

 

In such cases, it is necessary to carefully examine the area for wetland indicators of the three major characteristics of wetlands: vegetation, soil, and hydrology. Wetland indicators of these characteristics, which may indicate that the area is a wetland, are described on the following pages.

 

Vegetation indicators

 

Nearly 5,000 plant types in the United States may occur in wetlands. These plants, known as hydrophytic vegetation, are listed in regional publications of the US Fish and Wildlife Service.

 

However, you can usually determine if wetland vegetation is present by knowing a relatively few plant types that commonly occur in your area. For example, cattails, bulrushes, cordgrass, sphagnum moss, bald cypress, willows, mangroves, sedges, rushes, arrowheads, and water plantains usually occur in wetlands.

 

Other indicators of plants growing in wetlands include trees having shallow root systems, swollen trunks (e.g., bald cypress, tupelo gum), or roots found growing from the plant stem or trunk above the soil surface. Several Corps offices have published pictorial guides of representative wetland plant types.

 

Soil indicators

 

There are approximately 2,000 named soils in the United States that may occur in wetlands. Such soils, called hydric soils, have characteristics that indicate they were developed in conditions where soil oxygen is limited by the presence of saturated soil for long periods during the growing season. If the soil in your area is listed as hydric by the US Natural Resource Conservation Service (NRCS), the area might be a wetland.

 

Hydrology indicators

 

Wetland hydrology refers to the presence of water at or above the soil surface for a sufficient period of the year to significantly influence the plant types and soils that occur in the area. Although the most reliable evidence of wetland hydrology may be provided by gaging station or groundwater well data, such information is limited for most areas and, when available, requires analysis by trained individuals. Thus, most hydrologic indicators are those that can be observed during field inspection. Most do not reveal either the frequency, timing, or duration of flooding or the soil saturation.

 

However, the following indicators provide some evidence of the periodic presence of flooding or soil saturation:

Wetland determination

 

One or more indicators of wetland vegetation, hydric soil, and wetland hydrology must be present for an area to be a wetland. If you observe definite indicators of any of the three characteristics, you should seek assistance from either the local Corps District Office or someone who is an expert at making wetland determinations."

By way of comparison, the U.S. EPA describes wetlands as:

"lands where saturation with water is the dominant factor determining the nature of soil development and the types of plant and animal communities living in the soil and on its surface. [Alternately stated] "wetlands are areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season." " Wetlands vary widely because of regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance. Indeed, wetlands are found from the tundra to the tropics and on every continent except Antarctica.

 

For regulatory purposes under the Clean Water Act, the term wetlands means "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas."

Wetlands are produced when water saturation occurs in an area. Again, according to EPA:

"The prolonged presence of water creates conditions that favor the growth of specially adapted plants (hydrophytes) and promote the development of characteristic wetland (hydric) soils.

 

Wetlands vary widely because of regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance. Indeed, wetlands are found from the tundra to the tropics and on every continent except Antarctica. Two general categories of wetlands are recognized: coastal or tidal wetlands and inland or non-tidal wetlands.

 

Coastal wetlands in the United States, as their name suggests, are found along the Atlantic, Pacific, Alaskan, and Gulf coasts. They are closely linked to our nation's estuaries, where sea water mixes with fresh water to form an environment of varying salinities. The salt water and the fluctuating water levels (due to tidal action) combine to create a rather difficult environment for most plants. Consequently, many shallow coastal areas are un-vegetated mud flats or sand flats. Some plants, however, have successfully adapted to this environment. Certain grasses and grass-like plants that adapt to the saline conditions form the tidal salt marshes that are found along the Atlantic, Gulf, and Pacific coasts. Mangrove swamps, with salt-loving shrubs or trees, are common in tropical climates, such as in southern Florida and Puerto Rico. Some tidal freshwater wetlands form beyond the upper edges of tidal salt marshes where the influence of salt water ends.


Inland wetlands are most common on floodplains along rivers and streams (riparian wetlands), in isolated depressions surrounded by dry land (for example, playas, basins, and "potholes"), along the margins of lakes and ponds, and in other low-lying areas where the groundwater intercepts the soil surface or where precipitation sufficiently saturates the soil (vernal pools and bogs). Inland wetlands include marshes and wet meadows dominated by herbaceous plants, swamps dominated by shrubs, and wooded swamps dominated by trees.
 

Certain types of inland wetlands are common to particular regions of the country:

Many of these wetlands are seasonal (they are dry one or more seasons every year), and, particularly in the arid and semiarid West, may be wet only periodically. The quantity of water present and the timing of its presence in part determine the functions of a wetland and its role in the environment. Even wetlands that appear dry at times for significant parts of the year -- such as vernal pools-- often provide critical habitat for wildlife adapted to breeding exclusively in these areas."

 

"Wetlands are among the most productive ecosystems in the world, comparable to rain forests and coral reefs. An immense variety of species of microbes, plants, insects, amphibians, reptiles, birds, fish, and mammals can be part of a wetland ecosystem. Physical and chemical features such as climate, landscape shape (topology), geology, and the movement and abundance of water help to determine the plants and animals that inhabit each wetland. The complex, dynamic relationships among the organisms inhabiting the wetland environment are referred to as food webs. This is why wetlands in Texas, North Carolina, and Alaska differ from one another.

 


Wetlands can be thought of as "biological supermarkets." They provide great volumes of food that attract many animal species. These animals use wetlands for part of or all of their life-cycle. Dead plant leaves and stems break down in the water to form small particles of organic material called "detritus." This enriched material feeds many small aquatic insects, shellfish, and small fish that are food for larger predatory fish, reptiles, amphibians, birds, and mammals.


The functions of a wetland and the values of these functions to human society depend on a complex set of relationships between the wetland and the other ecosystems in the watershed. A watershed is a geographic area in which water, sediments, and dissolved materials drain from higher elevations to a common low-lying outlet or basin a point on a larger stream, lake, underlying aquifer, or estuary.


Wetlands play an integral role in the ecology of the watershed. The combination of shallow water, high levels of nutrients, and primary productivity is ideal for the development of organisms that form the base of the food web and feed many species of fish, amphibians, shellfish, and insects. Many species of birds and mammals rely on wetlands for food, water, and shelter, especially during migration and breeding.


Wetlands' microbes, plants, and wildlife are part of global cycles for water, nitrogen, and sulfur. Furthermore, scientists are beginning to realize that atmospheric maintenance may be an additional wetlands function. Wetlands store carbon within their plant communities and soil instead of releasing it to the atmosphere as carbon dioxide. Thus wetlands help to moderate global climate conditions."

Wetlands Under Threat

According to the Department of Conservation and Land Management of the Government of Western Australia, major threats to wetlands include:

"Alteration of natural water regimes

This can be caused by activities such as artificial drainage, the extraction of groundwater, the construction of dams and weirs and the loss of vegetation (see below). Plants and animals that inhabit wetlands are often dependent on a particular water regime, and may be affected by changes in natural water regimes.

 

Loss of vegetation

The vegetation that occurs around wetlands is an important component of the ecosystem. The vegetation assists in maintaining regular wetland water regimes (see above), provides habitat and food for fauna, protects against salinity and erosion, provides natural beauty and helps maintain a healthy wetland. The loss of vegetation will result in the loss of these values.

 

Salinisation and Excessive Inundation

These are widespread issues in agricultural areas and are generally csaused by the replacement of perennial deep rooted native vegetation with shallow rooted introduced annual crops and pasture. Because annual crop and pasture species use less water than native vegetation, this can result in a rise in the water table bringing with it dissolved salts that have accumulated in the surface layers of the soil. A few effects of salinity and excessive inundation on wetlands include a reduction in water quality, the alteration of aquatic invertebrate communities, and the death of wetland plants that cannot tolerate high levels of salt in the soil or the extended period of inundation. Mining is also a factor that can cause salinisation in wetlands.

 

Water pollution

The contamination of a water body can be caused by various activities, including the use of chemicals (such as fertilisers and pesticides) in the catchment of wetlands, the drainage of pollutants and toxic materials into wetlands, and accidental chemical/oil spills. Some contaminating substances can be harmful to wildlife and can greatly reduce the water quality of the wetland. The use of fertilisers in the wetlands catchment can cause nutrient enrichment in the wetland. This has the potential to cause algal blooms in the water body. These blooms may be toxic to some fauna, such as fish and waterbirds.

 

Introduction of invasive species

This includes the introduction of weeds and feral animals (such as carp, mosquito fish, Salvinia, grasses, donkeys, goats and camels) into the wetland environment. Weed invasion creates competition for resources with native plant species. Feral animals are known for their destructive impact on wetland areas and can disrupt the intricate food chains that exist within the ecosystem.

 

Natural processes

Fire, floods, cyclones and drought are all naturally-occurring processes that have the potential to damage wetland environments. Fire can cause a massive change to the habitat available for wildlife around wetlands. Floods, cyclones and drought can impact the natural water regime of the water body and the vegetation surrounding the wetlands."

In Maylaysia, the major threat to wetlands is logging. According to the World Wildlife Foundation, "A long history of logging has left many parts of the Kinabatangan badly degraded. Some of these areas have been altered so much so that little or no forest community is able to regenerate. As more and more of the floodplain forests are forests are being developed, these forest remnants have become one of the last strongholds for native wildlife." In Brazil, the world's largest wetland - the Amazon basin - is under threat from logging and ranching, as it is in India and Indonesia, and the Phillipines where the important mangrove wetlands are under threat.

In the U.S., wetlands are  under threat on many fronts. EPA estimates that,

"The lower 48 states contained an estimated 105.5 million acres of wetlands in 1997. This is an area about the size of California. In the 1980s, an estimated 170-200 million acres of wetland existed in Alaska-- covering slightly more than half of the state-- while Hawaii had 52,000 acres. Next to Alaska, Florida (11 million), Louisiana (8.8 million), Minnesota (8.7 million), and Texas (7.6 million) have the largest wetland acreage.

 

 

In the 1600s, over 220 million acres of wetlands are thought to have existed in the lower 48 states. Since then, extensive losses have occurred, and over half of our original wetlands have been drained and converted to other uses. The years from the mid-1950s to the mid- 1970s were a time of major wetland loss, but since then the rate of loss has decreased.

 

 

 

Between 1986 and 1997, an estimated 58,500 acres of wetlands were lost each year in the conterminous United States. Various factors have contributed to the decline in the loss rate including implementation and enforcement of wetland protection measures and elimination of some incentives for wetland drainage. Public education and outreach about the value and functions of wetlands, private land initiatives, coastal monitoring and protection programs, and wetland restoration and creation actions have also helped reduce overall wetland losses.

 

In addition to these losses, many other wetlands have suffered degradation of functions, although calculating the magnitude of the degradation is difficult.

 

These losses, as well as degradation, have greatly diminished our nation's wetlands resources; as a result, we no longer have the benefits they provided. The increase in flood damages, drought damages, and the declining bird populations are, in part, the result of wetlands degradation and destruction.

 

Wetlands have been degraded in ways that are not as obvious as direct physical destruction or degradation. Other threats have included chemical contamination, excess nutrients, and sediment from air and water. Global climate change could affect wetlands through increased air temperature; shifts in precipitation; increased frequency of storms, droughts, and floods; increased atmospheric carbon dioxide concentration; and sea level rise. All of these impacts could affect species composition and wetland functions.

Major Causes of Wetland Loss and Degradation

Human Actions
- Drainage
- Dredging and stream channelization
- Deposition of fill material
- Diking and damming
- Tilling for crop production
- Levees
- Logging
- Mining
- Construction
- Runoff
- Air and water pollutants
- Changing nutrient levels
- Releasing toxic chemicals
- Introducing nonnative species
- Grazing by domestic animals

Natural Threats
- Erosion
- Subsidence
- Sea level rise
- Droughts
- Hurricanes and other storms"

Rivers & Harbors Act of 1899

According to NOAA, "Under the Rivers and Harbors Act, the U.S. Army Corps of Engineers (COE) is authorized to regulate the construction of any structure or work within navigable waters under sections 9 and 10 of the Rivers and Harbors Act. The Rivers and Harbors Act of 1899 prohibits the construction of any bridge, dam, dike or causeway over or in navigable waterways of the U.S. without Congressional approval."

The main features of this legislation include:

This early legislation gives the U.S. Corps of Engineers the major responsibility for managing the nation's navigable waterways and includes oversight of the wetlands associated with those waterways.

Section 404, Clean Water Act

 

In the words of the U.S. Fish and Wildlife Service:

" In 1972, Section 404 of the Clean Water Act established a program to regulate the discharge of dredged or fill material into the waters of the United States. The Rivers and Harbors Act of 1899 defined navigable waters of the United States as "those waters that are subject to the ebb and flow of the tides and/or are presently used, or have been used in the past, or maybe susceptible to use to transport interstate or foreign commerce." The Clean Water Act built on this definition and defined waters of the United States to include tributaries to navigable waters, interstate wetlands, wetlands which could affect interstate or foreign commerce, and wetlands adjacent to other waters of the  United States.

 

The program is jointly administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency. The Corps is responsible for the day-to-day administration and permit review and the EPA provides program oversight. The fundamental rationale of the program is that no discharge of dredged or fill material should be permitted if there is a practicable alternative that would be less damaging to our aquatic resources or if significant degradation would occur to the nation's waters. Permit review and issuance follows a sequence process that encourages avoidance of impacts, followed by minimizing impacts and, finally, requiring mitigation for unavoidable impacts to the aquatic environment. This sequence is described in the guidelines at Section 404(b)(1) of the Clean Water Act.

 

The Fish and Wildlife Service plays and important advisory role to this process. Our mission is working with others to protect, conserve and enhance fish, wildlife, and plants and their habitats, for the continuing benefit of the American people. Wetlands are vital for sustaining fish and wildlife populations in the United States. They provide important feeding, breeding, and migration habitat for a number of species. This includes 50 percent of our migratory bird species and over 30 percent of plants and animals listed under the Endangered Species Act. Our mission is authorized and accomplished via our various authorities, including: The Fish and Wildlife Coordination Act, Fish and Wildlife Act of 1956, Food Security Act, Anadromous Fish Conservation Act, Migratory Bird Treaty Act, and Endangered Species Act."

Navigable Waters

As the text observes, the constitutional basis upon which Congress regulates wetlands is the "Commerce Clause" around which the Rivers and Harbor act and the Clean Water Act are developed. Central to these pieces of legislation is the definition of the term "navigable waterways." Again, according to federal statutes, the term "navigable waterway" means,

"those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity."

The concept of "navigability" has important roots in American history. "In the past, the concept of navigability was used almost exclusively for business and commerce. Throughout the 20th century, however, navigability has evolved to encompass the limited recreational activities of fishing and boating." "If a body of water is navigable, the property rights of adjoining riparian owners are subject to certain rights of the public to use the water. In essence, members of the public have an easement (technically, a "servitude") to use the waters for certain limited purposes such as boating and fishing. If a waterway is non-navigable, the public generally cannot use the water, and in some cases members of the public may not use the water even if the public has lawful access to the body of water."

Oversight of water navigability is given to the U.S. Corps of Engineers.

"The Corps has been involved in regulating activities by others in navigable waterways through the granting of permits since passage of the Rivers & Harbors Act of 1899. At first, this program was meant to prevent obstructions to navigation, although an early 20th century law gave us regulatory authority over the dumping of trash and sewage. Passage of the Clean Water Act in 1972 greatly broadened this role by giving the Corps authority over dredging and filling in the "waters of the United States," including many wetlands.

 

A major aspect of the Regulatory program is determining which areas qualify for protection as wetlands. In reaching these decisions, the Corps uses its 1987 Wetland Delineation Manual. In making decisions on whether to grant, deny or set conditions on permits, District commanders are required to consider "all factors in the public interest," including economic development and environmental protection. Numerous relatively minor activities in wetlands are covered by regional or nationwide general permits, allowing the regulatory staff to concentrate on more complex cases."

The Corps of Engineer's  navigation program encompasses  all of the nation's deep draft harbors (more than 300 of these ports) which manage much of the nation's international maritime trade. The Corps also manages hundreds of smaller harbors (numbering more than 600) that serve recreational and commercial interests nationwide. Finally, the Corps realizes its mission through construction and maintenance of a vast infrastructure of  intra-coastal and inland network of commercial navigation channels, and locks and dams.

 

The Corp of Engineers has been involved in this work since 1824 when Congress authorized them to improve safety on the Ohio and Mississippi Rivers and in several ports. This work involved maintaining various channels at specific depths through dredging and re-routing streams and channels. The Corps was also charged with eliminating impediments to water flow, to include the removal of logjams. Currently, the Corps maintains more than 12,000 miles (19,200 km) of inland waterways and maintains and operates some 235 locks. These "improved" waterways handle more than one-sixth of the nation's "inter-city" freight.

 

Issues relating to what constitutes a navigable waters have also in part been defined in case law by Natural Resources Defense Council v. Callaway and in United States v. Riverside Homes, Inc.

What Constitutes a "Discharge"

Likewise, issues relating to what constitutes a "discharge" have been significantly shaped in case law by National Mining Association v. United States Army Corps of Engineers and Borden Ranch Partnership v. United States Army Corps of Engineers. The National Mining Association case resulted revolved around what is known as the Tulloch rule a ruling  " that incidental fallback that accompanies dredging is subject to the Clean Water Act's (CWA) permitting provision for "discharge" of dredged or fill material."

 

"The Tulloch case involved a development project site in North Carolina. In 1987, Corps personnel determined that about 700 acres of the site were wetlands. However, the developer consulted with the Corps at various stages during the development to ensure the project could be implemented without the need for a Section 404 permit.

 

The developer drained the area to lower the water table and eliminate wetland hydrology and wetland vegetation. A consultant had determined that, by constructing some ponds and a network of ditches 4 feet deep every 200 feet, the area could be drained. The developer obviated the need for a permit by not discharging dredged material. The soil was removed with sealed buckets on draglines and backhoes. The excavated material was placed in sealed containers on the back of trucks and dumped on upland sites. As a result of these alterations, the water table dropped and the Corps no longer considered the area a wetland. Because the developer's actions involved only minimal incidental releases the Corps determined Section 404's permitting process did not apply.
 

The North Carolina Wildlife Federation filed a lawsuit against Tulloch to enforce Section 404 requirements.  As part of the settlement of this case the Corps and the Environmental Protection Agency (EPA) agreed to propose new rules governing the permit requirements for landclearing and excavation, resulting in what has come to be known as the Tulloch Rule.

 

Specifically, this rule redefined "discharge of dredged material" to include "any addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation." Additionally, EPA promulgated a parallel rule redefining "discharge."
 

The Tulloch Rule covered all discharges, subject to the limited exception for de minimis discharges that the Corps was convinced (i.e. burden is on the landowner) would not have the effect of "destroying or degrading an area of waters of the United States," whereas the 1986 rule exempted de minimis soil movement. In promulgating this rule the Corps "emphasized that the threshold of adverse effects for the de minimis exception is a very low one."  Additionally, in the preamble to the Tulloch Rule the Corps stated "it is virtually impossible to conduct mechanized landclearing, ditching, channelization or excavation in waters of the United States without causing incidental redeposition of dredged material (however small or temporary) in the process."  The Tulloch Rule altered the preexisting regulatory framework by removing the de minimis exception and by adding coverage of incidental fallback."

 

The lawsuit by The American Mining Congress and other trade associations challenged this regulation ultimately resulted in a decision by the U.S. Court of Appeals for the District of Columbia that the Tulloch Rule exceeded the Corps' authority to regulate any "addition" of a pollutant to navigable waters under the CWA and enjoined the Corps and EPA from applying the rule."

The Permitting Process: Individual Permits, General Permits and EPA Vetoes

In a nutshell,  "Section 404 permits are of two types: general and individual. General permits, which are 80-90% of all permits in a given year, cover a large class of activities considered individually or cumulatively negligible in their impact upon wetlands. Examples of activities covered by general permits are construction of temporary recreational structures, stream-bank stabilization, maintenance dredging of waterways or cleanup of hazardous waste. Such activities may be "pre-approved" and not require site-specific evaluation."

The permitting process for Section 404 of the Clean Water Act can be further understood as follows:

"Under Section 404, anyone who proposes an activity that would discharge dredged or fill material into waters of the United States is required to apply for a permit from the U.S. Army Corps of Engineers. That means physical alteration of any aquatic site, including wetlands, should require a 404 permit. “Special aquatic sites” are afforded the strongest protection under the rules. Theoretically, any activity that moves even a small amount of earth (such as mud from the wheels of construction vehicles) into a water body and has an appreciable impact is regulated under Section 404. If the activity is regulated under Section 404, then a federal action (the permit process) is required before the activity can proceed. That federal action triggers the need for Section 401 certification and, in some cases an Endangered Species Act consultation. In some situations, this feature is the most powerful aspect of Section 404 of the Clean Water Act."

 

"In January 2001, the United States Supreme Court issued an important Clean Water Act ruling regarding "isolated" wetlands. The Supreme Court decision in the Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers concluded that Congress had not granted the Corps jurisdictional Clean Water Act authority over "isolated" wetlands used by migratory birds (known informally as the Migratory Bird Rule). Prior to what is now known as the "SWANCC decision", the Corps had promulgated a broad regulatory definition of "waters of the U.S." that afforded federal protection for almost all of the nation's wetlands, including "isolated" wetlands and other intermittent waters.

 

These waterways provide significant landscape functions such as flood attenuation, water quality maintenance and habitat to wildlife populations, particularly migratory waterfowl, yet the decision may leave many "isolated" wetlands and other water resources unprotected by the CWA.

 

Since the SWANCC decision, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE) have developed guidance and are proceeding with rulemaking to reopen and narrow the definition of "waters of the United States."

 

The guidance in place for current activities subject to 404 permitting already limits protection to interstate, navigable waters. The narrower definition of what constitutes "waters of the United States" that is proposed by EPA and the ACOE removes from Clean Water Act protection "isolated" wetlands (such as prairie potholes and pocosins) as well as non-navigable tributaries of traditionally navigable waters, intermittent and ephemeral streams, and waters that pass through human-made conveyances. Wetlands may be defined by the administration as "isolated" if they lack a direct surface connection to other bodies of water -- and yet they are often connected to other waters by groundwater or overflow and contribute to the ecosystem's health by filtering pesticides and other pollutants for downstream waters.

 

The law places the burden of proof squarely on a permit applicant to demonstrate that the destruction of any portion of a wetland is necessary. If the proposed activity does not absolutely have to be conducted in or near the water, the permitting agency is to begin with the assumption that practicable alternatives do exist. However, in practice, it is not this burden of proof that most often deters potential applicants from pursuing a 404 permit. More often, it is the cost of mitigating environmental damage that provides the greatest disincentive to filling a wetland or altering a waterway.

 

Mitigation in the 404 context means to minimize the loss of an aquatic site. Mitigation can include:

  • creation (making a wetland where there never had been one before);

  • restoration (restoring a wetland, for instance by taking out old dikes or levees);

  • enhancement (making an existing wetland "better"); or

  • preservation (purchasing or otherwise protecting an existing high-quality wetland).

Enhancement and preservation of wetlands can be important in the context of a larger plan, but settling for these forms of mitigation can shrink the total wetland acreage in your watershed. The creation of a new wetland is considered the least desirable form of mitigation, because it is usually difficult or impossible to create the same values that are being lost. Restoration is usually the best bet.

 

Section 404 regulations allow issuance of individual and general permits. An individual permit is usually required only when an activity is expected to have significant impacts. Otherwise, for discharges expected to have minimal adverse effects, the Army Corps of Engineers often grants general permits. Like general NPDES permits, general 404 permits, once developed, are typically issued to specific applicants with little or no review of site-specific considerations. This underscores the importance of making sure that the conditions of general permits are adequately protective from the start.

 

Though each activity may be small, the cumulative impacts of “small” disturbances permitted under the general permits system have been severe in many watersheds.

 

As in the NPDES process, general permits are reviewed and adopted in a generic format to include broad categories of activities (for example, minor road crossings and utility line backfill) as a means of speeding up the permitting process. They may be issued on a nationwide, statewide, or regional basis.

 

Section 404( f) exempts some activities from regulation under Section 404. These activities include many ongoing farming, ranching, and forestry practices. These practices do require a permit, however, if the dredging or filling will create a new use for the water “that will impair the flow, circulation or reach of the navigable waters in question.”

 

The Army Corps of Engineers administers the Section 404 program. It makes individual permit decisions and develops policy and guidance. Some states have taken parts of the 404 responsibilities from the Army Corps. In addition, every general permit is essentially implemented and enforced by the state.

 

The Clean Water Act calls for states to review water quality impacts of all federal permits or licenses, including 404 permits, within their boundaries. Under Section 401, states and tribes can review and approve, condition, or deny all federal permits or licenses that might result in a pollution discharge to state or tribal waters. By requiring this review, Section 401 of the Act offers veto authority to states and tribes on any 404 permit.

 

The EPA shares the duty of enforcing Section 404. It develops and interprets environmental criteria used in evaluating permit applications, oversees state actions, identifies activities that are exempt from regulation, and reviews and makes comments on individual permit applications. Section 404( c) of the Clean Water Act also authorizes the EPA to override a Corps decision based on “unacceptable adverse effect” on the aquatic environment.

 

If the EPA believes unacceptable adverse effects will occur, it informs the Army Corps that it may veto the permit in question. The EPA says it has issued a veto only 11 times, out of an estimated 150,000 permit applications received since the regulations went into effect in October 1979.

 

The granting of a permit (including a general permit) is a “federal action” for purposes of the Endangered Species Act. Thus, if a listed species may be affected, a 404 permit request triggers the need for a consultation with the relevant agency (either National Marine Fisheries Service or U. S. Fish and Wildlife Service) under Section 7 of the Endangered Species Act, even on private land."

Constitutionally Authorized Regulatory Takings Challenges

For a complete overview of the issue of constitutionally authorized "regulatory takings" you should look to the linked Congressional Budget Office report. However the "key" portion of that report addresses the following challenges:

"The concerns of property rights advocates have resulted in a number of proposals for changing the current approach to regulatory takings. Legislation considered by the Congress over the past several years has incorporated some of the proposed modifications, which can be grouped in four general categories:

  • Relaxing procedural requirements that must be satisfied before a federal court will hear the merits of a taking claim;
     

  • Creating a new statutory right (that is, one enacted into law) that would entitle property owners to compensation for reductions in the value of their property caused by federal regulatory actions--provided that the owners have satisfied legislatively defined criteria for eligibility;
     

  • Increasing the requirements for analysis and reporting that federal agencies must meet before making decisions that could restrict the uses of privately owned property; and
     

  • Specifying that the budget of the agency whose action triggers a regulatory compensation claim be the source of any compensation awarded under the statutory proposals."

Also, a pertinent case in this regard is Lucas v. South Carolina Coastal Council. Henry Butler, a professor of law and economics at the University of Kansas provides this analysis of the state of regulatory takings after "Lucas."

"The Fifth Amendment to the United States Constitution concludes with the Takings Clause—"nor shall private property be taken for public use without just compensation." There are several common-sense reasons why this clause was included in the Bill of Rights. First, protection of property rights (through the public use and compensation requirements) encourages private investment and promotes economic prosperity. Second, compensation is equitable in the sense that no one individual or group is forced to bear a disproportionately large share of the costs of a government program. Third, the public use requirement could limit the scope of government activities to those that involve primarily public, rather than private (special interest), benefits. Fourth, the compensation requirement serves as an important restraint by requiring the government to pay for all the resources that it commands. Although this list of rationales is not necessarily exhaustive, it does suggest that a consideration of these rationales could provide some guidance to the application and interpretation of the Takings Clause. Unfortunately, judicial interpretation of constitutional provisions is never so straightforward.

 

Like many areas of constitutional jurisprudence, judicial interpretation of the Takings Clause has created a confused and baffling body of law. For example, the Supreme Court has emasculated the "public use" requirement to the point that "public use" means whatever the taking government says is a public use. Nevertheless, when government physically invades private property, it is clear that a taking has occurred and that compensation is owed to the property holder.

 

What is not clear is the extent to which the Takings Clause offers property owners protection against reductions in property value caused by government regulations—so-called regulatory takings. In many instances, especially land-use regulations, the effect of regulations is to impose substantial costs on some property owners in the name of achieving what the government has determined to be a public benefit. Thus, many regulatory-induced reductions in property value are potentially characterized as takings subject to the just compensation provisions of the Takings Clause. Indeed, compensation for a typical regulatory taking would seem to fit within the primary justifications for the Takings Clause—encouraging investment, preventing inequitable treatment, and restraining government.

 

Nevertheless, this approach to property rights and regulatory takings offers too much—almost every government action impacts property values, and it would be totally unworkable to require compensation every time a government action causes a diminution in value. But that does not mean that there should be no protection against regulatory takings. Proponents of greater property rights protection have long recognized the need for a principled approach to regulatory takings that is consistent with the overall purposes of the Takings Clause.

 

Property Rights in the Reagan-Bush Supreme Court

Prospects for greater protection for private property owners looked bright as the Reagan-Bush appointees took control of the Supreme Court. However, property rights proponents' expectations have been treated to a roller coaster ride by recent Supreme Court decisions. Beginning with three cases in 1987, the Court seemed to signal the start of a new era in which greater protection from regulatory takings would guarantee property owners compensation in the event that government actions reduced the value of their property. In fact, the 1987 decisions prompted President Reagan to issue an Executive Order calling for a "regulatory takings review" of all new federal regulations.

 

The prospect of greater protection of property rights appeared even brighter when the Supreme Court agreed to review the South Carolina case of Lucas v. South Carolina Costal Council. Anticipation of an important decision affording greater protection against government action was reflected in numerous law review articles and the popular press. But even before Lucas was announced in 1992, the Court lowered expectations with its decision in Yee v. City of Escondido, which rejected a property owner's efforts to expand the Court's takings test to encompass regulation of mobile home parks. The Court refused to consider the petitioner's argument that although no actual physical invasion occurred, the county ordinance amounted to a regulatory taking because it deprived mobile home park owners of the economic use of their property. The Court described the regulatory takings analysis in terms of an ad hoc balancing test that "necessarily entails complex factual assessments of the purposes and economic effects of government actions." That is not the type of language that promotes and protects private property, but things got worse in Lucas.

 

The facts in Lucas are straightforward. David Lucas, a real estate developer, bought two beachfront lots on a South Carolina barrier island in anticipation of building vacation homes as was then permitted by all relevant regulatory bodies. The South Carolina Legislature then enacted the South Carolina Beachfront Management Act, which prevented Lucas from building on his property. A state trial court found that the state's action was a taking because it rendered the property "valueless" and ordered compensation. The South Carolina Supreme Court reversed the decision on the ground that no compensation is owed under the Takings Clause regardless of the regulation's effect on the property's value when a regulation is designed to prevent "harmful or noxious uses" of property. The notion that building a home at the beach is a "harmful or noxious" use of property would strike most people as strange or even bizarre, but the South Carolina Supreme Court accepted the legislature's determination that building additional homes would threaten existing homes and the delicate environmental system of the barrier islands. Had the South Carolina decision been upheld, Mr. Lucas would have been faced with the loss of over $1 million.

 

The U.S. Supreme Court's decision to grant certiorari in Lucas created a great deal of excitement among property rights proponents as well as a great deal of concern among environmentalists. For property rights proponents, Lucas was a good case in the sense that the South Carolina Supreme Court's decision seemed so inequitable that the U.S. Supreme Court was bound to offer some relief. Lucas also presented an opportunity to develop a coherent theory of regulatory takings that would act as a real constraint on regulatory activity. On the other hand, environmentalists were concerned that the Court, in granting relief to Lucas, would rein in the regulatory demands of the environmental lobby. As it turned out, all the glee and hand wringing were for naught.

 

The Distinction Between Total and Partial Takings

The Supreme Court's decision in Lucas was a major disappointment because the opinion unnecessarily limited its impact to unusual situations where the regulatory taking renders the property "valueless." Justice Antonin Scalia, writing for a majority of six, delineated a boundary between compensable and noncompensable land-use regulations based on the distinction between total and partial regulatory takings. Justice Scalia held that the Takings Clause reached only those land-use restrictions that deprived the owner of "all economically beneficial uses" of property. That statement was sufficient to overturn the South Carolina Supreme Court, but it failed to offer any improvement to the law of regulatory takings because most regulatory takings do not render the affected property "valueless." Thus, land-use regulations ostensibly adopted to promote some articulated state interest will not require compensation to injured landowners so long as there is not a total taking or a physical invasion of the property.

 

The distinction between total and partial regulatory takings is the most troublesome aspect of Justice Scalia's opinion. The distinction is arbitrary and inconsistent with the purposes of the Takings Clause. For the typical landowner, the distinction between total and partial takings represents a difference in relative magnitude of loss for any given piece of property, but makes little sense in terms of a landowner bearing a disproportionately large share of the burden of creating some public benefit. Under the Lucas Court's total/partial distinction, one landowner's noncompensable partial taking may be a much larger dollar loss than another landowner's compensable total taking. In this regard, the total/partial distinction seems arbitrary and unsound.

 

Moreover, the total/partial distinction for regulatory takings was not necessary in light of earlier Supreme Court decisions involving partial physical takings. For example, in the 1933 case of Jacobs v. United States, farmers sued the federal government to recover compensation for the occasional flooding of their property that was caused by the construction of a dam by the federal government. The Supreme Court ruled that there had been a partial taking of the lands in question, for which the government was required to make compensation under the Fifth Amendment. Many years later, in Griggs v. Allegheney County (1962), the Court addressed the partial physical taking of air space over land. In that case, the county established an airport next to residential property, making it unsuitable for residential use. The Court required payment of compensation even though the property could be used for nonresidential or commercial purposes—that is, even though the property was not made valueless. Thus, it is clear from an analogous area of Takings jurisprudence that Supreme Court precedent did not prohibit Justice Scalia from requiring compensation for partial regulatory takings.

 

The most plausible explanation for why Justice Scalia adopted the total/partial distinction is that requiring compensation for partial takings would have laid the foundation for an all-out assault on other partial regulatory takings, such as zoning restrictions and rent control. Lucas offered a potential vehicle for such a dramatic change in property rights protection because most of the Justices did not really believe that Lucas had lost all economically beneficial use of his property. That is, Lucas really involved a partial taking, but Justice Scalia chose to adopt the South Carolina trial court's characterization of it as a total taking and use the total/partial distinction to limit the scope of the decision. Unfortunately, the Lucas opinion gives legislators and lower courts plenty of guidance about how to avoid finding a regulatory taking.

 

As disappointing as the Lucas holding might be to proponents of property rights, it is useful to keep some perspective on the decision by considering Justice Blackmun's view of Mr. Lucas's unfortunate treatment at the hands of the South Carolina Legislature. In a strong dissent to Justice Scalia's majority opinion, Justice Blackmun concluded that "even assuming that petitioner's property was rendered valueless, the risk inherent in investments of the sort made by petitioner, the generality of the Act, and the compelling purpose motivating the South Carolina Legislature persuade me that the Act did not effect a taking of petitioner's property." Real estate developers, like Mr. Lucas, are accustomed to the financial risk involved in their business. Owners of beachfront homes, like Mr. Lucas hoped to become, are well aware of the risks of storms and hurricanes. However, just because people are willing to incur those types of risks, it does not follow that they willingly accept the risk that the legislature can take their property with no prospect of compensation. Under Blackmun's view, the biggest risk—apparently an "inherent" risk—of owning property is that the legislature will destroy its value free of any obligation to compensate the victim. This brings real meaning to the saying "When the legislature is in session, there is no such thing as an insurable interest."

 

Lucas not only failed to meet its potential to provide more protection for property owners, it also instructed governments how to avoid paying the full costs of regulatory takings. The tragedy of Lucas is that the Court has told governments, in effect, "you can take and you won't have to pay as long as you don't take it all."

 

Casual observation of politics at any level of government teaches us that we should never underestimate the ability of politicians and interest groups to take advantage of every opportunity to use political force to transfer wealth. But Supreme Court opinions continue to reflect a naive view of politics and the American democratic process. Nowhere is that naivete more evident than in Lucas. The Lucas decision creates a clear road map for how legislators should write legislation to avoid regulatory takings claims. As a result, we may have seen the last regulatory taking—at least according to Justice Scalia's definition—but we can expect to see even more legislative intrusions on property rights.

 

The Lower Courts

A more immediate concern with Justice Scalia's distinction between partial and total takings was that lower courts would seize on the negative implication—if there is not a total deprivation of economic value, then there is not a taking and compensation is not required. That is an attractive bright line rule for lower court judges because it is simple and easy to apply. Moreover, application of the Lucas rule is not subject to the types of second guessing that go with the application of more complicated standards like the one articulated in Yee which requires "complex factual assessments of the purposes and economic effects of government actions." In short, because judges generally do not like to see their decisions overturned on appeal, the simple calculus of Lucas—is it a total taking or not?—is very appealing.

 

A review of the lower court cases—a few of which are mentioned here—suggests that the courts have been doing exactly what property rights proponents feared. Perhaps the most literal following of Lucas was by the Washington State Court of Appeals in Powers v. Skagit County, which involved land-use restrictions prohibiting building in a flood plain where the owner previously had been granted building permits, but had allowed them to expire before beginning construction. The Washington State Court of Appeals stated "unless [the plaintiff] can demonstrate on remand that he is entitled to categorical treatment under Lucas (by showing that his property retains no economically viable use as a result of the regulations), then the trial court's determination that the regulations are insulated from his takings challenge must be affirmed." In Barnardsville Quarry, Inc. v. Borough of Bernardsville, the New Jersey Supreme Court rejected a takings challenge to a local ordinance limiting the permissible depth of a quarry that reduced the value of the plaintiff's land by over 90 percent. Lucas had no impact on the analysis or the ultimate decision, presumably because both parties recognized that it was not a total taking.

 

In another case, State of Delaware v. Booker, the Superior Court of Delaware rejected a takings challenge after finding Lucas inapplicable to a prohibition on building in a highway "buffer zone" that was created when a new highway was built on adjacent condemned property: "Defendants incorrectly rely on Lucas and assume building prohibitions necessarily render land valueless. In Lucas, the state legislature's building restriction did render the land valueless but those facts were significantly different from the facts of the Defendants' case . . . While a building prohibition on coastal lots bought by a residential developer for the purpose of constructing houses upon them rendered the property in Lucas valueless, the same is not true of farmland which has been and currently is used in the same capacity. The Defendants focus too narrowly on whether a regulation does or does not prohibit building. The determinative question is whether the regulation completely deprives the owner of ‘any reasonable economic use' and, thus, renders the property valueless. Defendants cannot claim their land is valueless simply because they might have developed it in the future. The possibility of future development is irrelevant because the land, as evidenced by the current use, has not been rendered completely worthless. The regulation is considered a taking only if it deprives the owner of all ‘economically viable use of his property.'"

 

The important point illustrated by these cases is just how easy the Lucas total/partial takings distinction makes it for the lower courts to dismiss a regulatory taking claim. If the property has any value after the imposition of the regulation, then the game is over.

 

Scalia's Exception: Another Negative Implication?

Having articulated a bright-line distinction between total and partial regulatory takings, and stated that "total regulatory takings must be compensated," Justice Scalia then created an exception to the new total taking rule by providing that compensation would not be required—indeed, a "taking" would not have occurred—if the regulation prohibits uses of a property that were not "previously permissible under relevant property and nuisance principles." In other words, if the regulated activity is some form of nuisance or noxious use subject to regulation by common law, then the state is not required to compensate property owners for any resulting economic loss.

 

The negative implication of this position is that if the activity was previously permitted under relevant property and nuisance principles, then the prohibition of the activity would be a total regulatory taking that must be compensated. Justice Blackmun views this possibility with alarm in his dissenting opinion: "Under the Court's opinion today, . . . if a state should decide to prohibit the manufacture of asbestos, cigarettes, or concealable firearms, for example, it must be prepared to pay for the adverse economic consequences of its decision. One must wonder if government will be able to ‘go on' effectively if it must risk compensation ‘for every such change in general law.'"

 

Although some property rights proponents might be thrilled with such a result (one Justice's doomsday is another person's utopia), Blackmun's doomsday scenario is an extreme interpretation of Justice Scalia's analysis of the rule and exception. For starters, the exception is relevant only if there has been a total regulatory taking. Thus, if the regulation does not destroy all economically beneficial uses, then it does not matter whether the regulated activity was previously permitted because all partial restrictions are sustained under Justice Scalia's formulation. Once again, Justice Scalia's distinction between partial and total takings makes easy work for lower court judges and it is unlikely that they will be willing to follow this potential interpretation of Scalia's exception.

 

Regulatory Takings and the Regulatory State

The Reagan-Bush-Rehnquist court has generated interest in the possibility of reining in the regulatory state through greater protection of property rights, but one stark fact tells the real story—that Court has not ruled that any significant state or federal regulatory program constitutes a compensable taking under the Fifth Amendment. The Takings Clause could be reinvigorated to act as a real check on regulatory excesses, but the Court has been unwilling to take the necessary steps perhaps because it views the democratic process as the best way to control governmental power. After all, the laws and regulations at issue are products of majority voting in a democratic system. However, in light of a generation of work in public choice economics and the economics of regulation, the Court gives too much deference to special-interest regulations cloaked in public-interest rhetoric.

 

We are left with a Court that takes property rights seriously only when granting certiorari (perhaps out of concern for the plight of individual plaintiffs like Mr. Lucas), but is too beholden to majoritarian institutions to use the Takings Clause to overcome the regulatory actions of federal, state, and local governments. Perhaps an inquiry into the interest group aspects of the regulations would help. For example, in making the "complex factual assessments of the purposes and economic effects of government action," courts should look beyond the public-interest rhetoric and examine the validity of the alleged public purpose. If the legislation's primary effect is to benefit interest groups and is inconsistent with the articulated public interest, the Takings Clause could require payment of just compensation to injured property owners and legislators would be forced to consider the budgetary implications of their actions. Of course, a first step in giving teeth to the concept of regulatory takings would be to abandon the total/partial regulatory takings distinction. Whether the Takings Clause is the best approach to controlling the excesses of the regulatory state is another issue. An alternative approach would be revitalization of the substantive due process review as a means of invalidating legislation. For now, unfortunately, the prospects of greater protection of property rights under either approach seem more remote than at any time in the past decade.

 

Postscript

On remand, the South Carolina Supreme Court ordered the state of South Carolina to purchase the Lucas property. As the new owner of a previously "worthless" piece of property, the state has decided to enter the real estate development business and has offered the property for sale as residential sites. Presumably, the state has changed its land-use restrictions to allow the development. This role reversal demonstrates that actions that may appear to be in the public interest when they are "free"—that is, when the political decisionmakers don't bear the costs—are not necessarily attractive government programs once the political decisionmakers must bear the budgetary costs of their actions. It is difficult to find a better example of how protection for owners of private property serves to restrain the growth of government."

Incentive Programs

 

A key incentive program used to protect wetlands from agricultural use is the "Swampbuster" program. As described in a report from the Congressional Research Service, the Natural Resources Conservation Service (NRCS) within the U.S. Department of Agriculture is responsible for administering the program under the authority of the 1985 Food Security Act. To that end,

"Swampbuster specifies that farmers who drain wetlands to plant crops could lose access to numerous federal farm program benefits until they restore those wetlands. Swampbuster is not a regulatory or permit program, as each farmer decides whether he will risk losing these benefits by altering a wetland. NRCS assists farmers in identifying and delineating wetlands, and determines if they are violating swampbuster. (NRCS is also responsible, based on a MOA with the Corps, for delineating wetlands in agricultural areas for the § 404 program. Also, § 404 includes a provision that explicitly excludes "normal farming activities" from permit requirements, while swampbuster excludes certain kinds of wetlands, such as those created as a byproduct of leaking pipes around irrigation apparatus.) Swampbuster allows mitigation in some instances, and the federal guidance states that mitigation banks may be used to satisfy' requirements of swampbuster. To date, no banks have been set up specifically to support the swampbuster program. Amendments in the 1996 farm law (P.L. 104-127) authorized a pilot mitigation banking effort, increasing the likelihood that banks will emerge in agricultural areas in the future. This pilot program is being administered through a large agricultural land retirement program, the Conservation Reserve Program (CRP)."

Another incentive program administered by the Department of Agriculture is the Wetland Reserve Program (WRP). According to NRCS, "The Wetlands Reserve Program is a voluntary program offering landowners the opportunity to protect, restore, and enhance wetlands on their property.  The USDA Natural Resources Conservation Service (NRCS) provides technical and financial support to help landowners with their wetland restoration efforts.  The NRCS goal is to achieve the greatest wetland functions and values, along with optimum wildlife habitat, on every acre enrolled in the program.  This program offers landowners an opportunity to establish long-term conservation and wildlife practices and protection."
 

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