Wetland loss slows, but some see new court ruling as step backward

WASHINGTON – On the same day the USDA and Department of the Interior touted the slowdown in the loss of wetlands over the past decade, the EPA blasted a Supreme Court ruling that it says weakens America’s ability to further protect its wetlands.

A new report by the Department of the Interior shows the rate of wetland loss in the United States decreased to an estimated annual loss of 58,500 acres, an 80 percent reduction compared to the previous decade.

A second report, prepared by the USDA’s Natural Resources Conservation Service, found an average annual net loss from all sources of 32,600 acres of wetlands from 1992 to 1997.

“This is the greatest overall decline in the rate of wetlands loss since records have been compiled by the federal government,” said U.S. Agriculture Secretary Dan Glickman.

A U.S. Supreme Court ruling on wetlands also grabbed the headlines Jan. 9. The court found the federal government lacks the authority under the Clean Water Act to regulate isolated ponds that provide habitat for migrating birds.

The case involved a group of Illinois communities trying to build a landfill on a former strip mined site. The Army Corps of Engineers denied the permit, claiming the stripper cuts were protected as nesting and breeding areas by migratory birds.

U.S. EPA Administrator Carol M. Browner said the court’s decision “weakens American’s ability to protect” wetlands.

“This decision further underscores the need for Congressional action to strengthen the laws that protect wetlands,” Browner said.

She used the occasion to issue a new regulation to tighten up on dredging operations related to wetlands. EPA’s latest rule, often called the Tulloch rule, modifies the definition of “discharge of dredged material” in order to clarify what types of activities EPA and the corps believe typically result in discharges that should be regulated.

A “discharge” is a specific activity that involves the addition of material into a wetland. Since its inception, the Clean Water Act has not regulated removal activities. In 1993, however, the corps came out with the Tulloch Rule, regulating certain land removal activities in wetlands.

Last week’s clarification says the corps and EPA regard the use of mechanized earth-moving equipment to conduct land-clearing, ditching, channelization, in-stream mining, or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material, unless project-specific evidence shows that the activity results in only “incidental fallback,” or excavated material that falls back into the spot of removal.

“The agencies are simply putting a new label on an old, illegal regulation,” said National Association of Home Builders President Robert L. Mitchell, from Rockville, Md.

Mitchell said NAHB is strongly considering legal action against the latest Tulloch reincarnation.

The Clean Water Act requires a permit before filling wetlands. In fiscal year 1999, approximately 21,500 acres of wetlands were legally filled through the government’s permitting process. These were offset by approximately 46,000 acres of newly created wetlands to mitigate the loss.

The numbers are similar in Ohio, according to Kim Baker, environmental administrator with the Ohio Department of Natural Resources. In FY99, 108 acres of wetlands were permitted to be filled; in return, 250 acres of new wetlands were created, although not necessarily in the same watershed as the lost wetlands.

Those permits are just a small part of the overall wetlands story, Baker said. For example, the ODNR has partnered with private landowners to restore wetlands and has restored more than 2,500 acres of wetlands on ODNR-owned lands.