Supreme Court ruling threatens wetlands

Field Editor

Washington, D.C. Conservationists say a recent decision by the
U.S. Supreme Court dealt a serious blow to wetlands conservation in
the United States and removed federal protection for habitat used
by waterfowl and other wildlife.

Ruling on a case where government agencies near Chicago wanted
to build a landfill in a flooded gravel pit area used by ducks and
other migratory birds, the Court said that Section 404 of the Clean
Water Act does not apply to isolated wetlands. Section 404 is the
key federal law for wetlands protection. The Court ruled that the
only wetlands Section 404 covers are those connected to navigable

Conservationists say they are unsure how the ruling will be
interpreted by the federal agencies the U.S. Army Corps of
Engineers and the Environmental Protection Agency responsible for
administering and enforcing Section 404.

“We’re all still in the shock phase,” said Julie Sibbing,
legislative representative for the National Wildlife Federation.
“It will be up to the Bush Administration to come up with an

In a broad sense, wetlands associated with navigable waters may
be defined as those which flow into rivers and streams. The
wetlands that have likely lost federal protection are basins with
no outlet.

These include the prairie potholes, rainwater basins, forest
pools, playa lakes, and Carolina bays. These small isolated basins
are considered some of the best remaining wetland wildlife

“As near as we can tell, this ruling is devastating to the
progress we’ve made in wetland conservation,” said Lloyd Jones of
Delta Waterfowl. “Unless Congress acts to institute new protection,
we will likely see the destruction of some of the country’s best
remaining wetlands.”

However, some believe the ruling includes language that may
prevent Congress from moving to protect isolated wetlands. Don
McKenzie of the Wildlife Management Institute said there is concern
the ruling includes language that says the economic activity
associated with migratory birds such as duck hunting does not
constitute intrastate commerce. That premise had been the
cornerstone of extending Section 404 protection to isolated

Since it was established in 1972, the Clean Water Act has been
the foundation for wetland protection in United States. A report
issued last week by the U.S. Department of Interior said that
wetland loss due to drainage and development declined by 80 percent
in the last decade. Conservationists worry that trend may be

“People will view this as a window of opportunity to drain
wetlands,” Jones says. “We could see lots of drainage occur this

At immediate risk are the prairie potholes in the Dakotas, which
currently is one of the most significant waterfowl nesting areas in
North America. There is little or no state protection for potholes
in either North or South Dakota, where wetland drainage is a
priority for many agricultural producers.

Wildlife biologists say that small wetland basins, which are
often temporary, are tremendously important to ducks and other

In the spring, these shallow basins are rich with invertebrate
life and provide a key food source for migrating ducks. They are
also extensively used by shorebirds and other species. In the
forest, such pools support amphibians such as frogs and

“Some of these wetlands are flooded for only a couple of weeks
during the year, generally in the spring,” Sibbing said. “They
support life that is highly adapted to that situation.”

How will the conservation community react to the ruling? Are
there measures that can be taken to protect wetland wildlife
habitat from destruction? At this point, no one can answer that

Sibbing says that only 10 or 15 states, including Minnesota,
have wetland laws in place to prevent drainage of isolated

On the federal level, conservationists are hoping the
Swampbuster provision of the Farm Bill can form a second line of
defense for wetlands protection. Swampbuster is an incentive
program that limits federal payments to farmers who drain wetlands
on their property. In an era when over one-half of farm income
nationwide is derived from federal payments, Swampbuster may
prevent some farmland drainage.

However, there are some weaknesses to Swampbuster. Nationwide,
the program is unevenly enforced, because enforcement is often by
less-than-zealous state or local authorities. Also, many federal
commodity payments are not linked to the Swampbuster provision. And
Swampbuster does not apply to wetland drainage associated with
urban, recreational, or industrial development.

The Supreme Court ruling will undoubtedly increase interest in
strengthening the conservation provisions in the Farm Bill, which
will be re-authorized by Congress during the next two years.

McKenzie, who is active in the Wildlife Management Institute’s
farmland conservation efforts, says he expects that conservation
will play a significant role in the development of the
re-authorization. The challenge will be ensuring Congress does not
overlook the needs of wildlife when crafting soil and water
conservation measures.

The impetus for better farmland conservation will be the high
cost of present federal subsidy programs, which have reached $28
billion annually. Conservation is one way of ensuring that
subsidies have a demonstrable public benefit. Currently, federal
farmland conservation programs, including the $1.6 billion
Conservation Reserve Program, cost about $2.2 billion annually.
Most of the remaining $26 billion paid to farmers is for commodity
subsidies and is not subjected to conservation compliance
incentives such as Swampbuster.

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