What’s a Wetland?
A DISCUSSION OFParsing the Waters
As a former federal government attorney who for 31 years supervised litigation involving the scope of the Clean Water Act (CWA), I very much appreciated Charles Herrick’s article, “Parsing the Waters” (Issues, Spring 2019), for its comprehensive review of the ebbs and flows of wetland protection policy in this country. He makes a compelling case for a holistic approach to wetland stewardship, one based on science and responsive to “the needs of a diverse array of stakeholders,” free of the “whims” and “ideological caprice” that have wreaked havoc in the past.
Herrick’s commendable goal unfortunately faces considerable headwinds. The problems go back to 1972 when Congress decided—almost as an afterthought—to provide some modicum of wetland protection through a framework under the CWA that was designed to regulate discharges of industrial pollutants into the nation’s waterways. That mechanism has worked remarkably well in reducing pollution in lakes, streams, and rivers, but grafting a wetlands protection feature onto a regulatory program for point-source discharges proved to resemble less a hand in a fitted glove than a rose in a fisted glove.
The biggest challenge derives from the fact that the CWA’s geographic scope is “navigable waters,” ambiguously defined as “waters of the United States.” Most wetlands, the majority of which are on private property, are not what we traditionally think of as “navigable.” Sixteen years after unanimously declaring that wetlands are in fact within the intended purview of the CWA, the US Supreme Court reversed course and ruled 5-4 in 2001 that the purpose of the act is to protect traditionally navigable waters and that wetlands per se are protected only to the extent that they can be shown to affect the water quality of downstream lakes, streams, and rivers. This limitation ignores the many functions and values of wetlands that do not necessarily have a measurable impact downstream. The Supreme Court further muddied the waters in 2006 when it issued a fractured 4-1-4 decision that established three different possible approaches for determining whether a waterbody is protected under the CWA, without specifying which is controlling.
That was when Congress should have stepped in either to clarify its intent regarding the scope of the CWA or to enact new wetlands-specific legislation that strikes an appropriate political balance between protection and regulation, between private landowners’ rights and the public interest, between science and policy.
Congress, however, abdicated its responsibilities, and what we got instead was legislation through agency rulemaking. The Environmental Protection Agency (EPA) under the Obama administration promulgated a definition of “waters of the US” that was based on science and an appreciation of the values of wetlands, only for the new Trump EPA immediately to negate that approach in favor of the interests of landowners, farmers, and developers. This ping-pong approach is likely to continue until Congress starts making difficult policy calls.
I’m sure Herrick would agree that the nation would be better off if we deferred to science for the final word, but we both recognize how unlikely that is in the upside-down political world we presently inhabit.
Former attorney in the Environment & Natural Resources Division at the US Department of Justice