Developments in Wetland Protection under the Clean Water Act
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Developments in Wetland Protection under the Clean Water Act

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Discussion of the trends in wetlands delineation and protection under the Clean Water Act.

Discussion of the trends in wetlands delineation and protection under the Clean Water Act.

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  • 1. Developments in Wetland Protection under the Clean Water Act Mark Ostendorf
  • 2. Outline
    • Background
    • The Clean Water Act
      • Section 404
      • Mitigation Banking
    • Important Court Cases
    • Current Developments
      • Clean Water Restoration Act (Bill)
      • Wetlands Conservation Investment Act (Bill)
  • 3. Defining a Wetland
    • Properties of a Wetland
      • Hydrology
      • Hydric Soils
      • Adapted Vegetation
    • Areas saturated or inundated by water with relative frequency and duration and is able to support adapted vegetation
      • Marshes, swamps, bogs, fens…
  • 4.  
  • 5.  
  • 6. Function of Wetlands
    • Prevent Erosion
    • Slow Flooding
    • Filter Sediment and Pollution
    • Diverse Habitat
  • 7. The Environmental Movement
    • Silent Spring —Rachel Carson (1962)
    • By the 1970’s, the public had become increasingly aware of its affect on the environment
    • Passage of several environmental regulations
      • National Environmental Policy Act of 1969
      • Clean Air Act of 1970
      • Endangered Species Act of 1973
  • 8. CWA Legislation
    • Federal Water Pollution Control Amendments of 1972
    • Clean Water Act of 1977
    • Water Quality Act of 1987
  • 9. Clean Water Act of 1972
    • Original objectives
      • Elimination of pollution discharges
      • Protection of wildlife for recreation
      • Control of Toxic Pollution
      • Establish waste treatment facilities
    • In General
      • Regulate discharges into “navigable waters of the United States”
  • 10. Establishing CWA “Waters”
    • Defense Council (NRDC) v. Calloway 1975
      • “ navigable waters” could actually incorporate navigable waters, their tributaries, and wetlands
    • United States v. Riverside Bayview Homes 1985
      • CWA covers waters adjacent to US waters
  • 11. Section 404 of CWA
    • “Dredge and Fill” Permit
      • Discharge of dredge and fill material into waters of the U.S.
    • Administrating agencies:
      • U.S. COE
      • EPA
  • 12. Section 404 Permitting
    • A Feasible Alternative is Not Available
    • Nation’s Waters Not Significantly Degraded
    • Conditions:
      • Avoid wetland impacts
      • Minimize potential impacts
      • Compensate for unavoidable impacts
        • Mitigation Banking
  • 13. Emerging Market Solution
    • Wetlands dredged or filled under Section 404 require compensation for unavoidable impacts
      • Mitigating wetlands somewhere onsite or nearby
      • Mitigation Banking
        • Compensating for removed wetlands offsite with a crediting system
  • 14. Mitigation Banking
    • Result of “No Net Loss” policies under Bush, Sr., administration
    • Bank - restore, create, enhance or preserve wetlands to offset development elsewhere
      • Also maintain wetland quality
    • Credits are purchased by developers
    • Consolidation of smaller wetlands into larger wetlands
  • 15. Mitigation Banking
    • Advantages
      • Development no longer required onsite
      • Cost to the individual developer
      • Credits can be purchased BEFORE development
    • Disadvantages
      • Failure Rate
      • Loss of biodiversity in smaller wetlands
      • Size and Distribution are both important
  • 16.  
  • 17. Recent Court Cases
    • Solid Waste Agency of Northern Cook County (SWANCC) v. COE 2001
      • Migratory Bird Rule overturned
      • CWA does not cover isolated waters
    • Rapanos v. COE 2006
      • CWA does not cover waters with temporary water flow
      • CWA does not cover waters without a direct connection to US waters
  • 18. Impact
    • Fewer Waters Covered by CWA and Section 404
      • Some Wetlands are not navigable or directly connected to other water bodies
    • Fewer wetlands requiring mitigation
  • 19. Reaction
    • Introduction of bills addressing wetlands
      • Clean Water Restoration Act
      • Wetlands Conservation Investment Act
  • 20. Responses in Congress
    • Clean Water Restoration Act of 2009
      • Introduced in the Senate
      • Sent to committee
      • Meant to restore CWA to its state prior to SWANCC and Rapanos
      • Intent: To clearly define “waters of the U.S.”
  • 21. Key Provisions
    • The term “Navigable” would be stricken from the CWA
    • To return the authority lost after the SWANCC and Rapanos decisions
    • Further Defining “Waters of the U.S.”
      • All interstate waters and all intrastrate waters
    • Exemptions from previous CWA unchanged
  • 22. Mitigation Banking
    • Wetlands Conservation Investment Act
      • Introduced in House and Senate
        • September and December 2009
      • Sent to Committee
      • To incorporate wetland mitigation credits into Internal Revenue Code.
  • 23. Provisions
    • Adds capital gain or loss treatment of the sale or exchange of mitigation credits earned by restoring wetlands
    • Amends Income Tax Code
  • 24. Conclusions
    • Clean Water Restoration Act
      • Opponents: State and local rights, property rights
      • Partisan disagreement
    • Wetlands Conservation Investment Act
      • Subject to less attention and disagreement
      • Bipartisan support for mitigation banking in the past
  • 25. Conclusions
    • Legislation Clarifying Wetland Regulation is needed
    • Direction depends on passage of bills
  • 26. The End
  • 27. Selected References
    • Bosselman, F. (Summer 2009). Swamp swaps: the "second nature" of wetlands. Environmental Law. 39:577. Retrieved Feb. 10, 2010 from Lexis-Nexis Academic Database
    • Clean Water Restoration Act (Apr. 2, 2009). 111th Congress, 1st Sessions.787
    • Natural Resources Defense Council v. Calloway (1975). Washington D.C. District Court. 392 F. Supp. 685.
    • Rapanos, J.A. et al. v. United States Army Corps of Engineers, et al. (2006). Supreme Court of the United States. 547 U.S. 715.
    • Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001). Supreme Court of the United States. 531 U.S. 159
    • Stavins, R. (Jan. 27, 2010). Unintended Consequences of Government Policies: The Depletion of America’s Wetlands. Science and Technology News Forum. Ethiopian Review . Retrieved Feb. 10 from http://www.ethiopianreview.com/scitech/33286.
    • United States v. Riverside Bayview Homes, Inc. 474 U.S. 121 (1985)
    • Wetlands Conservation Investment Act (2009). 111th Congress, 1st Sessions. H.R. 3609 and S. 2876.