Wetlands in Jeopardy
SELC Defends Streams and Wetlands Made Vulnerable by the Supreme Court
SELC Backs Federal Action to Clarify Water Protections
SELC has weighed in to support and improve the latest attempt by EPA and the Army Corps of Engineers to bring much-needed clarity to federal water and wetland protections, which have been muddled by two U.S. Supreme Court decisions. In July 2011, SELC voiced its general support for the agencies’ draft guidance, which has been under attack from anti-environmental forces in Congress. We also submitted detailed recommendations for how the guidance can be strengthened. For example, it should make clear that federal law protects pocosins, Carolina bays, and other wetland ecosystems found in our region, as well as the intermittent headwater streams that feed our rivers and drinking water supplies.
Case Summary
Wet weather in the Southern Appalachians gives rise to thousands of small, intermittent streams that form the headwaters of our great rivers—the Tennessee, the James, the Chattahoochee, the Catawba, the Pee Dee, and the Cahaba among them. Equally important to our region are the patches of wetlands that dot the southern landscape. These are our first responders to any number of water problems: they filter pollutants, provide habitat for wildlife, and absorb floodwaters that are then released to nearby waterways.
Since 1972, when Congress passed the Clean Water Act, these aquatic gems have been under federal protection. But U.S. Supreme Court rulings, beginning with the SWANCC decision in 2001 and later the Rapanos decision in 2006, have severely undercut federal water safeguards, creating confusion over whether intermittent streams, ephemeral streams, isolated wetlands, and even wetlands adjacent to larger wetland tracts are covered by the law.
The span of resources the Court has put at risk is staggering: in the continental U.S., about 60 percent of our stream miles do not flow year round, and approximately 20 percent of our more than 100 million acres of wetlands are geographically isolated. SELC is among the groups pressing Congress to clear up this issue, but in the meantime, we are taking action to defend imperiled waters.
Saving Wetlands Written Off by the Corps
The Supreme Court has essentially left it to individual districts of the Army Corps of Engineers to determine, on a case-by-case basis, whether a wetland or stream falls under Clean Water Act safeguards. Too often, the Corps makes the wrong call. In South Carolina, for example, the Corps decided that a 492-acre wetland tract near Charleston is isolated and can be filled without a permit and without mitigation. An investigation by SELC and its partners revealed, however, that the wetlands are connected to the Ashley River and qualify for federal protection—and likely provide significant benefits to the area, including flood storage, water purification, and havens for wildlife. In April 2010, after SELC threatened to file suit, the Corps rescinded its erroneous decision.
Pressing Congress for a Solution
Only Congress has the power to fix this problem. At the root of the current confusion is a single phrase in the Clean Water Act—“navigable waters”—on which a faction of the Supreme Court has hinged its rationale for narrowing the scope of federal water protections. A bipartisan bill before the Senate (the Clean Water Restoration Act) and a companion bill introduced in April 2010 in the House (America’s Commitment to Clean Water Act) would clarify once and for all what Congress originally intended: that all “waters of the United States” are to be protected for our health and welfare, today and in future generations.
SELC is working with partner groups and allies in Congress to advance both pieces of legislation, which reflect the diverse, complex, and interconnected nature of our country’s waterways. If any one part of the system is damaged, the rest will suffer. Congress must act quickly before more damage is done.