Wetlands in Jeopardy

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 In April 2010, after SELC threatened to file suit, the Corps rescinded its erroneous decision.

The case is only the latest example of a valuable wetland put in jeopardy by the Corps. Thanks to a lawsuit filed by SELC, the Corps is reconsidering its determination that a freshwater wetland in South Carolina’s Waccamaw River watershed can be destroyed without a permit to make way for commercial project. Before it was clear-cut by the developer, Spectre LLC, the tract was populated by stands of pond cypress, swamp tupelo, and sweetgum. It remains one of the few large, intact, and functioning freshwater wetlands remaining in the area.

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.