Southeast wetlands most at risk under US Supreme Court decision
EPA, Corps guidance on Rapanos-Carabell ruling expected soon
Contact:
- Bill Sapp
- Senior Attorney
- 404-921-5500
- Derb Carter
- Director, Carolinas Office
- 919.967-1450
Atlanta - As much as 2 million acres of wetlands, perhaps more, in Georgia, the Carolinas and Virginia could be left wide open to development and destruction if the federal government interprets too strictly a controversial U.S. Supreme Court decision from last year, according to a recent analysis conducted by the Southern Environmental Law Center.
The South - from Virginia to Arkansas and Texas - has approximately half the remaining wetlands in the contiguous 48 states. It is also the fastest growing region in the country, with a high ratio of land consumption to population growth, putting more pressure than ever on wetland resources that act as pollution filters, floodwater sponges and critical wildlife habitat.
Last June, the Supreme Court issued a split decision in the Rapanos-Carabell case over which waters of the United States are protected by the Clean Water Act. Four of the justices, led by Justice Scalia, said that only permanent rivers and streams (those that have water in them except in times of drought) would be protected. Similarly, under Scalia, only wetlands with a "continuous surface connection" to such permanent rivers and streams would be protected. This would mean people could discharge raw sewage, toxic chemicals, mud or any other pollutant directly into non-permanent tributaries and headwaters, as well as fill in and pave over nearby wetlands without triggering the protections of the Clean Water Act.
Analyzing data from the U.S. Fish and Wildlife Service and the U.S. Geological Survey, SELC determined the extent of wetlands that could be vulnerable under the Scalia test. Georgia has the most, approximately 925,000 acres. Virginia has approximately 265,000. The data for North and South Carolina are incomplete, but SELC conservatively puts the acreage at up to 416,000 acres and 353,000 acres respectively. SELC also found that approximately 372,000 wetland acres could be vulnerable in the watershed of the Chesapeake Bay, one of the nation's premiere and most troubled estuaries. Furthermore, the South is interlaced with small creeks and headwaters that would also be vulnerable under the Scalia test.
"The smaller non-permanent waters are in many ways the most vital for securing the health of our water supply," said Bill Sapp, SELC Senior Attorney and formerly the lead wetlands attorney for the Environmental Protection Agency, Region 4, in Atlanta. "The last thing we should do is lift the federal shield of protection from these waters provided by the Clean Water Act."
In the Supreme Court ruling, four other justices stuck with the traditional interpretation of the 34-year-old Clean Water Act, which reflects what Congress intended - that virtually all of the nation's waters are protected. As the justices explained, the law has been fundamental to restoring and maintaining the quality of America's wetlands and waters for drinking, agriculture, wildlife and aquatic habitat, recreation, flood control and many other uses. This is shown by the declining rate of wetlands loss. Nationally, wetlands loss has dropped from at least 458,000 acres a year during the two decades preceding the Act to 70,714 acres a year from 1998-2004.
"We've been making hard-won but steady progress in safeguarding these critical resources in the South and elsewhere," Sapp said. "Any government action limiting the scope of the Clean Water Act is a giant step backwards."
Justice Kennedy didn't entirely agree with - nor reject - either side, and wrote his own tie-breaking opinion, which is now driving the issue. Kennedy ruled that a "significant nexus" or link must exist between an upstream water or wetland and the downstream waterway to be protected. Importantly, he said that the link does not have to be water flowing on the surface. He went so far as to state that a significant nexus could be present if wetlands, in some cases, held back floodwaters altogether.
SELC represented four of the top wetlands scientists organizations in the country in an amicus brief filed with the Court prior to last year's ruling. The scientists noted that freshwater wetlands associated with surface waters - including seeps, springs, headwaters, tributaries and intermittent streams - serve a critical and unique function in the health of waters downstream. They can be considered "first responders" to any number of water quality threats, filtering pollutants, trapping sediment, absorbing flood water and releasing it slowly to the nearby stream.
The Corps of Engineers, which oversees wetlands permits under the Clean Water Act, and the Environmental Protection Agency are expected to release soon a "guidance" document on how they will interpret the Court's split decision.
"The future of the nation's drinking water and aquatic ecosystems ride on the Administration's interpretation of the Supreme Court's decision and regulatory guidance," Sapp said.
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