Gutting the Clean Water Act

Wetlands can protect cities from floods, but it's no longer clear which wetlands the Act protects.
by | July 2010

As the Cumberland River's murky waters lapped the doors of the Grand Ole Opry concert hall in May, the U.S. Army Corps of Engineers described the flooding in and around Nashville, Tenn., as a fluke--the result of a "1,000-year rain event."

True, the region was inundated with 13-plus inches of rain in one weekend. The ensuing flood not only caused more than $1.5 billion in damage to buildings and their contents, but also was a factor in the death of more than 20 people.

Those on the front lines of the rain-and-runoff wars, however, aren't so sure that the muddy mess in Nashville was due only to the torrential downpour. Poorly planned development in and around the city also contributed. One of their many cases in point: Several years ago, developers proposing a major commercial complex stood before city planners claiming their property wasn't in the Cumberland River floodplain. Therefore, they had no obligation to consider mitigation plans for stormwater runoff. City planners accepted that argument. In May, that complex was swamped by the river's waters.

The Nashville flood is, sadly, "a significant and historical human tragedy," says Mike Butler, CEO of the Tennessee Wildlife Federation. "The rain amounts are off the charts, but you have to ask what's going on that it did so much damage." His answer: Part of it is due to increases in the amount of impervious surfaces in and around the city, and part of it is a history of poor stormwater runoff planning. "Fortunately today, Nashville Metro is doing a much better job of stormwater management and planning," Butler says. "However, we can't escape a long history of poor decisions."

But over the past decade, Butler says, there has been an erosion in protection for wetlands--those hydrological sponges that not only support wildlife and contribute to clean water, but also soak up rain in ways that help ease the damage from major storms.

Stories like Nashville's are no longer rare. In the past year, flooding--from the Midwest to the coastal northeast to the interior southeast--have been staples of the weather-disaster news. These events raise new questions about growth and development, and the extent to which human settlements have encroached too heavily on both floodplains and wetlands.

Questions about current growth and development patterns and their effect on flooding are not just issues that get raised whenever an extraordinary storm wreaks flooding havoc. They are front and center now as the U.S. Congress debates an update to the Clean Water Act of 1977. A key part of the bill is aimed at tightening wetland protection. And proponents of the update say what's needed is a clean and clear definition of what a wetland is and, by extension, what is protected by federal regulation.

The issue has come to head in the wake of U.S. Supreme Court decisions made in 2001 and 2006 that narrowed the scope of waters protected by federal law. Under the Clean Water Act, the U.S. Army Corps of Engineers operated under a broad regulatory definition of "waters of the U.S." that afforded federal protection for almost all of the nation's wetlands, including "isolated" wetlands and small, often intermittent streams. The two Supreme Court cases, critics argue, have narrowed that definition--and that narrowing has opened up millions of acres of formerly protected wetlands and streams to both toxic dumping and destruction for development and other purposes.

In the first case, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, the court ruled that to be protected by the Clean Water Act, there must be a link between the wetland or stream in question and "navigable waters." Since many wetlands are isolated and intermittently dry, critics of the decision worry that entire classes of wetlands have been stripped of protection.

The second decision further clouded regulatory authority: Rapanos v. United States split the court 4-1-4, and the court created a two-part test to determine "navigability." First, a waterway had to be navigable; and second, there had to be some record that the water has been used for interstate commerce. This was not a decision popular with most states, almost 35 of which had signed onto an amicus brief in support of the more expansive and traditionally accepted reach of the Clean Water Act.

The net effect of the two decisions, says Jim Tierney, assistant commissioner for water resources with the New York State Department of Environmental Conservation, has been a great deal of uncertainty over what is a "water of the United States" subject to protection under the Clean Water Act. And that uncertainty has practical implications. "The regulatory floor has been rolled back to the basement," Tierney says. "And if the floor is that low, it puts pressure on people like me to do the minimum."

The numbers coming out of the U.S. Environmental Protection Agency (EPA) suggest that the pressure is infectious. According to EPA officials, 1,500 pollution investigations have been put on hold pending clarification around jurisdiction and wetland definition.

The perilous state of some important wetlands now in limbo was outlined in a recent report sponsored by the National Wildlife Federation, Trout Unlimited and Ducks Unlimited, which looked at five examples of Tennessee streams and wetlands left vulnerable due to the SWANCC and Rapanos decisions. According to the report, the two decisions have "effectively stripped protection from many of the nation's waterways, including 20 million acres of geographically isolated wetlands, or 20 percent of the remaining wetlands in the lower 48 states." In Tennessee alone, the report says, the court decisions have put nearly 800,000 acres of wetlands in jeopardy.

In the wake of SWANCC and Rapanos, some states--including Tennessee--have rallied to beef up their regulatory oversight, scrambling to cover wetlands they thought might no longer be protected. Part of that effort has meant asking the federal government to delegate authority to them over dredging and filling permits. Under Section 404 of the Clean Water Act, anyone who proposes an activity that would discharge dredged or fill material into U.S. waters is required to apply for a permit from the U.S. Army Corps of Engineers. That means physical alteration of any aquatic site, including wetlands, should require a 404 permit.

Getting that permitting process switched to the states is not an easy procedure. "A number of states did apply for assumption of the 404 [dredging and filling] program," says Steve Brown, executive director of the Environmental Council of the States. "They basically gave up because the process is so freaking complicated that nobody can get it done." Among other things, it requires getting permission from a gaggle of federal departments, including agriculture, mining, and fish and wildlife, to name a few.

At the same time, states have moved to control toxic discharge into waterways. But again, many state EPA officials believe the protections aren't as strong as when wetland definitions were clear--and if the feds were clearly behind the protection efforts.

The fed piece is key, seeing that state regulations can't address problems that arise when the consequences of one state's dumping or filling in wetlands cascades into another state. "Yes, states could pursue their own wetland mapping, and they can take sovereignty," Tierney says. "But that doesn't solve very problematic interstate regulatory issues."

While some states have tried to step up and broaden protection, other states lack the same capacity or ethic to regulate dredging, filling and dumping. And the money for such efforts is a complicating factor. "Given the budget situation in states, they're having a hard time keeping up as it is," says Jeanne Christie, executive director of the Association of State Wetland Managers.

One point of particular worry, given current questions over jurisdictional and regulatory reach, is that aggressive developers will exploit the confusion by simply moving ahead with development-related dredging and filling, absent any permits. Given today's construction technology, it's relatively easy to move lots of dirt in a short period of time--and that has the potential to do much damage quickly. The economic downturn put a hold on many development projects, which has offered some protection for wetlands. As the economy improves, Christie says, "I see an increasing chance that people simply won't apply for 404 permits."

That was never much of a worry pre-SWANCC and Rapanos, when Tierney claims that what constituted a wetland was "fairly black and white," and messing with a designated wetland carried the threat of fines of up to $37,500 per violation per day. "Basically people now have a 'get out of jail free' card by contesting designations and ducking liability," he says, adding that the "EPA is too gun shy to aggressively enforce."

Congress now is considering new legislation recently introduced in the House of Representatives by Jim Oberstar of Minnesota. This bill, the Clean Water Restoration Act, would restore the Clean Water Act and its definitions of wetlands to pre-SWANCC status.

The legislation's fate, however, is uncertain. The bipartisan nature of a desire for clean water and a clean environment gives backers some hope, as does the frustration among state water regulators. But the sense of urgency in the states is not matched in Congress, distracted as it is by oil spills, a still-recovering economy and looming elections. Moreover, powerful interests have lined up in opposition to the bill, including the National Association of Home Builders (NAHB).

NAHB believes the current regulatory regimen is not only workable, but is preferable to the pre-SWANCC era. "Those who disagree with SWANCC and Rapanos say they want to bring us back to the day just before the SWANCC decision," says Annie Bartlett, who lobbies on water issues for NAHB. "The fact is, things weren't all that clear even back then, but they have been getting clearer with each subsequent court case and rule change." Bartlett also argues that states and localities are better positioned to regulate because they're more familiar with local environmental circumstances.

In Fact, the Oberstar bill doesn't simply bring back the Clean Water Act to pre-SWANCC days, Brown says. It "actually has some restrictions in it to narrow it in order to address opponents' claims that, 'You're going to try to regulate the water in my birdbath.'"

What opponents and proponents of the Oberstar legislation appear to have in common, though, is the notion that regulatory certainty is a good thing: Both sides say they want clarity about what will be regulated, by whom and how. But what homebuilders care about above all, says NAHB spokeswoman Calli Barker Schmidt, is the effect on the price of a house. "Anything that drives up the cost of homes," she says, "is going to make it harder for people to buy homes."

The question of cost is complicated. There are many ways to calculate cost, and one of them, arguably, is the price of environmental damage. "There's an overwhelming scientific case to be made for comprehensive protection," Tierney says. "I'm just hoping it doesn't take some catastrophe. But if you don't fix this problem, people are going to get hurt."