The SWANCC Decision: Implications for Wetlands and Waterfowl

Final Report September 2001

Ducks Unlimited, Inc. National Headquarters

Mark Petrie, Ph.D. Jean-Paul Rochon, B.Sc.

Great Lakes Atlantic Regional Office

Gildo Tori, M.Sc.

Great Plains Regional Office

Roger Pederson, Ph.D.

Southern Regional Office

Tom Moorman, Ph.D.

EXECUTIVE SUMMARY

On January 9, 2001 the U.S. Supreme Court issued a decision, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers. The decision reduces the protection of isolated wetlands under Section 404 of the Clean Water Act (CWA), which assigns the U.S. Army Corps of Engineers (Corps) authority to issue permits for the discharge of dredge or fill material into “waters of the United States.” Prior to the SWANCC decision, the Corps had adopted a regulatory definition of “waters of the U.S.” that afforded federal protection for almost all of the nation’s wetlands.

The Supreme Court also concluded that the use of migratory birds to assert jurisdiction over the site exceeded the authority that Congress had granted the Corps under the CWA. The Court interpreted that Corps jurisdiction is restricted to navigable waters, their tributaries, and wetlands that are adjacent to these navigable waterways and tributaries. The decision leaves “isolated” wetlands unprotected by the CWA. These wetlands are very significant to many wildlife populations, especially migratory waterfowl. This report examines the possible implications to wetlands that are important to waterfowl across the Nation.

We considered other state and federal laws and regulations that would protect isolated wetlands in the absence of Section 404. The most significant Federal provision is Swampbuster, a provision of the Farm Bill that excludes agricultural producers from receiving federal subsidies if they destroy wetlands for crop production. We considered how factors responsible for wetland loss varied regionally. We especially focused on areas that are continentally important to waterfowl and we generally assessed the consequences for the nation’s wetlands as a whole.

East Coast and Great Lakes states generally have laws that offer moderate to strong protection of isolated wetlands even in the absence of Section 404, although there are exceptions. Protection is weak to non-existent in the Mississippi Alluvial Valley (MAV)

and Prairie Pothole Region (PPR). However, the majority of isolated wetlands located in these regions occur on agricultural land where most producers are enrolled in Farm Bill programs and wetlands are afforded some protection under Swampbuster. In the western half of the country state wetland protection laws are generally weaker and a high percentage of wetlands are found on non-agriculture land.

In general, isolated wetlands play a minor role in meeting the needs of waterfowl in areas that are important for migration and wintering. In contrast, the SWANCC decision could have significant consequences for breeding waterfowl, especially in the PPR and migrating waterfowl, especially in the Rainwater Basin. Within these states, Section 404 and Swampbuster represent complimentary wetland protection programs that have proven highly effective in reducing wetland loss. As a result, Swampbuster now remains as the only effective legal or regulatory deterrent to wetland drainage.

iii

Acknowledgements

In the preparation of this report, we consulted with many colleagues throughout the United States and Canada. Several agreed to review an early draft, namely: Dr. Mike Anderson, D.U. Canada; Jeanne Christie, Association of State Wetland Managers; Jon Kusler, Association of State Wetland Managers; Dr. Keith McKnight; Dr. Ken Reineke, U.S. Geological Service; Dr. Ron Reynolds, U.S. Fish and Wildlife Service; Jim Ringleman, D.U. Inc.; Dr. Rollin Sparrowe, Wildlife Management Institute. We greatly appreciate their comments but we alone are responsible for how they were interpreted and incorporated into this final manuscript. Many others shared insights or provided information used in this report, for which we are grateful, namely: Ted LaGrange, Nebraska Game and Parks Commission; Jeff Raasch, Texas Parks and Wildlife; James Robb, Indiana Department of Environmental Management; Ted Rugell, U.S. Corps of Engineers; Tim Searchinger, Environmental Defense; Julie Sibbing, National Wildlife Federation; Ralph Tiner, U.S. Fish and Wildlife Service; Bill Wilen, U.S. Fish and Wildlife Service; and John Winters, U.S. Army Corps of Engineers.

Table of Contents

Section Page

1.0 INTRODUCTION …………………………………………………………………………….. 1-4

2.0 APPROACH TO ASSESSING IMPACTS OF THE SWANCC DECISION …………….. 4-5

3.0 WETLAND FUNCTION AND TRENDS……………………………………………………. 5-6

4.0 STATE WETLAND LAWS ………………………………………………………………….. 6-9

5.0 IDENTIFICATION OF FOCUS AREAS …………………………………………………… 9-13

6.0 SWAMPBUSTER …………………………………………………………………………….. 13-16

7.0 ESTIMATES OF UNPROTECTED WETLANDS ………………………………………… 16-28

8.0 SECTION 404 PERMITS AND STATISTICS ……………………………………………... 28-36

9.0 FACTORS CONTRIBUTING TO WETLAND LOSS...…………………………………… 36-40

10.0 NATIONAL IMPLICATIONS FOR WETLAND PROTECTION ……………………… 40-43

11.0 IMPLICATIONS FOR WETLANDS AND WATERFOWL WITHIN FOCUS AREAS 43-52

11.1 Great Lakes Focus Area ……………………………………………………………... 44-45

11.2 PPR Focus Area ……………………………………………………………………… 45-47

11.3 MAV Focus Area ……………………………………………………………………. 48

11.4 Gulf Coastal Prairie Focus Area …………………………………………………….. 48-50

11.5 Southern Great Plains Focus Area …………………………………………………... 50-51

11.6 Great Basin Focus Area ……………………………………………...……………… 52

12.0 SUMMARY ………………………………………………………………………………….. 52-53

13.0 REFERENCES ………………………………………………………………………………. 53-54

List of Figures

Title Page

Figure 1. State wetland laws within the conterminous United States. 8

Figure 2. Highest and high priority areas as defined by the Ducks Unlimited International 10 Conservation Plan.

Figure 3. State wetland laws within highest and high priority areas. 11

Figure 4. Focus areas. 12

Figure 5. Wetlands and agriculture in the Prairie Pothole Region. 15

Figure 6. Wetlands and agriculture in the Southern Great Plains. 17

Figure 7. Wetlands and agriculture in the Mississippi Alluvial Valley. 18

Figure 8. Wetlands and agriculture in the Great Basin. 19

Figure 9. Wetlands and agriculture in the Gulf Coastal Prairie. 20

Figure 10. Wetlands and agriculture in the Great Lakes. 21

Figure 11. Locations of isolated wetland analysis within focus areas. 23

Figure 12. GIS analysis to quantify isolated wetlands. 26

Figure 13. Wetland acreage in the conterminous United States. 37

Figure 14. Annual development rate in the conterminous United States. 38

Figure 15. Former agricultural land developed between 1992 and 1997 in the conterminous 39 United States.

Figure 16. Acreage of wetlands within agricultural land in the conterminous United States. 41

List of Tables

Title Page

Table 1. Estimates of wetland acreage that may longer be regulated under the Clean Water 25 Act within focus areas using various levels of proximity to navigable waters.

Table 2. Estimates of wetland numbers that may longer be regulated under the Clean Water 27 Act within focus areas using various levels of proximity to navigable waters.

Table 3. NWP 26 Activity Within Focus Areas From 1999-2000. 33

Table 4. ACOE Nationwide Permits Issued During 1998 in North and South Dakota. 35

vii 1.0 INTRODUCTION

On January 9, 2001 the U.S. Supreme Court issued a decision, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers (1). The decision reduced the protection of isolated wetlands under Section 404 of the Clean Water Act (CWA). Our objective is to determine the effects of the SWANCC decision on wetlands that are especially important to waterfowl in the United States.

Section 404 of the CWA originally assigned the U.S. Army Corps of Engineers (Corps) authority to issue permits for the discharge of dredge or fill material into “navigable waters.” The term “navigable waters” stems from the Rivers and Harbors Act of 1899, the forerunner of the CWA (2). In the CWA of 1972, the term “navigable waters” was retained but broadly described as “waters of the U.S.” as the Act was intended to address environmental concerns, as opposed to simply protecting navigable waters.

In 1977, the Corps adopted a broad regulatory definition of “waters of the U.S.” that included;

“waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce.”

By adopting such a broad definition of “waters of the U.S.,” virtually all wetlands were afforded federal protection under Section 404.

The constitutional basis for Section 404 is found in the Commerce Clause (10 th Amendment) that grants Congress the power to regulate interstate or foreign commerce. If loss of a waterbody class is deemed to affect interstate or foreign commerce, the Corps could assert jurisdiction over those waterbodies via the CWA. Through interpretation of court case findings and legislative intent, links to interstate or foreign commerce were established from

The SWANCC Decision: Implications for Wetlands and Waterfowl 1 the high seas to vernal pools. Once such links were made, individual states no longer had sole jurisdiction over these waters and activities that could lead to the loss or degradation of these waters became subject to federal permitting under the CWA.

The Corps has been accused by some of jurisdictional overreach in its definition of “waters of the U.S.” Most criticism has focused on isolated, intrastate wetlands (e.g. a prairie pothole) where the connections to interstate or foreign commerce are not obvious. In 1986, the Corps attempted to clarify its assumptions regarding interstate commerce and isolated, intrastate wetlands. A key provision was the Migratory Bird Rule (MBR). The Corps maintained that hunting and viewing migratory birds was an interstate economic activity. They then concluded “waters that are or may be used as habitat by migratory birds are an example of waters whose, use, degradation or destruction could affect interstate or foreign commerce.” Such wetlands were thus afforded Section 404 protection1. Until the SWANCC decision, lower courts had upheld this jurisdictional interpretation.

The SWANCC case involved a consortium of Chicago municipalities that had purchased an abandoned sand and gravel pit to be used as a solid waste disposal site. Excavation trenches in the pit had developed into seasonal and permanent ponds. Because the operation called for filling in of some of these ponds, the municipalities applied to the Corps for a Section 404 permit. The Corps initially concluded that it had no jurisdiction over the site because it did not meet its definition of “waters of the U.S.” The Corps then reversed its decision and rejected the Section 404 permit when it was informed that several species of migratory birds used the site. The abandoned gravel pit was re-qualified as “waters of the U.S.” because it met the standards of the MBR, and was therefore subject to Section 404 jurisdiction. The consortium then filed appeals that ultimately reached the Supreme Court.

The Supreme Court ruled against the Corps and found for SWANCC. In doing so they concluded that use of the MBR exceeded the authority granted to the Corps by Congress under the CWA (“We conclude that the Migratory Bird Rule is not fairly supported by the Clean Water Act”). There continues to be some debate over what the Court actually decided.

1 In this case 404 protection is intended to mean regulation of some types of activities.

2 The SWANCC Decision: Implications for Wetlands and Waterfowl A narrow reading of the decision would conclude that the Court simply invalidated the MBR. In essence, the Corps must now find another link to interstate or foreign commerce if it is to categorize a waterbody as “waters of the U.S.”

Although the decision specifically addressed use of the MBR, the Court’s rationale was much broader. In Section 404 terms, the SWANCC ponds are known as “isolated waters.” These include waters that are not traditionally navigable, not tributaries of navigable waters, nor are they adjacent to either of these (1). In an earlier decision, the Supreme Court upheld the Corps’ authority to regulate wetlands that are adjacent to navigable waters and their tributaries (1). In the SWANCC case, the Court strongly suggested that the Corps did not have jurisdiction over isolated waters, regardless of any connection to interstate or foreign commerce that could be made. The Court interpreted that “waters of the U.S.” only included navigable waters, their tributaries, and wetlands that are adjacent to these navigable waterways and tributaries. From the Court’s standpoint, that’s where Corps jurisdiction ended under the CWA and applying the MBR or any other Commerce Clause connection beyond this point was not warranted. The SWANCC site contained isolated bodies of water that did not abut a navigable waterway or one of its tributaries, and thus the Court ruled that the Corps was asserting jurisdiction where it had no legal authority.

Although the SWANCC decision will reduce the application of Section 404 to isolated waters, it is not clear where the Corps will ultimately draw its jurisdictional lines. A broad interpretation of the decision would eliminate Corps regulation of all isolated waters, while a narrower reading would allow federal regulation of isolated waters to continue if a connection to interstate commerce other than the MBR could be established. Equally important is how the Corps defines isolated waters. There is a consensus within the Corps that Section 404 jurisdiction still applies to traditionally navigable waters, their tributaries, and wetlands adjacent to each (3). At issue are the terms “tributary” and “adjacency.” If “tributaries” do not include intermittent streams, fewer riverine and headwater wetlands would be protected (4). Adjacency is defined by the Corps as bordering, contiguous, or neighboring, and includes wetlands that are separated from navigable waters or their tributaries by man-made levees or barriers, natural river berms or beach dunes. Despite this

The SWANCC Decision: Implications for Wetlands and Waterfowl 3 definition, it is not clear where adjacency ends and isolated begins. For example, a wetland may not physically abut a navigable waterway or its tributaries but may be located in a 100- year flood plain. From a hydrological standpoint the wetland would be considered adjacent.

The Corps, Environmental Protection Agency (EPA), and Department of Justice are currently engaged in discussions over how to interpret the SWANCC decision, and are developing jurisdiction guidelines for Corps districts. These guidelines will help clarify impacts of the SWANCC decision on federal regulation of wetlands, but most observers believe that these guidelines will be challenged in the courts. As a result, the true impacts of the SWANCC decision may not be known for some time.

2.0 APPROACH TO ASSESSING IMPACTS OF THE SWANCC DECISION

Determining the effects of the SWANCC decision on wetlands important to waterfowl poses several challenges. Foremost is uncertainty as to where the Corps will draw its jurisdictional lines in applying Section 404. Second, the loss of Section 404 protection over isolated wetlands will have different consequences for different regions. Some states have existing laws that effectively protect isolated wetlands in the absence of Section 404, while in other states wetland laws are weak or non-existent. In addition, activities that result in wetland loss (e.g. urban expansion and agriculture) are prevalent in some regions but not others. Where such activities are dominant, the loss of Section 404 protection over isolated wetlands may be more strongly felt. Finally, the effects on waterfowl will depend on where the SWANCC decision has the greatest impact on isolated wetlands. There are specific regions of the U.S. that are continentally important to waterfowl and where wetlands could be especially significant.

To determine effects of the SWANCC decision on wetlands important to waterfowl we adopted an eight-step approach. First, we briefly reviewed wetland functions and historical trends within the U.S. Second, wetland laws in all 50 states were evaluated on their ability to protect isolated wetlands in the absence of Section 404 regulations. Third, we focused on regions of the country identified in DU’s International Conservation Plan (5) as being of

4 The SWANCC Decision: Implications for Wetlands and Waterfowl highest and high priority to waterfowl. Within these priority regions we identified areas that lacked adequate protection of isolated wetlands in the absence of Section 404 because of weak or non-existent state laws. These constituted our “focus areas” and they form the basis for our evaluation of the SWANCC decision on wetlands important to waterfowl. Fourth, we examined the possible role of Swampbuster in offsetting the loss of Section 404 protection within focus areas since Swampbuster is the only other Federal program that is likely to offer protection to isolated wetlands across a broad geographic region. Fifth, we used GIS techniques to evaluate the number and acreage of wetlands that will no longer be afforded protection in focus areas. Because we were uncertain as to where the Corps will draw its jurisdictional line in applying Section 404, we conducted GIS evaluations for several jurisdictional scenarios. Sixth, we examined Section 404 statistics within each focus area to evaluate historical levels of Section 404 activity in these areas as they relate to isolated wetlands, as well as to evaluate the effectiveness of the Section 404 program. Seventh, we examined wetland status in the U.S., as well as historical and current factors contributing to wetland loss. Finally, eighth, we integrated information in steps one through eight into a discussion of the consequences of SWANCC on wetlands and waterfowl, both nationally and within each of our designated focus areas.

3.0 WETLAND FUNCTIONS AND TRENDS

Wetlands play a vital role on the landscape controlling flooding, recharging our groundwater supplies, and serving as filters for water resources. The water, litter layer and soils of wetlands provide homes to many species of mammals, birds, plants, fish, and invertebrates. Wetlands also support outdoor recreation activities such as swimming, boating, fishing, hunting, and bird watching for millions of people in the United States and around the world. A study assessing the World’s natural ecosystems estimated that the global value of wetland resources was 14.9 trillion dollars, accounting for 45 percent of the value of all natural ecosystems (6).

Few will dispute that wetlands are crucial to the quality of life in the U.S. – indeed the World. Unfortunately 53 percent of the wetlands in the U.S. have been destroyed and, at a

The SWANCC Decision: Implications for Wetlands and Waterfowl 5 minimum, a net of 58,000 acres of wetlands continue to be lost each year and even greater acreages are degraded and contaminated (7). Anthropogenic conversion of wetlands for agriculture, urban development and resource extraction, have been devastating in many states and catastrophic in states such as California where five percent or less of original wetlands remain.

Historically, the amount of wetland loss has been much greater than we see today. Between 1950 and 1970 the annual rate of net loss was 458,000 acres, which dropped to 290,000 acres per year through the 1970s and 80s (8). In the past, wetland conversion was dominated by agricultural causes, however in recent times urban development has taken the lead in many regions of the U.S. and is the number one concern nationally (7,8). Reducing net wetland loss in recent decades has required monumental efforts on public education and legislative fronts, and substantial investment in conservation programs. Although wetland losses are slowing, precious few wetlands remain in some areas. Loss of wetland protection that took decades to develop, at a time when the functional capacities of wetlands in many areas are being stressed to their limits, amplifies concern for these invaluable resources.

4.0 STATE WETLAND LAWS

The loss of Section 404 protection over many isolated wetlands will be especially significant where no state laws exist to fill the regulatory gap created by SWANCC. To determine where such gaps exist, we examined wetland laws in all 50 states. We focused on laws that are likely to apply to isolated wetlands, and considered 10 categories when assessing if state laws provided protection to these wetlands (categories available on request). Acts, statutes, rules, and regulations were reviewed. We also obtained literature from state agencies responsible for wetland monitoring and protection. Finally, we contacted wetland managers and regulators when attempting to clarify state laws.

The majority of states that have wetland laws, base their regulatory framework on permits that are related to activities impacting wetlands. These activities typically include draining and filling for the purpose of agriculture, development (residential, industrial, infrastructure),

6 The SWANCC Decision: Implications for Wetlands and Waterfowl surface mining and forestry. States using this approach generally have the legislative framework that protects isolated wetlands, as laws apply to all wetlands and are not limited by interpretation of navigable waters. In some cases, however, laws are limited to priority areas or critical habitats. One example, typical of southern coastal states, is to regulate activities within the coastal zone. Isolated wetlands are afforded protection within these zones, but not outside zone boundaries.

The majority of states had no specific wetland laws that were likely to protect isolated wetlands in the absence of Section 404. The most general case among these states was the use of an “antidegradation” policy, where wetlands were included within the definition of waters of the state. The text of such laws would often indicate that the “waters of the state are important to the well being of the state and should not be degraded.” The legislative authority to enforce this sentiment was rarely present, and when present, water quality was typically the focus. In some cases it may be possible to construe that the addition of fill to a wetland would constitute degradation of waters of the state. However, that was not usually the intent of the antidegradation policy and state authorities did not typically make such interpretations. In general, isolated wetlands were afforded little or no protection in states that had laws based on water quality.

States were categorized as having strong protection, moderate protection, or little or no protection for isolated wetlands. States with strong protection had the legislative authority to regulate the majority of activities that could result in the draining or filling of isolated wetlands. In some cases there was a minimum size of wetland that was afforded protection, and in most cases there were specific exemptions (often for agriculture). States classified as having legislation that provided moderate protection for isolated wetlands typically regulate a narrow range of activities, or the application of such laws was restricted. States with little or no protection for isolated wetlands often had no reference to wetlands in the text of their laws, or had a framework that placed the CWA as the sole authority.

Our interpretation of state wetland laws as they relate to the protection of isolated wetlands is depicted in Figure 1. In general, states on the east and west coast have moderate to strong

The SWANCC Decision: Implications for Wetlands and Waterfowl 7

8 The SWANCC Decision: Implications for Wetlands and Waterfowl laws relative to isolated wetlands. With the exception of Michigan, Minnesota, and Wisconsin, the remaining states appear to offer little protection for isolated wetlands. Our classification of state wetland laws does not account for performance. For example, a state may have authority to regulate or protect isolated wetlands, but actual enforcement may be minimal. In such cases, the loss of federal oversight via Section 404 would be more significant.

5.0 IDENTIFICATION OF FOCUS AREAS

To better understand regional variation in state wetland laws and consequences for waterfowl, we overlaid the map depicting state wetland laws (Figure 1) with the boundaries of DU’s highest and high priority regions as identified in DU’s International Conservation Plan (5; Figure 2). The result of this overlay is depicted in Figure 3. States in the Mid- Atlantic region generally have strong laws in relation to isolated wetlands. Within the Great Lakes priority region, Michigan, Minnesota, and Wisconsin all have strong state laws, but portions of the region that include Indiana and Ohio are afforded little protection for isolated wetlands. The situation is considerably worse in the central and southern portions of the U.S. Almost all of the Prairie Pothole Region (PPR) is without state protection of isolated wetlands, and the Southern Great Plains, Mississippi Alluvial Valley (MAV), and Gulf Coastal Prairie are completely without state protection. In the west, the Central Valley and Pacific Northwest have moderate to strong state laws, while large portions of the Great Basin are unprotected.

To focus our evaluation of the SWANCC decision on wetlands important to waterfowl, we identified regions within DU’s highest and high priority areas that had little or no state protection of isolated wetlands. These are our “focus areas” and they form the basis of our evaluation of SWANCC on wetland and waterfowl resources. In all, we examined six focus areas (Figure 4): 1) the Great Basin excluding that portion located in California, Oregon, and Washington; 2) the PPR excluding that portion in Minnesota and Iowa; 3) the Southern Great Plains; 4) the Gulf Coastal Prairie; 5) the MAV excluding that portion in western Tennessee, and; 6) the U.S. Great Lakes System excluding that portion in Michigan, Minnesota, and

The SWANCC Decision: Implications for Wetlands and Waterfowl 9

10 The SWANCC Decision: Implications for Wetlands and Waterfowl

The SWANCC Decision: Implications for Wetlands and Waterfowl 11

12 The SWANCC Decision: Implications for Wetlands and Waterfowl Wisconsin.

6.0 SWAMPBUSTER

Although Section 404 is the cornerstone of Federal wetland regulation, other federal statutes do offer some protection to isolated wetlands. Chief among these is the “Swampbuster” provision of the 1985 Farm Bill that serves to discourage wetland alteration on agricultural lands (cropland and pastureland). Unlike Section 404, Swampbuster functions as an economic disincentive rather than a regulatory program. Landowners who convert a wetland for agricultural production are denied certain farm program subsidies until the wetland is restored. Activities in a wetland that could deny a landowner of farm program benefits generally include any action that alters current hydrology. Importantly, Swampbuster has no effect where a converted wetland will not be used to grow an agricultural crop, or where the landowner is not receiving any farm program benefits. Thus, the program does not provide complete blanket protection for all wetlands located in agricultural regions.

Swampbuster recognizes four categories of wetlands (9):

1) Wetlands - areas that contain hydric soils which support mostly hydrophytes. No additional drainage or conversion is allowed at these sites. 2) Converted Wetlands – areas drained or altered after December 23, 1985 (the date Swampbuster was enacted) to grow an agricultural crop. No additional drainage or maintenance of existing drainage allowed. 3) Farmed Wetlands – areas partially drained or altered to produce a crop prior to Swampbuster being enacted, but which still exhibit some wetland characteristics. Although no additional drainage is allowed, existing drainage can be maintained and crops can still be grown in these areas. 4) Prior Converted Wetland – areas that were used to grow crops prior to Swampbuster and which no longer exhibit any wetland characteristics. Maintaining drainage is allowed at these sites without restrictions.

The SWANCC Decision: Implications for Wetlands and Waterfowl 13 As of 1992, there were a total of six million acres of Wetlands, Converted Wetlands, and Farmed Wetlands within agricultural areas of the U.S. Nearly 46 million acres of Prior Converted Wetland were estimated in these same cropland regions (9). Most of the original wetlands that occurred in agricultural regions of the U.S. are therefore not subject to Swampbuster.

Swampbuster and Section 404 are coordinated through a 1994 Memorandum of Agreement among the Natural Resource Conservation Service (NRCS), the U.S. Fish and Wildlife Service, EPA, and the Corps. Under the agreement, NRCS is responsible for delineating and certifying wetlands on agricultural lands. Although the Corps administers the Section 404- permit process while NRCS determines if agricultural activities have violated any Swampbuster provisions, both programs rely on NRCS wetland certification. However, the Corps retains the right to conduct its own wetland delineation if NRCS wetland certifications are outdated or do not exist (as of 1990, Prior Converted Wetlands were not subject to Section 404). Although the two programs are coordinated, some agricultural activities can be approved under Section 404 but still result in a Swampbuster violation and vice-versa. In essence, Swampbuster and Section 404 operate together to discourage wetland conversion in agricultural habitats, but even collectively they do not offer complete protection.

Prior to the SWANCC decision, Section 404 covered more wetlands in agricultural areas than did Swampbuster because Section 404 applied to agricultural wetlands regardless of whether activities in these wetlands were linked to Farm Bill programs. However, most agricultural producers are enrolled in Farm Bill Programs. As a result, Swampbuster applies to the majority of wetlands in these areas and it does play a significant role where Section 404 protection of isolated wetlands has been lost.

To better understand Swampbuster’s role in offering protection to isolated wetlands, we examined the percent of wetlands on agricultural land in each focus area. A high percent of wetlands in the PPR are located on agricultural land (Figure 5), and Swampbuster is likely to play a significant role in protecting isolated wetlands in the absence of Section 404. For the Southern Great Plains focus area, we paid particular attention to the Rainwater Basin of

14 The SWANCC Decision: Implications for Wetlands and Waterfowl The SWANCC Decision: Implications for Wetlands and Waterfowl 15 Nebraska and the Playa Lakes region of the Texas Panhandle because both regions are continentally important to waterfowl. A majority of the wetlands in the Rainwater Basin are located on agricultural land and therefore are subject to Swampbuster (Figure 6). Similarly, the majority of playa lakes in Texas generally correspond to the most intensively farmed region of the Panhandle (Figure 6). For Kansas, it appears that the distribution of wetlands within the state coincides with the distribution of agriculture, and the majority of these wetlands are located on agricultural lands (Figure 6). The exception to this pattern is northern and western Nebraska where large numbers of wetlands do not occur on agricultural lands (Figure 6). Presumably, these wetlands occur on rangeland and are therefore not subject to Swampbuster (for example the Sandhills).

The distribution of wetlands and agricultural land in the MAV is very similar (Figure 7). Within the Great Basin, wetland distribution generally corresponds to agricultural land in Nevada and Idaho but not the Utah portion of this focus area (Figure 8). For the Gulf Coastal Prairies, a high percent of wetlands occur on agricultural lands east of Houston, however, this relationship is not as strong west of the city (Figure 9). Finally, the percent of wetlands located on agricultural land in the Great Lakes focus area is small, and Swampbuster is unlikely to offer much protection for isolated wetlands in this region (Figure 10).

In summary, Swampbuster provisions are likely to apply to a significant number of isolated wetlands in the PPR, MAV, Southern Great Plains, and Great Basin focus areas. Less protection may be afforded wetlands in the Gulf Coastal Prairie, with little protection for the Great Lakes focus area.

7.0 ESTIMATES OF UNPROTECTED WETLANDS

The Association of State Wetland Managers (ASWM) recently issued guidelines for estimating the number and acreage of wetlands no longer afforded 404 protection as a result of the SWANCC decision (10). We adopted these guidelines for estimating the impact of SWANCC within focus areas. The ASWM guidelines rely on Geographic Information Systems (GIS) to identify wetlands that are adjacent to navigable water bodies, or adjacent to

16 The SWANCC Decision: Implications for Wetlands and Waterfowl

The SWANCC Decision: Implications for Wetlands and Waterfowl 17 18 The SWANCC Decision: Implications for Wetlands and Waterfowl The SWANCC Decision: Implications for Wetlands and Waterfowl 19 20 The SWANCC Decision: Implications for Wetlands and Waterfowl

The SWANCC Decision: Implications for Wetlands and Waterfowl 21 tributaries of navigable waterbodies. If a wetland meets these criteria, it likely remains protected under the CWA. For this analysis navigable waterbodies includes streams or rivers that are navigable by canoe.

Although GIS offers an objective approach to determining SWANCC’s effects, any result will depend on our assumptions of “adjacency” and “tributary.” For example, adjacency can narrowly be defined to include only wetlands that are contiguous with a tributary, or broadly defined to include all wetlands that are located within some specified floodplain of that tributary. Similarly, tributary could be defined as only permanent flowing surface waters, or liberally interpreted to include everything from roadside ditches to groundwater connections.

For our purposes, we defined tributary to include permanent flowing surface waters (e.g. permanent streams) as well as intermittent and ephemeral streams. Ditches, drainage tiles, and groundwater connections were not considered as tributaries. Four categories of adjacency were recognized: 1) contiguous to a navigable water or tributary of a navigable waterway; 2) within 100m of a navigable waterbody or tributary; 3) within 500m of a navigable waterbody or tributary, and 4) within 1000m of a navigable waterbody or tributary. These 100m to 1000m buffers represent possible floodplains associated with navigable waterbodies and tributaries. We choose this “adjacency range” because we believe that the Corps will locate its jurisdictional lines somewhere within this range.

To estimate the number and acreage of unprotected wetlands in our focus areas, we used National Wetlands Inventory (NWI) data organized by quads (1:24,000) to identify wetlands, and the National Hydrological Dataset to identify navigable waterways and tributaries (1:100,000) within these quads. Four to six representative quads were analyzed for the PPR, MAV, Great Lakes, and Gulf Coastal Prairie focus areas. We also analyzed quads from the Mid-Atlantic region, although it was not a focus area because of strong state laws (Figure 11).

There was no NWI data available for the Great Basin so estimates of the number and acreage of unprotected wetlands were not possible for this focus area. Although we did not analyze

22 The SWANCC Decision: Implications for Wetlands and Waterfowl The SWANCC Decision: Implications for Wetlands and Waterfowl 23 quads from any portion of the Southern Great Plains area, the Nebraska Game and Parks Commission has estimated the impact of the SWANCC decision on the state’s wetlands, and we include their results here. In addition, personnel from Texas Parks and Wildlife provided estimates of the percent of Playa Lakes wetlands no longer afforded 404 protection in the Texas Panhandle (11).

Based on selected quads, estimates of total wetland acres no longer afforded Section 404 protection are presented by focus area and jurisdictional scenario in Table 1. As expected, there is considerable variation among focus areas. A high percentage of wetlands acres in the PPR and Gulf Coastal Prairie appear to have lost Section 404 protection regardless of the jurisdictional scenario adopted. Considerably less acreage is affected in the MAV, Great Lakes, and Mid-Atlantic Coast as a result of SWANCC. As expected, the acreage of wetlands without Section 404 protection declines for all focus areas as the width of adjacency buffers is increased (Figure 12). The high percentage of unprotected wetland acreage in the PPR and Gulf Coastal Prairie stem from the fact that these regions are characterized by few navigable waters and tributaries relative to other focus areas. Thus a higher percentage of wetland acreage in the PPR and Gulf Coastal Plain qualify as isolated.

Estimates of total wetland numbers no longer afforded Section 404 protection are presented by focus area and jurisdictional scenario in Table 2. For all focus areas, the majority of wetlands are unprotected under the no buffer scenario (i.e. where a wetland must be contiguous to a navigable waterbody or one of its tributaries). As expected, the percent of unprotected wetland basins declines as buffer width increased. For some focus areas there is a large discrepancy between the acreage of wetlands without Section 404 protection and the actual number of wetlands without protection. For example, a third of all wetland acreage in the Great Lakes is estimated to have lost Section 404 protection under the no buffer scenario (Table 1). However, ninety percent of individual wetlands are estimated to have lost protection under this same scenario (Table 2). The discrepancy occurs because larger wetlands are usually associated with navigable waters or their tributaries while smaller, isolated wetlands are not. In the Playa Lakes region of the Texas panhandle, state biologists estimate that nearly one hundred percent of all playas will be without Section 404 protection

24 The SWANCC Decision: Implications for Wetlands and Waterfowl