The SWANCC Decision: Implications for Wetlands and Waterfowl Final Report September 2001 The SWANCC Decision: Implications for Wetlands and Waterfowl 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. Copyright 2001 – No part of this document may be reproduced, in whole or in part, without the expressed written permission of Ducks Unlimited, Inc. 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) ii 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. iv 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 v 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 vi 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