Current Federal Approach to Wetlands All Wet

January 9, 2001 — Two developments yesterday on the issue of wetlands regulations demonstrate that, as CEI has long argued, the current federal approach is, well, all wet.  Interior Secretary Bruce Babbitt and Agriculture Secretary Dan Glickman held a press conference to jointly release two new reports, both finding a significant reduction in the loss of wetlands.  The Supreme Court, meanwhile, ruled that the Army Corps’ incredibly expansive claim of jurisdiction over isolated wetlands is illegal.  Environmentalists may be loathe to admit it, but the upshot is that incentive-based, local initiatives are doing an excellent job in maintaining and restoring wetlands, while federal regulatory regimes overstep their bounds, causing much strife and little wetlands improvement.

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The agency studies looked at data from the 1987, 1992, and 1997 “Natural Resources Inventory” and found that wetlands loss dropped by 80 percent in the last decade.  This undercuts the notion that we faced a massive crisis of disappearing wetlands.  To the contrary, according to former CEI Deputy Director of Environmental Policy, Jonathan Tolman, “Every time they release a new study, the government is getting closer and closer to the reality¾no net loss of wetlands.”


Tolman’s 1997 study, Swamped: How America Achieved ‘No Net Loss’ found that America is creating more wetlands than are being destroyed.  It concluded that the wetlands boom is not the result of regulatory regimes, but of voluntary incentive programs and improvements in agricultural productivity.  Regulation restored about 46,000 acres of wetlands in 1995, while the voluntary or incentive-based programs, such as Wetland Reserve, Waterfowl Management Plan, and Partners for Wildlife, restored 208,000 acres.


“This should tell policy makers that economic incentive programs work; regulatory incentive programs have little, if any, net benefit,” Tolman said.


Regulatory programs do, however, cost a lot of time and money on litigation.  Yesterday the Supreme Court ruled against the Army Corps of Engineers, rejecting their attempt to regulate isolated wetlands through their migratory bird rule.  In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, the Supreme Court struck down the Corps’ attempt to assert jurisdiction over wetlands purely on the basis of their providing habitat for migratory birds.  The Court held that the underlying statute, the Clean Water Act, simply could not support such an interpretation, and that the Corps’ reading of the Act would raise constitutional problems of federalism and interstate commerce. 


A recent New York Times article on the wetlands decision notes that the Court may soon have the opportunity to apply this approach in reviewing other environmental regulations: “A pending petition, Gibbs v. Babbitt, No. 00- 844, challenges the constitutionality of a regulation issued under the Endangered Species Act that prohibits people from harassing, capturing or killing red wolves, currently being reintroduced into a federal wildlife refuge in North Carolina, that wander onto private property.”


CEI filed the petition in the Gibbs case, assisted by the law firm of Gibson, Dunn & Crutcher.  The petition was filed with the Supreme Court in late November, and we are currently awaiting the government’s response.


For more on wetlands look at these publications by CEI authors on our web site:


Jonathan Tolman’s “Wetlands, Wetlands Everywhere,” a CEI Update article on the boom of non-regulatory wetland restoration;


R.J. Smith’s “Viansa Winery Wetlands,” a study of voluntary private conservation of wetlands;


For more information on CEI’s certiorari petition to the Supreme Court in Gibbs, click here.