American avocet wading through water at Bennetts Point, South Carolina

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Beach erosion in Botany Bay, South Carolina has allowed the ocean to encroach on trees along the coast. Photo by Cas Galiszewski.

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Credit: Flickr's Mountain Hermit

This post was written by Jim Murphy, Wetlands and Water Resources Counsel for the National Wildlife Federation.  He can be reached at jmurphy@nwf.org.

On November 1, the U.S. Army Corps of Engineers reasserted basic federal Clean Water Act protections for a 31-acre coastal wetland in Horry County, South Carolina, near Murrells Inlet.  That’s the good news.  

The Bad News

Because of legal confusion created by two Supreme Court decisions – SWANCC in 2001 and Rapanos in 2006 – that have placed doubt over whether 60 percent of stream miles and 20 percent of wetlands in the lower 48 states remain federally protected from pollution and destruction – it took the Corps more than five years and a federal lawsuit to protect these wetlands.

In July of 2005, Spectre LLC, a developer in South Carolina, asked the Corps if a wetland on a plat it had development plans for was protected by the Clean Water Act.  The Corps said no, that the wetland, one of several important wetlands in this low-lying coastal area, was “isolated” and therefore not protected by the act.  The effect of this decision was the wetland could now be filled and destroyed without federal safeguards. 

This decision also led to a state court decision that removed state protections for the wetland.  Fortunately, these state protections were restored on appeal.During the pendency of the state case, NWF, South Carolina Wildlife Federation, South Carolina Coastal Conservation League, and Waccamaw Riverkeeper, with legal representation from Southern Environmental Law Center, questioned whether the Corps’ decision not to protect the wetland was valid. 

These groups hired an expert to examine the Corps’ decision.  The expert found that the wetland actually did have direct surface connections to larger downstream waters and the nearby ocean, and that the wetland likely provided a variety of functions, like flood storage and nutrient removal, that impacted the health of downstream waters.  NWF and the other groups filed a lawsuit challenging the Corps’ decision in March of 2009. 

Quickly after the lawsuit was filed, the Corps agreed to reconsider its decision.    After about a year and a half, the Corps finally issued the November 1, 2010 decision to protect the wetland.  The decision was based on the wetland’s direct link to downstream waters and the vital functions it, along with about 175 acres of nearby wetlands, performs for the health of downstream waters and area wildlife.   

Lessons Learned

The primary lessons of this case are two: many valuable waters can still be protected under current law, and the current process is untenable.  Prior to the Supreme Court’s 2001 confusion of the issue, protecting this wetland wouldn’t have been a question.  Now it is.  Five years and two lawsuits is no way to decide whether an important water is protected.  Without Congressional action to restore the historic scope of the law, the Environmental Protection Agency (EPA) and the Corps should take appropriate action to provide more legal clarity and categorical safeguards of waters based on science and law that would restore a much greater level of protections than currently exist on the ground. The sooner EPA and Corps begin to move in this direction, the better.

I know both Ben Gregg and Senator Graham personally. They have something in common besides being South Carolinians. Both are men of character who are adhering to their core principles in order to put what’s right for South Carolinians and their country first. As Ben said on the press call today, addressing climate change isn’t about isn’t left or right, it’s about right and wrong. And Senator Graham is adhering to his core principles of energy independence, economic opportunity and national security for America.

What Senator Graham has done has increased the chances that we will get a climate bill this year. I hope other elected officials will take note of Ben Gregg and the vast majority of Americans who want action on energy and climate, and follow in the footsteps of Sen. Graham’s courageous leadership.

Seldom did we come away from a campaign event, rally or town hall meeting without a global warming question having been posed from the floor or, failing that, asked along the rope line.  Often, the question came up spontaneously, not having been asked by members of our team at all.

Our “stop global warming” signs, stickers and supporters were omnipresent and appear to have made a difference.

As the Presidential candidates head now to Nevada, South Carolina, Michigan and Florida, here are 10 parting reflections on what I think may have occurred in New Hampshire.

1. Cast then count. Cantankerous New Hampshirites indulge in a quaint habit of actually casting their ballots before counting them.  TV anchors, however, love to count the ballots before they’re cast.  In New Hampshire, Gallup, Rasmussen, Zogby, Pew and the media who feed on their stats forgot that polls are snapshots of a specific time and place, not crystal balls.  Gee, did the public get sucker-punched into upside-down expectations about the Hillary Barack outcome.  Proclaiming “hey, this is OUR Primary, not yours (media),” Granite Staters did what they did, giving Clinton a three point win.

2. Response rate. A corollary of Ogden Nash’s “if called by a panther, don’t anther”: if called by a pollster, ask em how many hang-ups or ‘no-responses’ they got before they got you.  I’m told the raw “response rate” in the New Hampshire polling was weak, the number of undecideds was huge and persisted right into the voting booth, and the leaners were just that: “leaning, not settled”.  Another, vaguely related, curiosity: if pollsters know that cellphones have replaced landlines for a significant number of voters, how come they still don’t acknowledge a cell phone factor in their margin of error caveat?

3. We don’t make things worse. The 63 % turnout (of registered voters) shattered the 2000 record.  In spite of that, I met several people who didn’t vote in the Primary because they just couldn’t decide whom to pick. This had never occurred to me.  These voters were so conscientious! They said the Primary was too truncated, too compressed this year.  A few didn’t want to do damage by casting an irresponsible, unthoughtful vote.  The selection was almost too juicy.  All assured me they’d vote Nov 4th.  Fascinating.

4. Toast. Beware, too, the glib prognosticator.  How well I recall FOX news’ gleeful obituary for John McCain in mid-summer as McCain, out of money, fired his top advisors.  “Stick a fork in him; he’s done,” crowed FOX.  Well, McCain done well: finished first by 6% in NH, pretty good for someone who was well done dead meat in July.

5. Apogee? Normally, I subscribe to the adage “trend is you friend” in politics.  Momentum is huge for a rising candidate like Obama leaving Iowa.  But at some point momentum peaks, then stalls.  Hillary’s do-or-die get-out-her-vote juggernaut (abetted by balmy weather and the Shaheen machine), apparently had a momentum of its own, equal to or greater than Obama’s.  Why is Hillary so perennially underestimated?  A lot of women to cast a “shame on you” vote to rebuke male contenders and a media that appeared to be ‘piling on’ in celebrating Hillary’s predicted demise.

6. Double Digits. The media in asserting to attentive New Hampshire that Obama could win by double digits, became a player not a reporter.  At all the Dem events I attended, people feasted on their bounty of available picks.  They were genuinely torn.  They liked em all.  So when it looked liked Obama might have a big surplus, some of those votes may have strayed to Hillary to be sure an Obama win wouldn’t be interpreted as a humiliating repudiation of the Clintons.  Similarly, some independents, originally expected to add to Obama’s surge may have chosen to help McCain in what was perceived to be an even closer Republican contest.  Obama’s predicted coronation fell victim.  There may have been animosity among the combatants, but for the most part, there wasn’t antipathy among their supporters.  Look for that to change as the field winnows and the race gets more complicated.

7. Laundromat. One of the sweetest stories I heard came from an Edwards staffer who was gladdened to find John’s retired millworker parents at the Portsmouth Hilton’s front desk early one morning trading dollars for quarters.  They insisted on doing their own laundry before embarking on another 18 hour day bolstering their ardent, albeit wealthy, son.

8. Stamina. I was repeatedly amazed as I witnessed the freshness and resilience of virtually all aspirants.  They were always “on”.  No down time.  Little sleep.  Day after grueling day, they acted as if each event was their first, not the tenth, of the day.  And they’ve been doing this for months straight.

9.  Foreign press. I never attended a rally or town meeting where there wasn’t a phalanx of awestruck foreign correspondents or a European TV crew.  The intense, retail aspect of New Hampshire’s every-voter-matters is a phenomenon. Warts and all, it’s envied around the world.

10. Heart. I was shameless in asking literally everyone I encountered if they’d voted yet, what their top issue was, and if they wanted to recommend anyone.  The answers I got were almost invariably cheerful and respectful.  Mostly, voters demurred on either revealing their choice of trying to influence mine.  A toll collector counseled “Just do what your heart tells you to do.”  I conclude there was a lot less “strategic” voting going on, and an awful lot of people just following their heart.  What a privilege to see New Hampshire up close exercise our birthright with such enthusiasm, good will and deliberation.  Bravo democracy.  Bravo New Hampshire.  But I hear South Carolina is a different matter.