Another Round in the Fight for Clean Water: Court decision leaves wetlands vulnerable to development

Last week another sideways step was taken in the long struggle to clarify which waters receive Clean Water Act protections in light of recent confusing and controversial Supreme Court decisions.  The 4th Circuit Court of Appeals in Virginia issued a decision requiring the Army Corps of Engineers to revisit its determination that the Clean Water Act applies to a 4.8-acre tract of wetlands in Chesapeake, Virginia, and that the Act’s protections preclude the destruction of those wetlands for the proposed residential development.

Great Egret, Chincoteague National Wildlife Refuge, USFWS

Overturning a favorable lower court decision, the appeals court ruled that the Corps must provide more information to demonstrate the “significance” of the connection between the wetlands and the navigable Northwest River.  If the Corps cannot establish that these wetlands are protected by the Clean Water Act, the waters are slated to be destroyed to make room for residential units, joining a development that already destroyed 77 wetland acres.

4.8 acres of wetlands is about equivalent in size to a bit more than 4 football fields – by no means a small area given the important services wetlands provide.   The state of the law is allowing wetlands like these to be destroyed across the country at the expense of the cleanliness of our drinking water and the security of our communities.

Wetlands, the unsung heroes of the natural world, are essential to maintaining clean water.  Wetlands filter pollutants before they reach large bodies of water, store flood waters, and provide habitat for a wide array of species. Indeed, in the case of these specific wetlands, the Corps showed that “the wetlands ‘slow release of water maintains base flows to the Northwest River and also moderates downstream flooding during extreme precipitation events.’”  Losing these wetlands and ones like them nationwide puts our communities and our own health at risk.

What does this decision mean?
Although this decision still preserves broad legal latitude for EPA and the Corps to protect waters, it demonstrates the agencies’ on-going struggle to determine the Clean Water Act’s reach through a confusing and often inconsistent case-by-case approach.  Protecting many wetlands and small streams now requires a protracted struggle, with little clarity as to what is required to establish a “significant nexus” between wetlands and downstream traditionally navigable waters.

If the agencies had clearer guidance to determine the “waters of the United States” covered by the Clean Water Act, it’s very possible that this permit application process would have been streamlined, rather than taking more than 3 years, two court decisions, and significant expenditures of time and money by all parties involved. The Fourth Circuit decision itself suggests the agencies would benefit from agency rulemaking toward this end.

Right now the Obama Administration and the EPA and the Corps are considering releasing new guidance that would provide clearer direction on which waters are protected.  You can urge the Administration to act quickly to restore vital Clean Water Act protections for wetlands and streams.

Jim Murphy and Jan Goldman-Carter contributed to this post.

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Published: February 1, 2011