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World Leader in Wetlands Conservation

Crisis for Americas Wetlands

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What Wetland Loss Means for Ducks

Although everyone ought to be concerned about wetland loss, duck hunters should be particularly concerned about the nation’s wetland trends, because small vegetated marshes and wetlands that are most important to waterfowl, such as prairie potholes, have long suffered disproportionate losses. The latest USFWS report highlighted prairie potholes, stating, “Eighty-five percent of all freshwater wetland losses were wetlands less than 5.0 acres. Fifty-two percent were wetlands less than 1.0 acre.” This means that well over 50,000 pothole-size wetlands were lost every year from 1998 to 2004. Duck populations cannot afford these continued losses, especially since about two-thirds of the approximately 20 million potholes that once existed are already gone.

About half the average total annual production of ducks comes from the Prairie Pothole Region (PPR). One USFWS analysis suggested that duck production in the PPR of the United States would decline by 70 percent if all wetlands less than one acre in size were lost. However, wetland losses far less than this would affect duck numbers and could reduce waterfowl hunting seasons.

Wetland loss in already hard-hit migration and wintering areas has     also continued. For example, the U.S. Geological Survey reports that over 25 square miles of Louisiana’s coast, among the most important waterfowl wintering habitat in North America, are lost annually. The Rainwater Basin region of Nebraska is a key migration area, particularly in the spring, at times supporting 50 percent of midcontinent mallards and 90 percent of midcontinent white-fronted geese. But, there are fewer than 400 basins remaining, less than 5 percent of those once present.

An Unexpected Threat to Wetlands

Although by the turn of the 21st century the nation had not halted the loss of wetlands most important to wildlife, the rate of loss had slowed substantially. Steady progress was being made, and there was a sense that, with continued support for programs such as WRP and NAWCA, we might finally turn the corner and begin to add wetlands to the nation’s inventory. Then, in 2001, the U.S. Supreme Court delivered the first of two unexpected blows to the CWA, the foundation of the nation’s system of wetland protection since 1972. They made matters even worse with a second decision in 2006.

To summarize two confusing, split decisions, the Court essentially said: (1) exercising federal Clean Water Act jurisdiction over a wetland required more than showing that migratory birds used the wetland, and (2) there needed to be some significant ecological or hydrological connection, direct or indirect, between wetlands and navigable waters to establish jurisdiction. The decisions created many more questions than they answered and confused the agencies responsible for administration of wetlands protection (Environmental Protection Agency and the U.S. Army Corps of Engineers) about which wetlands and other waters should be protected by the CWA. The two agencies subsequently spent many months after the second ruling trying to interpret the meaning of the Court’s decisions and working on new operating guidelines for their staffs and for people needing permits for work that affected wetlands.

There was a glimmer of hope in that five of the justices supported a position that would continue to offer strong wetland protection, as Congress originally intended in 1972, as long as there was a solid, scientific foundation for doing so. Unfortunately, they did so in three separate rulings that contributed to the confusion and challenges stemming from the rulings.  Nevertheless, understanding that virtually all wetlands and tributaries collectively have a significant effect on downstream waters and the people who use them or live near them, DU and other conservation groups remained hopeful that the guidance being developed by the agencies could restore some protections that were removed in the 2001 Supreme Court ruling.

However, the guidance that was finally released in mid-2007 went the other direction. The agencies interpreted the Court’s decisions in a way that removed many millions of acres of wetlands from CWA jurisdiction, leaving them unprotected from being drained and filled. Ironically, the process they established not only significantly weakened wetland protections but also created huge delays and backlogs in the permitting process. This has created serious problems for landowners and developers who applied for permits for projects involving filling of wetlands. The result was that no one was happy, and wetlands left unprotected began disappearing from the landscape, along with places for ducks to nest, migrate, and winter—and places for duck hunters to hunt.

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