When the U.S. Congress passed the Clean Water Act (CWA) in 1972, it intended to “protect and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The act was effective in slowing wetland loss and improving the quality of our nation’s waters.
Two recent U.S. Supreme Court rulings set the stage for significantly weakening the CWA protections afforded for almost 30 years. In the 2001 Solid Waste Agency of Northern Cook County (SWANCC) case, the Supreme Court ruled that use by migratory birds could not be the sole factor in determining whether a site was in CWA jurisdiction. Although other hydrologic and ecologic factors could clearly demonstrate that the water in geographically isolated wetlands is connected to navigable waters, the administrative agencies (the Environmental Protection Agency [EPA] and Army Corps of Engineers [USACE]) withdrew federal protection from virtually all geographically isolated wetlands in the United States. This action put millions of wetlands critical to waterfowl at great risk.
In the 2006 Rapanos case, the Supreme Court split ruling offered five opinions and two completely different tests for whether a wetland or other water should be protected by the CWA, with no good way for resolving differences between the two tests. The EPA and USACE responses have removed protections from tens of millions of acres of wetlands that are important to waterfowl and many thousands of miles of streams that provide drinking water, supply irrigation needs, and provide places for fish, wildlife, hunters, and anglers. Now, developers, farmers, conservationists, regulators, and others are no longer clear about CWA regulations. Processing time and paperwork have also increased because of the Supreme Court’s confusing ruling.
Only by restoring the original intent of the CWA can these wetlands once again be protected and clarity restored for everyone’s benefit.
Millions of acres of vital wetlands, playa lakes, and streams are at risk of being lost or degraded, including vulnerable prairie potholes not currently protected by easements or federal/state programs in North Dakota and South Dakota. Lack of protection for these vital wetlands in North America’s “Duck Factory” ensures serious repercussions for the future of waterfowl hunting in North America.
Importantly, restoration of the CWA’s original intention would impose no restrictions on farmers and ranchers beyond those that existed in 2001 when the SWANCC Supreme Court decision was handed down, allowing them to continue to farm their land just as they had for years. DU’s goal is to restore protection to prairie potholes, other “geographically isolated” wetlands like playa lakes, and intermittent streams and other waters that are valuable resources to waterfowl, other wildlife, and people.
Because of its impact on wetlands and waterfowl habitat, the restoration of Clean Water Act protections was identified as an organizational priority by Ducks Unlimited’s Board of Directors. The Clean Water Restoration Act was introduced in several recent Congresses to restore the level of protection of wetlands and other waters that existed in 2001 – no more, no less. No additional protections or extension of jurisdiction were included in that act. Unfortunately, the legislation languished, elections came and went, and we find ourselves today with insufficient guidance and the same dangerous situation for our nation’s wetlands and waterfowl.
Ducks Unlimited’s goal is protection for significant wetland areas. In pursuit of that objective, DU supports the process of administrative guidance and rulemaking to clarify the existing law and to protect vulnerable wetlands to the full extent allowed within the Supreme Court’s rulings. This is not new to DU; this is a continuing priority, one that is central to our mission of waterfowl conservation.
DUCKS UNLIMITED IS INVOLVED IN CWA PROTECTION BECAUSE:
- Every species of duck, goose, and swan in North America depends on wetlands at some point in its life cycle.
- Most waterfowl breed in or near small wetland complexes. These areas provide essential resources such as nesting sites, nutrition for females and their young, and cover to prevent or reduce predation. Currently, neither state laws nor the Clean Water Act protects most of these wetlands from being drained or filled.
- Nearly two out of every three mallards that hunters harvest in the United States are produced in the Prairie Pothole Region.
- USFWS biologists estimate that loss of the most threatened wetlands in the Prairie Pothole Region of North Dakota and South Dakota could result in a 40 percent loss of breeding pairs of waterfowl from that region! Past, pre-Clean Water Act loss of wetlands in Iowa and Minnesota resulted in more than an 80 percent reduction in waterfowl production capacity from huge portions of the pothole region. This could happen in the heart of the PPR if Clean Water Act protections are not restored.
- If the CWA is not ﬁxed and loss of wetlands continues, reduced hunting opportunities are more likely.
- Migratory bird hunting produces nearly $2.3 billion in economic activity per year and supports 21,415 jobs based on a 2005 U.S. Fish and Wildlife Service report.
- Clean Water Act protections are vital to providing clean drinking water for homes and communities; reducing or preventing flood damage to crops and homes; protecting groundwater supplies that support irrigation, industry and jobs; and maintaining the opportunity for future generations to enjoy the same habitat DU members have worked to preserve for the last 74 years.
- DU supports maintaining the long-standing agricultural exemptions in the CWA.
For updated information on DU’s Clean Water/Wetlands program, visit www.ducks.org/cleanwater.