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 not only in improving the quality of our nation's waters but also in slowing the rate of loss of the wetlands most important to waterfowl and other wildlife. The loss rate for these key wetlands dropped from more than 550,000 acres per year in the 1950s to about 80,000 acres per year in 1998.
However, two U.S. Supreme Court rulings set the stage for significant uncertainty for the CWA protections afforded to these vital wetlands 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 wetland fell within CWA jurisdiction. Although other hydrologic and ecologic factors could be used to show that the water in geographically isolated wetlands, such as prairie potholes, is connected to or has an impact on navigable waters, the Environmental Protection Agency [EPA] and U.S. Army Corps of Engineers [USACE] withdrew CWA protection from virtually all geographically isolated wetlands in the United States. This action put tens of millions of wetlands critical to waterfowl at great risk.
In the 2006 Rapanos case, the Supreme Court's splintered ruling offered two different tests for whether a wetland or other water should be protected by the CWA, with no clear way for resolving differences between them.
The agencies' initial approach of using administrative guidance had the effect of removing protections from millions more acres of wetlands that are important to waterfowl, and from many thousands of miles of streams that provide water for drinking, irrigation, and places for fish, wildlife, hunters, and anglers. In addition, the Rapanos ruling and the resulting guidance created great uncertainty and increased the processing time and paperwork for developers, farmers, conservationists, regulators, and others.
Many of those affected interests called for clarifying the definition of "waters of the United States" through the development of a new regulation to bring clarity and certainty regarding the jurisdiction of the Clean Water Act. On this point, interests as diverse as farmers, homebuilders, ranchers, conservationists, elected officials of both parties, and even Supreme Court justices have all agreed.
Tens of millions of acres of vital wetlands continue to be at risk of being lost and degraded, especially highly vulnerable prairie potholes not currently protected by easements or federal/state programs in North Dakota, South Dakota and other prairie states. Failure to restore protection to these vital wetlands in North America's "Duck Factory" could create significant repercussions for the future of North America's waterfowl populations and for waterfowl hunting and its contribution of both revenue and jobs to our nation's economy.
According to the EPA, clarification of the CWA's jurisdiction in the proposed rule released in March 2014 would impose no new restrictions on normal farming and ranching activities beyond any that existed in 2001, at the time of the SWANCC decision. Farmers and ranchers who do not now need a permit for their current activities would not need to obtain any permits under the proposed rule. In fact, EPA has emphasized that the proposed rule provides even greater clarity and protection of normal agricultural practices as being exempt from CWA regulations. We at Ducks Unlimited want to do all we can to ensure these commitments by EPA to protect our agricultural friends are kept.
The EPA and USACE are currently seeking public comments on the proposed rule. One of DU's goals during this comment period is to provide the science to validate the significant connection of prairie pothole wetlands to downstream navigable waters, which is the test set by the Supreme Court for categorical jurisdiction. Prairie potholes and other "geographically isolated" wetlands, like rainwater basins and playas, are valuable resources for waterfowl, other wildlife, and people.
Because of the Clean Water Act's impact on wetlands and waterfowl habitat, Ducks Unlimited's Board of Directors explicitly approved the restoration of CWA protections to the prairie potholes and other wetlands important to waterfowl as an organizational priority in its 2012–2016 Strategic Plan, and the goal remains a key element in DU's National Business Plan today. The waters of the U.S. proposed rule was published in the Federal Register on April 21, 2014, to clarify the categories of protected wetlands and other waters. Although the proposed rule would afford protection to fewer wetlands than the existing regulation, it would restore protections to some key wetlands not currently protected by the confusing administrative guidance.
Ducks Unlimited will provide science-based comments on the proposed rule because:
The EPA is accepting public comment through October 20, 2014, on the proposed rule. DU will respond with science-based comments regarding the functions of wetlands and how they interconnect with other water bodies. We will work to ensure that the final product is based on the best available information by providing science that supports restoration of wetland protections consistent with Supreme Court decisions, especially for geographically isolated wetlands (e.g., prairie potholes, rainwater basins, playas). At the same time, DU will insist the rule clarify and protect the ability of farmers and ranchers to continue to do their business without additional permitting burdens.
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