Preserving dynamic systems: Wetlands, ecology and law

Duke Environmental Law and Policy Forum

Volumn 7, Issue 1, 1996, Pages 105-131

  Flournoy, Alyson C ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 6144296075     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (113)

1. Wetlands perform valuable functions on which humans depend directly and indirectly for a wide array of health, safety, aesthetic, economic and recreational benefits. Fish and wildlife habitat, water supply, water quality, flood control, erosion and shoreline protection, outdoor recreation opportunities,and education and research are among the benefits often identified. MARK S. DENNISON & JAMES F. BERRY, WETLANDS: GUIDE TO SCIENCE, LAW, AND TECHNOLOGY 55-63 (1993). Wetlands protect adjacent uplands by reducing flood size and destructiveness, while simultaneously improving water quality through the natural absorption and filtration processes they perform with respect to pollutants which could cause severe degradation of rivers, lakes and estuaries. This filtration process is also directly connected to the quality of water in aquifers which provide drinking water. Also, the importance of functioning wetlands as they relate to land should not be overlooked. Wetlands bind stream banks and absorb wave energy, thereby preventing erosion and stabilizing shorelines. They also play a role in land formation in coastal areas that lose land to the ocean. WORLD WILDLIFE FUND, STATEWIDE WETLANDS STRATEGIES: A GUIDE TO PROTECTING AND MANAGING THE RESOURCE 4-6 (1992).
2. Wetlands perform valuable functions on which humans depend directly and indirectly for a wide array of health, safety, aesthetic, economic and recreational benefits. Fish and wildlife habitat, water supply, water quality, flood control, erosion and shoreline protection, outdoor recreation opportunities,and education and research are among the benefits often identified. MARK S. DENNISON & JAMES F. BERRY, WETLANDS: GUIDE TO SCIENCE, LAW, AND TECHNOLOGY 55-63 (1993). Wetlands protect adjacent uplands by reducing flood size and destructiveness, while simultaneously improving water quality through the natural absorption and filtration processes they perform with respect to pollutants which could cause severe degradation of rivers, lakes and estuaries. This filtration process is also directly connected to the quality of water in aquifers which provide drinking water. Also, the importance of functioning wetlands as they relate to land should not be overlooked. Wetlands bind stream banks and absorb wave energy, thereby preventing erosion and stabilizing shorelines. They also play a role in land formation in coastal areas that lose land to the ocean. WORLD WILDLIFE FUND, STATEWIDE WETLANDS STRATEGIES: A GUIDE TO PROTECTING AND MANAGING THE RESOURCE 4-6 (1992).
3. See Robert E. Beck, The Movement in the United States to Restoration and Creation of Wetlands, 34 NAT. RESOURCES J. 781, 781 (1994).
4. See DENNISON & BERRY, supra note 1, at 67-70 (detailing figures on loss and anthropogenic causes of loss).
5. Between 1954 and 1974, 95 million acres of wetlands were lost, averaging about 458,000 acres per year, with 396,000 of those resulting from conversion to agricultural uses. Id. at 67. A 1991 national wetlands status report by the U.S. Fish and Wildlife Service estimated the annual loss from the mid-1970's to the mid-1980's at 290,000 acres per year. WILLIAM L. WANT, LAW OF WETLANDS REGULATION § 2.01[4], at 2-5 (1995). The 1992 National Resources Inventory by the Natural Resources Conservation Service estimated wetlands loss on non-federal lands from 1982-1992 at 70,000 - 90,000 acres per year, with 57% due to development and only 20% to agriculture. Ralph Heimlich & Jeanne Melanson, Wetlands Lost, Wetlands Gained, NAT'L WETLANDS NEWSL. (Envt'I L. Inst., Wash., D.C.), May-June 1995, at 1, 23.
6. Between 1954 and 1974, 95 million acres of wetlands were lost, averaging about 458,000 acres per year, with 396,000 of those resulting from conversion to agricultural uses. Id. at 67. A 1991 national wetlands status report by the U.S. Fish and Wildlife Service estimated the annual loss from the mid-1970's to the mid-1980's at 290,000 acres per year. WILLIAM L. WANT, LAW OF WETLANDS REGULATION § 2.01[4], at 2-5 (1995). The 1992 National Resources Inventory by the Natural Resources Conservation Service estimated wetlands loss on non-federal lands from 1982-1992 at 70,000 - 90,000 acres per year, with 57% due to development and only 20% to agriculture. Ralph Heimlich & Jeanne Melanson, Wetlands Lost, Wetlands Gained, NAT'L WETLANDS NEWSL. (Envt'I L. Inst., Wash., D.C.), May-June 1995, at 1, 23.
7. This is not to suggest that there is consensus on the precise degree of protection we should seek in this field. In addition to concern with the efficiency of our laws, many powerful voices are currently arguing simply for less regulation, regardless of its efficiency. Nonetheless, there is widely shared concern over the pace of wetlands loss and widespread recognition that wetlands serve important public interests and merit some degree of legal protection. Current laws embody these basic premises. Since preservation of wetlands is one of our goals, then the efficacy of our laws in achieving that goal, as well as their efficiency, are important questions.
8. See Steward T.A. Pickett, et al., The New Paradigm in Ecology: Implications for Conservation Biology Above the Species Level, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 65 (Peggy L. Fiedler & Subodh K. Jain eds., 1992); Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994).
9. See Steward T.A. Pickett, et al., The New Paradigm in Ecology: Implications for Conservation Biology Above the Species Level, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 65 (Peggy L. Fiedler & Subodh K. Jain eds., 1992); Judy L. Meyer, The Dance of Nature: New Concepts in Ecology, 69 CHI.-KENT L. REV. 875 (1994).
10. "To conserve systems effectively, conservation biologists must focus on process and context." Pickett et al., supra note 6, at 74. Ecologists have highlighted the necessity of preserving processes such as fire if we want to preserve a place or "object" that is part of a natural system dependent on that process. So processes rather than objects or endpoints must guide our policies if our goal is to conserve natural systems. Id. at 71, 74-77.
11. The concept of scale includes both temporal and spatial hierarchical units of measurement or observation. See Reed F. Noss, Issues of Scale in Conservation Biology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 239, 242-244 (Peggy L. Fiedler and Subodh K. Jain eds., 1992); See also Glossary, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION, AND MANAGEMENT, supra, at 492. "The scale at which Nature is viewed determines the patterns and processes detected . . . . Conservation strategies. . . will be most effective when they address ecological phenomena at multiple spatial scales and levels of organization." Noss, supra, at 240, 243.
12. The concept of scale includes both temporal and spatial hierarchical units of measurement or observation. See Reed F. Noss, Issues of Scale in Conservation Biology, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION AND MANAGEMENT 239, 242-244 (Peggy L. Fiedler and Subodh K. Jain eds., 1992); See also Glossary, in CONSERVATION BIOLOGY: THE THEORY AND PRACTICE OF NATURE CONSERVATION, PRESERVATION, AND MANAGEMENT, supra, at 492. "The scale at which Nature is viewed determines the patterns and processes detected . . . . Conservation strategies. . . will be most effective when they address ecological phenomena at multiple spatial scales and levels of organization." Noss, supra, at 240, 243.
13. Ecologists studying patterns of change have developed the metaphor of patch dynamics, which is defined as "continuous change in community structure and its species abundances due to disturbance, creating shifting and mosaic patchiness." Glossary, supra note 8, at 492; see also Pickett et al., supra note 6, at 71-72.
14. Ecologists discuss the reversibility of change in terms of a natural system's resilience. "Resilience . . . is the ability of a system to maintain its structure and patterns of behavior in the face of disturbance." C.S. Holling, The Resilience of Terrestrial Ecosystems: Local Surprise and Global Change, in SUSTAINABLE DEVELOPMENT OF THE BIOSPHERE 292, 296 (William C. Clark & R.E. Munn eds., 1986) (contrasting resilience with stability); see also C.S. Holling, Resilience and Stability of Ecological Systems, 4 ANN. REV. OF ECOLOGY & SYSTEMATICS 1, 17 (1973); C.S. Holling, Engineering Resilience Versus Ecological Resilience, in ENGINEERING WITHIN ECOLOGICAL CONSTRAINTS 31, 32-35 (Peter C. Schulze ed., 1996). An assessment of the impacts of human activity on a natural system such as a wetland should take account of the resilience of the system.
15. Ecologists discuss the reversibility of change in terms of a natural system's resilience. "Resilience . . . is the ability of a system to maintain its structure and patterns of behavior in the face of disturbance." C.S. Holling, The Resilience of Terrestrial Ecosystems: Local Surprise and Global Change, in SUSTAINABLE DEVELOPMENT OF THE BIOSPHERE 292, 296 (William C. Clark & R.E. Munn eds., 1986) (contrasting resilience with stability); see also C.S. Holling, Resilience and Stability of Ecological Systems, 4 ANN. REV. OF ECOLOGY & SYSTEMATICS 1, 17 (1973); C.S. Holling, Engineering Resilience Versus Ecological Resilience, in ENGINEERING WITHIN ECOLOGICAL CONSTRAINTS 31, 32-35 (Peter C. Schulze ed., 1996). An assessment of the impacts of human activity on a natural system such as a wetland should take account of the resilience of the system.
16. Ecologists discuss the reversibility of change in terms of a natural system's resilience. "Resilience . . . is the ability of a system to maintain its structure and patterns of behavior in the face of disturbance." C.S. Holling, The Resilience of Terrestrial Ecosystems: Local Surprise and Global Change, in SUSTAINABLE DEVELOPMENT OF THE BIOSPHERE 292, 296 (William C. Clark & R.E. Munn eds., 1986) (contrasting resilience with stability); see also C.S. Holling, Resilience and Stability of Ecological Systems, 4 ANN. REV. OF ECOLOGY & SYSTEMATICS 1, 17 (1973); C.S. Holling, Engineering Resilience Versus Ecological Resilience, in ENGINEERING WITHIN ECOLOGICAL CONSTRAINTS 31, 32-35 (Peter C. Schulze ed., 1996). An assessment of the impacts of human activity on a natural system such as a wetland should take account of the resilience of the system.
17. "Surprise" is a central concept in the work being done by Holling and others to theorize more productive institutional responses to change in natural systems. See C.S. Holling, What Barriers? What Bridges?, in BARRIERS AND BRIDGES TO THE RENEWAL OF ECOSYSTEMS AND INSTITUTIONS 3, 13-15 (Lance H. Gunderson et. al. eds., 1995).
18. One estimate is that seventy-four percent of the United States' remaining wetlands are in private hands. See COUNCIL ON ENVIRONMENTAL QUALITY, EXECUTIVE OFFICE OF THE PRESIDENT, ENVIRONMENTAL TRENDS, 100 (1989), cited in Timothy D. Searchinger, Wetlands Issues 1993: Challenges and A New Approach, 4 MD. J. CONTEMP. LEGAL ISSUES 13, 43 n.106 (1993). The Endangered Species Act is another resource protection statute that seeks to preserve a particular resource - species - found on both public and private lands.
19. One estimate is that seventy-four percent of the United States' remaining wetlands are in private hands. See COUNCIL ON ENVIRONMENTAL QUALITY, EXECUTIVE OFFICE OF THE PRESIDENT, ENVIRONMENTAL TRENDS, 100 (1989), cited in Timothy D. Searchinger, Wetlands Issues 1993: Challenges and A New Approach, 4 MD. J. CONTEMP. LEGAL ISSUES 13, 43 n.106 (1993). The Endangered Species Act is another resource protection statute that seeks to preserve a particular resource - species - found on both public and private lands.
20. This is not to suggest that there are not obstacles to the application of these principles in the public land context. See William H. Rodgers, Jr., Adapting Environmental Law to the Ecologists' Discovery of Disequilibria, 69 CHI.-KENT L. REV. 887 (1994); Reed F. Noss, Some Principles of Conservation Biology as They Apply to Law, 69 CHI.-KENT L. REV. 893, 894 (1994) (noting "[i]f we are really interested in maintaining ecological processes and the services they provide to human society, then conservation must be extended to entire landscapes or regional ecosystems.") In other words, it may not be possible to apply these ecological principles only on public lands alone.
21. This is not to suggest that there are not obstacles to the application of these principles in the public land context. See William H. Rodgers, Jr., Adapting Environmental Law to the Ecologists' Discovery of Disequilibria, 69 CHI.-KENT L. REV. 887 (1994); Reed F. Noss, Some Principles of Conservation Biology as They Apply to Law, 69 CHI.-KENT L. REV. 893, 894 (1994) (noting "[i]f we are really interested in maintaining ecological processes and the services they provide to human society, then conservation must be extended to entire landscapes or regional ecosystems.") In other words, it may not be possible to apply these ecological principles only on public lands alone.
22. Modern wetlands regulation began under § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1994), the purpose of which was to avoid impediments to navigation, a goal more focused on avoiding degradation of waterways than on preserving wetlands as natural resources. Section 404 of the Clean Water Act, 33 U.S.C. § 1344 (1994), carried forward the general approach of § 10 of the Rivers and Harbors Act by regulating "the discharge of dredged or fill material" in "waters of the United States." 33 U.S.C. § 1344. In form, § 404 is a permitting structure similar to the case-by-case permitting of other discharges of pollutants under § 402 of the Clean Water Act, 33 U.S.C. § 1342 (1994). Permitting has been complemented in recent years by regulatory initiatives such as the Advanced Identification of Wetlands Program (ADID) and the Special Area Management Plan (SAMP), drawn originally from the Coastal Zone Management Act, 16 U.S.C. § 1451 (1994). See 40 C.F.R. § 230.80 (1995) (advanced identification program); Robert Ceberio & Deborah Alaimo Lawlor, A Plan for the Beleaguered Meadowlands, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), July-Aug. 1995, at 10-13 (describing the development of a SAMP).
23. Unless otherwise indicated, regulation under § 404 of the Clean Water Act, 33 U.S.C. § 1344, is the focus of discussion.
24. See generally Carol Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988).
25. 33 C.F.R. § 328.6 (1995); see also DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, WETLAND DELINEATION MANUAL (1987) [hereinafter 1987 MANUAL].
26. 1987 MANUAL, supra note 17, ¶ 24, at 13. In its recent report, the National Research Council criticizes the use of the term parameter in this context and, instead, describes water, substrate and biota as factors to be assessed in identifying or delineating wetlands. NAT'L RES. COUNCIL, WETLANDS: CHARACTERISTICS AND BOUNDARIES 64 (1995).
27. 1987 MANUAL, supra note 17, ¶ 26b, at 13.
28. Id. ¶ 35, at 44-45, 49. Hydrophytic vegetation is indicated when more than fifty percent of the dominant species are obligate, facultative wetland or facultative. Id. ¶ 35a, at 19, 23. Hydric soil indicators include histosols, histic epipedons, sulfidic material, and gleyed soils, among others. Id. ¶ 44, at 30-31. Recorded data, field data, watermarks, draft lines, sediment deposits, and drainage patterns indicate wetlands hydrology. Id. ¶ 49, at 36-41.
29. Some have criticized the inherent blurring of science and policy in this approach, which uses science to define the bounds of agency authority. See Jess J. Franco, Real Reform for Section 404, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), Sept.-Oct. 1995, at 12, 14 (advocating that science be used to delineate wetlands and a separate policy decision be made on how far to extend regulatory jurisdiction).
30. The major events in this ongoing battle are described very briefly below. In 1987, the Corps and EPA each adopted independent delineation manuals. In 1989, in the wake of the National Wetland Policy Forum, EPA, the Corps and other agencies cooperated to produce a joint manual, known as the FEDERAL MANUAL FOR IDENTIFYING AND DELINEATING JURISDICTIONAL WETLANDS (1989). [hereinafter 1989 Manual]. The 1989 Manual provoked criticism from developers, agricultural interests and other landowners for its complexity, its arguable expansion of the scope of jurisdiction, and the agencies' failure to solicit public comment in its preparation. In response to this criticism, the White House, OMB, and the Council on Competitiveness, headed by then-Vice President Quayle, produced a 1991 proposed revision to the Manual. The 1991 Manual provoked massive outcry from the scientific community and environmentalists for its lack of scientific grounding and its projected impact. Field tests projected that the application of the 1991 revisions would exclude some thirty to eighty percent of the lands previously delineated as wetlands. In the wake of the furor over the proposed revisions, Congress mandated the Corps to return to its 1987 Manual and directed the National Academy of Sciences (NAS) to prepare a report on the scientific standards for delineation. This Report was published by the National Research Council in May 1995, shortly before the House voted on H.R. 961, 104th Cong. (1995). NAT'L RES. COUNCIL, supra note 18, at 1-3.
31. NAT'L RES. COUNCIL, supra note 18, at 35-42.
32. Quantified endpoints, such as vegetation or hydrology, are the indicators relied on, as surrogates, for identifying wetlands presence. For example, greater than fifty percent vegetation of certain types and seven or more days of saturation within one foot of the surface are endpoints which are used in concluding that an area is a wetland.
33. The contrast between clear quantifiable endpoints and muddier contextual assessments of function is in some ways similar to the "crystals and mud" dialectic in property rules that Professor Carol Rose describes. See generally Rose, supra note 16.
34. For example, the National Academy of Science commented in its recent report on delineation that "[d]isturbance of the biota or substrate can produce a wetland in which the characteristic substrates or organisms are absent, at least temporarily." NAT'L RES. COUNCIL, supra note 18, at 4.
35. Id.
36. See Jon Kusler, Wetlands Delineation: An Issue of Science or Politics, ENV'T, March 1992, at 7, 30-31, One of many sources of criticism of the proposed 1991 revisions to the Manual was that the indicators selected failed to correlate to wetlands functions. See id. at 35. Selection of positive indicators of wetlands hydrology has proved particularly controversial in the war over delineation manuals. The depth at which water must be present, the duration of saturation or inundation, and the period during which the indication is found are among the areas of dispute. See, e.g., Joy B. Zedler, Reinventing Wetland Science, NAT'L WETLANDS NEWSL., July-Aug. 1995, at 1, 17-18 (criticizing the criteria employed in H.R. 961, 104th Cong. (1995), and contrasting them with those developed by the National Research Council in May, 1995); Searchinger, supra note 12, at 27-29 (detailing how reliance on quantifiable indicators of saturation to prove wetland hydrology excludes many areas that perform valuable wetland functions.) Moreover, regional variation in hydrology may exist which cannot be easily accounted for in a single regulatory definition. See Zedler, supra, at 18.
37. See Jon Kusler, Wetlands Delineation: An Issue of Science or Politics, ENV'T, March 1992, at 7, 30-31, One of many sources of criticism of the proposed 1991 revisions to the Manual was that the indicators selected failed to correlate to wetlands functions. See id. at 35. Selection of positive indicators of wetlands hydrology has proved particularly controversial in the war over delineation manuals. The depth at which water must be present, the duration of saturation or inundation, and the period during which the indication is found are among the areas of dispute. See, e.g., Joy B. Zedler, Reinventing Wetland Science, NAT'L WETLANDS NEWSL., July-Aug. 1995, at 1, 17-18 (criticizing the criteria employed in H.R. 961, 104th Cong. (1995), and contrasting them with those developed by the National Research Council in May, 1995); Searchinger, supra note 12, at 27-29 (detailing how reliance on quantifiable indicators of saturation to prove wetland hydrology excludes many areas that perform valuable wetland functions.) Moreover, regional variation in hydrology may exist which cannot be easily accounted for in a single regulatory definition. See Zedler, supra, at 18.
38. See supra note 22.
39. See S. 851, 104th Cong. § 3(e)(1)(B) (1995). From the language of the bill, it is not clear whether these two criteria are intended to be exclusive or not. It is possible to interpret this language to mean that areas meeting the criteria in the statute must be included within the definition of wetlands, but without precluding the Corps from also including other areas within the definition of wetlands. H.R. 961, 104th Cong. (1995), while similar to S. 851 in the criteria it imposes, makes clear that no area shall be delineated as a wetland unless it meets the statutory criteria. See H.R. 961, § 803(g)(1)(A). The House Bill also differs from the Senate Bill in that it makes no mention of the NAS study. Id. The Senate Bill directs the Corps to "consider" the NAS study in developing mandatory delineation regulations. S. 851, § 3(e)(1)(A).
40. See S. 851, § 3(e)(1)(C)(ii).
41. S. 851, § 3(e)(1)(B)(ii). An alternate test is provided for tidal wetlands and temporarily created wetlands. House Bill 961 requires that the 21 days of saturation at the surface be demonstrated for the majority of years for which there are records available. See H.R. 961, § 803(c). This is an improvement over some recent bills that would have made surface saturation during the year of delineation essential.
42. See S. 851, § 3(e)(1)(B)(i).
43. Perhaps the twenty-one-day requirement can be explained as reflecting a lay instinct that a wetland should be soggy at the surface. Or the twenty-one days may simply be intended as a crude device to narrow regulatory jurisdiction. The validity of this and earlier similar proposals have been repeatedly challenged by the scientific community. See, e.g., Kusler, supra note 28, at 34-35.
44. See Searchinger, supra note 12, at 27 (describing the political motivation for the compromise of including only "wet" wetlands in the 1993 bills and its inconsistency with preserving desired wetland functions such as flood control and filtration).
45. See supra notes 17-35 and accompanying text.
46. This insight might lead some to question any effort to protect a natural area, including wetlands, since the area might disappear or be altered without human intervention. Such a response is misguided. The insight that wetlands are dynamic must be applied with a sensitivity to scale, both spatial and temporal. Only then does it improve our understanding of natural systems and the implications of human activity in these systems.
47. For example, some 5000 years ago, the area known today as the Everglades was dominated by oak savanna. See C.S. Holling et al., The Structure and Dynamics of the Everglades System: Guidelines for Ecosystem Restoration, in EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION 741 (Steven M. Davis & John C. Ogden eds., 1994).
48. See supra note 4. In addition to direct activities in wetlands, human activities' indirect effects are leading to further loss of wetlands. DENNISON & BERRY, supra note 1, at 69-70. Human depletion of groundwater tables has already caused noticeable impacts on wetlands in some regions, unaccounted for by any permitting process, with no compensating creation. The Executive Director of the South West Florida Water Management District (SWFWMD), for example, has recognized the "connection between groundwater pumping and the drying of wetlands and lakes across Pasco County." Quoted in Jeffrey Brainard, Are the Lakes Half Full or Half Empty?, PASCO TIMES, Nov. 12, 1995, at 1. SWFWMD has proposed to deny renewal of the permits allowing groundwater pumping by central supply system wellfields serving the city of St. Petersburg and Pinellas County, based on its determination that groundwater pumping impacted the hydroperiods of wetlands and surface waters and could result in significant harm to water resources. A challenge to the proposed permit denial is pending. See West Coast Regional Water Supply Authority et al., Petitioners v. SWFWMD, Respondent, Thomas W. Reese et al., Intervenors, Case Nos. 95-1520 to 95-1529 (State of Fla. Dept. of Admin. Hearings).
49. See Vincent J. Burke & J. Whitfield Gibbons, Terrestrial Buffer Zones and Wetland Conservation: A Case Study of Freshwater Turtles in a Carolina Bay, 9 CONSERVATION BIOLOGY 1365 (1995). Although § 404 of the Clean Water Act and many state laws purport to focus on wetland function, rather than species or biodiversity protection, ecologists recognize the relationships that exist between biological diversity and ecosystem function. These relationships are complex and operate at many temporal and spatial scales. See Paul G. Risser, Biodiversity and Ecosystem Function, 9 CONSERVATION BIOLOGY 742, 745 (1995). Therefore, if current law fails to provide meaningful protection for the biological diversity of wetlands, the law's ability to assure ecosystem function may be fatally flawed.
50. See Vincent J. Burke & J. Whitfield Gibbons, Terrestrial Buffer Zones and Wetland Conservation: A Case Study of Freshwater Turtles in a Carolina Bay, 9 CONSERVATION BIOLOGY 1365 (1995). Although § 404 of the Clean Water Act and many state laws purport to focus on wetland function, rather than species or biodiversity protection, ecologists recognize the relationships that exist between biological diversity and ecosystem function. These relationships are complex and operate at many temporal and spatial scales. See Paul G. Risser, Biodiversity and Ecosystem Function, 9 CONSERVATION BIOLOGY 742, 745 (1995). Therefore, if current law fails to provide meaningful protection for the biological diversity of wetlands, the law's ability to assure ecosystem function may be fatally flawed.
51. See Burke & Gibbons, supra note 40, at 1365-69.
52. See id. at 1367
53. See id.
54. See id. at 1368.
55. See id.
56. See id.
57. See id.
58. Pickett et al., supra note 6, at 77-79, 84.
59. See Holling, supra note 11, at 17-18.
60. See Pickett et al., supra note 6, at 71.
61. See Holling, supra note 11, at 23-24.
62. Holling and others have developed the concept of "nested hierarchies" to explain the asymmetric relationship that exists among natural cycles in a single system viewed at different scales. See Holling et al., supra note 38, at 748-751; Holling, supra note 11. at 20-25.
63. The political objections can be inferred from ongoing efforts to restrict federal jurisdiction over wetlands and to eliminate restrictions on private property under the Endangered Species Act. See, e.g., Kenneth R. Harney, Property Protection Proposal Offers Compensation for Federal Restrictions that Devalue Private Property, WASH. POST, July 20, 1996, at E3; H. Sterling Burnett, Endangered Property, WASH. TIMES, June 19, 1996, at A19. The recent wave of state takings statutes echoes this political hostility to regulation that restricts private uses of lands. See generally Jerome M. Organ, Understanding State and Federal Property Rights Legislation, 48 OKLA. L. REV. 191 (1995) (surveying these developments). Objections to expanded federal jurisdiction over privately owned land also likely include the constitutional bounds of federal legislative authority. In the recent decision in United States v. Lopez, 115 S.Ct. 1624 (1995), the Supreme Court made clear that even the expansive Commerce Clause has limits. And the commerce clause justification for federal regulation of isolated wetlands has been recently challenged, albeit unsuccessfully. See Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992) (holding EPA's assertion of jurisdiction over isolated wetlands exceeded authority under the Clean Water Act; rejecting theory that presence or potential presence of wildlife satisfies the Commerce Clause; and finding inadequate evidence connecting the isolated wetland to human economic activity under the Commerce Clause); reh'g granted and opinion vacated, 975 F.2d 1554 (7th Cir. 1992); 999 F.2d 256 (7th Cir. 1993) (upholding EPA's interpretation of its regulation basing jurisdiction on minimal and potential impacts on interstate commerce, but finding EPA's conclusion that the isolated wetlands in question were suitable for migratory bird habitat to be unsupported by substantial evidence on the record as a whole). So although there are cogent arguments for expanded federal jurisdiction, my point here is to suggest that advocating such an expansion today is not likely to meet with success.
64. The political objections can be inferred from ongoing efforts to restrict federal jurisdiction over wetlands and to eliminate restrictions on private property under the Endangered Species Act. See, e.g., Kenneth R. Harney, Property Protection Proposal Offers Compensation for Federal Restrictions that Devalue Private Property, WASH. POST, July 20, 1996, at E3; H. Sterling Burnett, Endangered Property, WASH. TIMES, June 19, 1996, at A19. The recent wave of state takings statutes echoes this political hostility to regulation that restricts private uses of lands. See generally Jerome M. Organ, Understanding State and Federal Property Rights Legislation, 48 OKLA. L. REV. 191 (1995) (surveying these developments). Objections to expanded federal jurisdiction over privately owned land also likely include the constitutional bounds of federal legislative authority. In the recent decision in United States v. Lopez, 115 S.Ct. 1624 (1995), the Supreme Court made clear that even the expansive Commerce Clause has limits. And the commerce clause justification for federal regulation of isolated wetlands has been recently challenged, albeit unsuccessfully. See Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992) (holding EPA's assertion of jurisdiction over isolated wetlands exceeded authority under the Clean Water Act; rejecting theory that presence or potential presence of wildlife satisfies the Commerce Clause; and finding inadequate evidence connecting the isolated wetland to human economic activity under the Commerce Clause); reh'g granted and opinion vacated, 975 F.2d 1554 (7th Cir. 1992); 999 F.2d 256 (7th Cir. 1993) (upholding EPA's interpretation of its regulation basing jurisdiction on minimal and potential impacts on interstate commerce, but finding EPA's conclusion that the isolated wetlands in question were suitable for migratory bird habitat to be unsupported by substantial evidence on the record as a whole). So although there are cogent arguments for expanded federal jurisdiction, my point here is to suggest that advocating such an expansion today is not likely to meet with success.
65. The political objections can be inferred from ongoing efforts to restrict federal jurisdiction over wetlands and to eliminate restrictions on private property under the Endangered Species Act. See, e.g., Kenneth R. Harney, Property Protection Proposal Offers Compensation for Federal Restrictions that Devalue Private Property, WASH. POST, July 20, 1996, at E3; H. Sterling Burnett, Endangered Property, WASH. TIMES, June 19, 1996, at A19. The recent wave of state takings statutes echoes this political hostility to regulation that restricts private uses of lands. See generally Jerome M. Organ, Understanding State and Federal Property Rights Legislation, 48 OKLA. L. REV. 191 (1995) (surveying these developments). Objections to expanded federal jurisdiction over privately owned land also likely include the constitutional bounds of federal legislative authority. In the recent decision in United States v. Lopez, 115 S.Ct. 1624 (1995), the Supreme Court made clear that even the expansive Commerce Clause has limits. And the commerce clause justification for federal regulation of isolated wetlands has been recently challenged, albeit unsuccessfully. See Hoffman Homes, Inc. v. EPA, 961 F.2d 1310 (7th Cir. 1992) (holding EPA's assertion of jurisdiction over isolated wetlands exceeded authority under the Clean Water Act; rejecting theory that presence or potential presence of wildlife satisfies the Commerce Clause; and finding inadequate evidence connecting the isolated wetland to human economic activity under the Commerce Clause); reh'g granted and opinion vacated, 975 F.2d 1554 (7th Cir. 1992); 999 F.2d 256 (7th Cir. 1993) (upholding EPA's interpretation of its regulation basing jurisdiction on minimal and potential impacts on interstate commerce, but finding EPA's conclusion that the isolated wetlands in question were suitable for migratory bird habitat to be unsupported by substantial evidence on the record as a whole). So although there are cogent arguments for expanded federal jurisdiction, my point here is to suggest that advocating such an expansion today is not likely to meet with success.
66. Some advances have been made under species protection laws to move beyond single species protection. Habitat Conservation Planning (HCP) under the Endangered Species Act has provided a framework for agreements that may provide protection for more than just a single species. See 16 U.S.C. § 1539(a)(2) (1994). Although the statute does not explicitly provide for multi-species conservation plans, experience in regional habitat conservation planning has demonstrated that this is sometimes a useful approach or a valuable by-product of the HCP effort. For a description of the Balcones Canyonland plan, see J.B. Ruhl, Regional Habitat Conservation Planning Under the Endangered Species Act: Pushing the Legal and Practical Limits of Species Protection, 44 Sw. L. J. 1393 (1991). California's Natural Community Conservation Planning has institutionalized a framework for protection of natural communities rather than single species. See Robert Reinhold, Tiny Songbird Poses Big Test for U.S. Environmental Policy, N.Y. TIMES, March 16, 1993, at Al.
67. Some advances have been made under species protection laws to move beyond single species protection. Habitat Conservation Planning (HCP) under the Endangered Species Act has provided a framework for agreements that may provide protection for more than just a single species. See 16 U.S.C. § 1539(a)(2) (1994). Although the statute does not explicitly provide for multi-species conservation plans, experience in regional habitat conservation planning has demonstrated that this is sometimes a useful approach or a valuable by-product of the HCP effort. For a description of the Balcones Canyonland plan, see J.B. Ruhl, Regional Habitat Conservation Planning Under the Endangered Species Act: Pushing the Legal and Practical Limits of Species Protection, 44 Sw. L. J. 1393 (1991). California's Natural Community Conservation Planning has institutionalized a framework for protection of natural communities rather than single species. See Robert Reinhold, Tiny Songbird Poses Big Test for U.S. Environmental Policy, N.Y. TIMES, March 16, 1993, at Al.
68. For a good discussion of this project, see Steve Gatewood, Disney Banks on Mitigation, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), Sept.-Oct. 1995, at 7. Mr. Gatewood was the Project Director of The Nature Conservancy's Disney Wilderness Preserve.
69. The Nature Conservancy and Disney developed a restoration and management plan which the agencies approved and the environmental community supported. Under contract, The Nature Conservancy is managing the restoration, undertaking extensive research and monitoring, and will hold title to the land subject to a conservation easement. 57. Attention to protection of natural values at the local level may not only be a logical choice, it may be an institutional imperative if we are to make sound decisions. Applying the new insights of ecology to the design of governance systems, Elinor Ostrom has noted the historic success of governance systems that mirror the complexity of the natural systems through organization at multiple scales. "[I]f complexity is the nature of the systems we have an interest in governing (regulating), it is essential to think seriously about the complexity in the governance systems that are proposed." Elinor Ostrom, Designing Complexity to Govern Complexity, in PROPERTY RIGHTS AND THE ENVIRONMENT 33, 34 (Susan Hanna and Mohan Munasinghe eds., 1995).
70. Some state and regional entities already exercise authority to protect both uplands and wetlands, beyond protecting endangered or threatened species and their habitat, but regulatory authority over activity in privately owned uplands is rare. For example, Florida's five water management districts have authority to acquire uplands in connection with their overall water quality protection mandate under both Preservation 2000 and the Save Our Rivers Program. Preservation 2000 sets forth criteria for land acquisition when "threat of development" endangers wetlands. See FLA. STAT. ANN. § 259.101(2)(c) (West 1991 & Supp. 1997). This authorization grants broad authority to acquire wetlands and the uplands which function as buffer zones for the adequate protection of the wetland ecosystems. Under the Save Our Rivers Program of the Water Management Districts, water supply protection, recharge protection, natural systems protection, and recreation are all grounds that justify land acquisition, including uplands.
71. The just compensation clause of the Fifth Amendment provides "nor shall private property be taken for public use without just compensation." U.S. CONST, amend. V. Although recent decisions by the U.S. Supreme Court have not expanded the scope of the takings doctrine significantly, see Lucas v. South Carolina Coastal Comm'n, 505 U.S. 1003 (1992); Dolan v. City of Tisgard, 512 U.S. 374 (1994), they have heightened state and local governments' awareness of the cost of unintentional takings.
72. See Organ, supra note 53, for a discussion of recent state "property rights" or takings laws.
73. Although not often discussed, our current wetlands- and endangered speciesfocused approach may engender at least some political opposition that a broader approach would not. Because only those landowners whose properties contain wetlands or endangered species are subject to federal land use regulation, challenges to the legitimacy of these regulatory programs based on the perceived inequity carry some moral force. Property rights advocates frequently emphasize this "singling out" and the unevenness of the burden. Even the constitutional standard for determining whether property has been taken focuses on this factor - whether an individual has been singled out to carry more than her fair share of the burden to achieve some broader common purpose. A broader regulatory program reaching land uses that affect a broader range of essential ecological processes, although still likely to generate enormous political opposition for economic and other philosophical reasons, could address this fairness concern.
74. Permitting is not the sum of current regulatory efforts, but it is the mainstay of the regulatory program. See supra note 14 (discussing use of SAMPs and ADFD by EPA) and supra note 58 (discussing some of the state and local programs that supplement permitting with planning).
75. See Joy B. Zedler, Reinventing Wetland Science, 17 NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), July-Aug. 1995, at 1, 20.
76. The Corps and EPA are limited by the bounds of delineated wetlands. Although, in theory, their national jurisdiction provides them the authority to consider regional and landscape scale concerns, this does not appear to be their practice. Searchinger, supra note 12, at 58-59, outlines a proposal for watershed planning for wetland protection.
77. But see 33 U.S.C. § 320.4(b)(3) (1994) (dictating consideration of cumulative impacts of activities in the area in consultation with representatives of other federal agencies). Critics have pointed out that the Corps has failed to develop a system to collect the necessary information for such an assessment. See Searchinger, supra note 12, at 40, 42.
78. "Resilience determines the persistence of relationships within a system and is a measure of the ability of these systems to absorb changes of state variables, driving variables, and parameters, and still persist." C.S. Holling, Resilience and Stability of Ecological Systems, 4 ANN. REV. ECOLOGY & SYSTEMATICS 1, 17 (1973).
79. Holling, supra note 11, at 6.
80. See Searchinger, supra note 12, at 40, 42; Zedler, supra note 28, at 20 (discussing how loss of one type of wetland in a migratory flyway may affect the function of the entire flyway).
81. See Searchinger, supra note 12, at 8.
82. This occurs in a very small percentage of applications, less than 1 percent in 1994. See Michael L. Davis, A More Effective and Flexible Section 404, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), July-Aug. 1995, at 7, 9.
83. Habitat values and functions may be lessened or destroyed by the surrounding development. See Douglas L. Lashley, Guiding Mitigation Banking, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), Nov.-Dec. 1995, at 17, 20. The wetland may still enhance water quality but pollutants from the adjacent development may offset this remaining value. Clearing of native vegetation in adjacent areas may reduce opportunities for recruitment and reduce the viability of the resident populations. Any introduction of non-native invasive species can overwhelm remaining native vegetation.
84. See Brainard, supra note 39 (discussing Pasco County, Florida).
85. See, e.g., Brian D. Richter et al., How Much Water Does a River Need?, FRESHWATER BIOLOGY (forthcoming Feb. or Mar. 1997). The crisis in the Everglades stems in part from a similar failure to consider and maintain the natural variability in the sheetflow which feeds that system.
86. See Memorandum of Agreement Between the Environmental Protection Agency and the department of the Army Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines (February 6, 1990) (on file with author) [hereinafter MOA].
87. See id. at 4.
88. "CREATING wetlands means to alter upland environments or shallow aquatic environments to produce wetlands." ENVT'L L. INST., WETLAND MITIGATION BANKING 4 (1993).
89. "RESTORING wetlands means to return wetland values and functions to a former wetland or degraded wetland where human or natural activities have diminished or destroyed such values and functions." Id.
90. "PRESERVING wetlands means to provide legal protection to natural wetlands that would otherwise be lost to lawful activities." Id. The MOA, supra note 74, specifies that purchase or preservation of existing wetlands may be accepted as compensatory mitigation "in only exceptional circumstances." ENVT'L L. INST., supra note 76, at 4. Given the Corps and EPA's commitment to "strive to achieve a goal of no overall net loss of values and functions," id., this limitation makes sense. Preservation of existing wetlands in exchange for alteration of other wetlands seems to achieve a fifty percent loss.
91. Noncompliance with important aspects of the permit criteria occurred at 81% of the sites studied. DEP estimated that 27% of the sites on which mitigation efforts actually took place were or could be ecologically successful, defined as a site functioning as or tending toward functioning as a wetland of the intended type. The rate for success in freshwater sites was significantly lower than for saltwater creation sites. With remedial action, DEP predicted a 76% success rate overall for freshwater and saltwater sites. Ann M. Redmond, Florida Moves to Mitigation Banking, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), Nov.-Dec. 1995, at 14-15.
92. See id. at 14.
93. Id. Problems in designing hydrologic regimes were the ultimate obstacles at the other fifty-nine percent of the sites.
94. See ENVT'L L. INST., supra note 76, at 31, 34-37.
95. Successful on-site mitigation does offer the distinct advantage of retaining the wetland function in its original location. See ENVT'L L. INST., supra note 76, at 30-31; John Kusler, The Mitigation Banking Debate, NAT'L WETLANDS NEWSL. (Envt'l L. Inst., Wash., D.C.), Jan.-Feb. 1992, at 4.
96. See Redmond, supra note 78, at 14-15 (regarding the actual and expected success rate of attempted sites in Florida). A mitigation ratio greater than 1:1 can eliminate or minimize the risk of net loss by requiring the permittee to assume the risk of failure. Senate Bill 851, considered in 1995 by the 104th Congress, addresses this problem by requiring that rules allowing creation of wetlands as compensatory mitigation mandate that conditions be imposed to ensure the success of the creation of the wetland. S. 851, § 3(C)(7)(B)(II). Of course, S. 851 reduces considerably the class of cases in which mitigation is required at all.
97. Senate Bill 851 addressed the related concern of loss of watershed wetland functions through limitation of offsite compensatory mitigation in order to promote restoration of wetland functions within the watershed to the maximum extent practicable. S. 851, § 3(C)(7)(B)(V).
98. Senate Bill 851 mandates that the Corps develop standards for compensatory mitigation that allow for enhancement or restoration of degraded wetlands and preservation or donation of high quality wetland if the preservation or donation results in demonstrable benefit to the watershed. See S. 851, §§ 3(C)(7)(B)(I), (III). The bill also mandates a maximum 1:1 ratio for loss of Class B wetlands, which would likely comprise the majority of existing functioning wetlands. See S. 851, § 3(G)(I)(B)(II).
99. This assumes two things: (1) that under current law, all wetlands are subject to development or loss through direct or indirect impacts of development; and (2) that the terms for accepting restoration or acquisition include a requirement that the wetland be protected in perpetuity and will in fact lead to the wetland's long-term survival. If these are not true, the rate of net loss will be higher.
100. For example, with a mitigation of 4:1, a twenty percent net loss occurs.
101. In these times of severe budget constraints, agencies charged with environmental stewardship are strapped for funds to manage conservation and recreation lands currently in public ownership. These lands may contain degraded wetlands, including wetlands dominated by non-native invasive species.
102. An exceptional case would arise where the publaly-owned wetlands are at the brink of a loss of resilience and restoration cannot be otherwise funded in time to prevent their irreversible degradation.
103. See Lashley, supra note 70, at 21. The list of what can be accepted as mitigation under S. 851 includes what seem to be two broad catch-all provision allowing "contribution of in-kind intrinsic environmental value acceptable to the Secretary and otherwise authorized by law," S. 851, § 3(C)(7)(B)(VI), and "other mitigation measures determined by the Secretary to be appropriate in the public interest and consistent with this Act. S. 851, § 3(C)(7)(B)(IX).
104. For a detailed explanation of mitigation banking, see generally ENVT'L L. INST., supra note 76.
105. This potential problem is common to off-site mitigation and mitigation banking. See Searchinger, supra note 12, at 38-39. Banking rules can address the broader concern of watershed loss by defining a service area that limits credit from a given bank to those impacting wetlands in the watershed. However, local loss is inevitable.
106. This concern can arise with all forms of mitigation.
107. For example, banking programs can require proximity measured by various criteria and can require "in-kind" replacement. See ENVT'L LAW INST., supra note 76, at 58-59.
108. See Lashley, supra note 71, at 20-21.
109. S. 851, § 3(N)(2)(B).
110. S. 851, § 3(N)(2)(G). This may be a tall order for current science to fill.
111. S. 851, § 3(N)(2)(F).
112. S. 851, § 3(N)(2)(E).
113. S. 851, § 3(N)(2)(C), (D).