Article 14:

(Box) Shrinking Constitutional Protection of Wetlands

By C. Ronald Carroll, University of Georgia-River Basin Center

A disturbing trend is undermining protections of wetlands in the U.S. Increasingly, the Commerce Clause is being invoked to avoid federal protection or mitigation for damages to wetlands. The Commerce Clause of the U.S. Constitution (Article 1, Section 8, Clause 3) affirms federal authority over activities that cross state boundaries. Historically, the term “commerce” has been interpreted broadly, including such disparate issues as civil rights (Heart of Atlanta Motel v. United States, 1964) and most recently anti-drug enforcement (Gonzales v. Raich, 2005). Curiously, in neither of these cases were state boundaries crossed nor was commerce involved. In Gonzales v. Raich, the marijuana was grown in California and provided free to help alleviate pain in a cancer victim residing in California. Nevertheless, the Court held that the Commerce Clause applied to the Controlled Substances Act in this case. The application of the Commerce Clause would seem to be a form of selective federalism. In conservation laws, the Commerce Clause has been invoked to justify federal authority over species of animals that migrate across state boundaries and especially trans-national migration of waterfowl and songbirds. In these cases, the “commerce” is rationalized as revenue generated by waterfowl hunters, birdwatchers, and by the benefits provided by birds that eat agricultural pest insects. In aggregate, this is substantial commerce. The issue here is whether or not federal protection can be applied to wetlands that are used by animals that migrate across state or international boundaries. For navigable waters that cross these borders, the Commerce Clause clearly applies. Historically, isolated wetlands were provided federal protection under Section 404 of the Clean Water Act even when such wetlands did not cross state boundaries nor were connected to streams and rivers that crossed state or national boundaries. The rationale was that the Commerce Clause supported such protection because migratory birds and other animals made use of such isolated wetlands and this protection was formalized as the “Migratory Rule.” Recently, a 2001 Supreme Court decision reversed this position (Solid Waste Agency of Northern Cook County Illinois v. United States Army Corps of Engineers, 531 U.S. 159 [2001]). SWANCC argued that a water-filled rock quarry was not covered by the Commerce Clause and therefore the Army Corps of Engineers did not have regulatory authority under the federal Clean Water Act (CWA) to deny a permit to fill the ponds. Even though the quarry was visited frequently by waterfowl during migration, it was considered an isolated wetland and therefore not covered by the CWA because it had no surface water connections to interstate rivers or streams. If the quarry had been connected by surface water that flowed across state boundaries, the Commerce Clause likely would have applied and justified protection under the CWA. The decision is consistent with a trend in federal courts over the past several decades to strengthen states’ rights and limit federal regulation. This trend is apparent, for example, in arguments made by the Bush Administration to limit the authority of the federal government to enforce the Endangered Species Act. Although there is still some debate, the consequence of the SWANCC decision is that isolated wetlands no longer have federal protection (DOE 2003). That is, the Migratory Rule no longer applies to isolated wetland sites. Furthermore, this may include any surface water that is contained within state boundaries. Protection will have to come from federal programs that do not rely on the Commerce Clause and, increasingly, from state programs. At the federal level, only the Wetland Conservation provision (Swampbuster) of the 1985 and 1990 farm bills provides protection to isolated wetlands (Ducks Unlimited 2005). Under Swampbuster, farm owners and operators must protect wetlands on their property to be eligible for USDA farm benefits. Swampbuster therefore is an incentive-based rather than a regulatory-based effort to protect isolated wetlands. Individual wetlands that are used by federally protected species remain protected, for the moment, under the Endangered Species Act. For other isolated wetlands, their protection will depend on the recognition and importance given by the states to their ecological and economic roles. For example, many aquifer recharge zones are isolated wetlands and the economic consequences of leaving them vulnerable to development and contamination could be substantial. Given that we have cannot restore recharge zones or cleanse aquifers, a precautionary approach for protecting them is warranted. Wetlands play important ecological roles as foraging and nesting sites for birds and other animals and provide essential habitat for amphibians and for aquatic and semi-aquatic plants. And, they give pleasure to bird watchers and other lovers of nature. A full valuation of wetlands strongly supports the argument that states should protect wetlands for their own sake. Many states are now reviewing legislation that may apply to the protection of isolated wetlands.

Literature Cited

DOE. 2003. The Supreme Court’s SWANCC Decision. U.S. Department of Energy, Clean Water Act Enforcement Brief, DOE/EH-412/0016r (August 2003).

Ducks Unlimited 2005.