Wetlands Show Effect of Court's Last Decision

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Five years ago, the Supreme Court blocked the federal government from regulating small, isolated wetlands and streams and returned those powers to the states. In some areas, such as the Houston suburbs, there is no effective regulation and thousands of acres are being filled in with dirt.

ROBERT SIEGEL, host:

The last time the Supreme Court addressed how far the Clean Water Act should go was five years ago. It limited the Federal Government's ability to regulate wetlands and streams that are within one state and aren't connected to navigable waters.

At the time, environmentalists and scientists warned that many wetlands would be lost and many streams polluted as a result. NPR's Elizabeth Shogren went to find out if that happened.

ELIZABETH SHOGREN reporting:

Many people think of Texas as hot and dry, but its coastal areas are home to millions of acres of soggy land. Andrew Sippits (ph), a biologist and wetlands expert for the Texas Parks and Wildlife Department, says south of Houston you find wetlands in large stretches of tall grass prairie.

Mr. ANDREW SIPPITS (Texas Parks and Wildlife Department): Those areas were just pockmarked with these wetlands. They look like round ponds or long sinuous channels that held water for much of the year and were filled with all sorts of marsh plants, arrowhead and flowering plants like iris.

SHOGREN: Like all wetlands, they act like sponges during heavy rains, which prevent flooding. They filter out pollution, which improves water quality and they provide great habitat for wildlife.

Mr. SIPPITS: They are just absolutely filled with birds like white ivis, herons and egrets. You can find almost every species of heron and egret in North America breeding in these sorts of wetlands.

SHOGREN: Migratory birds once were the justification for the Army Corp of Engineers to regulate these wetlands, but five years ago the Supreme Court said those birds didn't give the Federal Government the right to step in. A million acres of wetlands along the Texas coast lost protection. At the same time these areas became coveted for a housing and business development. Sippits has watched the wetlands disappear fast to Texas's construction boom.

Mr. SIPPITS: I have to drive through them every day on my way to work and every day on way back and it breaks my heart to see, you know, what was prairie and wetland is now essentially bulldozers pushing up piles of the earth or of trees in some areas and burning them and flattening the areas out, building pads for homes for to be constructed on, building areas for new highways and roads and strip malls and so on and so forth.

SHOGREN: Fred Anthamatham (ph), from the Corp's Houston office, says he doesn't doubt that coastal Texas has lost a lot of wetlands, but he says since the Supreme Court's decision, his hands are tied.

Mr. FRED ANTHAMATHAM (Army Corps of Engineers): It's a state resource and if there is a concern by some of these state agencies that they be protected, the states have every ability to go in and implement legislation to protect them.

SHOGREN: Some states like Florida and California already had wetlands programs, but Jeanne Christie, the Executive Director of the Association of State Wetlands Regulators, says even after the Supreme Court decision, most states still have no laws to protect wetlands.

Ms. JEANNE CHRISTIE(Association of State Wetlands Regulators): In general we did not see a lot of states step forward. Wisconsin passed new permitting authority, Ohio, Indiana did so. North Carolina expanded its existing authority, they didn't have to pass new legislation.

SHOGREN: John Ryan saw the impact firsthand in suburbs outside Chicago and Denver. He creates new wetlands out of dry land and sells them to developers when they're required to make up for what they're destroying. They're called mitigation credits. Ryan says when the Supreme Court restricted the Federal Government's power to regulate wetland:

Mr. JOHN RYAN (Wetlands Protector): The demand for mitigation credits essentially evaporated.

SHOGREN: Business picked up again in the Chicago suburbs after some counties started regulating wetlands, but not near Denver. In both regions he thinks the Supreme Court's action has had a big impact.

Mr. RYAN: There's been a lot of wetlands that have been lost to development without replacement.

SHOGREN: No one, not state officials, Federal officials or academics, seems to be keeping track of how many acres of wetlands or streams have been destroyed since the Supreme Court acted. Texas probably is an extreme case, but there are many anecdotal examples from around the country. But Mark Seutel (ph), the Corp's Regulatory Chief in Washington, says he doesn't think a lot of the nation's wetlands have been destroyed since the Supreme Court case. At least not without the Corp requiring that they be replaced with new or restored wetlands.

Mr. MARK SEUTEL (Army Corps of Engineers Regulatory Chief): We haven't seen a significant loss of wetlands after the Supreme Court case.

SHOGREN: Yet he concedes that the Federal Government really doesn't know.

Mr. SEUTEL: We don't have complete knowledge of all the wetland losses across the entire country, we don't keep that inventory.

SHOGREN: Data provided by the Corps does show that because of the Supreme Court's ruling five years ago, Corps officials informed developers that they didn't have the authority to regulate 2,000 projects during the 12-month period ending in March. The data did not indicate how many acres of wetlands or streams were destroyed by those projects.

Whether the Corps is getting it right is still contentious. That's why today the Supreme Court again was called in to determine which wetlands and streams should get Federal protection. Elizabeth Shogren, NPR News, Washington.

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