Bar Bulletin

June, 2004

 June 15, 2004

Environmental Law  

By Karyn S. Bergmann

Earth Day 2004 was a typical spring day at the Wells National Estuarine Research Reserve in Maine. A chilly breeze filtered through the cordgrass while President George W. Bush unveiled his wetland protection plan. The proposal replaces the “no net loss” policy of his father, George H.W. Bush, with a plan to create and restore at least one million acres of wetlands and to improve and protect an additional two million acres of wetlands over the next five years.

The Second Bush’s
Wetlands Record

In spite of this plan, environmentalists continue to criticize the current Bush Administration’s efforts on wetlands protection and restoration, and Democrats are chalking up the plan to an election year ploy. These criticisms are not baseless, however. The Bush Administration has made several moves that weaken wetlands protection.

In February 2001, the EPA delayed for 60 days the implementation of a wetlands protection rule designed to tighten a loophole opened by a 1998 D.C. Court of Appeals decision. Six months later, the Army Corps of Engineers (ACOE), the principal federal agency involved in wetlands protection, relaxed wetlands permitting requirements designed to limit stream destruction and ensure replacement of destroyed wetlands. In the summer of 2002, the White House Office of Management and Budget (OMB) denied the U.S. Department of Agriculture’s (USDA) request for funding to support its Wetland Reserve Program, even though Congress approved the funding. When the OMB released funding to the USDA in September, it was only 16 percent of the allocated funds.

Perhaps the greatest threat to wetlands protection under the current Bush Administration was the proposed re-definition of the term, “waters of the United States.” On January 9, 2001, the United States Supreme Court handed down its decision in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers. This case involved ACOE assertion of jurisdiction over several ponds that had once been quarry pits. SWANCC had obtained state and local approvals to develop the property into a landfill, but ACOE denied a permit because migratory birds were using the ponds for nesting. The Supreme Court ruled that ACOE had no jurisdiction over these isolated and wholly intrastate waters on the sole basis of migratory bird use.

Pursuant to this decision, the United States Environmental Protection Agency (EPA) and ACOE quickly issued a joint memorandum that advised field staff to seek approval first before asserting jurisdiction over any wholly intrastate and isolated body of water, even if that water is connected in some way to interstate commerce. Then in January 2003, EPA and ACOE issued an advanced notice of proposed rulemaking (ANPRM) that considered redefining “waters of the United States” to include only navigable waters, their tributaries and adjacent wetlands. This was not an inappropriate action on the part of EPA or ACOE. However, the possibility of a more limited definition alarmed the majority of the public who responded to the ANPRM. To its credit, the Bush Administration announced this past December that it would not go forward with any plans to redefine “waters of the United States.” However, the joint memorandum is still in effect.

The Effect of Federal
Wetlands Policy on Maryland

Given this trend, Maryland practitioners should be aware of the growing importance of Maryland law on wetlands protection. By depriving the federal government jurisdiction over certain isolated and wholly intrastate waters, the SWANCC Court recognized the states’ responsibility in environmental protection and effectively affirmed the states’ traditional sovereignty over the lands within their borders. The SWANCC decision could leave many so-called isolated wetlands without protection from development in those states without wetlands protection laws. Fortunately, Maryland is not one of these states.

Containing most of the Chesapeake Bay, Maryland has a number of programs designed to protect both tidal and non-tidal wetlands. The Tidal Wetlands Act of 1970 restricts construction and development in tidal wetlands. The Nontidal Wetlands Protection Act of 1989 regulates activities in or that could have an impact on nontidal wetlands. Both laws require permits to pursue activities in or near wetlands. Maryland has also received general permit authority from ACOE. The Maryland State Programmatic General Permit may be used for activities with minimal individual and cumulative impacts in either tidal or nontidal wetlands less than three acres in size for tidal and five acres for nontidal wetlands.

In addition to these laws specific to wetlands, Maryland has provisions requiring the Department of State Planning to designate “Areas of Critical State Concern,” which receive special protection from development. Similarly, the Maryland General Assembly established the Critical Area Commission in 1986 to regulate activities within 1,000 feet of tidal waters of the Chesapeake Bay. This law required local jurisdictions to develop wetlands protection programs and delegated enforcement authority to them. Thus, before starting any project that could impact wetlands counsel for developers should consult local and county ordinances, as well as state regulations.

The SWANCC decision and the policies of the Bush Administration have not been optimal for wetlands preservation. However, Maryland wetlands enjoy strong protection from state law. Advocates for developers and wetlands protectionists alike should look first to Maryland law when addressing the legality of activities affecting wetlands.

Karyn Bergmann is a certified professional geologist and a law fellow at the University of Maryland Center for Health and Homeland Security, Baltimore.



Publications : Bar Bulletin: June, 2004

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