By Matthew Power. Balancing wetland conservation with growth has never been easy. But in January of 2001 that balance tipped suddenly, when the U.S. Supreme Court ruled against the government in the case of Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers. The decision potentially reduced federal oversight of some wetlands. It said that the Feds can't decide the fate of wetlands based solely on migratory bird usage. Translation: Isolated wetlands (not connected with major waterways) may no longer be protected.
The potential change in the balance of regulatory power caught the attention of both builder advocates and environmentalists. Each side is concerned about what the precedent may mean for future wetland conservation.
On the builder side is the newly minted National Center for Housing and the Environment (NCHE), based in Washington and headed by former NAHB president Charlie Ruma. He believes that the federal change presents an opportunity for a complete restructuring of the way wetlands are protected.
Ruma suggests that privatization of wetland protection will result in better conservation practices--not worse. How so? Because localities know their assets best and will protect the most critical areas first.
"We actually feel that environmental groups will fill in the blanks left by the Supreme Court, and do it better," says Ruma. "Ducks Unlimited and the Nature Conservancy--these groups are doing a good job."
Apparently this feeling isn't shared by environmental groups, who launched a huge letter-writing campaign to convince the EPA and the Corps of Engineers to hold on to their original authority. This followed the issuance by the agencies of a notice of proposed rulemaking in January to roll back their powers in accordance with the Supreme Court decision. The NAHB was countering with a letter-writing campaign at press time.
Ruma's assertion is backed by a report from David Sunding, an associate professor at the University of California Berkeley, who was hired by NCHE to study the issue. Sunding compared the effectiveness of public and private approaches to wetland conservation and concluded that relaxation of federal oversight won't dramatically impact conservation.
"Federal wetlands programs cost up to $100,000 per acre," he notes. "And it doesn't discriminate between wetlands of different qualities."
"Most of the wetlands that have been lost have been converted to agricultural uses, not housing," he adds. "Those can be converted back into wetlands fairly easily."
Eric Keszler, communication director for Memphis, Tenn.-based Ducks Unlimited, says his organization has reservations about the loss of federal oversight of certain wetlands. "We're not an organization that can enforce laws," he notes.
Ducks Unlimited also argues that since 1992, development has superseded agriculture nationally as the leading cause of wetland loss.
The group conducted its own analysis of the effects of the SWANCC decision. While some of it supports the view of the NCHE, the group has one big fear: that if the federal "Swampbusters" program (which encourages farmers not to drain wetlands) were discontinued, isolated wetlands would be left with no federal protection at all.