Related pages on our site:
Massachusetts Wetlands Protection Act: A Tutorial
National Pollution Discharge Elimination System (NPDES)
For most of this country’s history, wetlands were considered an obstacle to development. People felt the need to drain wetlands and fill them so that they could build on them, grow crops on them, and build roads across them. The soil under wetlands is very rich in plant nutrients, making it especially attractive as agricultural land. There was very little appreciation before the 1970s for the value of wetlands.
A team of BEAT volunteers surveying a wetland.
The Swamp Land Acts of 1849, 1850, and 1860 turned federal land over to states that would agree to drain that land. This was a period of rapid population expansion. This drained land served as new agricultural land for the country’s new arrivals and for others moving to undeveloped areas. A major target of these laws was the Florida Everglades, where 20 million acres of land was transferred. As a result of all this wetlands conversion, the United States has lost more than 50% of its wetlands since the arrival of European settlers.
“At the time of Colonial America, the area that now constitutes the 50 United States contained an estimated 392 mIllion acres of wetlands. Of this total, 221 million acres were located in the lower 48 states. Another 170 mi1Iion acres occurred in Alaska. Hawail contained an estimated 59,000 acres. Over a period of 200 years, the lower 48 states lost an estimated 53 percent of their original wetlands. … On average, this means that the lower 48 states have lost over 60 acres of wetlands for every hour between the 1780’s and the 1980’s.” Wetlands Losses in the United States, 1780s to 1980s, Report to Congress
Surprisingly, one of the early signs of a change in attitudes came as a result of advances in firearms technology. In 1864, smokeless gunpowder made its first appearance. No longer would firing a gun envelope the shooter in a dense fog. Just two years later, the choked barrel made it to market. This allowed the pattern from a shotgun to be more concentrated in a smaller area, made the shot more lethal, and increased the effective range of the gun. In 1882, Christopher Spencer produced the first pump-action shotgun, which allowed hunters to take up to five shots in rapid succession. All of these innovations contributed to an increase in the effectiveness of commercial duck hunters, but also to a boom in duck hunting as a leisure-time activity for the wealthy and well connected.
It wasn’t long before the influential group of recreational hunters, including doctors, lawyers, lawmakers, corporate executives, and other professionals, began noticing a decline in their prey and began demanding that something be done about this. Biologists were able to tie the decline in waterfowl to a number of factors; including poaching, an increase in the number of birds being taken by commercial hunters, and the draining of wetlands largely for agricultural purposes, especially in the Midwest where the country’s most important migratory flyways were located. Largely in response to population studies that showed a decline in populations of ducks and geese, and to the political pressure exerted by the politically powerful sport hunters, the federal government passed the Lacey Act of 1900, which banned trafficking in wildlife taken illegally, and the Migratory Bird Treaty Act of 1918, which protected birds migrating between the US and Canada.
By the 1920s, many biologists and influential hunters and conservationists had realized that measures restricting trade and commercial hunting would not be enough to prevent further population declines. An effective response to the situation would have to include habitat protection. In 1925, Congress authorized and funded the Upper Mississippi River Fish and Wildlife Refuge in four states: Minnesota, Wisconsin, Iowa and Illinois. The Migratory Bird Conservation Act of 1929, which formed a federal commission for selecting and acquiring land for conservation purposes was passed. This act further specified that the acquired land would be refuges or “inviolate sanctuaries” for migratory birds. Also during this period, the bag limit for ducks was decreased from 25 to 15.
What would be a 10-year drought, covering all of the plains of the United States and leading to the great Dust Bowl, began in 1930. Wetlands were already disappearing because of wetlands conversion, and now the drought accelerated the process. This put further pressure on already declining wildlife populations. It was becoming clear that habitat protection would have to include protecting wetlands from being drained.
In 1934, President Franklin Roosevelt authorized the three-person Committee on Wild-Life Restoration (Thomas H. Beck, Jay Norwood “Ding” Darling, and Aldo Leopold).
Photo of loon by David Ellis
The committee recommended that the government aggressively acquire lands for both game species and non-game species of birds and mammals, and that $50 million be spent acquiring and restoring habitat. Also in 1934, the sale of duck stamps to hunters began raising money to help finance this system, which was the beginning of what would become the National Wildlife Refuge System. Today this program protects over 150,000,000 acres. But still, the predominant view across the country was that a wetland was a problem in need of a solution, and the solution typically involved draining and filling. Between the mid-1950s and mid-1970s, agricultural practices alone were responsible for the loss of 12 million acres of wetland. (Swampbusting: Wetland Conversion and Farm Programs, USDA, pg ii.)
“According to the most recent Federal survey, a net amount of approximately 11 million acres of wetlands in the lower 48 States were converted to such other uses between the mid-1950’s and mid-1970’ s. This amount was equivalent to a net loss each year of about 550,000 acres, or about 0.5 percent of remaining wetlands. The vast majority of actual losses —about 80 percent—involved draining and clearing of inland wetlands for agricultural purposes. Although some wetland losses were due to natural causes such as erosion, sedimentation, subsidence, and sea level rise, at least 95 percent of actual wetland losses over the last 25 years [1979 – 1984] were due to man’s activities. The best available information indicates that present national wetland-conversion rates are about half of those measured in the 1950’s and 1960’s or about 300,000 acres per year.” (Wetlands: Their Use and Regulation, U.S. Congress, Office of Technology Assessment, 1984, pg. 3)
Here in Massachusetts, in 1957 Representative John Dolan of Ipswich filed a bill in the State Legislature which became the Conservation Commission Act (G. L. Chapter 40 §8C). This state law enabled municipalities to establish Conservation Commissions through a vote at town meeting or by their city council. These commissions protected open land and natural areas. Their assigned duties included “promotion and development of natural resources… and protection of watershed resources.” During 1958, 12 towns voted to form Conservation Commissions. In 1972, Conservation Commissions and the Massachusetts Department of Environmental Protection were given responsibility for administering the Massachusetts Wetlands Protection Act. By the mid 1980s, every town and city in Massachusetts had a Conservation Commission.
In 1970, President Nixon signed into law the National Environmental Policy Act (NEPA) which many people say opened the modern era of environmental protection. It included requirements that all federal agencies prepare Environmental Assessments (EA) and Environmental Impact Statements (EIS) for proposed projects and actions. The requirements have since been extended to all state and local projects that receive federal funding and to any project requiring a federal permit. (An EA is a brief preliminary analysis of the need for an EIS.)
In 1973 the federal government acknowledged that rivers could fight back if ignored or abused and that perhaps they should be treated with more respect. In response to the high cost of rebuilding after floods, Congress passed the Flood Disaster Protection Act. This act offered national flood insurance to states that discouraged development in the floodplains of rivers.
In 1976, Congress enacted the Toxic Substance Control Act (TSCA). This act regulated the introduction of new chemicals into the marketplace. Most existing chemicals were grandfathered (PCBs were an exception) and placed on a list called the TSCA Inventory. A manufacturer wishing to add a new chemical to the marketplace would have to submit information to EPA for evaluation and for possible inclusion in the inventory. Chemicals that come under the Federal Food, Drug, and Cosmetic Act or under the Federal Insecticide, Fungicide, and Rodenticide Act are not covered by TSCA.
A very big step in the protection of wetlands was the passage in 1977 of the Clean Water Act (officially the Federal Water Pollution Control Act). It was actually an amendment to the earlier Federal Water Pollution Control Act of 1972. This act, which is still the primary law of the land regarding water pollution, prohibited the release of pollutants into water and protected the overall quality of surface waters. Wastewater treatment plants proliferated across the country as states and municipalities tried to come into compliance. Although wetlands weren’t actually included in the act, congress and the federal courts interpreted them to be protected since waterways could not be effectively protected without also protecting the wetlands that fed into them.
The Environmental Protection Agency (EPA), the watchdog of federal environmental laws and regulations, has responsibility for implementing and enforcing the Clean Water Act, but the Army Corps of Engineers has an important role to play too. That is because the Army Corps of Engineers was given the task of administering the permits, called 404 Permits, that provided waivers for those wishing to alter wetlands by dredging or filling. The permits are however subject to EPA review, and the permitting guidelines were developed by EPA. Also, an additional permit, called a 401 Permit is required from EPA for any work that will affect water quality.
Also in 1977, President Jimmy Carter signed executive orders 11988 and 11990. These orders ended federal assistance for wetland conversion (i.e., draining and filling). They also instructed federal agencies to “…avoid adversely impacting floodplains wherever possible, to ensure that its planning programs and budget requests reflect consideration of flood hazards and floodplain management, including the restoration and preservation of such land areas as natural undeveloped floodplains…” (11988) and “…avoid adversely impacting wetlands wherever possible, to minimize wetlands destruction and to preserve the values of wetlands…” (11990).
Up until the 1970s, wetlands were considered wasteland. They were an impediment to development and to progress. The federal government encouraged the draining and filling of wetlands. (As a nation, we are still losing approximately 60,000 acres of wetland per year.) But in the 1970s, we became more aware of the value and importance of wetlands, saw that they were disappearing rapidly, and started to make efforts to protect them. But it’s difficult if not impossible to provide legal protection to something that isn’t clearly defined.
Before wetlands can be protected, and if the term “wetland” is going to appear in statutes, then the term must be defined to the satisfaction of lawyers and legislators. For decades scientists, naturalists, and laypeople had used the term without a real definition. Nobody needed one. But if administrators are to make determinations as to whether or not a parcel of land qualifies as wetland, we must have objective criteria for making that determination. It was in the context of environmental law that the need for a real definition of “wetland” became necessary, and it’s in this context that the definition of “wetland” became critical.
The executive orders provided a definition of wetlands.
“Wetlands means those areas that are inundated by surface or ground water with a frequency sufficient to support and under normal circumstances does or would support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet meadows, river overflows, mud flats, and natural ponds.”
From this point on, most regulatory definitions of wetlands would look at one or more of three characteristics: (1) soil characteristics, (2) vegetation, and (3) frequency and duration of the presence of water. Definitions would also differ in whether the criteria were connected with the word “and” (two or more characteristics were required) or “or” (not all characteristics were required).
In 1985, Congress passed the 1985 Food Security Act (Swampbuster Act). This was intended to solve some problems that had arisen in applying the Clean Water Act to agricultural land. A highlight of this act was that it attempted to craft a more precise definition of “wetland” that could be used in the field. The Clean Water Act had managed to avoid this difficult task.
From 1985 FSA:
Wetland: land that (1) has a predominance of hydric soils; (2) is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; (3) under normal circumstances does support a prevalence of this vegetation.
This 1985 Food Safety Act defined three categories of wetlands.
1. Converted wetlands. Wetlands that were drained or altered after December 23, 1985. (This was prohibited by the act.)
2. Prior converted cropland. Wetlands that were drained or altered before December 23, 1985. (These lands were grandfathered and no attempt would be made to remediate them.)
3. Farmed wetland. Wetlands on which crops are planted, although no attempt is made to drain or alter the wetland. (This agricultural use was permitted by the act.)
Although not a regulation or law, the federal policy of “no net loss” has been affirmed and reaffirmed by every American president starting with George H. W. Bush. The fact that every president has felt comfortable with this policy can probably be accounted for by the fact that the phrase is vague and open to interpretation. The common articulation of this policy is that wetlands should be protected, and any loss of wetland due to conversion by draining and filling should be compensated by the creation of a new wetland nearby.
The extremes of interpretation can be seen by looking at how this policy was interpreted by President Bill Clinton and President George W. Bush.
President Clinton accepted the policy and further declared that the national goal should be an increase in the acreage of wetlands in the United States. His goal was to add 100,000 acres of wetland by 2005.
President George W. Bush saw the policy differently. He declared that no net loss referred not to acreage but to environmental value. Therefore, any loss of wetlands of a given acreage could be compensated by the creation of a smaller but more environmentally valuable wetland elsewhere.
The phrase’s malleability is probably responsible for its survival over the years.