A Decision on Wetlands
Following a Supreme Court decision, help is on the way for development
By Vesta Rea-Gaubert, Vesta Rea & Associates, L.L.C. & Andrew W. Barrett, Environmental Attorney
April 2001
Earlier this year, the U.S. Supreme Court ruled (Court case) that counties in Northern Illinois could proceed with development of a cooperative garbage dump on a former quarry site. In brief, the Court ruled that collected water on the site was temporary and not part of a larger, connected waterway. Here, two authors close to the decision’s impact on airport development tell how it can impact mitigation decisions.
The airports in the United States that
are trying to expand and improve their facilities to meet the ever-increasing
air traffic requirements have at long last found a friend in none other
than the United States Supreme Court.
On January 9, 2001, the high court limited
the scope of the 1985 federal Clean Water Act (CWA), ruling that the environmental
law’s protections will no longer extend to small, isolated ponds
that provide habitat for migrating birds.
What this means is significant to all those
struggling airport managers and frustrated aviation consultants and contractors
who are trying to meet deadlines on projects. These professionals that
are always under the gun may be able to see the light at the end of the
tunnel on environmental permitting issues that take, in some cases, over
three lifetimes to get resolved.
According to Chief Justice William Rehnquist,
allowing the federal government — i.e. the U.S. Army Corps of Engineers
(USACE) and the Environmental Protection Agency (EPA) — to claim
jurisdiction over isolated ponds would result in "a significant impingement
of the state’s traditional and primary power over land and water
use."
Rehnquist also wrote in his majority opinion
that the Clean Water Act was meant to protect "large, navigable waters".
For those that might have problems defining large, navigable waters, they
are navigable waters of the United States and the territorial seas. They
are not some isolated pond or insignificant bayou stuck out in an open
prairie a zillion miles from nothing, or an old gravel pit that just happened
to fill up with water and now the environmentalist thinks it is some migratory
water fowl national treasure.
William Mellor, president of The Institute
of Justice puts his own spin to the ruling: "The court reaffirmed
that federal agencies do not have carte blanche to expand the scope of
their authority and infringe the liberty of the American people."
While developers and state’s rights
supporters hailed the Supreme Court decision, the environmentalists are
having heart failure. The decision has set the environmental community
on its ear.
National Wildlife Federation president Mark
Van Putten warned that the court "has declared open season on critical
wildlife habitat that will almost certainly lead to a decline in waterfowl
and other species." Statements like this makes one wonder what rock
these environmentalists are born under.
WATERFOWL RELIEF
Back in 1999, the Interior Department eased
the restrictions in 24 states on the hunting of snow geese, hoping to
double the number killed during their spring migration. Conservation groups
such as the Audubon Society and Ducks Unlimited, whose members include
many hunters, endorsed this.
The hunting restriction was lifted because
these geese (the ultimate eating and pooping machines) were destroying
their summer Canadian tundra breeding grounds because of their voracious
appetites.
Each winter the geese fly south to such
places as the Southeast Texas rice prairies extending east and west of
Houston. They engorge themselves on the abundances of waste grain and
hang out in those isolated ponds and bayous. Then they head back north
to the Hudson Bay breeding grounds, where they keep right on gorging and
destroying everything in sight.
According to the U.S. Fish and Wildlife
Service, their population over the past three decades has exploded from
800,000 birds to an estimated 5 million. They have become too healthy
and have a longer life expectancy.
While Mr. Putten implies that the Supreme
Court ruling "declares open season on critical wildlife habitat,"
it appears that the Interior Department, not the U.S. Supreme Court decision,
has already done that with the support of the Audubon Society. Another
commendable move by the federal government.
Airports all over the country are having
to use creative methods to remove waterfowl and other birds for aircraft
safety partly because of isolated wetlands the USACE, under the Clean
Water Act, is protecting. It was time for the Supreme Court to step up
to the plate and give airports around the country some relief.
IDENTIFYING WETLANDS
The USACE and EPA are in the process of
developing some reasonable, rule of thumb concept of a normal hydrologic
condition, which would serve to help identify wetlands and waters that
are "connected" and part of the interstate tributary system
of waters, and which wetland waters are isolated.
This should not take a Rhodes Scholar to
figure out — unless they have problems understanding the difference
between "large, navigable waters" and "isolated ponds and
bayous." Where are the Lewis and Clark Expedition when you need them?
Be assured USACE and EPA will take as long as possible to interpret every
single word of the ruling. Bureaucrats hate to give up their jurisdictional
power.
However, to show that the USACE can move
quickly, within three weeks after the Supreme Court ruling was issued,
the City of Houston Airport System got its 120-plus acres of wetlands
(which is quite isolated from any large, navigable waters) reduced to
12.9 acres of wetlands liability. Like magic, a Section 404(A) permit
of the Clean Water Act was issued by USACE allowing IAH to go on with
construction of a new runway, cargo facilities, etc., something that had
been held up for over a year. Others are not so lucky. A lot of permits
and related regulatory decisions remain on hold.
Case in point: The USACE – Galveston
District has over 300 permit actions ongoing. All the permitees need an
answer sooner rather than later, while others just want the permits they
have seen revoked, to get government intrusion off their land and out
of their projects. Recently the Galveston District issued policy memorandum
#01-001, which included three criteria to be used for adjacency and isolated
determination:
1) Physical proximity of water/wetland to
navigable water or a surface tributary system.
2) Hydrological connections, such as whether
or not the wetland/water is part of a "surface tributary system."
3) And, the two-barrier rule. Defined: When
at least two natural or man-made upland barriers or berms separate a wetland/water
from other waters of the U.S., it is isolated ... even within flood plain
situations." A man-made road or levee that is culverted to allow
flow between areas is not considered a barrier.
HELP ON THE WAY
So what does all this mean to airports that
have had to preserve wetlands and deal with mitigations issues? It means
help is on the way in several different ways:
• The ruling, if implied as intended,
can remove existing isolated wetlands much more easily, and therefore
it will be easier to protect the flying public.
• The ruling will allow airports a
more economic way to expand and develop. It will remove the cost and process
that can discourage a project.
• Best of all, the ruling can remove
a major card, which is often used by opponents: That is, the opposition
can no longer use this avenue to "game the system" and try to
discourage a project.
The most significant impact of the ruling
is that airports with isolated wetlands no longer have to maintain or
leave these wetlands alone solely for migrating birds.
There is this unsolved mystery out there:
If the Federal Aviation Admin-istration is encouraging safe air travel,
why do other government agencies choke these efforts with almost nonsensical
environmental regulations that encourage migratory birds? There is little
consistency of reason.
Often a group of well-meaning people, who
do not want a project in their area, will proceed to leverage the environmental
regulations in some very creative ways to kill the project. While these
concerns are often overblown, the administrative system requires a good
many hoops to be jumped through before a project can move forward. This
is called due process. Airport managers call this "project delay."
Now, due process is not all bad. It assures
some safeguards that we all support. However, some agencies have forgotten
the overall goal. Opponents can use a well-intentioned government program
for a cynical end that has little to do with the environment.
Airport managers throughout the country
should commend the U.S. Supreme Court decision. It is an all too infrequent
occasion that we have some sanity restored. There is little question that
the Clean Water Act was not intended to have such a broad regulatory brush.
The connection between migratory fowl and isolated wetlands, many of which
are man-made and not national treasures, is far-reaching.
The Court, with this ruling, is encouraging
those interested in airport expansion or development to take advantage
of this opportunity. Over the next few months and perhaps years, the USACE
and EPA will follow the ruling, but be assured they are already in the
process of thinking of ways to turn up the heat on the regulatory boiler.
About the Authors
Vesta Rea-Gaubert is the President of Vesta Rea & Associates, L.L.C.
in Houston. The firm is a national transportation/aviation public relations
and governmental affairs company. Vesta is a published journalist in over
one hundred publications writing on topics ranging from airport issues
to adventure travel. She is also publisher of an off-beat quarterly newsletter
entitled, "Vesta’s Market Edge".
Andrew W. Barrett, Environmental Attorney, was the Environmental Policy Advisor to former Governor George W. Bush. Barrett is based in Austin, TX, and currently handles environmental issues management for numerous clients.
