United States Army Corps of Engineers v. Hawkes Co., Inc.

Just as I’m starting to learn more about wetland law, the Supreme Court issues an opinion in United States Army Corps of Engineers v. Hawkes Co., Inc. The case turns on what is, to me, a technical question of administrative law, namely when does an agency determination become something that can be appealed? In the end, the resolution of this technical question does not appear, to me, to change wetland law all that much. But the opinion does shed some light on the challenges of wetland conservation within the United States legal framework.

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The Great Dismal Swamp

Continuing our summer wetlands theme, this seemed like a good time for a post about the Great Dismal Swamp, which plays a crucial if complex role in the history of the eastern United States. It’s a true borrowed land—a space that humans have inhabited for centuries, but have never quite tamed.

For some, this wildness has been a curse; for others, an asset. George Washington wanted to drain the swamp. Escaped slaves took refuge in it. Though it’s been logged and drained—the modern swamp is about an eighth of its original size—the Great Dismal remains a dark, shifty place that’s difficult to navigate. When I first visited the swamp this winter, I was struck by the waist-high grasses that carpet most of the landscape’s higher ground. There’s no way to tell if the waving stalks index a gust of wind, or the movement of a body.

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Lawyers, Swamps and Money

As I mentioned in The Winged Scourge, I have been reading Royal Gardner’s Lawyers, Swamps and Money, a book about American federal wetland protection laws and regulations. I am trying to build up my understanding of the social and political sides of wetland science, and Lawyers, Swamps and Money is a very good read for someone less familiar with the details of U.S. administrative law. Gardner begins by filling in all of the policies and procedures that lead to an agency promulgating a regulation and the legal interpretations of those regulations and procedures that get applied when a case on wetlands goes to court in the United States.

The most surprising thing for me as a wetland scientist is the incredibly convoluted way wetlands are protected at the federal level in the United States. That is, there is not a federal law protecting wetlands explicitly. Instead, we have the Clean Water Act whose section 404 requires developers to obtain a permit for the discharge of dredged or fill material into navigable waters of the United States. The US Army Corps of Engineers issues the permits but the Environmental Protection Agency has authority to review and veto Corps permit decisions if they think the Corps is being too lenient. It is the interpretation of the Clean Water Act of these agencies that includes wetlands in the “navigable waters” and gives the Corps and the EPA the authority to protect wetlands.

But not just any wetlands, as the fractured Supreme Court opinions in Rapanos v. United States make clear. The most important opinion in that case is not Justice Scalia’s plurality opinion, but Justice Kennedy’s concurring opinion which defines wetlands under the protection of the Corps of Engineers as those which possess a “significant nexus” to the truly navigable waters of the United States. This opinion is central to the current regulatory practice of the Corps and EPA. A recent goal of many wetland scientists has been to show that so-called “geographically isolated wetlands” such as prairie potholes, playas and vernal pools do possess a significant nexus to navigable waters (through subsurface hydrological connections) or at least some important function to the landscape which merits their protection under the Clean Water Act.

Fig. 4 from Cohen et al. "Do geographically isolated wetlands influence landscape function?" PNAS, 2016.
Fig. 4 from Cohen et al. “Do geographically isolated wetlands influence landscape function?” PNAS, 2016.

Now to many scientists, the roundabout way of protecting wetlands in the Clean Water Act — not protecting them at all, but instead forcing developers to go through a permitting process only to discharge dredged or fill material into a wetland — and the carefully ambiguous interpretation under the “significant nexus” rule is pointless and confusing. But that’s because scientists don’t often have to make decisions which balance the needs of several interest groups and a large body of administrative law simultaneously. We cannot protect everything we might define as a wetland just because we like wetlands a lot since people do have legitimate needs to convert wetlands to other land uses. So, in a way, the Clean Water Act represents the best we’re going to get, and our role as wetland scientists interested in the conservation of wetlands is to apply what pressure we can to the Corps of Engineers, the Environmental Protection Agency, Congress and the Supreme Court to broaden the legal and regulatory protections available to wetlands.

The other problem I am very interested in goes in the opposite direction. How can wetland scientists build some understanding of this legal and regulatory framework and the decisions of landowners into models of wetland functioning and evolution. I am not entirely sure that is a completely cogent question or if our wetland models really need that kind of information, but I am looking into it and shall report back when I learn more.

The other half of Lawyers, Swamps and Money looks at the “money” part, in particular a tool increasingly used by the Corps of Engineers and the real estate development community to offset the wetland impacts of their decisions: wetland mitigation banking. My thoughts on mitigation banking deserve their own post, so we’ll save those for later.