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.

What makes a grassland?


There was an article published in the most recent issue of Science that seemed like a good way to get the ball rolling here at Borrowed Lands.

William J. Bond. 2016. “Ancient grasslands at risk” Science, Vol. 351, No. 6269, pp. 120-122.

When you look at a grassland, often you’re looking at what used to be a forest. Knowing that deforestation is a massive contributor to biodiversity loss and carbon dioxide emissions, you might be tempted to plant trees on your grassland, restoring the environment to its previous state.

But what if that grassland was never a forest and is, in fact, an ancient grassland? That’s the question Bond asks in this article, and one which I’ve seen pop up a lot over the past year. In that case, you may not want to blindly reforest the grassland.


Depiction of the life cycle of an underground tree in a tropical grassland. From Bond, Science 2016

A similar debate exists in the salt marsh community. Recent results have suggested that North American marshes may owe their origin to changes in sediment supply driven by colonial-era deforestation and that salt marshes may have an inherently short life-cycle. Conserving marshes exactly as they are now or trying to install marshes as part of a revitalized urban landscape doesn’t reflect their natural dynamics.

However, we may not want to simply recreate the natural dynamics of salt marshes. Instead of framing the question in terms of restoring environments to their pristine, unaltered or natural condition — a frame which may lead us to reforest grasslands that don’t look as old as they are — we need to think about what exactly the various ecosystems provide both to humans and to the local and global environments. Unfortunately, as Bond notes, we don’t even have good maps of old-growth grasslands, much less a firm grasp of their carbon and nutrient budgets, biodiversity, social and ecological roles and environmental history. Similar uncertainties exist in salt marshes, for instance in their carbon budgets.

Even if we do get a handle on these uncertainties, we may yet decide that a tropical forest is worth more than an ancient grassland or that some extra marshes on groynes might do wonders for Boston Harbor. Conservation is far from straightforward.

On the Borrowed Lands reading list: Forgotten Grasslands of the South: Natural History and Conservation by R.F. Noss. I saw this book at the Harvard Bookstore the other day, and now Bond cites it, so I think I’ll have a look at it.