Wetlands wondering

Sacramento area farmers, developers and environmentalists are scrambling to figure out how a recent U.S. Supreme Court decision limiting the scope of the federal Clean Water Act will affect the region.

The decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers denied federal authority to block a proposed landfill in Chicago on a site that had become a habitat for migratory birds.

The decision is seen as a huge victory for the conservative causes of state rights and property rights, and a major setback to decades of environmental regulation by the federal government.

The court found that the federal government’s authority to protect wetlands was limited to those connected to “navigable” waters, and does not include isolated pools, ponds and mudflats inside one state’s borders.

The site in question in the SWANCC case was a seasonal pond, not connected to any rivers or streams. The protection of such isolated intrastate waters is now to be left up to state and local governments, according to the decision.

The decision was a split 5–4, led by Chief Justice William Rehnquist with justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen J. Breyer dissenting.

In the dissenting opinion, Justice Stevens—referring to the chemical fire on Ohio’s Cuyahoga River which prompted passage of the Clean Water Act in 1972—remarked, “Our waters no longer burn. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water.”

Exactly which waters will lose protection is still a murky question, one that regulators and interest groups on both sides of the issue are trying to sort out. Among those wetlands that may lose protection are vernal pools, which are found throughout the Sacramento region.

“It’s not cut and dried,” said Carol Witham with the California Native Plant Society, who has been closely watching the aftermath of the court’s decision to determine what impacts it would have on California vernal pools.

Witham thinks vernal pools will still be protected, but concedes that many agricultural interests and developers will disagree. Chances are that it will take years and several more lawsuits to finally flesh out the decision.

“I can think of several developers who would like to push that envelope,” said Witham.

Vernal pools are a kind of seasonal wetland. Shallow and bone dry most of the year, they fill with water during the winter months and in the spring come to life with native plants and often striking displays of native wildflowers.

Vernal pools are almost entirely unique to California. They support some 70 different native plant species that are only found in vernal pool complexes. Two hundred years ago, there were some 4 million acres of vernal pools throughout the Central Valley. As of today, at least 75 percent of that has been lost, according to Witham.

Before the decision, developers or others seeking to fill in wetlands for development or other purposes had to seek permission from the U.S. Army Corps of Engineers. Now, that requirement will be moot in at least some cases.

“This pretty much takes the federal government out of the wetlands business,” said land use attorney Greg Thatch, who represents several area developers.

Anyone seeking to alter or fill vernal pools will still have to deal with state and local laws, although these are generally considered weaker than the federal rules. The state laws make it more difficult for citizens to sue to enforce clean water rules.

Sacramento County has a policy which requires no net-loss of wetlands, but the rule has always been superseded by the federal law. And it is generally accepted that county supervisors are more likely to waive such rules than the U.S. Army Corps of Engineers would be.

The current uncertainty over the Clean Water Act only underscores the need for stronger state laws, and a clear plan by local government to protect as much of the remaining wetlands as possible.

“The threat is very real. We just keep expanding towards the foothills, and [the last remaining vernal pools] are in the way,” said Eva Butler with the California Native Plant Society.

Butler gives tours of the vernal pools complexes at Mather Field in order to educate the public about the pools, which are generally not well understood.

“They have been dismissed. People have tended to think of these open fields as a sort of wasteland that should be put to some productive use,” Butler said.

In fact, vernal pools are amazingly complex ecosystems, which provide habitat for a wide array of native endangered plant and animal species, including the now notorious fairy shrimp.

It is the fairy shrimp, whose listing as a federally protected endangered species a few years ago created such an uproar among developers and other business interests, that may do the most to save Sacramento’s vernal pools.

Although the Clean Water Act may no longer provide protection, the federal Endangered Species Act will continue to protect vernal pools where fairy shrimp are present. No one knows for sure just how many pools contain the shrimp, but even determining whether they are present can be time-consuming and expensive to developers.

“If you look around locally, there aren’t too many vernal pools that don’t have fairy shrimp,” said Thatch.

The decision is seen by many as an early indication of what the current Supreme Court will do on environmental policy.

“I think the Supreme Court has gone totally out of control. They are in a position to overturn most of the environmental laws in the United States,” said Witham.

Environmental attorney Jim Moose, whose firm also represents prominent developers, suggested that this court might provide political cover for the new administration of George W. Bush to roll back environmental laws.

“To the extent that the dirty work can be done by the courts,” said Moose, “that’s pretty good for [the Bush administration].”