A Decision on Wetlands

April 8, 2001

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.

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.

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.

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".

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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.