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Worthless Puddles?

The U.S. Supreme Court dealt seasonal wetlands—one of California’s most rapidly-disappearing types of habitat—a devastating blow in January when it ruled that isolated, non-navigable wetlands are no longer subject to federal regulation even if they are being used by migratory birds or endangered species. The decision could mean that seasonal wetlands and vernal pools on the ever-shrinking open spaces around the Bay and Delta may face even more peril.

In a five-to-four vote, the Court ruled that the Army Corps could not stop a group of communities in suburban Chicago from bulldozing some seasonal wetlands to build a landfill. The net result, say some experts, is that developers and private landowners may no longer need to obtain permits from the Army Corps under Section 404 of the Clean Water Act if they plan to fill ponds or seasonal wetlands on their land.

"A lot of people are scared that we are going to have vernal pools paved over in California and never even know it," says the Sierra Club’s Eric Parfrey. The Bay Institute’s Marc Holmes agrees. "The Corps wasn’t always completely supportive about preservation but at least we had some idea of when destruction was occurring. I think now people won’t even bother to contact the authorities. They’ll be advised by their attorneys and nominal biological consultants that it’s okay not to consult with the Corps."

Holmes says the decision was "blatantly political," the result of years of lobbying by the National Association of Homebuilders and the National Wetlands Coalition (a group that wants to open up drilling in the Arctic). He laments the probable loss of yet more of this valuable habitat type. While some people view seasonal wetlands as worthless puddles, they are in fact valuable refugia for many species of shorebirds, says Holmes, even when there is no surface water evident. "Seasonal wetlands are rich in invertebrates feeding in the mud. They’re an important component of our aquatic ecosystems. But with this decision the Court is ratifying the wholesale destruction of those ecosystems."

Other experts hope the decision will prompt greater efforts on the part of state regulatory authorities and say that while the decision "wasn’t helpful," it isn’t the end of the world either. "The states will need to decide if they are going to take a larger role," says EPA’s Tim Vendlinski. "Or Congress can be more specific in defining protected wetlands in its next reauthorization of the Clean Water Act, which is long overdue."

Cal Fish and Game’s Carl Wilcox, who manages a mitigation bank of seasonal wetlands in Santa Rosa, says that from his agency’s perspective, the Corps was a "good net to catch things," and that in the absence of that "net," other regulatory agencies will have to work more diligently with local agencies through the state’s environmental impact process to make sure losses are avoided or mitigated. In fact, the State Water Board has just announced that it will step in and regulate filling of isolated wetlands under the Porter-Cologne Act. But if the state is ineffective, there may be other remedies, says Holmes, who hopes that enviros work with their local legislators to take up the challenge. "I’m hoping for a huge backlash like the one that happened when the first Bush Administration tried to change the regulatory definition of wetlands."

Contact: Marc Holmes (510)848-5651; Tim Vendlinski: (415)744-2276; Carl Wilcox (707) 944-5525

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