Reemerging Wetlands Controversy Brings Local Angles

November 22, 2023
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Changing legal and regulatory realities around U.S. wetlands will prompt renewed conflicts over the habitat, much of it on a local scale. Above, a wetlands area in Chesapeake Bay. Photo: U.S. Environmental Protection Agency, via Flickr Creative Commons (United States government work).

TipSheet: Reemerging Wetlands Controversy Brings Local Angles

By Joseph A. Davis

First of two parts on wetlands and Section 404. Read part two.

In recent months, the U.S. Supreme Court and the Environmental Protection Agency have changed the rules for protecting the nation’s wetlands — and that will inevitably mean an outbreak of controversy and local stories for environmental journalists in 2024.

The muck is still settling on the big rule change. You will hear different names for it: Section 404, waters of the United States, or WOTUS, etc.

The Supreme Court tried once again in May in its decision in Sackett v. EPA to resolve the longstanding issue of what waters or wetlands Section 404 applies to (see more on that below).

And the EPA on Sept. 8 issued a new rule trying to implement the court’s ruling.


Conservationists still think the

proposed EPA rule is too weak

and industry still thinks it is too strong.


Now comes the fun. Conservationists still think the proposed EPA rule is too weak and industry still thinks it is too strong. There will inevitably be new conflicts as it is applied in the coming months and years.


Why it matters

The 404 rule matters because wetlands matter. Also because people like to be able to do what they want with their own property. Also because there is huge ideological and legal conflict in the U.S. over the role of government regulation.

Wetlands matter because they do many crucial things for the U.S. environment, and because we have already destroyed over half of the wetlands that were here when white settlers arrived.

Wetlands are key habitats for insects, aquatic life, birds, fish and even people. Wetlands help people by helping with flood control, drought moderation, water purification, recreation, erosion control and even carbon storage. Bird watchers love them. Fishers depend on them.


The backstory

The question of what to do with wetlands goes back to the 1820s, when a lot of the nation’s transport was by water, and the U.S. Army Corps of Engineers was tasked with clearing navigable waters of snags.

Jump cut to 1972, when Congress passed the Clean Water Act. Section 404 of the act authorized the EPA and the Corps to protect the nation’s precious wetlands by requiring (“dredge and fill”) permits for altering them.

The idea was that the destruction of a wetland was an environmental harm, unless offset by some “mitigation,” like creating new wetlands.

Over many decades, opposition to Section 404 has steadily come from real estate developers, farmers, ranchers, energy companies and mining companies because it restricted their moneymaking activities. Environmentalists, on the other hand, liked Section 404 and wanted to strengthen it.


Interpretation of the law regarding Section 404

has been complex and tumultuous, partly

because of the long history that went into it.


Interpretation of the law regarding Section 404 has been complex and tumultuous, partly because of the long history that went into it.

Be aware that, while farmers and ranchers (and the lobbyists who represent them) rail at the 404 program, the 1972 law exempts most of their activities from permits. Also remember that land developers must often get a whole bunch of other permits to start work, and that many development projects don’t need 404 permits.


Story ideas

  • What are the most important wetlands in your area of concern? What, if any, development might alter them? Is a 404 permit required?
  • What are the most important land development projects in your area of concern? What kinds of land are they planned for? Is a 404 permit required?
  • Has your state or tribe been approved by the federal government to administer the 404 permit program? Right now, Michigan, New Jersey and Florida do so.
  • The law allows feds, states or tribes to issue “general permits” for whole classes of activities that impact wetlands minimally or not at all. Does the activity you are reporting on qualify for a general permit?
  • For major permits under consideration, the Corps and the EPA can hold “public involvement” sessions to garner public input. Such meetings often can result in a story.
  • Look up the history of local wetland removal and land development in your area. What were the original land covers?
  • In many 404 permit controversies, there is negotiation over “mitigation” measures. In your case, do these adequately compensate for lost wetlands? Will they work? Will they last?
  • If there is a 404 controversy in your area, check the positions of local politicos on it. Are they thoughtful or automatically partisan?
  • Are other permits required for the projects in controversy in your area? Local zoning? Water pollution? Are any state or federal grants involved?


Reporting resources

[Editor’s Note: Watch for part two, a forthcoming Toolbox on wetlands and 404 permit data. For more on wetlands, see our Backgrounder advancing the Supreme Court’s Sackett decision, a Toolbox on tracing wetlands with a land cover database and TipSheets on a national wetlands inventory and on wetlands mitigation, plus an Inside Story award-winner Q&A on covering wetlands. For current headlines on wetlands issues, check out EJToday.]

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

* From the weekly news magazine SEJournal Online, Vol. 8, No. 42. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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