| Bar Bulletin |
June,
2004 |
BAR BULLETIN FOCUS
June 15, 2004 |
Environmental Law |
THE BUSHES, WETLANDS AND MARYLAND
By Karyn S. Bergmann
Earth Day 2004 was a
typical spring day at the Wells National Estuarine Research Reserve in
Maine. A chilly breeze filtered through the cordgrass while President
George W. Bush unveiled his wetland protection plan. The proposal replaces
the “no net loss” policy of his father, George H.W. Bush, with a plan to
create and restore at least one million acres of wetlands and to improve
and protect an additional two million acres of wetlands over the next five
years.
The Second Bush’s
Wetlands Record
In spite of this plan,
environmentalists continue to criticize the current Bush Administration’s
efforts on wetlands protection and restoration, and Democrats are chalking
up the plan to an election year ploy. These criticisms are not baseless,
however. The Bush Administration has made several moves that weaken
wetlands protection.
In February 2001, the EPA
delayed for 60 days the implementation of a wetlands protection rule
designed to tighten a loophole opened by a 1998 D.C. Court of Appeals
decision. Six months later, the Army Corps of Engineers (ACOE), the
principal federal agency involved in wetlands protection, relaxed wetlands
permitting requirements designed to limit stream destruction and ensure
replacement of destroyed wetlands. In the summer of 2002, the White House
Office of Management and Budget (OMB) denied the U.S. Department of
Agriculture’s (USDA) request for funding to support its Wetland Reserve
Program, even though Congress approved the funding. When the OMB released
funding to the USDA in September, it was only 16 percent of the allocated
funds.
Perhaps the greatest threat
to wetlands protection under the current Bush Administration was the
proposed re-definition of the term, “waters of the United States.” On
January 9, 2001, the United States Supreme Court handed down its decision
in Solid Waste Agency of Northern Cook County (SWANCC) v. United States
Army Corps of Engineers. This case involved ACOE assertion of
jurisdiction over several ponds that had once been quarry pits. SWANCC
had obtained state and local approvals to develop the property into a
landfill, but ACOE denied a permit because migratory birds were using the
ponds for nesting. The Supreme Court ruled that ACOE had no jurisdiction
over these isolated and wholly intrastate waters on the sole basis of
migratory bird use.
Pursuant to this decision,
the United States Environmental Protection Agency (EPA) and ACOE quickly
issued a joint memorandum that advised field staff to seek approval first
before asserting jurisdiction over any wholly intrastate and isolated body
of water, even if that water is connected in some way to interstate
commerce. Then in January 2003, EPA and ACOE issued an advanced notice of
proposed rulemaking (ANPRM) that considered redefining “waters of the
United States” to include only navigable waters, their tributaries and
adjacent wetlands. This was not an inappropriate action on the part of EPA
or ACOE. However, the possibility of a more limited definition alarmed the
majority of the public who responded to the ANPRM. To its credit, the Bush
Administration announced this past December that it would not go forward
with any plans to redefine “waters of the United States.” However, the
joint memorandum is still in effect.
The Effect of Federal
Wetlands Policy on Maryland
Given this trend, Maryland
practitioners should be aware of the growing importance of Maryland law on
wetlands protection. By depriving the federal government jurisdiction over
certain isolated and wholly intrastate waters, the SWANCC Court
recognized the states’ responsibility in environmental protection and
effectively affirmed the states’ traditional sovereignty over the lands
within their borders. The SWANCC decision could leave many
so-called isolated wetlands without protection from development in those
states without wetlands protection laws. Fortunately, Maryland is not one
of these states.
Containing most of the
Chesapeake Bay, Maryland has a number of programs designed to protect both
tidal and non-tidal wetlands. The Tidal Wetlands Act of 1970 restricts
construction and development in tidal wetlands. The Nontidal Wetlands
Protection Act of 1989 regulates activities in or that could have an
impact on nontidal wetlands. Both laws require permits to pursue
activities in or near wetlands. Maryland has also received general permit
authority from ACOE. The Maryland State Programmatic General Permit may be
used for activities with minimal individual and cumulative impacts in
either tidal or nontidal wetlands less than three acres in size for tidal
and five acres for nontidal wetlands.
In addition to these laws
specific to wetlands, Maryland has provisions requiring the Department of
State Planning to designate “Areas of Critical State Concern,” which
receive special protection from development. Similarly, the Maryland
General Assembly established the Critical Area Commission in 1986 to
regulate activities within 1,000 feet of tidal waters of the Chesapeake
Bay. This law required local jurisdictions to develop wetlands protection
programs and delegated enforcement authority to them. Thus, before
starting any project that could impact wetlands counsel for developers
should consult local and county ordinances, as well as state regulations.
The SWANCC decision
and the policies of the Bush Administration have not been optimal for
wetlands preservation. However, Maryland wetlands enjoy strong protection
from state law. Advocates for developers and wetlands protectionists alike
should look first to Maryland law when addressing the legality of
activities affecting wetlands.
Karyn Bergmann is a certified professional geologist and a law fellow
at the University of Maryland Center for Health and Homeland Security,
Baltimore.
