Major Wetlands Developments

Brenda Mallory
United States Environmental
Protection Agency
Washington, D.C.

The views expressed in this article are those of the author and should not be attributed to the agency.

January 2001 marked not only the beginning of the true millennium, but also the occurrence of several significant events relating to the status and protection of wetlands. January 9, 2001, in particular, marked the announcement of three major developments that will be summarized in this article. They are:

1. the United States Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. ____ (2001)(slip opinion)(SWANCC decision);
2. the Environmental Protection Agency’s (EPA) and U.S. Army Corps of Engineers’ (Corps) issuance of a final rule modifying the Clean Water Act (CWA) regulatory definition of "discharge of dredged material" to clarify their view that "the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, instream mining or other earth-moving activity in waters of the United States would result in a discharge of dredged material unless project specific evidence shows that the activity results in only incidental fallback;" and
3. the U.S. Fish and Wildlife Service’s (USFWS) issuance of its updated report on the Status and Trends of Wetlands in the Coterminous United States 1986 to 1997and U.S. Department of Agriculture’s issuance of the National Resources Inventory.

Each development and the response of the involved stakeholders will be significant in shaping the course of events this year. This article will set the stage for things to come.

SWANCC Decision</P>

On January 9, 2001, the U.S. Supreme Court issued a decision reversing a 1999 Seventh Circuit decision which held that the Corps’ assertion of Section 404 jurisdiction over isolated ponds that were used by migratory birds violated neither the Commerce Clause of the U.S. Constitution nor exceeded the Corps’ authority under the CWA. Relying only on the statutory claim, the Supreme Court articulated its holding as follows:

We hold that 33 CFR §328.3(a)(3)(1999), as clarified and applied to petitioner’s balefill site pursuant to the "Migratory Bird Rule," 51 Fed. Reg. 41217 (1986), exceeds the authority granted to respondents under §404(a) of the CWA. The judgment of the Court of Appeals for the Seventh Circuit is therefore [r]eversed.

Slip opinion at 14.This decision affects the scope of geographic jurisdiction under the Section 404 regulatory program, as well as under Sections 402 and 311 of the CWA. The scope and implications of the decision will become more apparent in the coming months and years. For now, the agencies are working to minimize the confusion among the regulated public and ensure that jurisdictional aquatic resources remain adequately protected in a manner consistent with the opinion.

Lower Court Rulings

The SWANCC case involved a long-abandoned sand and gravel pit that over the years had developed into a successional stage forest with over 200 permanent and seasonal ponds that provided habitat to over 100 species of migratory birds. Most notably, the site was the seasonal home to the second largest breeding colony of great blue herons in northeastern Illinois. A consortium of suburban Chicago municipalities had purchased the site to use as a disposal site for baled, non-hazardous solid waste. In the course of identifying the necessary regulatory approvals, the consortium contacted the Corps to determine whether a Section 404 permit was required in order to construct the landfill and were told that no permit was necessary because the Corps did not have jurisdiction. The Corps subsequently determined that it did have jurisdiction when a state resource agency informed the Corps that the site was frequented by migratory birds. Since 1985, the Corps and EPA had interpreted the definition of "waters of the United States" over which they had jurisdiction to include waters that were used as habitat by migratory birds (known as the Migratory Bird Rule). See e.g.,51 Fed. Reg. 41,206, 41,217 (1986). The Corps asserted jurisdiction over the site and the consortium applied for a permit. The Corps then twice denied the consortium’s permit applications and the consortium challenged the decision in court. On a motion for partial summary judgment, the consortium claimed that the Corps’ substantive decision was arbitrary and capricious and that it exceeded its authority under the Commerce Clause of the U.S. Constitution, the CWA, and the Administrative Procedure Act (APA) to assert jurisdiction based on the Migratory Bird Rule.

Relying on Seventh Circuit precedent, the district court ruled against the consortium holding that (1) the use of the habitat by migratory birds provided a sufficient interstate commerce connection to satisfy the Constitution, (2) the regulatory phrase "waters of the United States" could reasonably be interpreted to include intrastate waters that provided habitat to migratory birds, (3) the Corps’ decision was not arbitrary and capricious, and (4) the Migratory Bird Rule was an interpretive rule that did not require the agency to comply with the APA before its adoption. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,998 F. Supp. 946 (N.D. Ill. 1998).

The consortium then appealed to the Seventh Circuit dropping its substantive claims and pursuing the claims that the Migratory Bird Rule exceeded Congress’ authority under the Commerce Clause, exceeded the agencies’ authority under the CWA, and violated the APA. The Seventh Circuit affirmed the district court ruling holding that where isolated, intrastate waters were used by migratory birds, jurisdiction was proper and not an unlawful extension of the Commerce Clause. The court reasoned that the U.S. Supreme Court’s decision in United States v. Lopez, 514 U.S. 549 (1995), narrowing the reach of the Commerce Clause, had expressly recognized that a single activity, with no discernible effect on interstate commerce, nevertheless may be regulated if the aggregate effect of the class of activity has a substantial effect on interstate commerce. The Seventh Circuit found that destruction of migratory bird habitat and the attendant decrease in populations of these birds substantially affects interstate commerce. The court also held that the Corps’ interpretation of the CWA to include waters that may provide habitat to migratory birds was permissible and that the "Migratory Bird Rule" was not a substantive rule requiring compliance with the APA. The consortium filed a petition for review with the Supreme Court.

Supreme Court’s Analysis

The petition to the Supreme Court raised two issues: 1) whether the term "navigable waters" in Section 404 extended to the abandoned sand and gravel pit in Illinois which provided habitat to migratory birds, and, 2) if so, whether Congress could exercise such authority consistent with the Commerce Clause. The Supreme Court answered the first question in the negative and did not reach a decision on the second.

The Supreme Court began its analysis examining its holding in United States v. Riverside Bayview Homes, Inc.,474 U.S. 121(1985), which is the only other time the Supreme Court has examined the Corps’ jurisdiction under Section 404 of the CWA. The Court noted that in this 1985 decision, it had held that the Corps had Section 404 jurisdiction over wetlands that actually abutted on a navigable waterway, and that in doing so, it noted that the word "navigable" was of limited import in the statute. SWANCC, slip opinion at 6.The Court further noted that its holding in Riverside Bayview Homes

was based in large measure upon Congress’ unequivocal acquiescence to, and approval of, the Corps’ regulations interpreting the CWA to cover wetlands adjacent to navigable waters . . . . We found that Congress’ concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparably bound up with the waters’ of the United States."

Id. Nevertheless, the Court stated

we did not "express any opinion" on the "question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . ." [citation omitted] In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this.

Id. at 6 -7.

The Supreme Court made three principal points supporting its conclusion. First, the Court noted that the Corps’ original interpretation of the CWA reflected in its 1974 regulations expressed a narrower interpretation of the waters covered by the statute than the Corps was urging in the SWANCC case. The Court stated that those original regulations focused on waters subject to the ebb and flow of the tide, and that were presently, had been in the past, or could be used in the future in interstate or foreign commerce. According to the Court, the Corps had emphasized the capability of the waters for use for transportation or commerce. The Court stated that the Corps had not provided persuasive evidence during the SWANCC case that the Corps’ original interpretation was incorrect.

Second, the Court rejected the Corps’ arguments that Congress’ actions in 1977 indicated its support for the more expansive interpretation of navigable waters reflected in later regulations and espoused in the SWANCC case. The Corps noted that its 1977 regulations defined "waters of the United States" to include "isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of the tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce." 33 C.F.R. § 323.2 (a)(5) (1978). The Corps argued that the broader definition was subsequently approved by Congress since Congress was aware of the agencies’ expansion and yet did not alter the statute to endorse a narrower interpretation. In fact, a failed House Bill which would have mirrored the Corps’ 1974 interpretation of the statute and therefore rejected its subsequent 1977 regulations did not pass Congress. Next, the Corps argued that Congress’ 1977 addition of Section 404(g) indicated a recognition of a broader interpretation of navigable waters that included non-navigable, isolated, intrastate waters. Section 404(g) allows a state to take over administration of the 404 program in its state, except for "those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce . . . including wetlands adjacent thereto . . ." The Corps argued that if the interpretation of navigable waters was as narrow as SWANCC suggested, there would have been little purpose to Section 404(g) because once the excepted waters were excluded, the remaining waters left virtually nothing for the state to assume under 404(g). The Supreme Court found these arguments unpersuasive, indicating that other possible explanations existed.

Finally, the Court rejected the Corps’ argument that its interpretation of the statute was entitled to deference under the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837 (1984). It stated first that Section 404(a) was clear on its face and therefore deference to the agency was unnecessary. Even if it had not been clear, the Court said it would not extend Chevron deference in this case because the required interpretation was at the outer limits of Congress’ power and therefore would have required a clearer indication that Congress intended the specific result. The Court noted further that the concern for allowing actions at the outer limits of Congress’ authority is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon traditional state power. Id. at 12 - 13.The Court concluded this discussion saying:

We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents’ interpretation, and therefore reject the request for administrative deference.

Id. at 14.

The Dissent

A vigorous dissent was written by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer. Providing a detailed analysis of the Legislative history of the 1972 and 1977 CWA Amendments, as well as of the Court’s decision in Riverside Bayview Homes, the Dissent disagreed with the basic tenets of the Majority Opinion. Specifically, the Dissent pointed out that in Riverside Bayview Homes, the Court upheld the Corps’ assertion of jurisdiction over low lying marsh land that "was not itself navigable, directly adjacent to navigable water, or even hydrologically connected to navigable water, but which was part of a larger area, characterized by poor drainage, that ultimately abutted a navigable creek." Dissent slip opinion at 2. The Dissent asserted that

once Congress crossed the legal watershed that separates navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute’s protection to those waters or wetlands that happen to lie near a navigable stream. In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.

Id. at 3. The Dissent found no support for the conclusion that the Corps’ jurisdiction need be related to actual or potentially navigable waters, or that Congress intended to assert nothing more than its commerce power over navigation when it passed the CWA. Moreover, the Dissent rejected the notion that the 1972 Congress was intending to draw the "odd [jurisdictional] line on which the Court . . . settle[d]" in the Majority Opinion. Id. After summarizing the key points that it believed demonstrated that Congress expanded the 1972 CWA beyond the navigational focus of predecessor statutes, the Dissent noted,

The activities regulated by the CWA have nothing to do with Congress’ "commerce power over navigation." Indeed, the goals of the 1972 statute have nothing to do with navigation at all.

As we recognized in Riverside Bayview, the interests served by the statute embrace the protection of "significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites’" for various species of aquatic wildlife. [quotation omitted]. For wetlands and "isolated" inland lakes, that interest is equally powerful, regardless of the proximity of the swamp or the water to a navigable stream. Nothing in the text, the stated purposes, or the legislative history of the CWA supports the conclusion that in 1972 Congress contemplated – much less commanded – the odd jurisdictional line that the Court has drawn today.

Id. at 8 - 9.The Dissent explained that contrary to the Majority’s claim, the Corps was not reading the term "navigable" out of the statute. It was Congress that made that choice when it defined "navigable waters" as "waters of the United States" in Section 502 (7). The Dissent said that when read in the context of the history of federal water regulation, the broad definition in 502 (7), and Congress’ unambiguous instructions in the Conference Report, "it is clear that the term ‘navigable waters’ operates in the statute as a shorthand for ‘waters over which federal authority may properly be asserted.’" Id.

The Dissent then discussed the history of the regulations governing Section 404. Justice Stevens pointed out that the interpretation in the Corps’ original 1974 regulations, which the Majority suggested reflected Congress’ 1972 intent, was rejected by two federal courts, the Environmental Protection Agency and Congress. Id. at 10.The Dissent then quoted extensively from Riverside Bayview Homes where the Court had examined the Legislative History and concluded that Congress had acquiesced in the Corps’ expanded interpretation of its jurisdiction. The Dissent stated,

Even if the majority were correct that Congress did not extend the Corps’ jurisdiction in the 1972 CWA to reach beyond navigable waters and their nonnavigable tributaries, Congress’ rejection of the House’s efforts in 1977 to cut back on the Corps’ 1975 assertion of jurisdiction clearly indicates congressional acquiescence in that assertion. Indeed, our broad determination in Riverside Bayview that the 1977 Congress acquiesced in the very regulations at issue in this case should foreclose petitioner’s present urgings to the contrary. The majority’s refusal in today’s decision to acknowledge the scope of our prior decision is troubling.

Id. at 13 - 14.The Dissent next examined the 1977 Amendments to the CWA and agreed with the Corps that the provisions of 404(f) and 404(g) indicate that Congress intended the scope of the Corps’ jurisdiction to be broader than the Majority Opinion reflects. The Dissent also took the Majority to task for not deferring to the Corps’ interpretation of the statute and for not being faithful to the Court’s decision in Riverside Bayview Homes.The Dissent rejected the notion that the Corps’ interpretation encroached on traditional state power over land.

Finally, because the Dissent disagreed with the Majority’s conclusion that the Corps’ interpretation of its jurisdiction as including waters used by migratory birds exceeded the CWA, it addressed petitioner’s Commerce Clause claim and concluded it was without merit.

Aftermath of SWANCC

There are varying interpretations of what remains of Section 404 jurisdiction after the SWANCC decision. Some have indicated that the Court merely invalidated the Migratory Bird Rule, while others argue that there is no longer Section 404 jurisdiction over isolated waters. These issues will likely be addressed and perhaps resolved by future courts. There will also be greater pressure for future courts to address the scope of the agencies’ jurisdiction under provisions that were unaffected by the SWANCCdecision. There will undoubtedly be an interest in considering whether jurisdiction can be established by relying on other provisions of the regulations. Issues that may become of greater interest include:

1. when is an area truly isolated?
2. how close does a water or wetland have to be to a navigable water to be considered adjacent?
3. what factors create a significant nexus between an isolated water and a navigable water?
4. what constitutes a tributary?
5. do connections established through drainage ditches become part of a tributary system or make a wetland adjacent?

In addition to technical and legal questions that may be addressed by the agencies and courts, both the federal and state governments will have to decide how to respond to the SWANCCdecision. Some states are already assessing whether they have the authority under existing statutes to provide protection at the state level for resources impacted by the SWANCC decision, and if not, whether to pass legislation to fill the gap. The federal government may want to assess whether remaining authorities can be used to encompass some of the areas affected by the decision, or whether Congressional action is necessary. The agencies also may consider whether to undertake a rulemaking to clarify the status of their jurisdiction. Moreover, EPA, in particular, may want to consider how to provide additional technical support to states that decide to fill in the regulatory gap. The wake of the SWANCCdecision could easily dominate a significant part of the wetlands program over the next year.

EPA and Corps Legal Interpretation of SWANCC Decision

The first official action by the agencies was the issuance of a legal analysis of the decision. On January 19, 2001, Gary S. Guzy, General Counsel, U.S. Environmental Protection Agency, and Robert M. Andersen, Chief Counsel, U.S. Army Corps of Engineers, issued a memorandum explaining the ruling (January 19 Memorandum). Not surprisingly, the agencies are taking a cautious and conservative approach to the effect of the decision on their program jurisdiction. Several key points made in the memorandum are as follows:

1. The explicit holding is that the Migratory Bird Rule as applied to the nonnavigable, isolated, intrastate waters on SWANCC’s site exceeds the Corps’ CWA authority. January 19 Memorandum at 2.
2. The Court did not strike down 33 C.F.R. § 328.3(a)(3) or any other component of the regulation defining "waters of the United States." Id.
3. The agencies acknowledged that while the Court’s holding was narrow, the discussion was wider ranging, leading to questions about the impact of the ruling on other waters within the definition of "waters of the United States." Id.
4. As a result of the decision, field staff should no longer rely on the Migratory Bird Rule as the sole basis for asserting jurisdiction.
5. For all waters other than nonnavigable, isolated, intrastate waters, the field staff should continue to assert jurisdiction to the full extent of their authority under the statute and regulations and consistent with court opinions.
6. The Supreme Court did not overrule its holding in Riverside Bayview Homeswhich upheld its regulation of "traditionally navigable waters, interstate waters, their tributaries, and wetlands adjacent to each. [citations omitted] Each of these categories is still considered "waters of the United States." Id. at 3.
7. Waters covered solely under 33 C.F.R. § 328.3(a)(3), which affect interstate commerce solely because of their use by migratory birds, are no longer considered "waters of the United States." Other waters covered under § 328.3(a)(3) which have different interstate commerce connections were not addressed in the SWANCCdecision. Therefore, a case by case examination with the legal counsel of the respective agency is recommended.
8. Factors which may affect whether isolated, intrastate, and nonnavigable waters are subject to jurisdiction include whether the use, degradation or destruction could affect other "waters of the United States" thus establishing a significant nexus between the water in question and other "waters of the United States." In addition, for waters that are isolated and intrastate but also navigable, jurisdiction may be possible if the use, degradation or destruction could affect interstate or foreign commerce.
9. The Supreme Court’s limited holding in SWANCC must be read in light of other Supreme Court and lower court decisions unaffected by the SWANCC decision, which precedents broadly uphold CWA jurisdictional authority.

The agencies expect to issue additional guidance in the future. In the meantime, members of the regulated community should contact the Corps or EPA for assistance in determining whether the agencies still retain jurisdiction over specific isolated waters.

Withdrawal of Wilson Guidance in Light of SWANCC Decision

On January 19, 2001, EPA and the Corps also withdrew guidance they had issued previously concerning a Fourth Circuit ruling in United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), that involved Section 404 jurisdiction over isolated waters. The Fourth Circuit reversed the criminal conviction of James Wilson for illegally discharging excavated material into wetlands without a permit. The defendants challenged the Corps’ jurisdiction over isolated waters and wetlands. The Fourth Circuit concluded that the Corps’ definition of "waters of the United States" was overly broad and exceeded congressional authorization because it extended CWA coverage to a variety of intrastate waters "solely on the basis that the use, degradation, or destruction of such waters could affect interstate commerce." Id at 257. The Court found that the regulation did not reflect the required nexus with navigable waters or interstate commerce. The court explained that

The regulation requires neither that the regulated activity have a substantial effect on interstate commerce, nor that the covered waters have any sort of nexus with navigable, or even interstate, waters.

Id.

The agencies issued guidance concerning the decision on May 28, 1998 and supplemental information on June 26, 1998. The materials, among other things, indicated that the agencies would only implement the Wilson decision in the Fourth Circuit and explained the factors the agencies would consider in determining whether a sufficient interstate commerce connection existed with the intrastate waters in question. In light of the SWANCC decision, the agencies will reconsider the validity of that guidance.

Revised Definition of "Discharge of Dredged Material"

On January 9, 2001, EPA and the Corps signed the final rule revising the CWA regulatory definition of "discharge of dredged material." The heart of the revised language reads as follows

33 C.F.R. § 323.2 (d)(2)

(i) The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback. This paragraph (i) does not and is not intended to shift any burden in any administrative or judicial proceeding under the CWA.

(ii) Incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed.

66 Fed. Reg. 4550, 4575 (January 17, 2001).

Section 404 authorizes the Corps to issue a permit for the discharge of dredged material into navigable waters. This is the third modification that the agencies have made to this term since 1993. On August 25, 1993, the Corps and EPA issued a regulation, known as the Tulloch Rule, that defined "discharge of dredged material" as including "any addition, including any redeposit, of dredged material, including excavated material, into waters of the U.S. which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation that destroys waters of the U.S." 58 Fed. Reg. 45008 (Aug. 25, 1993). The American Mining Congress and several other trade associations challenged the rule as exceeding the agencies’ CWA authority. On January 23, 1997, the U.S. District Court for the District of Columbia agreed with the trade associations. American Mining Congress v. United States Army Corps of Engineers,951 F. Supp. 267 (D.D.C. 1997). The D.C. Circuit affirmed that decision in June 1998 in National Mining Association v. United States Army Corps of Engineers, 145 F. 3d 1339 (D.C. Cir.1998). Those courts found that the Tulloch Rule exceeded the CWA to the extent that it regulated "incidental fallback" of dredged material. Incidental fallback was described in several ways by the Court of Appeal, including as ". . . return[ing] dredged material virtually to the spot from which it came" (145 F.3d at 1403) and also as occurring "when redeposit takes place in substantially the same spot as the initial removal." 145 F.3d at 1401. The D.C. Circuit stated that some forms of redeposit were regulable but left it to the agencies to draw the line between what constituted a regulable redeposit as opposed to incidental fallback.

On May 10, 1999, the agencies revised the 1993 rule to conform it to the NMA decision but did not attempt to further define the line between regulable redeposits and incidental fallback. The agencies indicated that they would issue further rulemaking on the subject. On August 16, 2000, they issued the proposal that resulted in the final rule issued in January. The final rule reflects several notable changes from the proposal. First, the agencies originally proposed establishing a rebuttable presumption that mechanized landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the U.S. resulted in more than incidental fallaback and was therefore regulated. As a result of the comments received, the agencies reconsidered and replaced the rebuttable presumption formulation. Instead, they have indicated that they "regard" certain specified activities as resulting in a discharge unless there is evidence to the contrary. Second, the final rule makes it clear that they are not shifting any burdens to the regulated community by the change. Third, the final rule includes a definition of "incidental fallback" which is drawn from the court’s descriptions of incidental fallback in the AMCand NMAdecisions.

The final rule was scheduled to go into effect on February 17, 2001. However, on February 15, 2001, the agencies extended the effective date until April 17, 2001. This action was taken as a result of a memorandum issued by Andrew Card, assistant to the president and chief of staff, on January 20, 2001 which instructed all agencies to delay by 60 days the effective dates of all rules that had not taken effect.

On February 6, 2001, the National Association of Home Builders filed suit challenging the rule. NAHB alleges that the agencies once again exceeded their CWA authority by asserting jurisdiction over all earthmoving activities associated with the removal of material from jurisdictional areas. The complaint states " . . . the presumed jurisdiction over earth-moving activities and narrow definition of incidental fallback are a sweeping assertion of federal jurisdiction over activities that remove materials rather than discharges that add pollutants." Complaint, paragraph 25. The courts are once again being called upon to enter the fray.

Trends Reports

The final event on January 9, 2001 was the joint release by USFWS and the U.S. Department of Agriculture (USDA) of two reports that indicate that there has been a dramatic slowdown in the loss of wetlands over the past decade. USFWS issued the Status and Trends of Wetlands in the Coterminous United States 1986 to 1997which indicates that there has been an 80% reduction in wetland losses as compared to the previous decade. Forested wetlands and freshwater wetlands continue to experience the greatest losses, while there has been some success stemming losses on agricultural lands. The Agricultural Report is reflected in USDA’s National Resources Inventory (NRI) and focuses on losses on private lands. The report found an average annual net loss of 32,600 acres of wetlands on non-Federal lands from 1992 to 1997.

Although the Clean Water Action Plan issued by the Clinton administration had envisioned a unified status and trends report using common methodologies and shared data, USFWS acknowledged when the reports were issued that it was not possible to reconcile the two reports because of differences in the methodologies and statistical designs. The reports, nevertheless, provide valuable new information and reflect that progress has been made in the protection of wetlands. Then-secretary of Interior Bruce Babbitt said that the report reflects "very good news. Federal programs and policies encouraging wetlands conservation and restoration should be directly credited."

The impact that the SWANCCdecision will have on future trends is of great concern to many involved in resource protection. Perhaps the evidence of the benefits that the federal programs have caused will provide some incentive for Congress to consider restoring to the Corps and EPA the jurisdictional authority the Supreme Court removed. Those who have been involved in the world of wetlands for a while know that it won’t be that simple. We face some interesting challenges in the next few years.