Wetland Restoration and Endangered Species

Andrew J. Doyle
Environment and Natural Resources Division, U.S. Department of Justice

This note is written in Mr. Doyle's individual capacity and does not necessarily represent the views of the U.S. Department of Justice.

Suppose a wetland subject to federal regulatory jurisdiction has been disturbed by activities that are unlawful under Sections 301(a) and 404 of the Clean Water Act (CWA), 33 U.S.C. §§ 1311(a), 1344, absent a permit. Suppose further that in an enforcement proceeding (or possibly a citizen's suit), a U.S. district court is being asked to remedy the violations. While the CWA contemplates an award of "appropriate relief, including a permanent or temporary injunction," 33 U.S.C. § 1319(b), in choosing a remedial plan courts typically examine, among other factors, what will confer maximum environmental benefits. See, e.g., United States v. Sexton Cove Estates, 526 F.2d 1293, 1301 (5th Cir.1976). Typically, everything else being equal, restoring a wetland to the condition it was in prior to the CWA violations confers maximum environmental benefits and will be chosen as the remedy. See, e.g., United States v. Larkins, 657 F. Supp. 76, 86 & n.26 (W.D. Ky. 1987) (citing "numerous precedents for restoration"), aff'd, 852 F.2d 189 (6th Cir. 1988). This is consistent with the CWA's "objective . . . to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a).

But if a species of fish or wildlife protected under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-44, has come to exist on the wetland in its disturbed state, does that mean that the appropriate relief must be to leave that portion of the wetland alone? That is, could the mere fact that an endangered species has taken refuge in the disturbed wetland suggest that maintaining the status quo is best for the environment?

It is fair to say that the ESA is more "powerful and substantially unequivocal," Strahan v. Linnon, 967 F. Supp. 581, 618 (D. Mass. 1997), than the CWA when it comes to preventing takes of protected fish and wildlife and remediating aquatic pollution, respectively. Compare Tennessee Valley Auth. v. Hill, 437 U.S. 153, 158 n.5, 174, 184 (1978) (enjoining the operation of a $29 million, nearly-completed dam because of an endangered fish, reasoning that "Congress intended endangered species to be afforded the highest of priorities") with Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 316 (1982) (holding that the statutory scheme of the CWA "as a whole contemplates the exercise of discretion and balancing of equities"). Thus, it seems clear that no CWA remedy should be ordered that would run afoul of the ESA's prohibition on takings. Indeed, to comply with ESA Section 9, it may be the case that the federal agency-party advocating restoration should initiate ESA Section 7 consultation, and/or the non-federal entity ordered to implement the remedy should apply for an incidental take permit.

Assuming compliance with the letter of the ESA, however, imposing a remedy that involves on-the-ground, habitat-altering work in a wetland occupied by an endangered species would not necessarily frustrate the aim of the ESA at the expense of furthering the objective of the CWA. Although Congress has instructed federal agencies to "utilize their authorities in furtherance of the purposes of" the ESA, 16 U.S.C. § 1531(c)(1), those purposes include, in pertinent part, conserving "the ecosystems upon which endangered species and threatened species depend." Id. § 1531(b). As a factual and biological matter, the party advocating restoration may be able to convince the court that the wetland has not been in its disturbed state long enough to constitute an "ecosystem," and/or that the newly-arrived endangered species does not "depend" on the human-altered wetland. Better yet, it may be the case that the endangered species would breed, feed, and shelter better if the wetland were restored. Establishing any of these facts would recognize the firmly expressed policy of the ESA while achieving important environmental benefits of restoring the lost functions and values of the wetland. See, e.g., United States v. Smith, 149 F.3d 1172, 1998 WL 325954, **3 (4th Cir.1998) (affirming district court's finding that removing unpermitted fill material from wetland would confer maximum environmental benefits, in that "[t]he wetlands as they previously existed served various functions, including habitat sites for wildlife, water filtration, food chain production, and flood water control. Removal of all the fill would reestablish the pre-existing hydrology and set the stage for restoring the area to a productive, swampy, palustrine forested wetland") (unpublished opinion).

A harder case would exist, of course, if the endangered species' long-term survival and recovery depended on leaving all or part of the wetland in its disturbed state. In that scenario, furthering the objective of the CWA would likely be outweighed by the environmental value placed on protecting endangered species and their habitat as expressed in the ESA. See 16 U.S.C. § 1531(a)(3).