WASHINGTON – The Supreme Court’s decision last week limiting the federal government’s efforts to protect wetlands through the Clean Water Act is likely to have little practical effect in the Chesapeake Bay watershed, say those involved in state wetlands protection efforts.
Maryland, Virginia and Pennsylvania all have implemented or are implementing stricter state wetlands protection laws. And a 1997 circuit court ruling affecting Maryland and Virginia already said largely the same thing that the high court said in its Tuesday ruling.
But one environmental group worries that the Supreme Court decision will embolden those who would like to torpedo Virginia’s new wetlands protection law, which is scheduled to take effect in October.
“The Virginia wetlands law was one of the most controversial environmental laws adopted in Virginia in a decade,” said Roy Hoagland, assistant director and staff attorney for the Virginia office of the Chesapeake Bay Foundation. “The court’s ruling may prompt legislators and interest groups opposed to the law to try to block its implementation.”
Hoagland says that the Supreme Court decision points out the need for states to adopt their own wetlands protection programs.
“A case like this reiterates the need for a state non-tidal wetlands protection program,” he said.
There are about 1.5 million acres of wetlands in the bay watershed, or about 4 percent of the 64,000-square mile region that encompasses parts of six states, according to the Chesapeake Bay Program, a partnership between the Maryland, Virginia, Pennsylvania and federal governments. Fully 1.3 million of these are non-tidal wetlands and the rest are tidal wetlands, according to the program’s web site.
No concrete statistics are available on what portion of the non-tidal wetlands are defined as isolated, but the bay foundation believes that isolated wetlands, despite the term, are actually an integral part of the bay’s eco- system.
Foundation spokesman Geoff Oxnam says that isolated wetlands are primarily recognized for their value as a migratory bird habitat, but they serve other important functions.
“They help to filter out a variety of different pollutants. They also slow water as they make their way to streams, creeks and tributaries,” Oxnam said. “This reduces the amount of potential erosion. These are fantastic, free natural water filters that we have been losing.”
But environmental officials in Maryland, Pennsylvania and Virginia, which comprise the bulk of the bay watershed, said that the high court’s decision is essentially moot.
“We do regulate isolated wetlands, and the Supreme Court ruling will not have any impact on use in the state of Maryland,” said Richard McIntire, a Maryland Department of the Environment spokesman.
Pennsylvania regulates its wetlands, virtually all of which are non-tidal, under two state laws — the Clean Streams laws and the Dam Safety and Encroachment Act.
“In Pennsylvania, we think this ruling will have a limited impact,” said April Hutcheson, deputy press secretary for the Pennsylvania Department of Environmental Protection. “Our laws are more comprehensive than the federal law.”
Furthermore, she said that her state has a one-to-one replacement requirement to preserve wetlands.
“If you are going to encroach on an acre of wetland, you must replace that acre,” she said, referring to Pennsylvania’s “no net loss of wetlands” program.
Hutcheson said the laws, combined with voluntary replacement efforts, have resulted in a net gain of 4,000 acres of wetlands in the past 10 years in Pennsylvania. She said that there are about 400,000 acres of wetlands throughout the state.
Virginia passed its tidal and non-tidal wetlands protection law last year, but the regulations are still in the public comment period, said Ellen Gilinsky of the Virginia Department of Environmental Quality.
“We expect to publish the regulations in February,” said Gilinsky, manager of the DEQ’s Water Protection Permit Program. “The statute is set for implementation in October 2001.”
Even though the state laws appear to make the Supreme Court’s 5-4 ruling moot, officials with the Army Corps of Engineers said they are studying the decision.
The Army Corps of Engineers Baltimore district and Norfolk district are in this area and both have been abiding by the ruling.
“We are not exactly sure yet what the [new] ruling means,” said Doug Garman, spokesman for the corps’ Baltimore district office. “We are studying it and conferring with the Environmental Protection Agency and the Department of Justice.”
Bruce Williams, chief of the Northern Virginia regulatory section of the corps’ Norfolk office, said the agency would implement the new ruling “subject to any guidance” from its Washington headquarters.
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