Environmental Defense Praises Effort To Close Legal Loophole That Harms Wetlands

Washington, D.C. - Environmental Defense today praised the Clinton Administration for proposing a new rule to help stem the losses from ditching and draining wetlands. The new rule is designed to close a loophole in the Clean Water Act opened by a court decision in 1998 that some developers have used to drain thousands of acres of wetlands.

“Ultimately, without the new rule, there would be a loophole in the wetland laws large enough to drain most of the wetlands in the United States,” said Tim Searchinger, senior attorney for Environmental Defense. “We fervently hope that the Administration’s proposed rule will go a long way towards stopping the large-scale destruction of wetlands and streams we have experienced throughout the country.”

The Clean Water Act requires that developers seek a permit for most activities that drain and fill wetlands. In the 1990s, some developers attempted to get around the Act by constructing drainage ditches in a particular way, namely, by removing nearly all the material from the ditch and putting it down outside the wetland. In 1998, the US Court of Appeals for the District of Columbia struck down a rule issued by the Environmental Protection Agency (EPA) and the US Army Corps of Engineers to close this loophole, but left room for the agencies to craft a new rule.

“Since the court’s decision, it has been open season on wetlands in many parts of the country,” said Environmental Defense consulting attorney Terry Schley. “In North Carolina and Virginia alone, developers used the loophole to drain thousands of acres of wetlands, although we will never know the precise number.”

Since the court decision, Environmental Defense has urged EPA to adopt a new rule. “On one site in North Carolina alone, 8-foot-deep drainage ditches drained a forested wetland of several hundred acres and made the site look like a moonscape,” said Schley. “In fact, the problem became so severe in North Carolina and Virginia that the state governments acted to stop the destruction. But elsewhere, developers continue, and we’re told by agency staff in Galveston, Texas, that they receive five to ten requests a month to certify that wetlands have been drained and are no longer protected.”

Searchinger said that he expected the new rule would eventually be challenged by industry groups, but he said he is confident that the rule will be upheld, in part because of a new court ruling in April of this year by the US Court of Appeals for the Fourth Circuit. “That Court recognized that ditching of wetlands is normally regulated and interpreted the Clean Water Act in helpful ways,” said Searchinger.