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Lawyers, Swamps, and Money
U.S. Wetland Law, Policy, and Politics
By Royal C. Gardner ISLAND PRESS
Copyright © 2011 Royal C. Gardner
All rights reserved.
ISBN: 978-1-61091-025-5
CHAPTER 1
The Ebb and Flow of Public Perceptions of Wetlands
If there is any fact which may be supposed to be known by everybody, and therefore by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances.
—Leovy v. United States, 177 U.S. 621, 636 (1900)
At the beginning of the twentieth century, the U.S. Supreme Court reflected the common view of wetlands: they were dank, dark places that threatened public health and welfare. In the 1900 case of Leovy v. United States, the Court considered the value of land in its natural condition versus its value in a developed state, a question that has continuing resonance today. Noting that the wet area would be worth sixty times more in agricultural production (from a mere $5,000 to a grand $300,000), the Court upheld the right of Louisiana to construct dams that dried out the swampy lands. Indeed, the Court observed that government not only had the power to conduct these reclamation efforts, but it was its duty to do so. Swamps and their ilk were nuisances to be drained, and the newly available land could be put to beneficial, economic use.
Wetlands have long suffered from a public relations problem. In the legend of Hercules, he must confront the many-headed Lernaean Hydra, whose home is a swamp. Ancient Greeks also believed that limniads (nymphs), which inhabited marshes and swamps, would occasionally drown people. Scottish folklore warned that the airborne fluff from marsh cattails were shape-shifted witches traveling to a secret rendezvous. The miasmic mist of swamps was once thought to cause disease and illness. Sometimes the formal names of these areas evoked dread and gloom—even hell. The military surveyor credited with naming the Great Dismal Swamp in Virginia and North Carolina certainly did not consider it to be a vacation destination. Indeed, one wetland historian observed that the word dismal is "derived from Dismus, the name of the thief crucified with Jesus," and thus for Christians, the word "readily signified an alliance with Satan" (Vileisis, 1997). Wetlands could be good places to dispose of garbage and bodies. The brackish marshes of New Jersey's Hackensack Meadowlands are an important Atlantic flyway for migratory birds (Tiner et al., 2002), but they are perhaps better known as trash landfills and the rumored resting place of Jimmy Hoffa.
Cultural references reinforced the notion of wetlands as public nuisances. In 1943, for example, the Walt Disney Studio produced an educational animated short entitled The Winged Scourge, which explains how Anopheles mosquitoes spread malaria. The Seven Dwarfs are then enlisted to combat this threat by destroying the mosquitoes' breeding grounds. The cartoon follows the diminutive fellows exhibiting the teamwork for which they are known: Doc and Sneezy quickly cut cattails; Happy enthusiastically spreads oil on open water; Bashful diligently sprays "a thin film" of Paris Green (arsenic and copper) on bottomland hardwoods; and even Sleepy industriously ditches and drains ponds and other waters. Oddly, Snow White does not make an appearance to supervise their work.
Books have emphasized the forbidding nature of wetlands. From classics such as The Hound of the Baskervilles (Grimpen Mire) to comic books like Swamp Thing, wetlands are portrayed as dangerous places. Lord of the Rings devotees (who clearly have too much time on their hands) even have a Web site devoted to the various bogs and mires of Middle Earth, none of which appears easy to traverse. The image of wetlands fared equally poorly in movies, from Labyrinth with its bog of eternal stench (and David Bowie as the Goblin King) to The Princess Bride with its fire swamp (and rodents of unusual size). Even Monty Python and the Holy Grail lampooned the difficulty of building in a wetland, as the King of Swamp Castle explained:
When I first came here, this was all swamp. Everyone said I was daft to build a castle on a swamp, but I built it all the same, just to show them. It sank into the swamp. So I built a second one. That sank into the swamp. So I built a third. That burned down, fell over, then sank into the swamp. But the fourth one stayed up. And that's what you're going to get, Lad, the strongest castle in all of England.
Of course, all does not end well for the King of Swamp Castle and the wedding party.
Often an underlying theme is that wetlands can be put to a better use. The 195 7 children's book Dear Garbage Man perfectly captures this view of wetlands. First published ten years after Marjory Stoneman Douglas's The Everglades: River of Grass, Dear Garbage Man is a heartwarming tale of a rookie sanitation man who decides that much of the discarded refuse along his route can be recycled or reused. He embarks on a crusade to give away all his garbage, and at the end of the day his truck is empty. Alas, he discovers the following morning that the trash bins are refilled with the same items, as people found them just a tad too damaged. He consoles himself by observing that the garbage can be used to fill "lots and lots of swamps" for playgrounds and schools (figure 1-1). Dear Garbage Man and its anti-recycling theme enjoyed a second printing in 1988.
Recently, wetlands have become less foreboding and more hip. Wetlands Preserve was the name of an activist music club in Tribeca in New York City from 1989 to 2001 (figures 1-2 and 1-3). A documentary on the club's history, Wetlands Preserved, received an award for best unreleased film at the 2006 High Times Stony Awards, perhaps unfortunately reinforcing the stereotype that many environmentalists are drug-addled socialists who have no respect for private property. On the more conservative side of the political spectrum (albeit facetiously), the Colbert Report on Comedy Central is co-produced by Spartina Productions. Spartina is cordgrass, a plant species found in coastal wetlands, and each show ends by reversing the food chain as a small fish swallows a large heron or egret. There is even an adult Web site with "wetlands" in its title, although this features a markedly different type of wildlife.
The public perception of wetlands has indeed undergone a remarkable transformation. In the television series The X-Files, Sheriff Hartwell observes that "[w]e used to have swamps, only the EPA made us take to callin' them wetlands." As Gary Larson suggests, the term "wetland" itself projects a certain respectability otherwise lacking for the mere swamp, marsh, or bog (figure 1-4).
Rather than being viewed as mosquito-breeding nuisances (or cheap land to drain and fill), wetlands are now appreciated for the many benefits that they provide. There is a World Wetlands Day (February 2), which commemorates the signing of the Ramsar Convention, an international treaty promoting wetland conservation, and an entire American Wetlands Month (May), which celebrates the value of wetlands.
Schoolchildren today learn the litany of wetlands functions. Wetlands, they are told, provide important habitat for fauna and flora. The list of endangered and rare species that depend on healthy wetlands runs from the perhaps still-extant ivory-billed woodpecker in the Cache River National Wildlife Refuge in Arkansas (known as the Lord God bird for the exclamation one would utter upon witnessing it) to the less well known and smaller fairy shrimp in the vernal pools of California. Wetland supporters and educators typically emphasize this function with good justification. In terms of marketing, who among us (including many developers) does not love endangered species, especially charismatic megafauna? Animals—and the cuter or bigger, the better—can help sell any product or cause. This is why one of the most popular specialty license plates in Florida pictures the native panther, all the while we build new roads, which opens new areas to development, which in turn shrinks the panther's habitat.
But wetlands benefit more than just plants and animals. People often derive benefits—ecosystem services—from wetland functions too. Indeed, the ecosystem services provided by wetlands can be of great economic value. The commercial freshwater and marine fisheries industry needs vibrant wetlands; approximately 75 percent of commercial fish and shellfish in the United States rely on estuaries and coastal wetland systems (EPA, 2010b). Striped bass, bluefish, croaker, flounder, menhaden, sea trout, and spot are just some of the more well known wetland-dependent fish. Wetlands are important in the life cycles of anadromous species such as chinook and coho salmon, as well as catadromous species such as eel. Shrimp and crabs also spend time in estuarine and tidal wetlands during their life cycles. There is a reason why the seafood industry supported the federal Coastal Wetlands Planning, Protection and Restoration Act and other efforts to restore Louisiana's marshes. The bumper sticker that cautions "No Wetlands, No Seafood" is largely accurate.
In a related vein, wetlands also can help maintain or improve water quality. Wetland plants and soils have the capacity to remove nutrients such as nitrogen and phosphorous (as well as toxics) in runoff, thus reducing algal blooms and depleted oxygen levels in water downstream. New York City, a locale not necessarily known for its wetlands (except for the nightclub), has recognized the value of protecting wetlands in a watershed context. Rather than spending more than $3 billion in new wastewater treatment plants (with some estimates as high as $8 billion), the city decided to achieve the same level of protection by investing $1.5 billion in protecting land surrounding its upstate reservoirs (Kenny, 2006). Similarly, a key component of the Comprehensive Everglades Restoration Plan (CERP) contemplates converting agricultural lands into stormwater treatment areas (i.e., wetlands) to improve the quality of water heading toward Everglades National Park. While the CERP might fail for many reasons (such as the inability to stem development and population growth in Florida and the failure to take sea-level rise into account), the stormwater treatment concept is sound.
Wetlands can also limit damages from natural events by virtue of their flood storage and storm attenuation functions. Wetlands can act like sponges; when tides rise or rivers overflow their banks, adjacent wetlands can absorb the excess water quickly and release it slowly. When wetlands are filled or lost, the remaining area (whether developed or open water) cannot offer the same level of protection. Thus, when the record and near-record rains fell in the Midwest in 1993, the water had no place to go, as many wetlands had been converted to agricultural production. The Great Midwest Flood of 1993 caused almost $20 billion in damage in nine states and was called the "most devastating flood in modern United States history" (Kolva, 1996), at least until Hurricane Katrina in 2005. The destruction along the Gulf Coast caused by Katrina, especially the inundation of New Orleans, highlighted the vulnerability of coastal populations when their protective wetland barriers have been diminished. While intact wetland systems would not have prevented the devastation of Hurricane Katrina (or the 2004 Indian Ocean tsunami for that matter), they would have militated its effects (Ramsar Convention Secretariat, 2010a).
Finally, wetlands can serve as a refuge not only for animals but for people as well. It would be difficult to overstate the recreational value of wetlands, both in terms of aesthetics and economics. Certain segments of the public love wetlands and their wildlife. In fact, wetland-dependent birds prompt millions of people each year to tromp out to swamps, marshes, playa lakes, prairie potholes, and other wetlands. The U.S. Fish and Wildlife Service (2009) estimates that these avian aficionados spend billions of dollars annually to watch these birds or to photograph them. Or to shoot them. The "hook and bullet" crowd was among the first to recognize that protecting wetlands was in its self-interest. Fewer wetlands translate directly into fewer ducks. The Duck Stamp Program—whereby a hunter pays a licensing fee for the right to shoot a certain amount of waterfowl—was one of the early federal efforts to conserve wetlands. Today, Ducks Unlimited (a hunting organization) is one of the largest supporters of wetland restoration efforts in the United States.
So there are a host of reasons to protect wetlands, whether you are a hunter or birdwatcher, coastal resident or insurance adjuster, environmental engineer or New York City budget analyst, seafood lover or waiter, or merely a nature enthusiast. But one particular challenge to protecting wetlands (and there are many) is that in the continental United States approximately 75 percent of wetlands are in private ownership. At least this is the statistic that is commonly cited, and having been repeated enough times it has achieved an air of authenticity. Regardless of the exact percentage, however, questions about private property rights influence the debate about wetland protection: How should we as a society balance an individual's private property rights with the public benefits that wetland ecosystem services provide? What legal and policy mechanisms should we use to strike a proper balance?
In exploring these questions, we must consider the intersections of law, science, and politics. The definition of wetlands—what is and what is not a wetland—might be viewed merely as a scientific matter, but it has legal and political dimensions. Similarly, the goal of "no net loss" of wetlands might seem to be amenable to a straightforward scientific accounting, but the reality is much messier. Furthermore, who gets to make decisions about whether to permit wetland-destroying activities is far from clear and can raise fundamental constitutional issues. In some ways, wetland regulation in the United States begins and ends with the Constitution. As an initial matter, does Congress have the authority under the Commerce Clause or other provisions of the Constitution to regulate activities that damage wetlands ? Or is this a responsibility under our federal system of government that must be left to state and local governments? At the end of the line, what happens when a wetland permit is denied (whether the decision maker is federal or state or local)—does the Constitution require that the disappointed property owner receive just compensation?
The study of wetland policy goes well beyond constitutional issues, however. It involves the scientific (and policy) challenges associated with endangered and exotic species, practical difficulties of enforcement actions, and political calculations. One of the most fascinating and controversial developments is the rise of wetland mitigation banking. Mitigation banking is an incentive-based, or market-based, approach to protecting wetlands. It typically involves an entrepreneur who restores a wetland, thereby generating environmental "credits" that can then be sold to developers to offset their wetland impacts. Entrepreneurial mitigation bankers and their partners are an eclectic group that includes former developers who have seen the light, environmental organizations, sod farmers, and Trappist monks.
But to fully appreciate all of these issues—from the loftiest constitutional principles to a mitigation banker's actions on the ground—you need to have a basic understanding of administrative law, a topic to which we will now turn.
CHAPTER 2
Administrative Law: The Short Course
Elizabeth: Wait! You have to take me to shore. According to the Code of the Order of the Brethren ...
Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.
—Pirates of the Caribbean: The Curse of the Black Pearl (2003)
If wetlands suffered from a public relations problem, its counterpart in law schools is Administrative Law. Administrative Law is not part of the first-year law school curriculum, like Property or Contracts. No one makes movies like The Paper Chase or Legally Blonde about an Administrative Law course. On the surface, Administrative Law seems to lack the sexiness and political controversies associated with Constitutional Law and Criminal Law. In many law schools, it is not even required for graduation. Yet Administrative Law is, or at least can be, a keystone course. And it requires, as Elizabeth in Pirates of the Caribbean discovered to her detriment, the ability to understand the difference between a code or statute and mere guidance: How are rules made and when must they be followed?
Legal education, especially in the first year, is largely mired in the common law and the study of judicial decisions. Law school calls on students (literally) to scrutinize a case, recite the pertinent facts, identify the holding (or core decision) of the court, and distill its reasoning, which may be applied or distinguished in future cases. To be sure, knowledge about the common law is important for an environmental lawyer, at a minimum for historical purposes; environmental law has its origins in the common law. Legal historian Daniel Coquillette (1979) has written about William Aldred's Case, a 1611 nuisance case over the conversion of a sweet-smelling orchard to a noxious hog farm. William Aldred's Case was more than a mere property law dispute; it can be seen as an early air pollution case.
(Continues...)
Excerpted from Lawyers, Swamps, and Money by Royal C. Gardner. Copyright © 2011 Royal C. Gardner. Excerpted by permission of ISLAND PRESS.
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