Federal Wetlands Law: Part III

Margaret N. Strand

Editors' Summary: This Article is the third in a three-part series on federal wetlands law. In it, the author concludes her comprehensive review of the current state of laws and regulations that address wetlands. In the first two installments, published in April and May, the author focused on the Clean Water Act, and specifically the § 404 program. Here, the author analyzes federal laws, other than the Clean Water Act, that address wetlands. The author analyzes the Department of Agriculture's Food Security Act programs, including swampbuster, sodbuster, and the conservation and wetlands reserve programs. She assesses natural resource laws, including the Water Bank Act, the CZMA, and conservation easements under the Agricultural Credit Act. She also analyzes several fish and wildlife laws with ramifications for wetlands, including the Migratory Bird Hunting Stamp Act, the National Wildlife Refuge System Administration Act, and the Fish and Wildlife Act. The author then covers federal executive orders that address wetlands issues, and concludes with a concise, yet comprehensive, listing of federal agencies involved with wetlands. Included are short descriptions of EPA, the Army Corps of Engineers, and other agency regional and headquarter offices, and their addresses and telephone numbers nationwide. All three installments of this series, along with a subject matter index and table of cases, are published in ELR's new Wetlands Deskbook. Contact Anne Phelan at (202) 939-3833 to order the Wetlands Deskbook.

Margaret N. Strand is a partner in the Washington, D.C., office of Eckert Seamans Cherin & Mellott. She was formerly chief, Environmental Defense Section, U.S. Department of Justice, where she supervised federal litigation concerning wetlands.

[23 ELR 10356]

II. Other Federal Laws That Address Wetlands

A number of federal laws other than the CWA address wetlands and are administered by agencies other than the Corps and EPA.¹ For example, certain agricultural programs have been created to protect wetlands, in recognition of significant wetlands losses that have resulted from agricultural practices. Estimated losses of wetlands from agricultural conversion are staggering; between the mid-1950s and the mid-1970s almost 14.7 million acres of freshwater wetlands and 500,000 acres of saltwater wetlands were lost, most to agriculture.² The federal agricultural programs concerned with wetlands are generally administered by the USDA, through the SCS and the Agricultural Stabilization and Conservation Service (ASCS).

The DOI, primarily through the FWS and the National Park Service (NPS), also administers laws concerned with wetlands. These include not only laws and regulations for managing national parks and wildlife refuges, but also application of the DOI's expertise in wildlife and habitat concerns. Finally, NOAA in the Department of Commerce administers programs related to the coastal zone and to marine fisheries, which often involve wetlands concerns.

These various laws approach protecting wetlands in far different ways than the regulatory prohibition found in CWA § 404. In many of these programs, wetlands are but one of many statutory concerns. The fact that there are so many federal laws authorizing wetlands-related activities by various federal agencies has only added to public confusion over applicable legal requirements. Regulated entities must understand each agency's scope of authority so that advice given in connection with one program is not taken as applicable to unrelated programs.³ Moreover, because these various federal laws are not generally prohibitory in nature, there has been very little enforcement or development of federal case law.

1. This Part is not intended to present a complete discussion of every federal statute that is concerned with wetlands. Rather, the major federal laws that address wetlands in whole or in part are briefly summarized. Readers with particular concerns about the application of a specific program should consult the specific statute or regulation for complete guidance.

2. H.R. REP. No. 271, 99th Cong., 1st Sess., pt. 1 (1985), reprinted in 1985 U.S.C.C.A.N., vol. 2, 1191.

3. It is safe operating premise to assume that advice given by one agency, such as the SCS, will not bind another agency, such as the Corps, in administering a different law. It is very difficult to prevail on an estoppel defense by claiming that the government should be prevented from prosecution because some government agency gave misleading or incomplete advice to a landowner. See United States v. Boccanfuso, 882 F.2d 666, 669-71, 19 ELR 21388, 21390-91 (2d Cir. 1989); United States v. Huebner, 752 F.2d 1235, 1244, 15 ELR 20083 (7th Cir. 1985).