1. Congress and Federal Policy-A Look Back and a Look Ahead

By Julie Sibbing

Although Congress considered no major wetlands legislation in 1999, several "backdoor" legislative attacks on wetlands were mounted, and most were stopped. One damaging new wetland provision in the Water Resources Development Act requires the Corps of Engineers to use mitigation banks wherever they are available in mitigating for the impacts of Corps water resources projects. This means that although wetlands destroyed by dams, levees, etc. are probably best replaced nearby on the same waterway, the Corps would have to give preference to the use of mitigation banks-even if they are located in a different watershed.

Efforts to stop two developer-requested anti-wetlands riders to the Energy and Water Appropriations bill were more successful. One rider would have delayed the Corps phase-out of the environmentally damaging Nationwide Permit 26, pending an extensive study of the costs to the regulated community and workload of the Corps. Another rider would have given developers an unprecedented right to sue the Corps based upon determinations that their property contains wetlands - even if they had no intent of ever applying for a permit to destroy those wetlands. Thanks to a veto threat by the Clinton administration and the tireless efforts of Rep. Peter Visclosky (D-IN) and other Congressional allies, the riders were watered down to require only a study of the replacement permits (with no delays in phasing out NWP 26) and the initiation of a new wetlands jurisdictional appeals program for developers-a program the Corps had planned to initiate eventually, anyway.

One major wetlands legislative battle was deferred to next year. Although Rep. Walter Jones (R-NC) introduced a wetlands mitigation banking bill in March, no hearings or mark-up sessions were held. H.R. 1290 would amend the Clean Water Act to lock into place weak standards for wetland mitigation banks, including a complete lack of ecological success requirements, allowances for banks with credits based solely on preservation of existing wetlands, and overly large "service areas" within which banks could sell mitigation credits. We expect this bill to be considered in the Transportation and Infrastructure Committee early this year.

The bulk of the wetlands work last year, of course, centered on the Corps of Engineers replacement permits for Nationwide Permit 26. A semi-final draft of these 5 new and 6 expanded permits was published in July. Although much improved over the initial draft, the permits could still lead to enormous losses of wetlands and stream systems. The public comment period, which ended on October 7, netted nearly 1,700 comments. About 60 percent of these comments criticized the Corps proposal as not providing enough protection for wetlands. A final version of the permits should be published February 14, 2000. This will initiate a 60 day review period for states to consider the new permits and decide whether to grant, deny, or condition their use. To find out how to get involved in commenting on your state's review of these permits, contact Julie Sibbing at jsibbing@audubon.org or 202-861-2242.

Several important wetland issues may be considered by Congress in 2000. As mentioned above, the most likely wetlands-related bill to be taken this session is Rep. Jones (R-NC) mitigation banking bill (H.R. 1290). The Appropriations process will also be very important this year. Audubon will be asking the Energy and Water Appropriations Subcommittee to consider an increase in the Corps of Engineers Regulatory Program budget.

A substantial increase would enable the Corps to expand its limited regulatory staff. We will also be watching very closely for any anti-wetland "riders" on the fiscal year 2001 appropriations bills. Developers may again attempt to derail the phase-out of Nationwide Permit 26 and/or insert Section 404 exemptions into the bill for environmentally damaging projects.

There is a chance that a bill could be introduced that would close a loophole in the law created by the 1998 court ruling on the "Tulloch rule." (See related article.) This loophole has allowed the unregulated drainage of over 30,000 acres of wetlands and damaging excavation of several hundred miles of rivers and streams in less than two years. Unfortunately, there is a possibility that this much needed "Tulloch fix" legislation will be tied to a "trade" of some component of the current federal wetlands program that we don't want to lose. Also on the Tulloch front, the U.S. EPA and Army Corps of Engineers are expected to publish proposed rules for interpreting the "Tulloch rule" loophole sometime in February or March. This rulemaking, while not expected to completely stop the unregulated drainage and excavation of wetlands and streams brought about by a 1998 court ruling, will prevent much of the abuse and misinterpretation of the ruling that have led to accelerated losses of aquatic systems. We will be watching both Congressional and regulatory developments on Tulloch very closely. We are gearing up to mobilize our network on this huge problem for wetlands, so please contact Julie Sibbing to join in this effort.

The Corps replacement permits for NWP 26 will most likely require careful attention throughout the spring. In addition, a very sticky policy issue likely to become high profile this spring is the definition of "fill material." A conflict over the definition surfaced last fall as part of Federal Judge Haden Clark's decision relating to mountain top mining in West Virginia. At issue is how "fill material" is defined for the purposes of the Clean Water Act. The result of this issue will determine not only whether the Corps or EPA will regulate mountain top mining and how they will do it, but whether the Corps can regulate disposal of fill material in wetlands that is not done with the intent of developing the area.

So even though 2000 is an election year, we can expect plenty of federal policy disputes and opportunities over the next nine months. Please use the coupon on page three to sign up to be part of our work on these issues or simply email jsibbing@audubon.org.

On January 22, 2000, the National Audubon Society, in conjunction with the Dunes Calumet Audubon Society of Northwest Indiana, recognized Congressman Peter Visclosky (D-IN) for his work last year in defeating two anti-wetlands riders to the Energy and Water Appropriations bill. The riders were placed on the bill at the request of the regulated community and would have indefinitely delayed the phase out of Nationwide Permit 26 and would have created a new right for developers to sue the Corps of Engineers simply for determining that their property contains wetlands.

Audubon's Senior Vice President for Public Policy, Daniel Beard, presented Rep. Visclosky with the Great Blue Heron Award as part of the Dunes Calumet Audubon Society's annual meeting and dinner. "Congressman's Visclosky's leadership role was crucial in the fight to protect wetlands from being destroyed," said Dan Beard. "Because of Congressman Visclosky's efforts, this vital bird and wildlife habitat will continue to have important regulatory protections."

Thank you Mr. Visclosky!

By Naki Stevens

The Wetlands Campaign is gearing up for a major effort to close a loophole opened in the Clean Water Act in 1998 that is leading to the draining of thousands of acres of natural wetlands. Under the Clean Water Act, discharges of dredged or fill material to waters of the U.S., including wetlands, are generally prohibited except when authorized by a Section 404 permit issued by the U.S. Army Corps of Engineers. In the 1980s, developers began to drain and destroy wetlands without permit authorization by making use of new technologically sophisticated equipment allowing them to virtually eliminate dredged material from being redeposited in the wetland. As long as they could drain the wetland without letting the dredge spoils fall back into the wetland, they were home free. No environmental review, no regulation, no mitigation, no wetland.

Responding to pressure from the conservation community, the Environmental Protection Agency and the U.S. Army Corps of Engineers closed this drainage loophole in 1993 by issuing the so-called "Tulloch rule" (in response to a lawsuit by the environmental community). This new rule required environmental review and Clean Water Act Section 404 permits for projects that involved the redeposit of dredged material in a wetland, including most drainage, mining, and stream channelization.

However, on June 19, 1998, the D.C. Circuit Court struck down the "Tulloch rule" and reopened this damaging Clean Water Act loophole. According to the EPA, between June 19, 1998 and March 1999, developers have used this loophole to destroy more than 30,000 acres of wetlands nationwide. In addition, at least 150 miles of streams have been "channelized" without environmental review or mitigation. Channelizing streams destroys both the natural water flow and habitat for species living in and around the stream.

The EPA and Corps are currently working on proposed regulations that will clarify their jurisdiction over certain ditching, clearing, draining and excavation activities that involve some level of fill. While these regulations will not entirely rule out drainage and excavation of wetlands and streams, they will enable the agencies to assert jurisdiction over many of the activities currently claiming Tulloch rule exemptions. The Wetlands Campaign is launching a drive to gain support for the regulations in early spring. The Tulloch loophole can be completely closed only through legislation that amends the Clean Water Act, legislation that will be difficult to pass, however, in the current political climate. As noted in the article on Congress, we need to be prepared for the eventuality of a bill.

If you would like to be part of this campaign to close the loophole, please contact Julie Sibbing at jsibbing@audubon.org or 800-659-2622. We will get a listserve going soon to keep you in the loop.

In mid January, the National Research Council, a division of the National Academy of Sciences, convened the first meeting of a Committee on "Mitigating Wetlands Loss." This committee was formed by the NRC at the request of the U.S. EPA, in cooperation with the other federal agencies with wetland protection responsibilities. The twelve-member committee is chaired by Dr. Joy Zedler of the University of Wisconsin-Madison and includes soil scientists, a geologist, an economist, a lawyer, botanists, a fisheries biologist, and several wetland restoration specialists. The Committee will meet three more times and correspond frequently over the next eighteen months to "É.review the scientific and technical literature on wetlands structure and functioning, and options for mitigating wetlands loss through restoration, enhancement, creation, and where applicable, in-lieu fee programs.... and to evaluate the current ability of practitioners to restore various aspects of wetlands functioning in a variety of environments and evaluate options for mitigating wetlands loss."

The conservation community has welcomed the formation of this committee to review wetland mitigation effectiveness. We are hopeful that the request of over fifty conservation groups that the committee be expanded to include a wildlife biologist and a representative of a public interest group will be addressed, as these perspectives are vital to a scientifically-based study.

In January 2000, the federal government agreed to settle a South Dakota wetlands case, National Wildlife Federation v. Dean Fisher and NRCS. This case challenged a directive, issued May 13, 1999, by the Natural Resource Conservation Service's (NRCS) State Conservationist that changed the wetland mapping conventions for South Dakota.

An agency of the U.S. Department of Agriculture, the NRCS has the responsibility under the "Swampbuster" provision of the 1985 Farm Bill for identifying wetlands in order to determine whether federal farm benefits should be denied to farmers that drain, dredge or fill wetlands.

Where wetland determinations made according to a 1994 federal agency Memorandum of Agreement consider hydrology, soils, and vegetation, as required by law, the May 13 mapping conventions focused exclusively on hydrology. By considering only hydrology and "normal" years of precipitation, the new mapping conventions failed to delineate a significant portion of both seasonal and temporary wetlands, which are essential for waterfowl breeding. The May 13 directive also allowed agricultural producers to "self-certify" prior manipulation of sloped farmed wetlands for purposes of exemption from Swampbuster.

Under the May 13 directive, many of South Dakota's seasonal, temporary, or sloped wetlands, which comprise over 90% of all the wetlands in eastern South Dakota, were suddenly no longer classified as wetlands for purposes of Swampbuster or the Clean Water Act and, consequently, could be destroyed. The resulting loss of wetlands would have a severe detrimental impact on waterfowl, migratory bird and other wildlife habitat, as well as water quality. Seasonal, temporary wetlands provide some of the most critical feeding habitat to waterbirds in the early spring.

In July 1999, The National Wildlife Federation and several other groups, including National Audubon, filed a lawsuit in federal district court against the NRCS challenging the May 13 directive.

On October 8, 1999 the court granted the plaintiff groups' request for a temporary restraining order barring use of the May 13 directive, pending a decision on a preliminary injunction. Shortly thereafter, the federal government began discussing a settlement.

The final settlement is a strong victory for wetlands. The key points are: (1) the May 13th directive is withdrawn and NRCS must work with EPA, the Corps and the Fish and Wildlife Service to develop new wetland mapping conventions and, in the interim, pre-May 13 standards apply; (2) farmers can no longer "self-certify" prior manipulation of wetlands for purposes of exemption from Swampbuster; (3) in developing new mapping conventions, NRCS must account for South Dakota's unique wetland features; (4) NRCS will consult with FWS pursuant to the Endangered Species Act in developing the mapping conventions; and, (5) the settlement and dismissal is "without prejudice," meaning that any plaintiff can sue NRCS again if the new mapping conventions again do not comply with applicable law.

If you would like more information on the Wetlands Campaign, fill out the coupon below and mail it back. We'll keep you informed of the many ways you can continue to help save our nation's wetlands and the birds and wildlife that depend on them. We can also help you save wetlands right in your community. You can also email us at wetlands@audubon.org

Name Address

City State Zip Phone E-mail

Yes, I would like more information on the Wetlands Campaign:

__ Put me on your activist list for Audubon's "Tulloch fix" campaign.

__ Send me a copy of the new "Birds and Wetlands" fact sheet.

__ I'm interested in meeting with my congressional representative and would like help.

__ Send me your information packet on local wetlands ordinances and resources.

__ Put me on the Wetland listserve for action alerts and other wetlands information.

__ Send Audubon at Work on Wetlands, a 100-page booklet on wetlands success stories.

__ Send information on funding sources for wetland protection projects.

__ Send The Citizen's Action Guide for Wetlands Conservation ($10 for copying and postage).

__ Send Wetlands Education at Audubon Centers packet.

__ Please send list of campaign resource materials for saving community wetlands.

__ I have a wetlands success story to share, please contact me at

__ I want to get on the mailing list for my local Corps district and work to influence their permits-please tell me how.

__ Please take me off Saving Wetlands mailing list.

April 14-18, 2000, Monterey Bay, California

The theme for this year's convention is "Audubon: the Gateway to Nature," and the Ailomar Conference Center in Monterey, California will be transformed for the weekend of April 14-18 into a virtual Audubon Center. Convention workshops and programs will offer chapter leaders many opportunities to experience successful programs for centers, state field offices, chapters, and campaigns. Programs will be organized into tracks emphasizing seven landscapes of the Monterey peninsula, including coastal wetlands, dunes, marine, forests, riparian, agriculture and urban. A preliminary list of wetlands workshops includes many hands-on and training opportunities:

¥ creating coalitions and campaigns for protecting wetlands

¥ the Pacific Flyway and habitat values of coastal wetlands

¥ volunteer wetland monitoring programs

¥ how to use art and photography to engage people in wetlands advocacy

¥ Youth Conservation Corps and wetlands restoration

¥ how chapter activists can use all aspects of a chapter to support a wetlands campaign-field trips, membership, education, newsletter, etc.

¥ threats to wetlands, wetland losses, consequences

¥ what lives in wetlands

For more information about the convention, contact the Audubon-California office at 916-481-5332. Registration forms may be downloaded from www.audubon-ca.org.

Audubon lost an icon in January-Hazel Wolf, 101, Audubon activist to the end, died near her home in Seattle. Funny, compassionate, strong willed, and tireless, Hazel started dozens of local Audubon chapters, won the Audubon medal, and generally led a life of profound inspiration. Hazel was a real friend to wetlands, and she touched many people, sharing lessons such as these:

¥ Live simply and with purpose

¥ Have courage, fun, and find common ground

¥ Open doors for young people

¥ Challenge complacency

¥ Vote

Memorials in Hazel's name may be made to the program for disadvantaged young people created to honor her ~ Seattle Audubon Society-Kids for the Environment, 8050 35th NE, Seattle WA 98115.