SC Lawyer, July 2003, #8. Isolated freshwater wetlands - will South Carolina become a battleground in the national debate?.

• Author: by Mary D. Shahid

South Carolina Lawyer

2003.

SC Lawyer, July 2003, #8.

Isolated freshwater wetlands - will South Carolina become a battleground in the national debate?

South Carolina LawyerJuly 2003Isolated freshwater wetlands - will South Carolina become a battleground in the national debate?by Mary D. ShahidSouth Carolina can claim national prominence in its abundance of wetland resources. Approximately 4.5 million acres of wetlands are located in South Carolina, comprising 23 percent of the state's land surface. Only four states - Alaska, Florida, Louisiana and Maine - have a higher percentage of the wetlands. South Carolina's wetlands account for about 12 percent of wetlands in the southeastern United States.

Approximately one-tenth of the state's wetland resources have become the subject of intense debate. This debate between land-owners, regulators and citizens' groups is escalating into a political and legal battle over the state's powers to regulate intrastate, isolated wetlands.

Background

Wetland regulation and protection derives from the Federal Water Pollution Control, or Clean Water Act. Wetlands are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include "swamps, marshes, bogs, and similar areas." 33 CFR 328.3(b). "Isolated" wetland, while not specifically defined in regulation, is a term of art describing a wetland with no visible surface water connection to adjacent waters.

In scientific and regulatory circles, the ecological importance of wetlands is undisputed. In South Carolina, wetlands are recognized as providing "valuable habitat for wildlife and plant species and hydrologic buffers, providing for storm water runoff and aquifer recharge." South Carolina Coastal Zone Management Program Document, Feb. 14, 1979. Wetlands provide habitat to a variety of wildlife and serve as a nursery area for aquatic life. Scientists have identified 136 types of birds, 32 species of fish, 21 varieties of mammals and 12 kinds of reptiles, all dependent upon freshwater wetland habitat in South Carolina. South Carolina Department of Health and Environmental Control, Bureau of Water, The Facts on Wetlands, May 1998 ML 010728. Wetlands purify stormwater runoff through filtration and absorb run-off, providing flood control. Wetlands contribute to the viability of groundwater resources by recharging aquifers.

The significance of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) 531 U.S. 159 (2001)

The U.S. Supreme Court struck down long-standing wetland regulation and preservation practices upon the issuance of SWANCC. The trigger for federal regulation under the Clean Water Act is an impact to "navigable waters" defined as "waters of the United States." The U.S. Army Corps of Engineers (the Corps) formally adopted a definition of "waters of the United States" that includes intrastate wetlands and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States if these waters could effect interstate commerce. In implementing this definition, the Corps applied its in-house interpretation known as the "Migratory Bird Rule." Under this rule an isolated wetland was a "water of the United States" if the wetland was habitat for migratory birds, thus establishing a nexus to interstate commerce. The technical effect of SWANCC was invalidation of the Migratory Bird Rule. The practical and legal affects of SWANCC is the invalidation of the Corps' definition of waters of the United States to include isolated wetlands.

In South Carolina, SWANCC impacts approximately 400,000 acres of the state's wetland resources. Arguably, these wetlands contribute many of the same ecological functions as do wetlands with a visible connection to navigable waters. Many wetlands now considered isolated were once part of larger wetland systems, but were gradually separated from these larger systems through agricultural or silvicultural practices and land development. Even though an isolated wetland surrounded by commercial or residential...