Court: It's OK to Drain Wetlands

Court: It's OK to Drain Wetlands
June 1, 1999



In a ruling with far-reaching implications, the District of Columbia Court of Appeals upheld a lower court's finding that landowners and local government agencies are free to drain wetlands without permits or interference from the Army Corps of Engineers or other federal agency.

Though once expected to appeal the case to the Supreme Court, the Clinton administration has announced there will be no further appeal.

The case was brought by the National Mining Association after it was charged with violating an Army Corps of Engineers rule requiring a permit for draining a wetland. That permit requirement, said by the Corps to be based on wetlands protection provisions in the Clean Water Act, was deemed invalid by the Court of Appeals. While the Act prohibits filling in wetlands, the appeals court declared, it says nothing at all about draining wetlands.

The ruling represents a major victory for private property owners, as well as local government agencies--which are required by law to maintain public drains to address flooding.

"If this ruling holds up," Calvin Ackley, Oceana County (Michigan) drain commissioner, told Environment News, "it will make it a lot easier to do the job the people elected me to do--prevent flooding. If we could eliminate a few more federal regulations, that would help, too. It seems that the people in Washington think we don't care about the environment or aren't smart enough to take care of it. I'll bet we care more about the environment than the bureaucrats do, and do more to take care of it."

Traci Watson reported in USA Today that developers and local governments across the country have begun long-delayed drainage programs. Greg Culpepper of the Army Corps' Norfolk, Virginia office warned, "We could easily see wetland losses of thousands of acres, just in this district which covers about 60 percent of Virginia."

Ackley and other wetland experts disagree, noting that true wetlands are very difficult to drain. The wetlands proposed for draining, they contend, are marginal wetlands, which at certain times of the year under certain weather conditions are capable of supporting aquatic life.

"There doesn't actually have to be any aquatic life there," noted Ackley. "There doesn't even have to be water. But if, during a rainy spring, pools of water occur on the land for a short time, that land is, at that time capable of supporting aquatic vegetation--therefore can be classified as a wetland." Before the appeals court's ruling, the Corps routinely denied local governments permits to prevent these seasonal pools.

Though the administration will not appeal the court's ruling, Ackley remained concerned and pointed out that a simple amendment to the Clean Water Act could, once again, make it difficult to drain wetlands or even maintain existing drains.


For more information ...

The Court of Appeals' decision in National Mining Association v. United States Army Corps of Engineers is available on the Internet at http://www.ll.georgetown.edu/Fed-Ct/Circuit/dc/opinions/97-5099a.html.