Is a bog a wetland? Look at one from a distance and you might not be certain. The surface is either flat or hummocky, and there are usually no puddles to be seen. Low shrubs and scattered tamarack and black spruce trees cover much of the ground. From a distance a bog can look as dry as a suburban lawn.
But if you have ever tried to walk across a bog, I expect you would say it was definitely a wetland. That flat green surface is a thoroughly saturated mixture of sphagnum moss and peat. Walking on it is like walking on a sponge. Your feet sink up to the ankles or beyond, and water wells up around your boots, filling every footprint. If you step in the wrong place, you may find yourself sinking in cold water up to your knees.
The federal government considers bogs wetlands because they typically meet all three of the criteria laid out in “Federal Manual for Identifying and Delineating Jurisdictional Wetlands.” The manual, which was published in January 1989, is the product of several years of discussion among scientists working for the four federal agencies with responsibility for protecting wetlands. Each of the agencies–the Army Corps of Engineers, the EPA, the Fish and Wildlife Service, and the Soil Conservation Service–had previously been using separate definitions.
The three wetlands-identification criteria are based on vegetation, soils, and hydrology. If the plants are mostly species known to grow only or mostly in wetlands, if the soil is so saturated at some point in the growing season that it is oxygen free, if the local water circulation keeps the place wet on a consistent basis through the years, the place is a wetland.
Or is it? A bill–HR 1330–recently introduced into the U.S. House of Representatives by two congressmen from Louisiana says that even if you sink up to your chin in the icy waters of a bog, it is still not a wetland. Why not? Because if you toss a pebble into a bog, it won’t splash when it lands. The splash test, as people are calling it, requires that wetlands be submerged, inundated for three weeks or longer during the growing season. Saturation, even continuous saturation, would not be enough. Defenders of wetlands are not happy with this bill, and they are equally unhappy with persistent rumors that the Bush administration is rewriting the wetlands manual to incorporate the splash test even if Congress doesn’t pass HR 1330.
All of this started because of Section 404 of the Clean Water Act, which says that anyone who wants to dredge or fill a wetland has to get a permit from the Corps of Engineers. The Fish and Wildlife Service can comment on these permits, and the EPA can veto them if the agency decides that grave environmental damage would result.
Section 404 steps on a lot of toes. Real estate developers don’t like it. Oil companies and lumber companies hate it. Farmers mistrust it. Representatives of all the disaffected folks and a group of former Reagan administration officials have formed an organization called the Wetlands Coalition–which is, of course, against protecting wetlands.
HR 1330 gives the Wetlands Coalition pretty much everything it wants. By using the splash test to eliminate bogs, it makes the cranberry growers of Wisconsin and New England happy. The saturated tundra would not be wetlands, pleasing the oil companies. And bottomland hardwood forests that flood only briefly each spring would not be wetlands, pleasing the timber companies and the developers of riverside real estate.
Farmed wetlands would also be exempt. Most farmed wetlands have been drained by ditches or field tile. Under the present law, any wetlands that were being farmed when Section 404 went into effect can continue to be farmed, but they can’t be turned to any other use. So a farmer could sell his land to another farmer, but he couldn’t sell it to a condo developer. HR 1330 would eliminate that rule, bringing happiness to farmers who want to sell their land and retire with more cash than another farmer would give them.
HR 1330 would also set up a system for classifying wetlands as high, medium, or low quality. Low-quality wetlands would be stripped of protection. Medium-quality wetlands would be protected as long as nobody was really serious about destroying them. High-quality wetlands would enjoy a greater degree of protection, but the kicker here is that the federal government would be required to make an immediate offer to buy the land from the owners. This presumably would enable us to dispose of all the excess cash that’s lying around Washington these days.
If HR 1330 is the worst nightmare for defenders of herons and frogs and bog orchids, HR 404 is at least a very bad dream. This slightly less obnoxious bill was introduced by Congressman John Paul Hammerschmidt of Arkansas and counts among its cosponsors William Lipinski of Illinois. Hammerschmidt’s bill would keep bogs on the protected list, but it would remove areas subject to only brief flooding–less than three weeks–each year. The bottomland hardwood forests along the Illinois and many other eastern rivers would flunk the test, and so would the increasingly scarce riparian woodlands of the west and the red maple swamps of New England. Coincidentally, Congressman Hammerschmidt’s family is in the lumber business. HR 404 would also set up a classification system based on quality and provide different levels of protection.
The city of Chicago has some interest in this legislation, as Congressman Lipinski’s involvement might suggest. The one big wetlands issue pending here has to do with the marshes around Lake Calumet, marshes that would be destroyed if the third airport gets built on the southeast side. Steve Moyer of the National Wildlife Federation and Gerry Paulsen of the Sierra Club’s National Wetlands Committee both told me that the city is looking for procedural changes in the process of getting a permit to fill a wetland. Under present rules you have to show that you have considered alternative sites, places with no wetlands, and you have to demonstrate that those sites were not suitable. This would mean that the city would have to argue that Lake Calumet is the only suitable place for the airport and that none of the other sites would work. Robert Repel, the mayoral assistant who is handling the airport for the Daley administration, hotly denies that the city is interested in anything beyond the most careful wetlands protection.
While all this legislative maneuvering is going on in the foreground, the Bush administration is being very quiet about just what it is up to with the wetlands manual. Persistent rumors say that the splash test might be written into it, achieving the goals of the Wetlands Coalition without legislation.
In February William S. Sipple, the EPA’s chief wetland ecologist fanned the flames of paranoia by resigning from the technical panel that was evaluating changes. Sipple said he quit because he felt he was being “pushed toward unethical technical behavior.” He also believed the review process was being used to sneak in a major policy change. Environmentalists are afraid of the same thing. Even if public comment is allowed, the administration won’t have to listen to any of it, and a whole new approach could be taken to wetlands with no discussion, no debate, and no congressional action.
Sources within the EPA are now saying that John Sununu’s people are the ones rewriting the manual and that a political definition of wetlands will be substituted for the existing scientific definition. When EPA head William Reilly visited Chicago last week, he was asked about the manual; he responded by changing the subject as quickly as possible. In his campaign George Bush said he would be the environmental president and pledged that there would be no net loss of wetlands while he was in office. Of course, Bush’s campaign promises are not something you could take to the bank, and his solicitude for the oil industry is well-known, so wetland advocates are not optimistic. Rewriting the definition would allow the president to say he was keeping his promise: all those millions of acres that used to be wetlands are not wetlands anymore, so we don’t need to worry about protecting them.
Supporters of wetlands are only beginning to get in gear to try to do something about this. Most recognize that Section 404 is not the ideal instrument for wetlands protection, so the idea of new legislation gets wide support. But the Wetlands Coalition is way out in front on this question, and it will take strong, and fast, action for environmentalists to stave off disaster.