The surprising tale of how wetlands became legally protected

Wetlands are protected by Federal (national) law, specifically under section 404 of the Clean Water Act (1972). Yet the Act never mentions “wetlands” at all!! And…how is it that the ARMY is in charge of their protection? It’s a tale of history, law and politics. I’ll add pretty pictures for you to enjoy along the way. Here’s a scene of water lilies near the banks of the Mississippi River at Heron Bend (Lee county).

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The Mighty Mississippi!! Heron Bend, Lee County

Let’s begin with the lyrics to a popular song, relating a significant military victory for the young United States…

“In 1814, we took a little trip, along with Colonel Jackson down the Mighty Mississipp…”

Battle of New Orleans (Jimmy Driftwood, 1936)

The last major battle of the War of 1812, the Battle of New Orleans kept the British from capturing the city of New Orleans, Louisiana, and its harbor. It is the mouth of the Mississippi River, the waterway allowing the middle third of our Nation to access the ocean. Obviously the battle was a rather strategic event, and afterwards Congress said something like, “Hey…we better make sure the Army can defend (and coordinate use of) our harbors, rivers & what-not.” So, the Army was put in charge of so-called Waters Of The United States (WOTUS).

The Clean Water Act came along many years later, and it refers to certain protections and regulations of WOTUS…of which the Army was already in charge. (The specific agency regulating wetlands is called the Corps of Engineers. Think of it as a civilian agency owned & directed by the Army).

Then a few years after passage of the Clean Water Act, several Federal court decisions ruled that wetlands are legally included in WOTUS. So—voila—the Army Corps should regulate them, too. And so they do.

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It’s HERON Bend. Some birds can’t take a hint! (nature center, Lee County Conservation Board)

Many of us agree with the court that wetlands—although not navigable waters—are nevertheless hydrologically connected to WOTUS. Destroying wetlands damages WOTUS; protecting wetlands preserves WOTUS. Surely, this is a controversial point. Many would argue that if Congress had intended for their water law to protect wetlands, they would have stated such explicitly. This is a debate lasting decades, with no end in sight.

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An actual heron, in its natural habitat…

But, when I visited Heron Bend, it made me think of the meaning of WOTUS. In fact, these wetlands are adjacent to the Mississippi River, in the extreme southeast corner of the state. This is the spot in Iowa closest to New Orleans. The historic and hydrologic connections are clear and obvious. These wetlands are even covered when the river is very swollen. Seems like a good place to talk about the nation’s wetland law and its history. This will prove useful when we talk about exceptions to the law, such as the concept of “wetland mitigation.” You’ll learn more about that in future 99wetlands posts, as we continue an ongoing conversation about Iowa’s—and America’s—wetland resources. I hope you’ll join me on my further adventures!

Author: Paul Weihe

Associate Professor of Biology at Central College, traditional author (Textbook of Limnology, Cole & Weihe, 5th ed.; Waveland Press), and now...blogger!

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