Statement of Donald F. McKenzie
Conservation Policy Coordinator
Administrative Changes and Judicial Decisions Relating to Section 404 of the Clean Water Act
for the Senate Committee on Environment and Public Works
Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety
June 26, 1997

Mr. Chairman: The Wildlife Management Institute (WMI) appreciates this opportunity to support the conservation of wetlands that are vital habitat for wildlife resources of national and international importance. WMI is a non-profit, scientific and educational organization staffed by professional natural resource managers. It has been dedicated since 1911 to the restoration and improved management of wildlife. We request that this testimony and the accompanying attachments be included in full in the record of this hearing.

I am before you as a professional waterfowl biologist and as a private landowner. I own and reside on nine rural acres in northern Loudoun County, Virginia. One-third of my property is wetland, subjecting me to the very regulatory changes under review today. However, my wife and I are able to use our land extensively within the limits of both its natural capability and the government regulatory system. We have planted wildlife food plots and trees, cut trails, cleared brush, cut firewood, added onto our house. I use tractors, chain saws, herbicides, fertilizers and prescribed fire to manage habitats. I hunt big and small game and target shoot. In short, wetland regulations have not impeded us at all from using and enjoying our land and meeting all our personal goals for the property.

WMI's primary points are simple. First, drainage and excavation of wetlands needs to be clearly regulated by Section 404. Second, small wetlands are vital habitat for many species of wetland-associated wildlife, and should be protected by Section 404 of the Clean Water Act. Third, the interests of millions of American sportsmen and sportswomen is directly affected by the fate of wetlands.

Wetland Drainage and Excavation Should be Regulated

WMI is disappointed that the "Tulloch Rule" was overturned. While we have no opinion on the legal merits of the decision, our professional resource management judgement is that drainage and excavation are leading causes of wetland degradation and can be as damaging to wetland functions as deposition of fill materials. Therefore, we strongly believe that the Clean Water Act should regulate drainage and excavation of wetlands, whether by administrative or legislative action. If current law does not allow administrative action to regulate wetland drainage and excavation, WMI supports congressional action to amend the law to do so. WMI is not, however, willing to accept other amendments to the Clean Water Act that would result in overall weaker protection for wetlands, merely in order to add drainage and excavation to the list of regulated activities.

Small Wetlands are Vital Habitat that Must be Protected

WMI applauds the recent action of the U.S. Army Corps of Engineers to phase out Nationwide Permit 26, which has provided virtual automatic approval for all activities in wetlands smaller than 10 acres. This permit constituted the single largest and most damaging loophole in the Clean Water Act's Section 404 regulatory program, and has been largely responsible for impeding the achievement of no net loss of wetlands.

Furthermore, Nationwide Permit 26 has been a source of substantial inconsistency between Section 404 and the U.S. Department of Agriculture's (USDA) wetland conservation authority known as Swampbuster, which does not provide an acreage exemption. WMI supports efforts to make Section 404 and Swampbuster as consistent as reasonably possible, given the fundamental differences between the programs. Regarding the topic of wetland acreage exemptions, WMI always has advocated that the Corps adopt for Section 404 the stricter Swampbuster standard. The Corps' decision to promote consistency in favor of conservation, rather than in favor of destruction, will help foster continued improvements in wildlife populations and other environmental conditions for the American public.

Suitable habitat is the fundamental requirement of all wildlife. For example, ducks require duck habitat. During the breeding season, duck habitat consists of a mixture of small, medium and large wetlands with water, along with upland nesting cover, in the same places at the same time. If any of these habitat elements is missing, ducks and other wetland wildlife cannot survive, much less thrive.

History proves that abundant duck habitat depends on federal measures to protect wetlands. Intensive wetland drainage in the U.S. that peaked during the 1960s and 1970s, combined with new fencerow-to-fencerow farming techniques, resulted in two decades of declining duck populations that reached historic lows in the 1980s. Only in the last four years has the duck decline apparently been stemmed and even reversed. The U.S. recently is enjoying increasing duck numbers, improved duck hunting and liberalized hunting seasons, which demonstrate that investments in conservation do pay off. Total duck numbers have reached quarter-century highs. A few duck species are even approaching the continental population goals established by sportsmen and wildlife managers in 1986 in the North American Waterfowl Management Plan.

Two resource conditions are primarily responsible for this ongoing success story--the return of water to the ducks' prairie breeding grounds, and the abundance of habitat in the form of small wetlands and upland nesting cover. The federal government has not yet found a way to control the precipitation, but it can have substantial influence over the habitat. Two actions of the federal government are most responsible for ensuring that the habitat was in place when the water returned.

First, federal protection of remaining wetlands has greatly reduced the rate of wetland losses. Section 404 of the Clean Water Act protects the public interest by prohibiting the filling of wetlands. The USDA disincentive program, Swampbuster, attaches wetland conservation strings to the voluntary receipt of federal agriculture subsidies. While neither program individually provides adequate protection for all important wetland types, the programs have been mutually reinforcing with positive conservation results.

Neither would be as effective without the other. For example, two of the major weaknesses of Section 404 are that it does not regulate drainage and it provided a general permit- -Nationwide Permit 26--for filling wetlands less than 10 acres. Swampbuster, on the other hand, governs both drainage and conversion of wetlands smaller than 10 acres. However, Swampbuster only applies to the land in agricultural production that is owned or farmed by current participants in federal agriculture programs, while Section 404 applies to all land ownerships.

Second, federal investments in restoration of degraded wetland habitat are making meaningful progress toward rebuilding the nation's wetland habitat base. Wetland restoration programs such as the North American Wetlands Conservation Act, the Conservation Reserve Program, the Wetlands Reserve Program and the U.S. Fish and Wildlife Service's Partners for Wildlife program--together with their non-federal partners--collectively are nearly offsetting the remaining rate of wetland losses. The U.S. now is approaching the hard-earned national goal of no net loss of wetland functions. Furthermore, the Conservation Reserve Program established millions of acres of upland nesting cover among wetlands in the prairie pothole region, to create ideal conditions for ducks to breed successfully when the water returned.

As the ongoing turnaround in duck populations demonstrates, this combination of federal actions--protection and investment--is proving successful at rebuilding important public resources. However, the hard-earned progress of the last several years can be lost quicker than it was gained. A reduction in either of these federal actions is certain to catalyze the resumption of net losses of wetlands. That development would cause populations of ducks and other wetland wildlife, along with the myriad human interactions with these resources, to decline once again.

Duck Hunting Depends on Wetlands

The interests of duck hunters are directly dependent on abundant duck populations, which in turn are directly dependent on abundant duck habitat. A foundation of scientific wildlife management is that harvests by hunters must not exceed the ability of the species to sustain itself. Harvest is carefully controlled by setting hunting regulations such as season dates, season length and bag limits, according to the best available data on each species' population status and trends.

The direct effects on hunting of habitat and population changes can be illustrated by the "Adaptive Harvest Management" framework used by the USFWS as a guide to setting duck- hunting seasons. The season length and bag limits in each flyway are tied directly to that year's estimated duck populations. The lower the duck populations, the more restrictive the hunting regulations. The currently proposed season length and bag limit guidelines for each of the four flyways under four categories of duck populations levels are attached.

Adaptive Harvest Management

Proposed Options for Duck Hunting Season Lengths and Bag Limits for the 1997-98 Season

(Federal Register Vol. 62, No. 109, pp. 31298-31306; June 6, 1997)

Very RestrictiveRestrictiveModerateLiberal

Atlantic Flyway

Season Length20304560

Daily Bag Limit 3 3 4 4

Mississippi Flyway

Season Length20304560

Daily Bag Limit 3 3 6 6

Central Flyway

Season Length25396074

Daily Bag Limit 3 3 6 6

Pacific Flyway

Season Length386086107

Daily Bag Limit 4 4 7 7

The severe duck decline of the 1970s and 1980s resulted in some of the most restrictive hunting regulations in this half-century during the late 1980s and early 1990s. Thus, we have witnessed recently some impacts on humans of wetland losses--restricted and even closed hunting seasons for certain species and sexes, that reduced 2.9 million Americans' recreational opportunities.

In anticipation of upcoming congressional attempts to neutralize the Corps' phaseout of Nationwide Permit 26 by codifying a small-wetland exemption in Section 404, I offer the attached assessment. In 1995, WMI--with the aid of the USFWS, using the best-available scientific data--estimated the impact on hunters of a simple 1-acre exemption from federal wetland protection.

Because breeding ducks are territorial, ten 1-acre wetlands will attract and support more duck pairs than one 10-acre wetland. In the U.S. portion of the prairie pothole region (Montana, North and South Dakota, Minnesota and Iowa), 78 percent of the wetland basins are one acre or smaller. The loss of these small wetlands in the U.S. would reduce the breeding pair carrying capacity of that portion of the region roughly by half. In turn, the annual production rate of young ducks from the region would be reduced by about half.

In turn, the loss of federal protection for just 1-acre wetlands would cause reduced duck harvests in the short term by causing fewer bird encounters, shorter hunting seasons and reduced bag limits. In the long term, a 1-acre exemption also would impact wetlands in migration and wintering areas, further reducing duck habitat and duck numbers and hunting opportunities nationwide. Ultimately, these cumulative impacts of a simple 1-acre exemption from federal wetland protection could pose a risk to the very existence of duck hunting and its associated economic, sociological and even ecological benefits.

The $1.6 billion duck-hunting "business" once again is expanding to provide greater stimulus to America's rural economies and outdoor recreation industries. I soon will be moving to Arkansas, arguably the duck hunting capital of the country. In anticipation of this move, I recently acquired a new duck-hunting parka, and soon will purchase new waders, decoys, a duck call and shotgun shells before the upcoming waterfowl hunting season. I may even have to lease hunting rights from the owner of wetland habitat. These expenditures, magnified over millions of hunters add up to big business--business that is dependent on wetlands. The long-term vitality of this economic activity depends on sustained federal action to protect and invest in wetlands.


WMI does not oppose a reasoned, rational refinement of Section 404 that would continue to meet public resource needs in ways that minimize private problems. However, only a reauthorization bill that uses current law as the starting point for debate and which relies on the best available science to meet national goals for public trust resources is acceptable to us.

Those who support hunting, hunters and other wildlife enthusiasts cannot have it both ways. Waterfowl hunting and watching cannot be maintained while eliminating protection for small wetlands. WMI wants to be sure that Congress understands this price of weakened wetland protection, as it contemplates changes to the Clean Water Act. The loss of small wetlands is a much graver threat to the future of duck hunting than any possible actions of the animal rights movement. We hope that, given this information, you can help avoid decisions that will adversely affect duck populations, duck hunting and millions of outdoor enthusiasts in the U.S.

Mr. Chairman, thank you for this opportunity to present WMI's views on the importance of protecting wetlands. Please do no hesitate to call on WMI for any reason regarding this important issue.