Ecology has advanced human understanding of natural systems considerably over the course of this century. Wetlands law and policy have evolved in response to our increased understanding of wetlands and the many benefits we derive from them. Notwithstanding this shift in policy and law, roughly 50% of the wetlands that existed in the continental United States in colonial times have been lost or degraded largely as a result of recent human activity. Current policies struggle to reconcile the goal of preventing further loss with the pervasive concern for making our laws more efficient.
This essay explores the lessons ecology offers us about the efficacy of current wetlands regulation. Moving beyond the basic insight that natural systems are dynamic, this essay introduces a group of important corollary ideas that have achieved prominence in ecology in recent years. These corollaries have emerged as keys to understanding natural systems and their dynamic stability. In the last two decades, ecologists have focused increasingly not just on the fact of change, but on the importance of the processes, scale, pattern, reversibility, and unpredictability of the change that occurs in natural systems. This essay evaluates how well our wetlands laws take account of these concepts.
This essay examines four defining components of current wetlands regulation that stand in tension with fundamental ecological insights: delineation, jurisdiction, case-by-case permitting, and reliance on compensatory mitigation. By identifying ways in which law and policy may currently be working at cross-purposes with nature, we can better evaluate proposals to reform current law and make our laws more effective and efficient. Each of the four characteristics presents us with challenges but also opportunities for responding to the dynamic reality of wetlands.
Alyson C. Flournoy, Preserving Dynamic Systems: Wetlands, Ecology and Law, 7 Duke Envtl. L. & Pol'y F. 105 (1996), available at http://scholarship.law.ufl.edu/facultypub/441