WETLANDS, Vol. 23, No. 3, September 2003, pp. 577–589 q 2003, The Society of Wetland Scientists PAST AND FUTURE IMPACTS OF WETLAND REGULATIONS ON PLAYA ECOLOGY IN THE SOUTHERN GREAT PLAINS David A. Haukos1 and Loren M. Smith2 1 U.S. Fish and Wildlife Service MS 2125 Texas Tech University Lubbock, Texas, USA 79409-2125 2 Wildlife and Fisheries Management Institute MS 2125 Texas Tech University Lubbock, Texas, USA 79409-2125 Abstract: Playa wetlands provide functions critical to the existence of life on the High Plains portion of the Great Plains, including surface drainage, aquifer recharge, and wildlife habitat. These small, circular, isolated depressional wetlands with closed watersheds have a dynamic, unpredictable hydroperiod, which is essential to the maintenance of biodiversity. Most numerous in the Southern High Plains of northwestern Texas and eastern New Mexico, playas have been impacted by sedimentation, pit excavation, road construction, industrial and municipal wastewater, feedlot runoff, urban development, overgrazing, and deliberate filling. Despite being declared, as a wetland class, jurisdictional ‘‘waters of the United States’’ since 1977, regulations and laws for conservation of wetland functions have seldom been applied to playas. The January 2001 Supreme Court decision, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army of Corps of Engineers, likely eliminated federal regulation of impacts covered by the Clean Water Act in all but a few playas. Although still subject to the Federal ‘‘Swampbuster’’ provision enacted by the 1985 Food Security Act, extended natural dry periods allows for frequent cultivation and other activities in playas without incurring violation, contributing to the continued degradation of playa functions. None of the states with significant numbers of playas have regulations for the conservation of playa functions. Suggestions for the successful future conservation of playas and their associated functions include (1) increased promotion and implementation of existing federal and state conservation programs specifically for playas; (2) proposed state regulations for playa conservation; (3) recognition of agricultural impacts on wetland determinations; (4) creation of Wetland Management Districts to preserve intact, functioning playas; and (5) increased public education on the value of playas. Key Words: playa wetlands, regulations, Southern High Plains INTRODUCTION wetland occurring primarily in the High Plains region of the western Great Plains. Each occurs within a closed watershed and, as the term recharge implies, only receives water naturally from precipitation and its associated runoff. Significant natural loss of collected water is only through evaporation, transpiration, and infiltration. Although some geologists disagree about the processes involved in playa formation, Great Plains playas are formed and maintained through a combination of dissolution of subsurface basin material and wind deflation (Osterkamp and Wood 1987, Gustavson et al. 1995, Reeves and Reeves 1996). Playas are also characterized as sinks for material transported by precipitation runoff and have unpredictable hydroperiods with extended dry periods. Further, conflicting biological Few wetland scientists outside of the Great Plains can accurately describe playa wetlands. For example, Mitsch and Gosselink (2000) and the National Research Council (1995) have inaccurately defined playa wetlands by comparing them to prairie potholes in the northern Great Plains, indicating differences only in geologic origin (Smith 2003). Playas differ from other freshwater wetlands in hydrology, soils, plant communities, landscape location, and other ecological attributes (Smith 2003). Geologists also have struggled with definitions of playas (Motts 1970, Rosen 1994), but few of their definitions are of value to wetland scientists because of the lack of consideration of playa ecological structure and function. For purposes of this paper, a ‘‘playa’’ is a shallow depressional recharge 577 578 opinions concerning the ecological structure and function of playas dominate the literature. Such incongruity about the origin, hydrology, and ecology of playas has resulted in frequent confusion when applying and enforcing regulations and laws that should pertain to these unique wetlands. Within the Great Plains, there are probably more than 30,000 playas, but the majority, at least 25,000, occur in the Southern Great Plains from southeastern Colorado and southwestern Kansas south through the Southern High Plains (SHP) of eastern New Mexico and west Texas (Guthery et al. 1981). This area is commonly referred to as the Playa Lakes Region (PLR). Within that region, approximately 20,000 playas occur in the SHP of New Mexico and Texas, with nearly 90% of these in Texas. We recognize that playas exist elsewhere (e.g., Rainwater Basin playas in south-central Nebraska; LaGrange 1997), but because the majority of playas occur in the SHP of Texas and most data on playas have been gathered there, we focus on impacts of regulations primarily to playas of that area. Playas in the SHP are circular (Luo et al. 1997), average 6.3 ha in surface area (Guthery and Bryant 1982) and occur in one of the most intensively agriculturally-impacted regions (i.e., combination of cultivation and livestock grazing) of the Western Hemisphere (Bolen et al. 1989). Excluding a few riparian corridors, playas are the dominant surface hydrographic and topographic feature in the 82,000 km2 SHP. Although occupying less than 2% of the SHP, functioning playas are keystone ecosystems serving as biological refugia and critical sites of biodiversity in this semi-arid and intensive agricultural region of the Great Plains (Haukos and Smith 1994, Smith and Haukos 2002). Additional critical functions of playas on the SHP include collection and storage of flood waters, exclusive recharge points for the Ogallala Aquifer, and sanctuary for native plants (Haukos and Smith 1994, Haukos and Smith 1997, Smith 2003). As the terminus of most watersheds in the SHP, activities occurring in a watershed have the potential to impact a playa. Probably the most prominent impact has been the vast amount of sediments entering playas via water erosion of cultivated watersheds (Luo et al. 1997, 1999). However, impacts also include pesticides and metals associated with runoff from agricultural activities (Irwin et al. 1996, Thurman et al. 2000, Dennehy et al. 2002). Playas also receive runoff from confined animal feeding operations (CAFO; feedlots), military and industrial associated pollutants, and treated wastewater. With playas being the main points of the limited recharge to the underlying Ogallala Aquifer, material that drains into playas has the potential to contaminate the aquifer (Zartman et al. 1996, Litke WETLANDS, Volume 23, No. 3, 2003 2001). Any such contamination has human health implications. Because scattered individual playas collectively form the basis for diversity of the region, impairment of the function of an individual playa contributes to the decline of biodiversity across a much larger area than only the impacted wetland. Therefore, successful conservation of playas and associated flora and fauna is dependent upon protection of as many playas as possible in the landscape rather than just attempting to identify the ‘‘best’’ playas and concentrating efforts on just a select few wetlands. Finally, the vast majority of playas (. 99%) are in private ownership and, therefore, lack protection that might be provided by nonprofit conservation organizations or governmental agencies. Consequently, conservation of these wetlands is integral to the existence of life in the region. Conservation success will ultimately depend on the implementation and enforcement of sound, comprehensive, and realistic governmental regulations (e.g., incentives, laws) that recognize and are pertinent to private ownership. The 9 January 2001 United States Supreme Court decision, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, reduced the protection of playas and other isolated wetlands under Section 404 of the Clean Water Act, which gives the United States Army Corps of Engineers (USACE) authority to issue permits for the discharge of dredge or fill material into ‘‘waters of the United States.’’ The principal finding of the Court was that use or potential use by migratory birds did not constitute sufficient justification for a wetland to be declared a ‘‘water of the United States’’ subject to the provisions of Section 404 of the Clean Water Act. The use of the Migratory Bird Rule was the principle authority leading to the declaration of most playas as ‘‘waters of the United States.’’ Only a small percentage of playas, and most prairie wetlands, could possibly be considered ‘‘waters of the United States’’ based on the criteria remaining after the court decision: (1) being navigable or adjacent to navigable waters and their tributaries; (2) physically occurring on the boundary of two states or tribes; (3) fostering other forms of interstate commerce (e.g., commonly used by interstate or foreign travelers for recreation); and (4) within impoundments of waters defined as ‘‘waters of the United States.’’ Our objectives are to (1) critically examine the impacts of past (pre-SWANCC) incentives and regulations pertaining to playas and their ecology, (2) postulate potential impacts of the SWANCC decision on playa conservation efforts, and (3) suggest playa conservation approaches in light of potentially changing regulatory conditions. To accomplish these objectives, Haukos & Smith, PLAYA WETLAND REGULATIONS we highlight U.S. Department of Agriculture (USDA) farm programs and raise issues based on extensive work in playa systems in the SHP since 1984. The USDA material is unpublished and may soon be altered because of changes in agency policies. Further, the views presented here are solely our own as are any inadvertent mistakes made in interpreting implementation or enforcement of regulations associated with playas. Unfortunately, the current lack of specific USACE policy or criteria on the jurisdictional status of isolated wetlands following the SWANCC decision hinders the comprehensive assessment of the potential impact of the decision on playas. We believe that the presented material will serve as a foundation for future conservation efforts of playas throughout their range. THE EFFECTS OF ISOLATION ON THE ECOLOGY OF PLAYAS Compared to other isolated wetlands, relatively less is known of basic playa ecology. Although baseline inventories of flora and fauna are available, measurements of basic ecological rates are few (e.g., Anderson and Smith 2002), with hypotheses addressing perceptions of total production, energy flow, nutrient cycling, biodiversity, competition, and predation within these ecosystems remaining to be tested. The closed watersheds and isolated environmental events (e.g., precipitation, runoff) defining playas contributes to spatial and temporal differences in the importance of ecosystem functions even among adjacent wetlands (Hall et al. 1995, Willig et al. 1995). Without playas, biodiversity of the PLR would be limited to a small number of species (Haukos and Smith 1994). The interspersion of playas in the landscape provides islands of biodiversity exploited by a wide range of floral and faunal species with the ability to adapt and respond to the unpredictable playa environment. Further, the spatial and temporal environmental changes result in continually shifting plant and animal community associations within and among playas. Mammal and avian species are the most conspicuous, easily recognizable, and temporally persistent components of playa fauna. At least 37 mammal species use playas for some or all of their life cycle (Haukos and Smith 1994). The variety of habitats provided by playas supports a broad array of avian species. There are a minimum of 185 avian species in 41 families reported in playas (Haukos and Smith 1994). Playa habitats of the PLR are used by birds for wintering, migration, and breeding (Haukos and Smith 1994, Davis and Smith 1998, Conway 2001, Seyffert 2001). For waterfowl and other waterbirds, playas are vital to populations of midcontinental North America (Iverson 579 et al. 1985, Davis and Smith 1998, Conway 2001, Haukos 2001). The spatial isolation of these wetlands contributes to uniqueness of mammal and bird populations in playas. For example, eastern cottontail rabbit (Sylvilagus audubonii J.A. Allen) and ring-necked pheasant (Phasianus colchicus Linnaeus) populations form isolated populations associated with specific playas and limited interplaya movement occurs (Scribner et al. 1989, Scribner and Warren 1990). Recent examination of amphibian populations has provided some evidence of the influence of isolation on playa ecology. Thirteen amphibian species have been reported in playas, with geographic distribution currently documented for 11 species (Anderson and Haukos 1997). Species composition of amphibian communities differ among playas and within playas across years (Anderson et al. 1999), indicating that amphibian species may respond differently to environmental cues that are playa specific. Further, Gray (2002) found that spatial positioning of playas in the landscape was as important as surrounding land use as influences on amphibian demographics. Unfortunately, it is not known explicitly how amphibians survive dry periods in playas. Playas are essential for the persistence of invertebrates in the PLR. Greater than 124 aquatic invertebrate taxa (mostly insects) with a variety of life histories have been reported in playas (Anderson 1997, Hall et al. 1999). Few taxa have been described to species, but preliminary examination of numerous invertebrate specimens indicates a potential for a number of previously undescribed species (J. Cokendolpher, personal communication). Anderson (1997) found that (1) most playa wetland invertebrates tolerated wide ranges of physicochemical variables, indicating that playa-specific biotic factors were responsible for the presence or absence of a taxa and (2) many aquatic taxa had multiple mechanisms of surviving dry periods in playas to increase the probability of long-term persistence. The mechanisms for species persistence include (1) drought-resistant eggs or larval stages, (2) aestivation during drought periods, (3) maturation process tied to temperature and water levels, (4) life-stages resistant to dessication, and (5) burrowing (Anderson 1997, Hall et al. 1999). Habitat persistence, a playa-specific feature related to the temporal extent of an environmental condition that is usually related to a soil moisture status including flooded, moist, and dry, which determines plant composition and structure, influences invertebrate communities as species richness and diversity increase with time (Hall et al. 1999). More than 340 plant species have been recorded in playas (Haukos and Smith 1997). There are no endemic plant species in playas of the PLR. Many of the species are commonly found in other wetland and ter- 580 restrial systems, yet are similar in their ability to persist despite the potentially extended periods of environmental conditions unsuitable for establishment in playas. Because of the lack of interconnecting waterways, playa-specific seed banks dictate the extant plant community during any environmental condition (Haukos and Smith 1993). At any point-in-time, species occurrence in playas is dependent on three factors: (1) the composition of the available seed bank (i.e., viable seed in a position within the soil capable of germinating), (2) the environmental conditions of previous years that dictated species presence and replenishment of the seed bank, and (3) the environmental conditions of the current growing season that regulates germination and seedling growth from the seed bank (Haukos and Smith 1993). Smith and Haukos (2002) documented species-area relationships and the impact of watershed land use on playa flora throughout the PLR, concluding that (1) species richness and diversity of wetland plants was related to playa area, with habitat persistence being the main factor affecting species richness, (2) cultivation of surrounding watersheds corresponded to an increase of annuals and exotic species in the playa, and (3) a turnover of an average of 33% of the species occurred during growing season with playas. Even under constant environmental conditions, species had different temporal emergence strategies for persistence in playas (Haukos and Smith 2001). Identification of ecological gradients of plants in playas depends upon the scale of examination. Within playas, plants do not distribute along an elevational gradient (Haukos and Smith 1994), primarily because the playa basin is flat. As expected, a plant community gradient was found when examining the playa and its watershed when the transition from upland to wetland resulted in a change in the plant community (Hoaglund and Collins 1997). At the landscape level, we have identified changing plant associations in response to both growing season and rainfall gradients (D.H. Haukos and L.M. Smith, unpublished data). All flora and fauna using playas are adapted to the changing environmental conditions that characterize the PLR. Stabilization of the playa environment over time reduces diversity within individual playas, which will reduce the biodiversity of the surrounding landscape. Because the playa ecosystem primarily depends on resident species (e.g., plants, invertebrates, and amphibians) being able to persist despite harsh environmental conditions for initiation and maintenance of ecological functions, any alteration of the playa hydroperiod that hinders the ability of the species to respond to changes in the environment will have drastic effects on all species dependent on playas to exist. WETLANDS, Volume 23, No. 3, 2003 HISTORY OF ABUSES TO PLAYAS Physical Changes The largest abuse to the integrity of playa ecosystems of the PLR has been, and continues to be, sedimentation (Luo et al. 1997). Sedimentation, although preventable, has largely been a passive byproduct of watershed cultivation and water erosion (Luo et al. 1999). In a study of playas with cropland and grassland watersheds, Luo et al. (1997) found that playas with cultivated watersheds contained sediment volume averaging .100% of their original hydric-soil defined volume. This has caused a dramatic decrease in playa hydroperiod and altered floral and faunal communities associated with naturally functioning playas (Haukos and Smith 1994, 1997, Smith 2003). Playas have also been subjected to a number of physical modifications that have altered their hydrology. The most common modification has been cultivation and pit excavation. Guthery and Bryant (1982) found that 43% of playas, primarily the smaller wetlands, had been disked or cultivated. Results from another study indicated that 75% of playas were cropped or disked for weed control (Guthery et al. 1982). Guthery et al. (1981) estimated that 70% of the playas greater than 4 ha had been modified by construction of relatively deep pits. Most of these were constructed to concentrate irrigation water runoff (pumped from the Ogallala Aquifer) and precipitation runoff in cultivated areas. The water could then be recirculated on crops at a much lower cost than if pumped from the aquifer. The presence of pits decreases the water available to the entire playa, thereby influencing hydroperiod and thus life-cycle events for the biota. In some instances, these pits increase the area of the playa basin that could be cultivated (Smith 2003). This type of modification occurs in playas primarily in Nebraska. In some grassland areas (e.g., USDA Forest Service National Grasslands), small pits are often excavated for livestock watering areas. Finally, many pits have been constructed to deepen areas and maintain permanent water to raise fish bait or allow recreational fishing. Since the Guthery et al. (1981) study, the construction of new pits in the SHP has essentially ceased due to changes in irrigation practices and, in part, to enforcement of wetland regulations. Because of the declining Ogallala Aquifer (Dennehy et al. 2002) and significant increases in the cost of pumping aquifer water, most farmers have changed from row-flood irrigation to center-pivot or under-ground drip irrigation. These irrigation systems use less water and have little runoff. Unfortunately, changing of irrigation systems has not resulted in stemming the decline of the Ogallala Aquifer, with an increasingly significant number Haukos & Smith, PLAYA WETLAND REGULATIONS of farmers discontinuing irrigation each year because of the inability to pump sufficient water to grow a crop. Therefore, the need to construct new pits to concentrate water for reuse has been discontinued and use of previously existing pits has lessened. However, some landowners continue to maintain (i.e., remove sediment) existing pits for purposes other than a source of irrigation water. Other physical modifications to playas include island construction, intentional filling, and road construction. Island construction and intentional filling have occurred primarily in the Great Plains north of the SHP. Islands were constructed in many playas on the USDA Forest Service National Grasslands ostensibly to improve waterfowl nesting. In general, this has negatively influenced playa hydrology. Also, some small playas have been completely filled with upland soil to expand cultivation. Impacts due to road construction have been the greatest on the SHP, where playas occur in the greatest density and avoidance is not economically feasible. Many playas have been split as the result of road construction, resulting in filled areas and permanent changes to playa hydrology. Further, road ditches serve as a point source entry into playas for materials contained in watershed runoff, thus fostering accumulation of sediment and other materials. Historically, plants in playas were grazed seasonally by many wildlife species, including pronghorn (Antilocapra americana Ord), elk (Cervus elaphus Linnaeus), and bison (Bison bison Hamilton-Smith). Any grazing by wildlife today is generally by small mammals, although pronghorn and deer (Odocoileus spp.) continue to forage in grassland playas. In playas surrounded by cultivation, livestock are often maintained exclusively within the playa basin. In grassland situations, livestock often congregate in playas because of early growth of plants, increased plant production compared to surrounding areas, and favorable microclimate during harsh weather. Under these situations, playa vegetation is greatly reduced through consumption and trampling. This has been a common occurrence that negatively influences habitat. Water Quality and Quantity There are only a few laws or regulations addressing water quality and quantity flowing into playas of the PLR. Because playas are the terminus of closed watersheds, some are being used as storage for runoff from Confined Animal Feeding Operations, urban storm water collection sites, and evaporation basins for municipal and industrial wastewater. Playas used for feedlot runoff receive large loads of solids, nutrients, oxygen-demanding organic matter, and salts (Sweeten 581 1994) that drastically change the structure and function of playas. The state of Texas Water Code, Subtitle D Water Quality Control, 26.048, Prohibition of Discharge to a Playa From a Concentrated Animal Feeding Operation, defines a playa as ‘‘a flat-floored, clayey bottom of an undrained basin that is located in an arid or semi-arid part of the state, is naturally dry most of the year, and collects runoff from rain but is subject to rapid evaporation’’ (emphasis added). The regulation, enacted 1 September 1993, does not prohibit the discharge from a feedlot into a playa since ‘‘a concentrated animal feeding operation authorized to discharge agricultural waste into a playa or to use a playa as a wastewater retention facility for agricultural waste under this chapter before the adoption of rules under this section may continue that discharge into the playa or use of the playa for the retention of agricultural waste after the adoption of those rules.’’ Most feedlots were established prior to 1993. The only requirement in this rule is the annual testing of ground-water wells for chlorides and nitrates. Although most specific feedlot permits prohibit flooding past the playa clay layer, in reality, overflows occur frequently following heavy rainfall events (Irwin et al. 1996). Such events have the potential to contaminate the underlying Ogallala Aquifer through recharge (Osterkamp and Wood 1987, Zartman et al. 1996). Feedlot operations were historically restricted to beef cattle. Since 1990, however, there has been a dramatic increase in other CAFOs, including dairies and swine (Dennehy et al. 2002). These operations either directly discharge into or occur in the watershed of a playa, where there is a significant chance of runoff into the playa. Because playas naturally function in the collection and storage of storm waters, most urban areas make playas the focus of storm water management. Typically, playas are excavated to increase basin holding capacity, thus creating additional capacity for surfacewater storage, creating permanent surface water in all but the severest of droughts. By creating a permanent water situation and eliminating the required wet-dry cycles found in healthy playas, such modification destroys the functionality and associated biodiversity of a playa. The city of Lubbock, Texas defines a playa lake as ‘‘a lake with sufficient water storage capacity to contain the combined volume of its own drainage basin, as well as the volume contributed from upstream playa lakes for the 100-year 24-hour storm event and the predicted water surface elevation is 0.5 feet or greater below the lake’s natural overflow crest elevation. . . ’’ (Code of Ordinances, Chapter 21 Planning and Development, Article II. Flood Hazard Area, Division 1., Section 21–16). Such a definition creates a regulatory 582 situation in which playas must be excavated when urban development occurs to accommodate the increased runoff that results with development. In 1999, the Texas State Legislature passed a law (under Local Government Code) specifically addressing the role of playas in urban storm water runoff (Title 13. Water and Utilities, Subtitle A. Municipal Water and Utilities, Chapter 401. Water Control by Municipalities, Section 401.001. Control of Harmful Excess of Water by Municipality With Population of 150,001 to 239,999). This law gave ‘‘. . . municipalities with a population of 185,000 or more the authority to regulate filling of a playa lake within the municipality’s extraterritorial jurisdiction as a means for the effective management of storm water runoff to prevent: (1) harmful flooding or (2) excess surface water.’’ Title 13 further stated that ‘‘a regulation adopted under this section may not (1) interfere with normal agricultural practices, including moving soil, berming for tail water reuse, plowing, seeding, cultivating, and harvesting for the production of food or fiber; or (2) prohibit any practice or activity that does not decrease the water holding capacity of a playa lake.’’ Wastewater from sewage treatment plants is frequently pumped into playas. In recent years, this practice has diminished because it is apparent that such activities may be impacting the playa environment (MacRae 1997). Similar to storm water storage, establishment of permanent water in playas effectively turns the wetland into an evaporation reservoir. In 1991, the Texas Natural Resources Conservation Commission (TNRCC) issued a policy statement that includes ‘‘. . . the discharge from an existing industrial or domestic wastewater treatment facility that is authorized to use and has used a playa lake, which does not feed into any other surface water in the state, as a wastewater retention facility before July 10, 1991, the effective date of TNRCC adoption of related revisions to the Texas Surface Water Quality Standards, 30 TAC Chapter 307, shall not be subject to meeting such standards or other requirements for discharges to waters in the state.’’ Further, ‘‘If groundwater contamination from the discharge is detected, a corrective action plan shall be developed and remediation measures shall be required.’’ This policy applied in Lubbock, Texas, where use of a playa for wastewater discharge was discontinued following discovery of elevated nitrate levels in nearby ground-water wells. The policy further requires that wastewater discharge into a playa not authorized prior to 10 July 1991 must meet current surface water-quality standards. In June 1998, TNRCC amended Chapter 309 Domestic Wastewater Effluent Limitation and Plant Siting, Subchapter B: Location Standards where wetlands are defined as ‘‘those areas that are inundated or sat- WETLANDS, Volume 23, No. 3, 2003 urated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally included swamps, marshes, bogs, playa lakes, and similar areas.’’ In Section 309.13, it states ‘‘that a wastewater treatment plant unit may not be located in wetlands.’’ We assume that ‘‘unit’’ also includes discharge points, potentially playas. However, (h) in Section 309.13 contains the statement ‘‘For a permitted facility undergoing renewal of an existing permit with plans and specifications approved prior to March 1, 1990, for which no design change is requested, the facility will not be required to comply with the requirements of this subsection’’ allowing for the continued discharge into a playa if previously approved. HISTORY OF PLAYA REGULATIONS In the 1982 Army Corps of Engineers’ regulations for implementation of Section 404 of the Clean Water Act (33 CFR 323.2 (a3)), playas were included in the definition of ‘‘waters of the U.S.’’ as part of the Clean Water Act in the statement ‘‘All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce. . . ’’ This declaration energized the ongoing debate on the potential for Federal government intrusion into the local and state regulatory activities associated with playas. Despite being specifically mentioned in the definition, few playas actually met the jurisdictional criteria at that time as expressed by Barrows (1981:103) ‘‘For the purposes of our regulations (i.e., USACE), some playas would be classified as natural lakes’’ with natural lakes being ‘‘a standing body of open water that occurs in a natural depression.’’ He further indicated that ‘‘there is little question that a playa is a natural depression; however, because of their ephemeral nature not all playas are natural lakes’’ and summarized that ‘‘to have a natural lake there must be an open body of water and that body of water must exhibit persistency or be continuous in nature.’’ Therefore, rather than identifying and protecting natural playas from impacts, these conditions actually resulted in the protection of nonfunctional playas in which the essential wetting and drying periods necessary for production, habitat development, and other ecological properties were eliminated. Haukos & Smith, PLAYA WETLAND REGULATIONS Changing Appreciation of Playas A key to understanding the impacts of regulations on playa ecosystems stems from the prevailing societal attitudes on the value of these wetlands. For example, Wyatt and Smith (1981:99) of the High Plains Underground Water District (HPUWD) stated ‘‘Private landowners and the state water districts agree that enhancement of playas means their modification to reduce evaporation potential and regain cropland subjected to periodic inundation’’ and ‘‘Private property rights which include playa water-use rights are sacred to landowners in the High Plains and, if challenged, all appropriate legal remedies will be used to protect such rights.’’ However, as ground water continues to decline, increasing the cost to pump water to grow crops, and because commodity prices have remained low, water district personnel and others have recognized the potential of functioning playas as a source of income for landowners. For example, Steiert (1998) calculated that the gross value of wildlife-related pursuits in the Texas High Plains was worth $182.5 million, with hunting valued at $109.4 million. Playa-related wildlife are responsible for much of this income (Steiert 1998). Section 404 and Playas Prior to 1986, little attention was focused on playa regulation. By the mid 1980s, at least 90% (our estimate) of the playas on the SHP had been anthropogenically impacted by pits and ditches, roads, storm water excavations, collection of wastewater, dumping of trash, livestock watering, overgrazing, and incorporation into feedlot operations. In 1986 and 1988, respectively, the USACE (51 Fed. Reg. 41217) and the Environmental Protection Agency (EPA: 53 Fed. Reg. 20765) adopted the ‘‘Migratory Bird Rule’’ through expression in regulation preambles. The rule explained that waters that are used or would be used as habitat by migratory birds are ‘‘waters of the United States’’ and, as such, subject to provisions of Section 404 of the Clean Water Act. This increased the potential authority of the USACE to regulate seasonally wet playas, in addition to their previously stated existing authority to regulate only playas containing permanent water. Despite use of the Migratory Bird Rule to declare playas ‘‘waters of the United States,’’ site-by-site examination of the criteria necessary to declare a playa jurisdictional was required because of the high degree of variation among playas in meeting USACE criteria. These criteria include presence of (a) hydric soils (Randall, Lipan, and Ness clays in SHP playas), (b) hydrophytic vegetation (see Haukos and Smith 1997), 583 and (3) surface or near surface inundation for 14 consecutive days during the growing season (hydrology) in 50% of the years. There have been relatively few requests for Section 404 permits from the USACE for activities involving playas (Petrie et al. 2001; P. Hatcher, USACE, personal communication). It is difficult to assess numbers of permit requests directly associated with a playa because of the method of record keeping, but for the Fort Worth District of the USACE, which covers most of the SHP (and most of the playas, .19,000), there are an estimated 230 records of playa determinations under Section 404 since 1986 (P. Hatcher, USACE, personal communication). Prior to SWANCC, jurisdictional determinations of the vast majority of playas resulted in the wetland being considered ‘‘waters of the United States’’; those not determined to be jurisdictional were eliminated from the designation due to extreme modification or sedimentation. Farm Bill Provisions and Playas In 1985, the Wetland Conservation incentive provision (Swampbuster) of the Food Security Act (Farm Bill signed into law 23 December 1985) was established. Swampbuster, an incentive program, was designed to fill gaps of Section 404 of the Clean Water Act on agricultural land by reducing or eliminating Federal Farm Bill subsidies to landowners that altered the hydrology of a jurisdictional wetland to make it possible to grow a commodity crop. The major causes of wetland loss, including drainage, ditching, and channelization, were not regulated by Section 404, creating a need for Swampbuster to address these on agricultural lands. Specifically, producers are not eligible for Farm Bill Program benefits if they make it possible to plant an agricultural commodity on wetlands that were converted by drainage, leveling, or anyother means after December 23, 1985 or if they convert a wetland for the purpose of agricultural commodity production after November 28, 1990. The definition of a jurisdictional wetland for Farm Bill purposes includes (a) a predominance of hydric soil, (b) inundation or saturation by surface or ground water at a frequency and duration to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions, and (c) under normal circumstances, supporting a prevalence of such vegetation. The hydrology aspect is the most frequently debated criteria regarding jurisdictional determinations. The USDA National Food Security Act Manual states ‘‘If the area is a playa, pothole, or pocosin [it must be] inundated for a least 7 days or saturated for at least 14 consecutive days during the growing season . . . ’’ 584 Evaluating the influence of Swampbuster on playas is problematic because data are stored by USDA Farm Services Agency (FSA) farm number, and only wetland area is recorded. Of the 60,000 farms in Texas SHP and panhandle as of January 2002, 13,525 had jurisdictional wetlands totaling 103,117 ha (C. Coffman, Natural Resources Conservation Service [NRCS], personal communication). Conservatively, dividing this area by the average playa size indicates that 16,367 playas of the 19,339 playas in Texas were declared jurisdictional under Swampbuster. Few determinations have been made in native grassland situations, so these playas were not included in the above estimates. Swampbuster does not restrict activities if the following conditions are met: (1) production is made possible as a result of a natural conditions, such as drought, (2) water regimes are not manipulated, (3) woody vegetation is not removed, and (4) normal tillage practices are used that do not fill, level, or otherwise cause conversion of the wetland. Given playa hydrology, these provisions often allow playas to be cultivated. In 1994, a Memorandum of Agreement among the Environmental Protection Agency, U.S. Department of Agriculture, U.S. Department of Interior, and the Department of Defense gave the NRCS initial wetland determination authority on agricultural lands. This essentially eliminated the presence of the USACE from the playa region for jurisdictional determinations (but not permitting). This agreement was an attempt to alleviate some of the inconsistencies between Section 404 and Swampbuster. However, the policy of the NRCS was that any out-of-the-ordinary requests (i.e., other than normal farming practices or practices covered under an USACE Nationwide Permit) were referred to the USACE for action (C. Coffman, NRCS, personal communication). Since the 1985 Farm Bill (Food Security Act of 1985), there have been a number of conservation programs introduced by the United States Department of Agriculture that could apply to playas. The most successful program in the SHP and other playa areas is the Conservation Reserve Program (CRP), with enrollment greater than 1.2 million ha in Texas alone (Berthelsen and Smith 1995). The CRP has assisted landowners in establishing permanent cover (grasses and forbs) on Highly Erodible Lands and provides an annual rental payment for the duration of the contract. Unfortunately, during initiation of the program, many playas were included in the program, resulting in the wetlands being treated as uplands and planted to similar grass mixtures. Much of the original CRP area, including playas, was planted to exotic old world bluestem (Bothriochloa ischaemum Rupr. ex Fisch. & Mey.) or weeping lovegrass (Eragrostis curvula WETLANDS, Volume 23, No. 3, 2003 (Schrad.) Nees) that have become established in the landscape and are starting to invade many areas including playas (Haukos and Smith 1997). Another important program was the Debt Cancellation Conservation Easement, which provided a voluntary opportunity for farm program participants with loans secured by the former Farmers Home Administration (currently a part of FSA) to qualify for cancellation of a portion of their indebtedness in exchange for a conservation or wetland easement. The U. S. Fish and Wildlife Service (FWS) was the usual recipient of the ‘‘inventory tracts,’’ with an option of fee transfer and conservation easements of the properties. Currently, there are nine conservation easements and three fee-title inventory tracts in the SHP under control of the FWS National Wildlife Refuge System. Not all contain a playa, but each has a wetland on the property. However, there is no active management or restoration occurring on these tracts. Regrettably, the FWS is not interested in assuming management authority for more of these tracts because of (1) lack of funding to fence, sign, and maintain the properties; (2) perceived low value of small isolated tracts, and (3) the low priority of playas in land acquisition (C. Ault, FWS, personal communication). Through the late 1980s and mid-1990s, numerous landowners were involved in this program. However, the Texas FSA is now screening loans to limit potential defaults. Fewer defaults will mean fewer potential FWS management easements (M. McCollum, FWS, personal communication). In the 1990 reauthorization of the 1985 Food Security Act (Food, Agricultural, Conservation, and Trade Act of 1990), the Wetland Reserve Program (WRP; not funded until 1992, with all states eligible starting in 1995) was established, which offers landowners payments for restoring and protecting wetlands on their property. The 1996 Federal Agriculture Improvement and Reform Act created the Environmental Quality Incentive Program (EQIP) and Wildlife Habitat Incentive Program (WHIP). Unfortunately, despite interest by landowners in these programs, few successful contracts exist for tracts that include playas. Only three landowners in Texas with playas have filed an intention for consideration of a WRP contract as of January 2002 (C. Coffman, NRCS, personal communication). There are several purported reasons for the lack of successful conservation contracts associated with playas: (1) the amount of CRP area limiting available area to be enrolled in a county—especially WRP (i.e., CRP area caps apply to other conservation programs), (2) discouragement of application by landowners by others, (3) fear of government control or influence on the agriculture operation, (4) lack of flexibility within the programs limiting area eligible for Haukos & Smith, PLAYA WETLAND REGULATIONS participation (e.g., in WRP only twice the area of hydric soil can be applied to upland area surround the wetland), and (5) lack of local promotion by USDA. The tremendous success of these programs in other agriculture-dominated areas points to a high probability of success in the PLR, given appropriate support and implementation. State Regulations Although most states include playas as waters of the state, there are no state laws or regulations that are specific to these wetlands (Petrie et al. 2001). The few regulations existing in Texas were previously discussed. In the remaining PLR states, playas are rarely mentioned in state regulations, and any reference to conservation of these wetlands is vague at best. The Division of Water Resources in the Kansas Department of Agriculture has the authority to administer water rights (surface and underground) in times of shortage to protect a water-right holder from impairment to beneficial use of water by junior water-right holders (Huntzinger 1998), which may impact conservation and management of playas. In Oklahoma, ground water is deemed private property belonging to the surface owner and subject to limited regulation, but stream water is considered public property and subject to appropriation (Beldon 1998), and isolated standing water is not mentioned in the regulations. Landowners are required to use ground water for a beneficial use (including fish and wildlife propagation) and report water use annually (Beldon 1998). However, prior to declaring fish and wildlife propagation a beneficial use, regulators in Oklahoma successfully halted pumping of aquifer water for use in playa management. IMPACTS OF SWANCC ON PLAYAS The full impact of the SWANCC decision on the conservation of playa wetlands may not be evident for several years, as Federal and state agencies reevaluate their respective roles in regulation of isolated wetlands. Further, any impact would only be realized if the previous regulations were effective in the conservation of playas. Historical application of Section 404 of the Clean Water Act had little impact on conservation of playa wetland ecology in the PLR. There is evidence that enforcement of Section 404 in Nebraska prevented the conversion of many Rainwater Basins during the 1990s (LaGrange 1997). However, we believe that the SWANCC opinion has probably removed most playas from any potential future regulation under the Clean Water Act by elimination of the Migratory Bird Rule, including not only Section 404, but also Section 402 (National Pollution Discharge and Elimi- 585 nation System of the Environmental Protection Agency, which controls point source discharge into ‘‘waters of the United States’’), and the Section 311 oil-spill program. If pollution of a playa results in contamination of a drinking water source (e.g., Ogallala Aquifer), then Section 1431 of the Safe Drinking Water Act, which authorizes the EPA to take emergency action to protect the source of drinking water, may be appropriate. The remaining requirements for declaration of jurisdiction under the Clean Water Act apply to just a few playas. Indeed, we believe that ,1% of the playas could meet the remaining jurisdictional criteria: interstate location, adjacent or connected to navigable waters, or a significant nexus to interstate commerce (see Petrie et al. 2001 for a similar conclusion). Therefore, some of the responsibility for regulation of playa wetlands has fallen to individual states, which have not previously addressed them from a wetland perspective. As previously stated, there are no current state regulations that consider the importance of playas as wetlands but rather as runoff collection areas. Although usually considered ‘‘waters of the State,’’ we found only vague language relating to playas in a review of state water statutes and a lack of consistency among states in treatment of playas. Most observers have indicated that as long as Swampbuster remains in effect, isolated wetlands in agricultural settings will remain protected. However, there are a great number of playas that occur in grasslands and smaller tracts of land where the landowners do not participate in any Farm Bill Program. In these instances, the loss of Section 404 protection has eliminated any potential protection of these playas, which, at least in grassland situations, are likely the most functional and least impacted of the remaining playas. Estimates of the number of playas in these situations would be difficult given the lack of data on landowners not enrolled in a Farm Bill Program. Further, even with Swampbuster in effect, normal farming practices are allowed in playas provided that hydrology has not been altered to permit such practices. Given the ecology of playas where dry conditions are common and necessary to the existence of the wetland function, a high percentage of playas continue to be impacted by cultivation during dry periods even though there is a low probability that the crops will be harvested successfully. Creation of elevated paths for passage of center-pivot irrigation systems is permitted provided that water can flow between the paths (e.g., culvert installation). Irrigation pits constructed prior to 1986, which include nearly all pits, are allowed to be maintained (i.e., sediment removal) as long as the excavated volume is not increased over the original excavation. Therefore, Swampbuster, as currently interpreted and enforced, has had little impact on playa conservation 586 at the landscape level in the PLR. We also believe that given the SWANCC decision and some of the subsequent court interpretations of the ruling, it is unlikely that Swampbuster, as presently written, would withstand legal challenge or administrative appeals in regard to regulation of playas. As long as municipalities continue to view playas only as storm water collection areas, excavation of playas in urban areas will continue. Indeed, several playas within an area recently annexed by Lubbock, Texas have been altered such that it is unlikely that function and structure of the wetlands could be restored easily. Other playas in the PLR will be affected similarly by continued urban expansion. Effects of the loss of Section 404 protection of playas will likely be most significant in future road construction projects, nearly all of which use Federal funds. Because of the density of playas, it is unlikely that any road construction project could be accomplished without impacting playas. Much of the filling of playas is the result of road construction, either through direct filling for the road bed or directed runoff of sediment-laden water via roadside ditches. The only playas that will not lose Federal Clean Water Act protection are those on the National Grasslands administered by the Forest Service (,30 playas). Any proposed impacts to playas on these areas will continue to be subject to public review and comment via the preparation of either an Environmental Assessment or Environmental Impact Statement required by the National Environmental Policy Act of 1969 (NEPA). Further, these playas will remain subject to the Wetland and Floodplain Executive Orders, as well as the Migratory Birds Executive Order. FUTURE NEEDS FOR THE CONSERVATION OF PLAYAS The keystone ecosystems of the High Plains need protection for biological, ecological, economic, and social reasons. Unfortunately, compared to other wetland systems, little is known about the basic ecology of playas, making it difficult to design and implement scientifically-based conservation and restoration techniques. However, it is recognized that any conservation of playas must include management of surrounding watersheds (Luo et al. 1997). With the immediate threat of wetland sedimentation, any effort to protect a playa without management of the surrounding watershed will fail (Haukos 1994). It is evident that playas in the PLR have received little support in the development, implementation, and enforcement of wetland regulation efforts from a national and regional perspective. There are other wetland systems in similar situations that have received WETLANDS, Volume 23, No. 3, 2003 widespread support of regulations in the conservation of wetlands. Since the 1980s, playas in the Rainwater Basin of Nebraska have received careful scrutiny and significant protection under previous legislation, but how changes in interpretation of that legislation will now affect that scrutiny is unknown. In assessing the impact of SWANCC on playas it should be noted that the Section 404 program is a reactionary approach to conservation and was never intended to be a planning tool in the conservation of wetlands. Unfortunately, the lack of widespread understanding of the importance of playas has led to either superficial or no consideration in most federal planning efforts for future conservation of wetlands. There are two other potential federal regulatory mechanisms that should apply to playas: (1) the EPA/ TNRCC Stormwater Management Program (Section 402 permits) and (2) nonpoint source pollution Section 319 permits or activities. Successful implementation of these programs in the PLR requires understanding of playa ecosystems. Assuming that Swampbuster and other Farm Bill provisions remain intact in the future, there is a need for fundamental changes in NRCS and FSA program policies to ensure that playas become a priority for conservation. These changes must be made both in policy and implementation. Scoring systems for competitive conservation funding must be changed to (1) reflect the importance of playas and (2) place the relatively small playas on equal footing with wetlands of other regions. On a more basic level, the primary contact of most private landowners seeking opportunities for playa conservation is the local county NRCS and FSA offices. Frequently, landowners are uninformed on USDA conservation programs or even discouraged from applying for WRP, WHIP, EQIP, and other potential conservation opportunities (e.g., FWS’s Partners for Fish and Wildlife Program, Texas Parks and Wildlife Department’s Landowner Incentive Program), in spite of the high success rate of conservation funding for landowners who continue to pursue conservation opportunities. Leadership within the NRCS should emphasize to their field personnel the value of playas to the economy, culture, and biodiversity so that field personnel might encourage the conservation of playas through all possible avenues. The recently enacted 2002 Farm Bill ‘‘The Farm Security and Rural Investment Act of 2002’’ provides significant increases in conservation funding. We recommend that conservation and restoration of playas be a priority during development and implementation of new policies and regulations associated with this legislation. Further, because the greatest threat to playas is sedimentation, we urge implementation of conservation measures that Haukos & Smith, PLAYA WETLAND REGULATIONS address farming practices that reduce or eliminate water erosion of playa watersheds Moreover, misconceptions about prairie wetlands have hampered legislation and conservation. For example, Petrie et al. (2001:iii) stated that ‘‘in general, isolated wetlands play a minor role in meeting the needs of waterfowl areas that are important for migration and wintering.’’ This statement is contrary to existing data and biases objective consideration of the value of playas to migratory bird populations. Prairie wetlands, including playas, are critical to the health of midcontinent waterfowl populations during migration and wintering (Haukos and Smith 1994, Haukos 2001, Smith 2003). The creation of the Playa Lakes Joint Venture (PLJV) and other prairie joint ventures under the North American Waterfowl Management Plan recognized this fact. Although the PLJV has no regulatory authority, the five member states must, either jointly or independently, propose state regulations that ensure the continued existence of playas and the valuable functions associated with these wetlands. Examples of states with regulations that address isolated wetlands include Minnesota, Wisconsin, and Oregon. Enacted regulations should go beyond just recognizing that playas exist and are ‘‘waters of the state’’ to emphasize or recognize the multiplicity of playa functions. An example of such an opportunity is the state-wide water planning in Texas required by the 1997 Senate Bill 1, which divided the state into 16 regional water planning areas with the task of completing a regional water plan by January 2001. In the Llano Estacado Regional Water Management Plan, which included the Southern High Plains (Region O), playas were recognized as an important component of the landscape, the focal point for water recharged to the Ogallala Aquifer, and vital wildlife habitat (Llano Estacado Regional Water Planning Group 2001). In addition, Nebraska Title 117 does recognize playas as waters of the state and provides protection for them, but the state currently does not have a permitting system to administer the regulation. Criteria for jurisdictional status of playas include the identification of a hydric soil, hydrophytic plants, and hydrology sufficient to create these soils and grow these plants. Confirmation of hydrophytic plants and hydrology criteria has always been difficult in playas because of the dynamic and unpredictable hydroperiod. For example, a playa may be dry for a year or more, with no evidence of hydrophytic plants, yet upon filling rapidly develop wetland characteristics that are easily recognizable. This difficulty has been the center of the jurisdictional debate, resulting in recognition that the most consistent criteria for wetland determination is the presence of a hydric soil—typically Randall clay and occasionally Lipan or Ness 587 clays. Future jurisdictional determinations or redeterminations centering on the presence of hydric soil may become difficult as accumulating sediment obscures the hydric soil. Indeed, the NRCS in Texas is attempting to reclassify playa soils and, in many instances, is solely sampling the accumulated sediments, which have no hydric characteristics. This results in the loss of the main criteria for declaring a playa jurisdictional. Therefore, it is likely that the numbers of jurisdictional playas under Swampbuster will decrease in the future as this work continues. We urge the NRCS to reconsider such an approach to reclassifying playa soil, recognize that accumulation of sediment sufficient to conceal the hydric soil is not natural and should not be used as a factor in wetland determinations Further, we encourage onsite evaluation of potential hydric characteristics in the original soil rather than recently accumulated sediment or relying on a soils map when making future wetland determinations. Previously, emphasis in the conservation of playas was on assisting private landowners with management of the wetlands within a typical agricultural operation. It was thought that because of the unpredictable environment, large number, and small size of playas it would be best to spread the limited amount of conservation funding across the region and not spend limited resources on the public purchase of individual wetlands. Although a few playas have been either purchased or placed under permanent conservation easement since the inception of the PLJV, we believe that a concentrated effort should be placed on the purchase and permanent protection of selected playas that represent the least altered condition. We believe that the conspicuous decline in functioning playas during the past 15 years due to sedimentation, development, invasion of exotic species, declining above- and belowground water quantity and quality, and other impacts must be offset by permanent protection of functioning playas. Further, we also recommend that one or more Wetland Management Districts (WMD), similar to successful efforts for prairie pothole and Rainwater Basin wetland systems, should be established in the PLR. Further, this effort should be led by the U.S. Fish and Wildlife Service with cooperation from the states of the PLR. An exceptional opportunity to establish these districts was presented by the Debt Reduction Conservation Easements; unfortunately, as previously discussed, this opportunity was not capitalized upon. Given that Migratory Bird Stamps are purchased throughout the region, it seems reasonable to invest some of these funds (Migratory Bird Conservation Fund) in the purchase of playas as part of a WMD. Finally, the key to future conservation of playas is educational efforts to promote understanding and appreciation of playas. Although acknowledged from a 588 WETLANDS, Volume 23, No. 3, 2003 national perspective, far too often, playas are dismissed as barren wastelands on a local and regional scale. To ensure that playas continue to function and maintain their vital role in the High Plains ecosystem, it is imperative that local citizens recognize their value. We have found that environmental activities focusing on playas are readily accepted by children. It is our belief that if the next generation embraces the values of playas, then conservation efforts will be more successful than those being currently attempted. CONCLUSIONS From an ecological perspective, federal wetland regulations have had little impact on the conservation of playa wetlands. It is recognized that discussion of the potential of impacts of these regulations on playas and private landowners has, to some degree, raised awareness of playas. Unfortunately, awareness has not been coupled with an understanding of the critical roles of playas in the continued existence of biodiversity (including humans) of the PLR. Despite the existence of these regulations, functional playas continue to disappear at a considerable rate. Unless fundamental changes are made in the implementation of existing incentives or future regulations, conservation of playas will remain a low priority. Regrettably, the lack of baseline ecological data from unaltered playas makes it difficult to document and monitor loss of playa function accurately. Further, because of the variation among playas, biodiversity in the PLR is not related to species richness of individual playas, but rather the cumulative richness associated with playas across the landscape. Therefore, because of the extensive alteration of playas and their associated watersheds, we may never completely understand the role of playas in the disappearing prairie ecosystems. ACKNOWLEDGMENTS We thank a number of individuals that contributed to the composition of this paper either through discussions or reviewing the manuscript: C. Coffman, S. Cooper, J. Cornely, J. Haskins, P. Hatcher, J. Hughes, W. Johnson, T. LaGrange, L. Nymeyer, M. O’Melia, J. Ray, J. Stiert, J. Thomas, and G. Valentine. L. M. Smith was supported by the Caesar Kleberg Foundation for Wildlife Conservation. 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