Order Code IB97014
CRS Issue Brief for Congress
Received through the CRS Web
Wetland Issues
Updated September 1, 2000
Jeffrey A. Zinn and Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
What is a Wetland?
How Fast are Wetlands Disappearing, and How Many Acres are Left?
Section 404 Program
The Permitting Process
Nationwide Permits
Judicial Proceedings Involving Section 404
Treat All Wetlands Equally
Agriculture and Wetlands
Swampbuster
Wetland Reserve Program (WRP)
Private Property Rights and Landowner Compensation
Wetland Mitigation and Restoration
Issues Addressed by the 105th Congress
The Administration’s Clean Water Action Plan
The 106th Congress
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
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Wetland Issues
SUMMARY
Wetlands, in a wide variety of forms, are
and encouraging non-regulatory options; and
found throughout the country. The various
expanding partnerships in wetland protection.
values of these areas have been increasingly
recognized in recent years, but the remaining
Dozens of wetland bills have been intro-
acreage has been disappearing rapidly. When
duced since 1990 either to implement these
European settlers first arrived, total wetland
policies or to initiate alternative approaches.
acreage was more than 220 million acres in the
Numerous hearings were held but with the
lower 48 states, according to estimates by the
exception of the Federal Agricultural Improve-
U.S. Fish and Wildlife Service. By 1980, total
ment and Reform Act of 1996 (P.L. 104-127),
wetland acreage was estimated to be 104
better known as the 1996 farm act, no major
million acres. Losses continue, although the
wetland legislation has been enacted.
rate of loss has slowed considerably during the

past decade. Recent losses have been concen-
Since 1996, wetlands issues have in-
trated in the lower Mississippi River Valley,
volved continuing efforts to reauthorize the
the upper Midwest, and the Southeast.
Clean Water Act and other wetland legislation,
implementation of farm bill provisions, and
Several laws provide varying levels of
specific actions that raise concerns about
protection under different circumstances:
changes in wetlands programs. Two examples
Section 404 in the Clean Water Act; the
of specific actions that attracted congressional
swampbuster and other programs in the federal
attention were implementation of Corps of
farm bill; the Fish and Wildlife Coordination
Engineers changes to a nationwide permit
Act; and the numerous enactments that have
(changes that are generally opposed by the
established National Wildlife Refuge System
development community), and a U.S. District
units. Although the rate of wetland loss has
Court decision that overturned the so-called
apparently slowed in recent years, these laws
“Tulloch” rule, which had expanded regulated
and their implementation are viewed by many
actions to include excavation.
protection advocates as inadequate. Others,
who advocate the rights of property owners
In February 1998 the Administration
and development interests, by contrast, charac-
announced a Clean Water Action Plan in-
terize these same efforts as overzealous and
tended to address the nation’s remaining water
too extensive. Numerous state and local
quality challenges. Restoring and protecting
wetland programs increase the complexity of
wetlands is a key feature of the plan. It calls
the protection effort.
for a coordinated strategy involving more than
a dozen action items to achieve a net gain of as
The Bush and Clinton Administrations
many as 100,000 acres of wetlands annually by
have made wetland protection a priority. The
the year 2005.
Clinton Administration announced its policies
in August 1993: they include using the best
Many wetland issues may be revisited
available science to define and delineate
during the 106th Congress, although there
wetlands; improving the regulatory program
appears to be less interest in addressing them
than in recent Congresses.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
The 106th Congress may address wetland issues, some of which were considered, but
not resolved, during the 105th Congress. These issues involved continuing efforts to
reauthorize the Clean Water Act and other wetland legislation; implementation of farm bill
provisions; and oversight of administration and court actions that raise concerns about
changes in wetlands programs, including reissuing nationwide permits and responding to
a court decision that would limit the activities covered under the Section 404 program. On
March 6, 2000, the Army Corps of Engineers finalized changes to several nationwide
permits that are intended to strengthen protection of aquatic environments, but the changes
are opposed by developer groups. Controversies over the permits could draw congressional
attention.
The Administration’s Clean Water Action Plan, released in February 1998, also may
help to shape the wetland debate in the future as it includes a number of items for protecting
and restoring wetlands. For FY2000, appropriations bills provided $2.2 billion to fund the
entire Plan, about 13% less than the Administration had requested. For FY2001, the
Administration requested $2.8 billion, a 27% increase above FY2000 funding.
BACKGROUND AND ANALYSIS
Wetlands, in a variety of forms, are found throughout the country. They are known in
different regions as swamps, marshes, fens, potholes, playa lakes, or bogs. While these places
can differ greatly, they all have distinctive plant and animal assemblages because of the
wetness of the soil. Some wetland areas may be continuously inundated by water, while other
areas may not be flooded at all. In coastal areas, flooding may occur on a daily basis as tides
rise and fall.
Functional values, both ecological and economic, at each wetland depend on its location,
size, and relationship to adjacent land and water areas. Many of these values have been
recognized only recently. Historically, many federal programs encouraged wetlands to be
drained or altered because they were seen as having little value as wetlands. Wetland values
can include:
! habitat for aquatic birds and other animals and plants, including numerous
threatened and endangered species;
! production of fish and shellfish;
! water storage, including mitigating the effects of floods and droughts;
! water purification;
! recreation;
! timber production;
! food production;
! education and research;
! and open space and aesthetic values.
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Usually wetlands provide some composite of these values; no single wetland in most
instances provides all these values. The composite value typically declines when wetlands are
altered. In addition, the effects of alteration often extend well beyond the immediate area
because wetlands are usually part of a larger water system. In Western states, for example,
many reservoirs and water projects (often inundating former wetlands) are used to regulate
water flows, affecting downstream wetlands. Throughout the country, conversion of
wetlands to urban uses has increased flood damages; this value is receiving considerable
attention because of flooding in the upper Midwest in 1993.
Federal laws that affect wetlands have changed during the past 15 years as the value of
wetlands has been recognized. Previously, some laws, such as selected provisions in the
federal tax code, public works legislation, and farm programs, encouraged destruction of
wetland areas. Federal laws now either encourage wetland protection, or prohibit or do not
support their destruction. These laws, however, do not add up to a fully consistent or
comprehensive national approach. The central federal regulatory program, Section 404 of
the Clean Water Act, requires permits for the discharge of dredged or fill materials into many
but not all wetland areas; however, other activities that adversely affect wetlands do not
require permits. An agricultural program, swampbuster, is a disincentive program that
indirectly protects wetlands by making farmers who drain wetlands ineligible for federal farm
program benefits. Several acquisition and incentive programs fill out the protection effort.
During each of the past three Congresses, more than 75 bills with wetland provisions
were introduced. In the 103rd Congress, wetlands were a major component of the Clean
Water Act reauthorization debate and were one of the reasons that no legislation was enacted.
Under new leadership, the 104th Congress considered wetland issues in ways that differed
from recent Congresses (for example, the House Resources Committee organized a task force
on wetland issues, reform proposals more favorable to landowners’ rights that had been
blocked in previous Congresses were viewed more favorably, and initiatives favored by
environmental organizations received less attention). These changed views were reflected in
legislative provisions that the House passed on regulatory reform and protection of private
property rights (H.R. 9) and reauthorization of the Clean Water Act (H.R. 961). However,
none of these proposals was enacted.
The Clinton Administration has taken a strong interest in the wetlands debate. On
August 24, 1993, it announced new federal policies in an effort to reconcile conflicting
interests in wetland issues. These conflicts are between:
! Environmental interests and wetland protection advocates who have been
pressing the Administration to more fully protect wetlands by improving
coordination and consistency among agencies and levels of governments, and
strengthened programs; and
! Others, including large landowners, farmers, small businessmen, and
individuals who own small parcels of land, who counter that protection
efforts have gone too far, and that wet areas that provide few of the values
associated with wetlands have been aggressively protected. They have been
especially critical of the U.S. Army Corps of Engineers (Corps) and the U.S.
Environmental Protection Agency (EPA) for administering the Section 404
program in an overzealous and inflexible manner.
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The Clinton Administration policies embodied five principles: 1) supporting no overall
net loss of the Nation’s remaining wetlands together with increasing the quality and quantity
of wetlands as a long-term goal; 2) making regulatory programs fair, flexible, and predictable;
3) encouraging options to regulatory programs; 4) expanding partnerships to protect and
restore wetlands in an ecosystem/watershed context; and 5) basing wetland policies on the
best scientific information available. Administration progress in implementing these policies
has been mixed.
Wetland issues revolve around disparate scientific and federal program questions, and
conflicting views of the role of government where private property is involved. Scientific
questions include how to define wetlands, the current rate and pattern of wetland losses, and
the importance of these losses. Federal program questions include the operation of the federal
regulatory program and other programs to protect, restore, or mitigate wetland resources;
relationships between agriculture and wetlands; whether all wetlands should be treated the
same in federal programs; and federal funding of wetland programs. In addition, private
property questions are raised because almost three-quarters of the remaining wetlands are
located on private lands, and some property owners view federal programs that limit land use
as diminishing its value, real and potential.
What is a Wetland?
There is general agreement that the presence of a wetland can be determined by a
combination of soils, plants, and hydrology. The only definition of wetlands in law, in the
swampbuster provisions of farm legislation, lists those three components but does not include
more specific criteria, such as what conditions must be present, for how long, and during what
portion of the year. Controversies are exacerbated when many sites that have those three
components do not look like what many people visualize as wetlands.
Wetlands subject to federal regulation are a large subset of all places that are judged to
be wetlands according to criteria used in the scientific community. These regulated wetlands,
under the Section 404 program discussed below, are currently identified using technical
criteria in a wetland delineation manual issued by the Corps in 1987. The Corps applies the
manual in making about 25,000 cases each year to determine if an area is subject to the
jurisdiction of the 404 program. The purpose of the manual is to provide guidance and field-
level consistency among the agencies that have roles in wetland regulatory protection. It was
prepared jointly and is used by all federal agencies to carry out their responsibilities under this
program (the Corps, EPA, FWS, and the National Marine Fisheries Service (NMFS)).
Congress responded to controversy stimulated by Bush Administration proposals to
revise the 1987 manual and thus change the areas regulated as wetlands by authorizing
funding for the National Academy of Sciences (NAS) to report on the science of identifying
and delineating wetlands (P.L. 102-389). This study, released in May 1995, recommended
using a reference definition that could serve as a standard against which regulatory definitions
and actions could be assessed. Other findings in the report include the need to recognize
regional differences in wetlands, the importance of better training for wetland delineators, and
the need for more research on the functions and values of wetlands. The NAS committee
preparing this report concluded that implementing its findings may improve the objectivity and
consistency of wetland identification and delineation. However, it also recognized that
judgement will continue to play a role in delineating some wetlands.
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How Fast are Wetlands Disappearing, and How Many Acres are Left?
It has been estimated that when European settlers first arrived, wetland acreage in the
area that would become the 48 states was more than 220 million acres, or about 5% of the
total land area. By 1995, total wetland acreage was estimated to be 124 million acres, with
about 97 million acres converted to other uses, according to a recent summary by the
Department of Agriculture’s Economic Research Service. Data compiled by the Department
of Agriculture and the Fish and Wildlife Service (FWS) in separate surveys and using different
methodologies show that the annual loss rate has been dropping from almost 500,000 acres
annually between 1954 and 1974 to less than 100,000 annually since the mid 1980s. One
point of contention between these surveys is that the Department of Agriculture’s study
estimates that agriculture is responsible for less than 25% of the loss, while FWS estimates
that agricultural activities are responsible for almost 80% of the losses.

In March 1998, FWS and the Natural Resources Conservation Service (NRCS) in the
Department of Agriculture announced that future assessments of wetlands loss will be
coordinated and be based on data collected by the NRCS every 5 years in the Natural
Resources Inventory (NRI). The Administration believes that using a single source in the
future will end a “battle of the numbers” that has obscured other wetland protection issues.
This battle was explored in a July 1998 General Accounting Office report titled Wetlands
Overview: Problems with Acreage Data Persist. These data will first be used in 2000.
NRCS has released some wetlands data compiled from the 1997 NRI. It covers only
cropland, pastureland, and land enrolled in the Conservation Reserve, a large cropland
retirement program. These data show a net wetlands loss rate of 24,000 acres per year
between 1992 and 1997, which is a decline from the annual average of 27,000 acres per year
between 1982 and 1992.
The numerous major shifts in federal policies since 1985 (and changes in economic
conditions as well) strongly influence wetland loss patterns, but the composite effects remain
unmeasured. Further, these data only measure acres, and do not provide any insights into
changes in the quality of remaining wetlands as measured by the values they provide.
Section 404 Program
The principal federal program that provides regulatory protection for wetlands is found
in Section 404 of the Clean Water Act (CWA). Its intent is to protect water and adjacent
wetland areas from adverse environmental effects due to discharges of dredged or fill
material. Established in 1972, Section 404 requires landowners or developers to obtain
permits from the Corps of Engineers to carry out activities involving disposal of dredged or
fill materials into waters of the United States, including wetlands.
The Corps has long had regulatory jurisdiction over dredging and filling, starting with
the River and Harbor Act of 1899. The Corps and EPA share responsibility for administering
the Section 404 program. Other federal agencies, including NRCS, FWS, and NMFS, also
have roles in this process. In the 1970s, legal decisions in key cases led the Corps to revise
this program to incorporate broad jurisdictional definitions in terms of both regulated waters
and adjacent wetlands. Section 404 was last significantly amended by Congress in 1977.
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This judicial/regulatory/administrative evolution of the 404 program has generally
pleased those who view it as a critical tool in wetland protection, but dismayed others who
would prefer more limited Corps jurisdiction or who see the expanded regulatory program
as intruding on private land-use decisions and treating wetlands of widely varying value
similarly. Underlying this debate is the more general question of whether Section 404 is the
best approach to federal wetland protection.
Some wetland protection advocates have proposed that it be replaced or greatly altered.
First, they point out that it governs only the discharge of dredged or fill material, while not
regulating other acts that drain, flood, or otherwise reduce functional values. Second, because
of exemptions provided in 1977 amendments to Section 404, major categories of activities
are not required to obtain permits. These include normal, ongoing farming, ranching, and
silvicultural (forestry) activities. Further, permits generally are not required for activities
which drain wetlands (only for those that fill wetlands), which excludes a large number of
actions with potential to alter wetlands. Third, approximately 20% of the Nation’s wetlands
are excluded from the regulatory program because of small size or not being linked to a
tributary water system. Fourth, in the view of protection advocates, the multiple values that
wetlands can provide (e.g., fish and wildlife habitat, flood control) are not effectively
recognized through a statutory approach based principally on water quality, despite the broad
objectives of the Clean Water Act.
The Permitting Process. The Corps’ regulatory process involves both general permits
for actions by private landowners that are similar in nature and will likely have a minor effect
on wetlands and individual permits for more significant actions. According to program data
compiled by the Corps, the agency received an average of 74,500 Section 404 permit requests
annually from FY1996 to FY1999. Of those, more than 84% were authorized under a general
permit, and the average length of time for action was 14 days. A general permit, which can
apply regionally or nationwide, is essentially a permit by rule for activities with minor impact;
most do not require pre-notification or prior approval. About 7% were required to go
through the more detailed evaluation for an individual permit, which may involve complex
proposals or sensitive environmental issues. The average time to complete review of these
applications was 107; only 0.3% of applications for individual permits were denied. In
FY1999, Corps-issued permits authorized a total of 21,556 acres of wetland impact (30% less
than in FY1998), while those permits required that 46,433 acres of wetlands be restored,
created, enhanced, or preserved as mitigation for the losses authorized.
Regulatory procedures on individual permits allow for interagency review and comment,
a coordination process that can generate delays and an uncertain outcome, especially for
environmentally controversial projects. EPA is the only federal agency having veto power
over a proposed Corps permit; EPA has used its veto authority 11 times since the program
began. Critics have charged that implied threats of delay by the FWS and others practically
amount to the same thing. Reforms during the Reagan, Bush, and Clinton Administrations
streamlined certain of these procedures, with the intent of speeding up and clarifying the
Corps’ full regulatory program, but concerns continue over both process and program goals.
Nationwide Permits. Nationwide permits are a key means by which the Corps
minimizes the burden of its regulatory program. These general permits authorize activities
that are similar in nature and are judged to cause only minimal adverse effect on the
environment. General permits minimize the burden of the Corps’ regulatory program by
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authorizing landowners to proceed without having to obtain individual permits in advance.
They are issued for 5-year periods and thereafter must be renewed by the Corps. In
December 1996 the Corps reissued the 37 existing nationwide permits (including modification
of some) and 2 new permits for additional activities believed to have minimal environmental
effects.
In the 1996 revisions, the Corps made changes to strengthen the environmental
restrictions of nationwide permit 26 (NWP 26), which has been particularly controversial
because of concern that it results in significant unmonitored wetlands losses. The changes to
NWP 26 pleased wetland protection advocates but displeased development and commercial
interests who contend that permitting will now be more burdensome. At the same time, the
Corps announced it would replace NWP 26 in 2 years with activity-based permits that will
be more specific than the previous permit.
Fulfilling that pledge, the Corps issued final replacement permits for NWP 26 on March
6, 2000; these permits took effect June 7, 2000 (65 Federal Register 12818-12899). In
contrast to NWP 26, which authorized activities in certain categories of waters, the
replacement permits authorize projects for five specific types of activities, including passive
recreational facilities such as biking and hiking; and residential, commercial, and institutional
activities, with terms and conditions to ensure that the activities result in minimal adverse
effects on the aquatic environment, individually and cumulatively. The major change that the
Corps believes will strengthen protection of aquatic resources is a maximum acreage limit
under the new NWPs of one-half acre, reduced from the previous maximum of three acres.
In addition, most require that the Corps be notified in advance of activities impacting more
than one-tenth acre, reduced from the previous notification requirement for impacts of more
than one-third acre. The Corps also issued additional general conditions applicable to all
nationwide permits to further ensure protection of aquatic resources, such as limitations on
discharges of fill material into 100-year floodplains. Developers say the replacement permits
are too restrictive of the regulated public and would require more landowners to seek
individual permits, which is more costly and time-consuming for the regulated public. The
Corps acknowledges that more individual permits will be required and that costs for
landowners and the Corps itself will increase, as a result of the permit changes, but the Corps
believes that these impacts will be less severe than developer groups contend and are
outweighed by the additional resource protection that the permits will provide. (For more
information, see CRS Report 97-223, Nationwide Permits for Wetlands Projects: Permit 26
and Other Issues and Controversies.)
A key developer group, the National Association of Home Builders, challenged the
replacement NWPs in a lawsuit filed March 9, the same day the permits package was
published in the Federal Register. The lawsuit challenges a number of details in the permits
and more generally contends that the new permits are contrary to the intent of Congress that
the Corps provide a streamlined process in its nationwide permitting program. Other lawsuits
challenging the permits have been brought by the National Stone Association and the National
Federation of Independent Business.
Section 404 authorizes states to assume many of the permitting responsibilities. Two
states, Michigan (in 1984) and New Jersey (in 1992), have done this. Others have cited the
complex process of assumption, the anticipated cost of running a program, and the continued
involvement of federal agencies as reasons for not joining these two states. Efforts (both
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administrative and legislative) continue towards encouraging more states to assume full or
partial program responsibility.
Judicial Proceedings Involving Section 404. The Section 404 program has been the
focus of a number of lawsuits recently. The status of aspects of the Corps’ regulatory
program was made uncertain by a federal court ruling in January 1997. The U.S. District
Court for the District of Columbia overturned regulations issued by the Corps and EPA in
1993 that had extended the scope of regulation to include certain landclearing and excavation
activities. Those regulations were issued as part of the settlement of a lawsuit brought by
environmental groups over the agencies’ failure to regulate discharges associated with
excavation (“North Carolina Wildlife Federation et al. v. Tulloch”). At issue was whether
"fallback” from dredging activities constituted pollution, under the CWA. The federal court
ruled that, in issuing the rules that resolved the “Tulloch” case, incidental fallback is not
pollution and, thus, the agencies had exceeded their authority under the Clean Water Act.
Corps officials view the ruling as a major setback for the regulatory program, as do
environmentalists. A government appeal of the ruling was rejected in June 1998 by the U.S.
Court of Appeals for the D.C. Circuit, and no further appeal has been pursued.
In December 1997, the U.S. 4th Circuit Court of Appeals ruled in favor of a Maryland
developer, finding that the Corps has exceeded its authority in claiming jurisdiction over
isolated wetlands. The court in U.S. v. Wilson said that the Corps exceeded its authority in
trying to regulate wetlands whose degradation or destruction could have an impact on
interstate commerce. Rather, a “case-by-case” determination is necessary to decide whether
an activity has an effect on a wetland and whether the effect is substantial. Environmentalists
said that the ruling, if interpreted broadly, would make it harder for the federal government
to justify regulating interstate wetlands. However, the ruling only affects Corps districts
covered by the 4th Circuit (Virginia, West Virginia, Maryland, and the Carolinas). A U.S.
request for a rehearing of the case was denied in January 1998, and the government
subsequently decided not to seek Supreme Court review. In May 1998, the Corps issued
guidance outlining how to address isolated wetlands in the 5 states affected by the ruling. The
Corps will continue to assert jurisdiction over isolated wetlands, but only where it can show
a substantial connection between the wetland and interstate commerce.
Finally, in April 1998, a federal district court in Alaska suspended a specific nationwide
permit, NWP 29, which authorizes the placement of fill in waters where single family homes
are being built. The court ruled that the permit was illegal for allowing more than the minimal
environmental harm permitted under the Clean Water Act. The judge ordered the Corps to
stop accepting applications for this permit after June 30, 1998, and to consider alternatives
to it, such as reducing the size of authorized fills (now covering up to one-half acre of non-
tidal wetlands) and excluding high-value waters. The Corps did not appeal the court’s
decision, and Corps officials believe that they can use an administrative modification to create
a new environmental assessment to bring the permit into compliance with the Act.
Treat All Wetlands Equally. Under the Section 404 program, there is a perception
that all jurisdictional wetlands are treated equally, regardless of size, functions, or values.
This has led critics to focus on situations where a wetland has little apparent value, but the
landowner’s proposal is not approved or the landowner is penalized for altering a wetland
without a federal permit. Critics believe that one possible solution may be to have a tiered
approach for regulating wetlands. Several legislative proposals introduced in recent
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Congresses would establish three tiers — from highly valuable wetlands that should receive
the greatest protection to the least valuable wetlands where alterations might usually be
allowed. Some states (New York, for example) use such an approach for state-regulated
wetlands with mixed results. The Corps and EPA issued guidance to field staff emphasizing
the flexibility that exists to apply less vigorous permit review to small projects with minor
environmental impacts, as part of the 1993 Clinton Administration initiative.
Two questions arise: What are the implications of implementing a classification
program, and how clearly can a line separating each wetland category be defined? Regarding
classification, even most wetland protection advocates acknowledge that there are some
situations where a wetland designation with total protection is not appropriate. But they fear
that classification for different degrees of protection could be a first step toward a major
erosion in overall wetland protection. Also, these advocates would probably like to see
almost all wetlands presumed to be in the highest protection category unless experts can
prove an area should receive a lesser level of protection, while critics would seek the reverse.
The second question, locating the boundary line, is controversial when the line
encompasses areas that do not meet the image held by many. Controversy would likely grow
if a tiered approach required that lines be drawn to segment wetland areas. On the other
hand, a consistent application of an agreed-on definition may lead to fewer disputes and result
in more timely decisions. Some information in the 1995 National Academy of Sciences
wetland study is likely to be used in debating questions like these.
Beyond the question of individual wetlands are the composite wetlands of a region. An
example is proposals to treat Alaska differently because a large portion of the state is
designated as wetlands, yet a very small portion has been converted. Proposals have been
made to exempt Alaska from the Section 404 program until 1% of its wetlands have been lost.
Some types of wetlands are also treated differently. For example, playas and prairie potholes
have somewhat different definitions under swampbuster (discussed below), and the effect is
to increase the number of acres that are considered as wetlands. This differential treatment
contributes to questions about federal regulatory consistency on private property.
Agriculture and Wetlands
National surveys a decade ago indicated that agricultural activities have been responsible
for a large percentage of wetland loss in the preceding decades, making this topic a focus for
policymakers. Congress has responded by creating programs, especially since 1985, that use
disincentives and incentives to encourage landowners to protect and restore wetlands.
Swampbuster and the Wetlands Reserve are the two largest efforts, but other programs such
as the Conservation Reserve and Conservation Enhancement Reserve Programs (a subset of
the Conservation Reserve), are also being used to protect wetlands. More recent data,
compiled by the Natural Resources Conservation Service (NRCS) in a 1992 survey, indicate
that the number of acres lost to agriculture has plunged, but continues.
The Section 404 program applies to agricultural lands. But the Corps and EPA exempt
“prior converted lands” (wetlands modified for agricultural purposes before 1985) from
Section 404 permit requirements under a memorandum of agreement (MOA), and the Clean
Water Act exempts “normal farming activities.” Another MOA signed in January 1994 by
the NRCS, the Corps, EPA, and FWS gives NRCS the responsibility for making wetland
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determinations for Section 404 on agricultural lands. However, these determinations are
made under Section 404 rules and procedures. While these exemptions and the MOA have
displeased some protection advocates, they have probably dampened some of the criticisms
from farming interests over federal regulation of private lands. These agencies are revising
the MOA to address changes made in the 1996 farm bill and to respond to problems that have
emerged in implementing the original MOA. In July 1999, a lawsuit was filed by
environmental groups to halt policy changes in wetland determinations that, they claim, could
lead to greater wetland losses in the future. NRCS has responded to the claims raised by
these groups; it has altered some procedures and is again making wetland determinations.

Swampbuster. Swampbuster is the principal wetland protection program specifically
for agricultural lands. Enacted in 1985, it is designed to remove federal farm program
incentives that encourage farmers to convert wetlands to agricultural production. While it
is a disincentive rather than a regulatory program, it has been controversial with farmers
concerned about redefining an appropriate federal role in wetland protection on agricultural
lands, and with wetland protection advocates concerned about inadequate enforcement. Since
March 1995, the NRCS has suspended making wetland determinations, except on request,
because of controversy over wetland delineation and uncertainty as to whether legislation that
redefines wetlands will be enacted, modifying boundaries that have already been delineated.
NRCS estimates that more than 2.6 million wetland determinations have been made and that
more than 4 million sites may eventually require a determination.

In preparation for the 1996 farm bill debate, wetland issues were discussed at several
hearings. Most producer witnesses described how they had been adversely affected by the
wetland protection efforts, especially agency processes for determinations and delineations.
Congress responded by granting producers greater flexibility in the Federal Agricultural
Improvement and Reform Act of 1996 (P.L. 104-127). Changes include:
! expanding the definition of agricultural land used in the MOA to include
pasturelands, rangelands, and tree farms but not commercial forest
operations;
! exempting swampbuster penalties when wetlands are voluntarily restored;
! providing that prior converted wetlands will not be considered “abandoned”
so long as the land is used only for agriculture;
! giving the Secretary discretion to determine which program benefits
swampbusters are ineligible for and granting good-faith exemptions;
! encouraging mitigation and establishing a mitigation banking pilot program;
and
! repealing required consultation with the U.S. Fish and Wildlife Service.
An interim final rule with request for comments was issued on September 6, 1996. A
final rule has not yet been issued.
Wetland Reserve Program (WRP). Under WRP, landowners can place easements on
farmed wetlands in return for payments that are based on the reduction in value. All
easements under this program were permanent until the 1996 farm bill and 1997
appropriations were implemented. The 1996 farm bill (P.L. 104-127) made it an entitlement,
extended its authorization through 2002, and capped enrollment at 975,000 acres. The
Department issued a final rule implementing these amendments on August 14, 1996.
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Data released in January 2000 show almost 785,000 acres in the program. Almost 40%
of the enrollment is in 3 states, Louisiana, Mississippi, and Arkansas. Most of the land is
enrolled under permanent easements, while only about 5% is enrolled under 10-year
restoration agreements. When the program depended on annual appropriations, farmer
interest exceeded available funding. For FY1999, Congress limited enrollment to 120,000
acres in appropriations legislation. For FY2000, the Administration proposed to enroll just
under 200,000 acres, so that the program would reach its maximum permitted level two years
ahead of its deadline. However, Congress responded by limiting enrollment to 150,000 acres
in agriculture appropriations legislation (P.L. 106-78). Increasing annual enrollment is an
important component of the Administration’s Clean Water Action Plan, discussed below, and
several legislative proposals. If the enrollment ceiling is not raised, total enrollment in
FY2001 is estimated to be only about 50,000 acres before the ceiling is reached. (For short
summaries of revisions to programs in the 1996 farm bill, see CRS Report 96-330,
Conservation Provisions in the 1996 Farm Bill: A Summary, and for more information on
agriculture programs to protect wetlands, see CRS Issue Brief 96030, Soil and Water
Conservation: Implementing the 1996 Farm Bill.)
Private Property Rights and Landowner Compensation
An estimated 74% of all remaining wetlands in the coterminous states are on private
lands, and only 13% are located on federal lands. Questions of federal regulation of private
property stem from the belief that land owners should be compensated when a “taking”
occurs and alternative uses are prohibited or restrictions on use are imposed to protect
wetland values. The U.S. Constitution provides that property owners shall be compensated
if private property is “taken” by government action. The courts generally have found that
compensation is not required unless all reasonable uses are precluded. Many individuals or
companies purchase land with the expectation that they can alter it. If that ability is denied,
they contend, then the land is greatly reduced in value. Many argue that a taking should be
recognized when a site is designated as a wetland. The 104th and 105th Congresses
considered, but did not enact, property rights protection legislation, and this topic continues
to be discussed in this Congress. The Administration has strongly hinted that it would have
vetoed the legislative proposals that Congress had considered. (For more information, see
CRS Report 95-200, The Private Property Rights Issue.)
Wetland Mitigation and Restoration
Federal wetland policies during the past decade have increasingly emphasized restoration
of wetland areas. Much of this restoration occurs as part of efforts to mitigate the loss of
wetlands at other sites. The mitigation concept has broad appeal, but implementation has left
a conflicting record. Whether it is possible to restore or create wetlands with ecological and
other functions equivalent to or better than those of natural wetlands that have been lost over
time is a subject that both scientists and policymakers debate. Results so far seem to vary,
depending on the type of wetland. Congress has repeatedly explored the potential for
mitigation, most recently at a House Transportation Committee, Subcommittee on Water
Resources and Environment, oversight hearing, held December 9, 1997.
Mitigation of proposed actions that would adversely affect wetlands has been a
cornerstone of the Section 404 program in recent years. A 1990 MOA signed by all the
agencies with regulatory responsibilities, outlines a sequence of three steps leading to
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mitigation: first, activities in wetlands should be avoided when possible; second, when they
can not be avoided, impacts should be minimized; and third, where minimum impacts are still
unacceptable, mitigation is appropriate. It directs that mitigated wetland acreage be replaced
on a one-for-one functional basis. Therefore, mitigation may be required as a condition of
a Section 404 permit. The Clinton Administration endorses mitigation.
Some wetland protection advocates are critical of mitigation, claiming that it justifies
destroying wetlands. They believe that the permit program should be an inducement to avoid
damaging wetland areas. These critics also contend that adverse impacts on wetland values
are often not fully mitigated and that mitigation measures are not adequately monitored or
maintained. Supporters of current efforts counter that they generally work as envisioned, but
there is little data to support this view. Questions about implementation of the MOA and
controversies over the feasibility of compensating for wetland losses further complicate the
wetland protection debate.
Much of the attention on this issue has focused on Louisiana; it is estimated that 80%
of the total loss of coastal wetlands in the United States has taken place in this state. In
response to these losses, Congress authorized a task force of federal and Louisiana officials,
led by the Corps, to prepare a list of coastal wetland restoration projects in the state, and
provided funding to plan and carry out restoration projects in this and other coastal states
under the Coastal Wetlands Planning, Protection and Restoration Act of 1990, also known
as the Breaux Act. According to the Fish and Wildlife Service, 24 coastal states received
funding under this program between 1992 and 1997 for 96 projects. For the $43.3 million
expended, 51,184 acres of wetlands have been protected, over 42,000 through acquisition and
nearly 8,600 through restoration.
Federal agencies have started similar programs that encompass large geographic areas
in other parts of the country. Known as ecosystem management or watershed management,
these efforts coordinate the activities of federal, state and local interests to restore large
systems. The Chesapeake Bay and South Florida are examples, and wetlands play a
prominent role in almost all of these systems. What role these programs will play in the
overall effort to protect wetlands, however, may not be apparent for many years. These
efforts, as they affect wetlands, will be coordinated through the Clinton Administration’s
Clean Water Action Plan, discussed below.
These agencies have been active in wetland improvement efforts in recent years. A
summary of federal wetland restoration and enhancement activities shows that 18 federal
agencies “restored” or “enhanced” 1.3 million acres of wetlands with FY1988-1992 funds.
In particular, the FWS has been promoting the success of its Partners in Wildlife program,
which it says has grown from restoring less than 100,000 acres in 1990 under less than 6,000
agreements on private property to restoring almost 500,000 acres under more than 17,000
agreements.
Interest has grown recently in creating “mitigation banks,” in which wetlands are
created, restored, or enhanced in advance to serve as “credits” that may be used or acquired
by permit applicants when they are required to mitigate impacts of their activities. Numerous
public and private banks have been established, but many believe that it is too early to assess
their success. The Administration’s August 1993 comprehensive wetlands proposals
endorsed the use of mitigation banks. Detailed federal guidance for establishment, use, and
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operation of mitigation banks was finalized by the Corps, EPA, FWS, NRCS, and NMFS in
the Federal Register on November 28, 1995. Provisions in several recent laws, such as the
1996 farm bill, encourage additional use of the mitigation banking concept. (For more
information, see CRS Report 97-849, Wetland Mitigation Banking: Status and Prospects.)
In the 106th Congress, legislation to establish statutory requirements for mitigation banks
resembling the 1995 guidance has been introduced (H.R. 1290).
Other programs also restore and protect domestic and international wetlands, including
programs under the North American Wetlands Conservation Act. This Act was reauthorized
through FY2003 in the 105th Congress (P.L. 105-312) and now authorizes appropriations of
up to $30 million annually. It has been combined with funding created under several other
laws to create the North American Wetlands Conservation Fund. The fund provides federal
matching grants for wetland conservation projects to help implement the North American
Waterfowl Management Plan. Projects are located in Canada, Mexico, and the United States.
The Department of the Interior’ Budget Notes that accompany the FY2001 budget request
state that this program has contributed $288 million for more than 700 projects which have
protected, restored, or improved nearly 9.1 million acres of wetlands in the United States and
Canada. Partners have provided matching funds exceeding $727 million.
Under the Coastal Wetlands Planning, Protection, and Restoration Act (P.L. 101-646),
the U.S. Fish and Wildlife Service funds competitive grants to states to acquire and protect
coastal wetlands. For FY1998, 13 states received more than $10 million to acquire and
restore more than 13,000 acres.
Under the Convention on Wetlands of International Importance, more commonly known
as the Ramsar Convention, 108 nations have agreed to slow the rate of wetlands loss. These
nations have designated more than 900 sites since the convention was adopted in 1971. The
United States has designated 17 wetlands, encompassing almost 3 million acres.
Issues Addressed by the 105th Congress
The 105th Congress enacted P.L. 105-312, which reauthorized the North American
Wetlands Conservation Act and the Partnership for Wildlife Act through 2003, providing $30
million per year to the former and $3 million per year to the latter. Congress also enacted
transportation legislation (P.L. 105-178) which included a provision saying that mitigation
banking is the preferred method for replacing wetlands lost due to highway projects. It did
not address any of the more controversial wetland protection issues. For example, it held
hearings, but did not enact legislation in response to the Corps’ 1996 changes to nationwide
permit 26, which were vigorously opposed by developers and private property rights
advocates, or in response to the January 1997 federal District Court decision voiding the
so-called “Tulloch” rule, which had expanded the definition of disposal of dredge and fill
material to include excavation.
The Administration’s Clean Water Action Plan.. In October 1997, on the 25th
anniversary of the CWA, Vice President Gore announced an initiative intended to build on
the environmental successes of the Act and address the nation’s remaining water quality
challenges. The Vice President directed EPA and USDA to coordinate the work of other
federal agencies to develop an action plan to strengthen water pollution control efforts.
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President Clinton and Vice President Gore released the action plan on February 19,
1998. (The text is available at [http://www.cleanwater.gov/].) Restoring and protecting
wetlands is a key feature of the plan. It calls for a coordinated strategy to achieve a net gain
of as many as 100,000 acres of wetlands annually by the year 2005. This is likely to be one
of the more difficult elements to implement since it requires reversing current wetlands losses,
which are estimated to be 80,000 to 120,000 acres annually. The Administration believes that
actions such as tightening rules that apply to use of nationwide permit 26 (discussed above)
will help achieve the wetlands protection goals of the Clean Water Action Plan, but that major
gains will be achieved by the Wetlands Reserve Program, Conservation Reserve Program, and
similar federal and non-federal programs. The plan calls for a 50% increase in wetlands
restored and enhanced by the Corps of Engineers and increased enrollment of acres for
wetlands restoration under USDA conservation programs. Because data on wetland acreage,
especially the rate and pattern of wetland loss, are imperfect and often controversial, the plan
calls for a new interagency system to more accurately track wetland loss, as well as
restoration and creation.
The action plan was not accompanied by proposals or legislation to reauthorize the
CWA or other laws. In Congress, it has been considered primarily through the appropriations
process, although the Senate Environment and Public Works Committee held an oversight
hearing on the action plan on May 13. Overall, the FY1999 appropriations bills provided less
than 15% of the increased funds requested by the Administration for the entire plan. Funds
for FY2000 totaled $2.2 billion, according to Administration estimates, but fell $322 million
short of the 23% in increased funds that had been requested. For FY2001, the
Administration requested $2.8 billion in total funding for the Clean Water Action Plan, a 27%
increase above FY2000 levels. The FY2001 budget request includes several proposals that
would affect wetlands protection and wetlands programs: doubling of the funding to $30
million for the North American Wetlands Conservation Fund; $15 million more for the Fish
and Wildlife Service for wetlands restoration replacement of the overall WRP enrollment cap
(975,000 acres) with an annual enrollment cap of 250,000 acres; and $8 million more for the
Corps’ wetlands regulatory program. (For further information, see CRS Report 98-745, The
Clean Water Action Plan: Budgetary Initiatives.)
The 106th Congress
The 106th Congress may address wetland issues that were considered, but not resolved,
during the 105th Congress. These include continuing efforts to reauthorize the Clean Water
Act and other wetland legislation; implementation of farm bill provisions; and oversight of
administration and court actions that raise concerns about changes in wetlands programs,
including nationwide permits and court rulings concerning the Tulloch Rule. While about 40
bills with wetland provisions have been introduced in the 106th Congress, congressional
committees have given limited attention to wetlands issues. However, a few bills are moving
through the legislative process. For example, on October 18, 1999, the House passed H.R.
2821 (H.Rept. 106-388), a bill to add two additional members to the North American
Wetlands Conservation Council. On November 19, the Senate approved S. 1119 (S.Rept.
106-193), a bill to reauthorize the Coastal Wetlands Planning, Protection and Restoration Act
through FY2009.
In August 1999, Congress passed the Water Resources Development Act of 1999 (P.L.
106-53), authorizing flood control, navigation, beach protection, and environmental
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restoration projects of the Army Corps of Engineers. Among its provisions, the bill
authorizes $200 million over 5 years to promote wetland restoration for flood control. The
legislation was not used as a vehicle for general debate on wetlands policy; however,
implementation of its projects and policies could affect wetlands in specific areas (such as the
Florida Everglades).
Some regulatory issues were addressed in the FY2000 Energy and Water Development
Appropriations bill (P.L. 106-60). The House approved two provisions in July 1999. One
would have required the Corps to modify a recently-established administrative appeals
process for certain Corps regulatory decisions to allow unsuccessful appellants to directly
challenge the decisions in court. The Administration opposed this provision, saying that it
would impose excessive burdens on the Corps and the courts, while landowner and developer
groups favored it. The conference committee deleted the House language that would have
made certain administrative decisions appealable to federal courts prior to a final permit
decision. It included Senate language providing that $5 million in additional funds for the
Corps’ regulatory program in FY2000 shall be used to establish an administrative process for
appeals of jurisdictional determinations by the Corps.
The House-passed bill also included a provision to require a Corps study on the
workload impact and compliance costs of replacement permits for nationwide permit 26; the
study was to be completed 30 days prior to publication of the final permits, but no later than
Dec. 30, 1999. Landowner and developer groups supported the House-passed provision, but
the Administration opposed it, saying that the study was unnecessary and, even with a
December 30 deadline, would increase wetlands loss in the nation by delaying issuance of
replacement permits. The final bill modified the House-passed language by directing the
Corps to study the workload impacts and costs of compliance of proposed replacement
permits, but dropped language that would have required submission of a report to Congress
before publication of final permits.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. House. Committee on Government Reform and Oversight. Wetlands:
Community and Individual Rights v. Unchecked Government Powers. Hearings, 105th
Congress, 1st session. June 16, 1997. 110 p. Serial No. 105-64
U.S. Congress. House. Committee on Resources, Subcommittee on Fisheries Conservation,
Wildlife, and Oceans. Hearings on H.R. 2401, CBRA Technical Corrections; and H.R.
2556, to Reauthorize the North American Wetland Conservation Act of 1989. Hearings,
105th Congress, 1st session. October 23, 1997. 80 p. Serial No. 105-64
U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on
Water Resources and Environment. Recent Regulatory and Judicial Developments on
Wetlands. Hearings, 105th Congress, 1st session. April 29, 1997. 461 p. Serial No 105-
36.
——. Wetlands Protection and Mitigation Banking. Hearings, 105th Congress, 1st session.
December 9, 1997, 135 p. Serial No. 105-49
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U.S. Congress. Senate. Committee on Environment and Public Works. Subcommittee on
Clean Air, Wetlands, Private Property, and Nuclear Safety. Wetlands: Review of
Regulatory Changes. Hearings, 105th Congress, 1st session. June 26th, 1997. 230 p.
(S. Hrg. 105-328)
FOR ADDITIONAL READING
Association of State Wetland Managers. State Wetland Regulation: Status of Programs and
Emerging Trends. Berne, New York, n.d. 178 p.
Kusler, Jon and Teresa Opheim. Our National Wetland Heritage: A Protection Guide.
Environmental Law Institute. [Washington] 1996. 149 p.
National Academy of Science, National Research Council. Wetlands: Characteristics and
Boundaries. [Washington] 1995.
Strand, Margaret N. Wetlands Deskbook. Environmental Law Institute. [Washington]
1993. 883 p.
U.S. Department of the Interior. The Impact of Federal Programs on Wetlands. Vol. I.
[Washington] 1988. 114 p. and Vol. II [Washington] 1994. 333 p.
U.S. Department of the Interior. U.S. Geological Survey. National Water Summary on
Wetland Resources. [Washington] 1997. 431 p. Water Supply Paper 2425
CRS Reports
CRS Report 96-330. Conservation Provisions in the 1996 Farm Bill: A Summary, by Jeffrey
Zinn. 6 p.
CRS Report 97-223. Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues
and Controversies, by Claudia Copeland. 17 p.
CRS Report 97-849. Wetland Mitigation Banking: Status and Prospects, by Jeffrey Zinn.
21 p.
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