Wetlands: An Overview of Issues
Claudia Copeland
Specialist in Resources and Environmental Policy
July 12, 2010
Congressional Research Service
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www.crs.gov
RL33483
CRS Report for Congress
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repared for Members and Committees of Congress
Wetlands: An Overview of Issues
Summary
Recent Congresses have considered numerous policy topics that involve wetlands. Many reflect
issues of long-standing interest, such as applying federal regulations on private lands, wetland
loss rates, and restoration and creation accomplishments. In the 110th Congress, a few of the
topics were new, such as wetlands provisions in the 2008 farm bill (P.L. 110-246). The 110th
Congress also considered wetland topics at the program level, responding to legal decisions and
administrative actions affecting the jurisdictional boundary limits of the federal wetland permit
program in the Clean Water Act (CWA).
Perhaps the issue receiving the greatest attention has been determining which wetlands should be
included and excluded from permit requirements under the CWA’s regulatory program, as a result
of Supreme Court rulings in 2001 (in the SWANCC case) that narrowed federal regulatory
jurisdiction over certain isolated wetlands, and in June 2006 (in the Rapanos-Carabell decision)
that left the jurisdictional reach of the permit program to be determined on a case-by-case basis.
In response, legislation intended to reverse the Court’s rulings in these cases has been introduced
regularly since the 107th Congress. In the 111th Congress, for the first time, one such bill has been
approved by a congressional committee (S. 787, the Clean Water Restoration Act). The Obama
Administration has not endorsed any specific legislation, but has identified general principles for
legislation that would clarify waters protected by the CWA.
Wetland protection efforts continue to engender controversy over issues of science and policy.
Controversial topics include the rate and pattern of loss, whether all wetlands should be protected
in a single fashion, the effectiveness of the current suite of laws in protecting them, and the fact
that 75% of remaining U.S. wetlands are located on private lands.
Many recent public and private efforts have sought to mitigate damage to wetlands and to protect
them through acquisition, restoration, and enhancement, particularly coastal wetlands. The 3.4
million acres of marsh, swamp, forests, and barrier islands in coastal Louisiana constitute the
largest wetland complex in the lower 48 states and are important spawning grounds for fish and
shellfish, as well as habitat for migratory birds. The state’s wetlands have been weakened by
flood control and other engineering projects that have altered water flow and led to erosion of
land. These areas were damaged by hurricanes in 2005 and now are threatened by oil from the
April 2010 explosion of the Deepwater Horizon rig in the Gulf of Mexico, as are other coastal
wetlands in the Gulf.
One reason for controversies about wetlands is that they occur in a wide variety of physical
forms, and the numerous values they provide, such as wildlife habitat, also vary widely. In
addition, the total wetland acreage in the lower 48 states is estimated to have declined from more
than 220 million acres three centuries ago to 107.7 million acres in 2004. The national policy goal
of no net loss, endorsed by administrations for the past two decades, has been reached, according
to the Fish and Wildlife Service, as the rate of loss has been more than offset by net gains through
expanded restoration efforts authorized in multiple laws. Many protection advocates say that net
gains do not necessarily account for the changes in quality of the remaining wetlands, and many
also view federal protection efforts as inadequate or uncoordinated. Others, who advocate the
rights of property owners and development interests, characterize them as too intrusive.
Numerous state and local wetland programs add to the complexity of the protection effort.
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Contents
Introduction ................................................................................................................................ 1
Wetlands: Science and Information ............................................................................................. 2
What Is a Wetland? ............................................................................................................... 2
What Functional Values Are Provided by Wetlands?.............................................................. 3
How Fast Are Wetlands Disappearing, and How Many Acres Are Left?................................. 4
Selected Federal Wetlands Programs ........................................................................................... 5
The Clean Water Act Section 404 Program ............................................................................ 5
The Permitting Process ................................................................................................... 6
Nationwide Permits......................................................................................................... 7
Section 404 Judicial Proceedings: SWANCC and Rapanos............................................... 8
Congressional Response................................................................................................ 11
Should All Wetlands Be Treated Equally?...................................................................... 13
Agriculture and Wetlands .................................................................................................... 13
Swampbuster ................................................................................................................ 14
Other Agricultural Wetlands Programs .......................................................................... 14
Agricultural Wetlands and the Section 404 Program ...................................................... 16
Private Property Rights and Landowner Compensation ....................................................... 16
Wetland Restoration and Mitigation .................................................................................... 17
The Louisiana Experience ............................................................................................. 17
Other Federal Protection Efforts.................................................................................... 19
Mitigation ..................................................................................................................... 20
For Additional Reading ............................................................................................................. 21
Contacts
Author Contact Information ...................................................................................................... 22
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Wetlands: An Overview of Issues
Introduction
Wetlands, with a variety of physical characteristics, are found throughout the country. They are
known in different regions as swamps, marshes, fens, potholes, playa lakes, or bogs. Although
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 daily as tides rise and fall.
Prior to the mid-1980s, federal laws and policies to protect wetlands were generally limited to
providing habitat for migratory waterfowl, especially ducks and geese. Some laws encouraged
destruction of wetland areas, including selected provisions in the federal tax code, public works
legislation, and farm programs.
Since the mid-1980s, the values of wetlands have been recognized in different ways in numerous
national policies, and federal laws 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, found in 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 may adversely affect wetlands do not
require permits, and some places that scientists define as wetlands are exempt from this permit
program because of physical characteristics or the type of activity that takes place. One
agricultural program, Swampbuster, is a disincentive program that indirectly protects wetlands by
making farmers who drain wetlands ineligible for federal farm program benefits; those who do
not receive these benefits (56% of all farmers received no federal farm payments of any kind in
2006) have no reason to observe the requirements of this program. Numerous other acquisition,
protection, and restoration programs complete the current federal effort.
Although numerous wetland protection bills have been introduced in recent Congresses, the most
significant new wetlands legislation to be enacted has been in farm bills, in 1996, 2002, and 2008.
During this period, Congress also reauthorized several wetlands programs, mostly setting higher
appropriations ceilings, without making significant shifts in policy. The Bush Administration
endorsed wetland protection in legislation, such as the farm bill and the North American Wetlands
Conservation Act reauthorization, and at events, such as Earth Day presentations. The Bush
Administration also issued guidance on mitigation policies and regulatory program jurisdiction;
the latter has been controversial (see discussion below).
Congress has provided a forum in numerous hearings where conflicting interests in wetland
issues have been debated. These debates encompass disparate scientific and programmatic
questions, and conflicting views of the role of government where private property is involved.
Broadly speaking, the conflicts are between:
• Environmental interests and wetland protection advocates who have been
pressing for greater wetlands protection as multiple values have been more
widely recognized, by improving coordination and consistency among agencies
and levels of governments, and strengthened programs; and
• Others, including landowners, farmers, and small businessmen, who counter that
protection efforts have gone too far, by aggressively protecting privately owned
wet areas that provide few wetland values. They have been especially critical of
the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental
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Protection Agency (EPA), asserting that they administer the Section 404 program
in an overzealous and inflexible manner.
Wetland legislative activity in the 110th Congress centered broadly on two issues. One was on
wetlands conservation provisions in the 2008 farm bill, which was enacted in June 2008 (Food,
Conservation, and Energy Act of 2008, P.L. 110-246). The new law reauthorized and increased
the acreage enrollment cap in the wetlands reserve program, with a goal of enrolling 250,000
acres annually, and extended provisions to enroll up to a million acres of wetlands and buffers in
the Conservation Reserve Program. Other agricultural conservation programs, while lacking
explicit wetlands protection provisions, are still likely to be beneficial to wetlands.
The second major area of legislative interest in the 110th Congress and continuing in the 111th
Congress is proposals to reverse Supreme Court rulings that addressed and narrowed the scope of
geographic jurisdiction of wetlands regulations under the Clean Water Act. This interest arises
because federal courts have played a key role in interpreting and clarifying the limits of federal
jurisdiction to regulate activities that affect wetlands, especially since a 2001 Supreme Court
ruling in the so-called SWANCC decision and a 2006 ruling in Rapanos v. United States. In the
110th Congress, House and Senate committees held hearings on legislation intended to reverse the
SWANCC and Rapanos rulings (H.R. 2421, S. 1870). Similar legislation introduced in the 111th
Congress (S. 787, the Clean Water Restoration Act) has been approved by the Senate
Environment and Public Works Committee and ordered reported. Companion legislation was
introduced in the House in April (H.R. 5088, America’s Commitment to Clean Water Act).
Wetlands: Science and Information
Scientific questions about wetlands, with answers that can be important to policy makers, include
how to define wetlands; how to catalogue the rate and pattern of wetland declines and losses as
well as restorations and increases; and how to assess the importance of wetland changes to
broader ecosystems. Wetlands science has made considerable strides in developing a fuller and
more sophisticated knowledge about many aspects of wetlands in the more than two decades
since protecting wetlands became a general policy goal in federal law and program
administration.1
Two topics where scientific information and wetland protection policies remain inconsistent
continue to be: should all regulated wetlands be treated equally; and if all scientifically-defined
wetlands are not covered by the federal regulatory program, what subset should be covered, and
how should such decisions be made? While discussion of either question has major science
elements, both are primarily addressed in the section below about the Clean Water Act Section
404 program.
What Is a Wetland?
Scientists generally agree 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
1 Two places to view material on some of the changes in scientific knowledge and understanding are through the
products of the Society of State Wetlands Managers http://www.aswm.org and the Society of Wetland Scientists
http://www.sws.org.
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provisions of farm legislation (P.L. 99-198) and in the Emergency Wetlands Resources Act of
1986 (P.L. 99-645), lists those three components. This definition does not include more specific
criteria, such as exactly what conditions must be present and for how long, thus leaving
interpretation to scientists and regulators on a case-by-case basis. Controversies are exacerbated
when many sites that have those three components and are identified as wetlands by experts,
either may have wetland characteristics only some portion of the time, or may not look like what
many people visualize as wetlands. Also, many of these sites have been directly or indirectly
modified by human activities that diminish their appearance (and their ability to perform wetland
functions).
Wetlands currently subject to federal regulation are a large subset of all places that members of
the scientific community would call a wetland. 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. This manual was prepared jointly and is used by all federal
agencies to carry out their responsibilities under this program (the Corps, EPA, Fish and Wildlife
Service (FWS), and the National Marine Fisheries Service (NMFS)). It provides guidance and
field-level consistency for the agencies that have roles in wetland regulatory protection. (A
second and slightly different manual, agreed to by the Corps and the Natural Resources
Conservation Service (NRCS), is used for delineating wetlands on agricultural lands.) While the
agencies try to improve the objectivity and consistency of wetland identification and delineation,
judgment continues to play a role and can lead to site-specific controversies. Cases discussed
below (see “Section 404 Judicial Proceedings: SWANCC and Rapanos”) center on whether
wetlands should be included or exempted from the regulatory program in certain circumstances,
such as the physical setting.
What Functional Values Are Provided by Wetlands?
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 (for example, flood protection programs
of the Corps and Department of Agriculture have modified or eliminated many flood plain
wetlands through alterations of the hydraulic/hydrologic regime). 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.
Usually wetlands provide some combination of these values; single wetlands rarely provide all of
these values. The composite value typically declines when wetlands are altered. In addition, the
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effects of alteration often extend well beyond the immediate area, because wetlands are usually
part of a larger water system. For example, conversion of wetlands to urban uses has increased
flood damages; this value has received considerable attention as the costs of natural disaster costs
mounted since the 1990s.
How Fast Are Wetlands Disappearing, and How Many Acres Are
Left?
A number of reports document changes in wetland acres. The U.S. Fish and Wildlife Service
periodically surveys national net trends in wetland acreage using the National Wetlands Inventory
(NWI). It has 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.
According to its most recent report of national trends, issued in 2006, total wetland acreage in
2004 was estimated to be 107.7 million acres.2 FWS also has published reports on wetland status
and trends in several individual regions and states, such as Florida, Texas, and Alaska.3
National data compiled by the NRCS and the FWS in separate surveys and using different
methodologies have identified similar trends. Both show that the annual net loss rate dropped
from almost 500,000 acres annually nearly three decades ago to slight net annual gains in recent
years. The FWS survey estimated that the average annual gain between 1998 and 2004 was
32,000 acres, while NRCS (using its Natural Resources Inventory of privately-owned lands)
estimated that there was an average annual gain of 26,000 acres between 1997 and 2002.4 NRCS
cautioned against making precise claims of net increases because of statistical uncertainties.
Some environmentalists caution that the increases identified in the latest FWS data are tied to a
proliferation of small, shallow ponds rather than natural wetlands.
In 2002, the Bush Administration endorsed the concept of “no-net-loss” of wetlands—a goal
declared by President George H. W. Bush in 1988 and also embraced by President Clinton to
balance wetlands losses and gains in the short term and achieve net gains in the long term. On
Earth Day 2004, President Bush announced a new national goal, moving beyond no-net-loss, of
achieving an overall increase of wetlands.5 The goal was to create, improve, and protect at least
three million wetland acres over the next five years in order to increase overall wetland acres and
quality. (By comparison, the Clinton Administration in 1998 announced policies intended to
achieve overall wetland increases of 200,000 acres per year by 2005.) The Bush strategy also
called for better tracking of wetland programs and enhanced local and private sector
collaboration.
In April 2008, the Bush Administration issued a report saying that more than 3.6 million acres of
wetlands had been restored, protected, or improved as part of the President’s program to create,
improve and protect wetlands, and that the number was expected to climb to 4.5 million acres by
2 U.S. Fish and Wildlife Service, National Wetlands Inventory, Status and Trends of Wetlands in the Coterminus
United States, 1998 - 2004, March 2006, 110 pp. This is the most recent of several reports by the Inventory over the
past 25 years, which document wetlands trends at both a national and regional scale.
3 For information, see http://www.fws.gov/wetlands/StatusAndTrends/index.html.
4 Natural Resources Conservation Service, National Resources Inventory; 2002 Annual NRI (Wetlands). See
http://www.nrcs.usda.gov/technical/NRI/2003/nri03wetlands.html.
5 See http://www.whitehouse.gov/news/releases/2004/04/20040422-1.html.
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the original date set by that program—Earth Day 2009.6 The report documents gains, but not
offsetting loses. It summarizes accomplishments for each federal wetland conservation program.
Environmental groups criticized the report as presenting an incomplete picture, because it fails to
mention wetlands lost to agriculture and development.
Numerous shifts in federal policies since 1985 (and changes in economic conditions as well)
strongly influence wetland loss patterns, but the composite effects remain unmeasured beyond
these raw numbers. There usually is a large time lag between the announcement and
implementation of changes in policy, and collection and release of data that measure how these
changes affect loss rates. Also, it is often very difficult to distinguish the role that policy changes
play from other factors, such as agricultural markets, development pressures, and land markets.
Further, these data only measure acres. This may have been appropriate two or three decades ago
when scientists knew less about how to measure the specific functions and values found in
wetlands. By providing data limited to number of acres, these data provide few insights into
changes in their quality, as measured by the values they provide, which is often determined by
factors such as where a wetland is located in a watershed, and what are the surrounding land uses.
Nevertheless, in his Earth Day 2004 wetlands announcement (discussed above), President Bush
said that as the nation is nearing the goal of no-net-loss, it is appropriate to move towards policies
that will result in a net increase of wetland acres and quality.
Selected Federal Wetlands Programs
Federal program issues include the administration of programs to protect, restore, or mitigate
wetland resources (especially the Clean Water Act Section 404 program); relationships between
agricultural and regulatory programs; whether all wetlands should be treated the same in federal
programs, and which wetlands should be subject to regulation; and whether protecting wetlands
by acres is an effective proxy for protecting wetlands based on the functions they perform and the
values they provide. In addition, private property questions are raised, because almost three-
quarters of the remaining wetlands are located on private lands. Some property owners believe
that they should be compensated when federal programs limit how they can use their land, and for
decisions that arguably diminish the value of the land.
The Clean Water Act 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. Enacted 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
6 Office of the President, Council on Environmental Quality, Conserving America’s Wetlands 2008: Four Years of
Progress Implementing the President’s Goal, April 2008.
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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 amended in 1977.
This judicial/regulatory/administrative evolution of the Section 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, 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 the Corps, it evaluates more than 85,000 permit
requests annually. Of those, more than 90% are authorized under a general permit, which can
apply regionally or nationwide, and is essentially a permit by rule, meaning the proposed activity
is presumed to have a minor impact, individually and cumulatively. Most general permits do not
require pre-notification or prior approval by the Corps. About 9% of all permits are required to go
through the more detailed evaluation for a standard individual permit, which may involve
complex proposals or sensitive environmental issues and can take 180 days or longer for a
decision. Less than 0.3% of permits are denied; most other individual permits are modified or
conditioned before issuance. About 5% of applications are withdrawn prior to a permit decision.
In FY2003 (the most recent year for which data are available), Corps-issued permits authorized
activities having a total of 21,330 acres of wetland impact, while those permits required that
43,379 acres of wetlands be restored, created, or enhanced as mitigation for the authorized
losses.7
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 fewer than a dozen times in the 30-plus
7 U.S. Army, Corps of Engineers, “Regulatory Statistics, All Permit Decisions, FY2003.” See
http://www.usace.army.mil/cw/cecwo/reg/2003webcharts.pdf.
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years since the program began. However, critics have charged that implied threats of delay by the
FWS and others practically amount to the same thing. Reforms during the Reagan, earlier 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.
Controversy also surrounded revised regulations issued by EPA and the Corps in May 2002,
which redefine two key terms in the 404 program: “fill material” and “discharge of fill material.”
These definitions are important, because material defined as “fill” is regulated and permitted
under Section 404 procedures, while other waste discharges are regulated under more stringent
CWA rules and procedures. The agencies said that the revisions were intended to clarify certain
confusion in their joint administration of the program due to previous differences in how the two
agencies defined those terms. However, environmental groups contended that the changes allow
for less restrictive and inadequate regulation of certain disposal activities, including disposal of
coal mining waste, which could be harmful to aquatic life in streams. The Senate Environment
and Public Works Committee held a hearing in June 2002 to review these issues. Legislation to
reverse the agencies’ action by clarifying in the law that fill material cannot be composed of
waste has been introduced regularly since the 107th Congress, but no further action has occurred.8
Similar legislation in the 111th Congress is H.R. 1310, the Clean Water Protection Act. Related
but not identical legislation also has been introduced in the Senate (S. 696, the Appalachia
Restoration Act); this bill is intended to restrict the use of Section 404 to regulate waste disposal
from a coal mining practice called mountaintop mining.
Nationwide Permits
Nationwide permits are a key means by which the Corps minimizes the burden of its regulatory
program. A nationwide permit is a form of general permit which authorizes a category of
activities throughout the nation and is valid only if the conditions applicable to the permit are
met. These general permits authorize activities that are similar in nature and are judged to cause
only minimal adverse effect on the environment, individually and cumulatively. General permits
minimize the burden of the Corps’ regulatory program by authorizing landowners to proceed
without having to obtain individual permits in advance.
The current program has few strong supporters, for differing reasons. Developers say that it is too
complex and burdened with arbitrary restrictions. Environmentalists say that it does not
adequately protect aquatic resources. At issue is whether the program has become so complex and
expansive that it cannot either protect aquatic resources or provide for a fair regulatory system,
which are its dual objectives.
Nationwide permits are issued for periods of no longer than five years and thereafter must be
reissued by the Corps. On March 12, 2007, the Corps issued a package of nationwide permits,
replacing those that had been in effect since 2002. The 2007 permits established six new
nationwide permits (for a total of 49) and also revised a number of existing permits and general
terms and conditions that apply to all nationwide permits.9
8 For additional information, see CRS Report RL31411, Controversies over Redefining “Fill Material” Under the
Clean Water Act, by Claudia Copeland.
9 U.S. Department of Defense, Department of the Army, Corps of Engineers, “Reissuance of Nationwide Permits;
Notice,” 72 Federal Register 11091-11198, March 12, 2007.
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Citizen groups have filed lawsuits seeking to halt the Corps’ use of one of its nationwide permits,
NWP 21, to authorize mountaintop mining activities. These critics contend that the adverse
environmental impacts of activities authorized by NWP 21 are far greater than the “minimal
adverse effects” limits prescribed by the Clean Water Act for all nationwide permits. In 2004, a
federal district court in West Virginia ruled that NWP 21 violates the CWA by authorizing
activities that have more than minimal adverse environmental effects. The district court’s ruling
was overturned on appeal. Other legal challenges to the use of NWP 21 in connection with
mountaintop mining also have been filed.10
Section 404 authorizes states to assume many of the Corps’ permitting responsibilities. Two states
have done this: Michigan (in 1984) and New Jersey (in 1992). Others have cited the complex
process of assumption, the anticipated cost of running a program, and the continued involvement
of federal agencies because of statutory limits on waters that states could regulate as reasons for
not joining these two states. Efforts continue to encourage more states to assume program
responsibility.
Section 404 Judicial Proceedings: SWANCC and Rapanos
The Section 404 program has been the focus of numerous lawsuits, most of which have sought to
narrow the geographic scope of the regulatory program.
SWANCC
An issue of long-standing controversy is whether isolated waters are properly within the
jurisdiction of Section 404. Isolated waters (those that lack a permanent surface outlet to
downstream waters) which are not physically adjacent to navigable surface waters often appear to
provide few of the values for which wetlands are protected, even if they meet the technical
definition of a wetland. In January 2001, the Supreme Court ruled on the question of whether the
CWA provides the Corps and EPA with authority over isolated waters and wetlands. The Court’s
5-4 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of
Engineers (531 U.S. 159) held that the denial of a Section 404 permit for disposal on isolated
wetlands solely on the basis that migratory birds use the site exceeds the authority provided in the
CWA. The full extent of retraction of the regulatory program resulting from this decision remains
unclear, even more than nine years after the ruling. Environmentalists believe that the Court
misinterpreted congressional intent on the matter, while industry and landowner groups
welcomed the ruling.11
Policy implications of how much the decision restricts federal regulation depend on how broadly
or narrowly the opinion is applied, and since the 2001 Court decision, other federal courts have
issued a number of rulings that have reached varying conclusions. Some federal courts have
interpreted SWANCC narrowly, thus limiting its effect on current permit rules, while a few read
the decision more broadly. Attorneys for industry and developers say that the courts will remain
10 For background, see CRS Report RS21421, Mountaintop Mining: Background on Current Controversies, by Claudia
Copeland.
11 For additional information, see CRS Report RL30849, The Supreme Court Addresses Corps of Engineers
Jurisdiction Over “Isolated Waters”: The SWANCC Decision, by Robert Meltz.
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the primary battleground for CWA jurisdiction questions, so long as neither the Administration
nor Congress takes steps to define jurisdiction.
The government’s view on the key question of the scope of CWA jurisdiction in light of SWANCC
and other court rulings came in a legal memorandum issued jointly by EPA and the Corps in
January 2003.12 It provides a legal interpretation essentially based on a narrow reading of the
Court’s decision, thus allowing federal regulation of some isolated waters to continue (in cases
where factors other than the presence of migratory birds may exist, thus allowing for assertion of
federal jurisdiction), but it calls for more review by higher levels in the agencies in such cases.
Administration press releases said that the guidance demonstrates the government’s commitment
to “no-net-loss” wetlands policy. However, it was apparent that the issues remained under
discussion, because at the same time, the Administration issued an advance notice of proposed
rulemaking (ANPRM) seeking comment on how to define waters that are under the regulatory
program’s jurisdiction. The ANPRM did not actually propose rule changes, but it indicated
possible ways that Clean Water Act rules might be modified to further limit federal jurisdiction,
building on SWANCC and some of the subsequent legal decisions. The government received more
than 133,000 comments on the ANPRM, most of them negative, according to EPA and the Corps.
Environmentalists and many states opposed changing any rules, saying that the law and previous
court rulings call for the broadest possible interpretation of the Clean Water Act (and narrow
interpretation of SWANCC), but developers sought changes to clarify interpretation of the
SWANCC ruling.
In December 2003, EPA and the Corps announced that the Administration would not pursue rule
changes concerning federal regulatory jurisdiction over isolated wetlands. The EPA Administrator
said that the Administration wanted to avoid a contentious and lengthy rulemaking debate over
the issue. Nonetheless, interest groups on all sides have been critical of confusion in
implementing the 2003 guidance, which constitutes the main tool for interpreting the reach of the
SWANCC decision. Environmentalists remain concerned about diminished protection resulting
from the guidance, while developers said that without a new rule, confusing and contradictory
interpretations of wetland rules likely will continue. In that vein, a Government Accountability
Office (GAO) report concluded that Corps districts differ in how they interpret and apply federal
rules when determining which waters and wetlands are subject to federal jurisdiction,
documenting enough differences that the Corps has begun a comprehensive survey of its district
office practices to help promote greater consistency.13 Concerns over inconsistent or confusing
regulation of wetlands have also drawn congressional interest.14
Rapanos-Carabell
Federal courts continue to have a key role in interpreting and clarifying the SWANCC decision. In
February 2006, the Supreme Court heard arguments in two cases brought by landowners
(Rapanos v. United States; Carabell v. U.S. Army Corps of Engineers) seeking to narrow the
scope of the CWA permit program as it applies to development of wetlands. The issue in both
12 See http://www.epa.gov/owow/wetlands/pdf/Joint_Memo.pdf.
13 U.S. Government Accountability Office, Corps of Engineers Needs to Evaluate Its District Office Practices in
Determining Jurisdiction, GAO-04-297, February 2004, 45 pp.
14 U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, Inconsistent Regulation of Wetlands and Other Waters, Hearing 108-58, 108th Cong., 2nd
sess., March 30, 2004.
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cases had to do with the reach of the CWA to cover “waters” that were not navigable waters, in
the traditional sense, but were connected somehow to navigable waters or “adjacent” to those
waters. (The act requires a federal permit to discharge dredged or fill materials into “navigable
waters.”) Many legal and other observers hoped that the Court’s ruling in these cases would bring
greater clarity about the scope of federal regulatory jurisdiction.
The Court’s ruling was issued on June 19, 2006 (Rapanos et al., v. United States, 126 S.Ct. 2208
(2006)). In a 5-4 decision, a plurality of the Court, led by Justice Scalia, held that the lower court
had applied an incorrect standard to determine whether the wetlands at issue are covered by the
CWA. Justice Kennedy joined this plurality to vacate the lower court decisions and remand the
cases for further consideration, but he took different positions on most of the substantive issues
raised by the cases, as did four other dissenting justices.15 Legal observers suggested that the
implications of the ruling (both short-term and long-term) are far from clear. Because the several
opinions written by the justices did not draw a clear line regarding what wetlands and other
waters are subject to federal jurisdiction, one result has been more case-by-case determinations
and continuing litigation. The Senate Environment and Public Works Committee held a hearing
on issues raised by the Court’s ruling on August 1, 2006. Members and a number of witnesses
urged EPA and the Corps to issue new guidance to clarify the scope of the ruling.
On June 5, 2007—nearly one year after the Rapanos ruling—EPA and the Corps did issue
guidance to enable their field staffs to make CWA jurisdictional determinations in light of the
decision. According to the nonbinding guidance, the agencies will assert regulatory jurisdiction
over certain waters, such as traditional navigable waters and adjacent wetlands. Jurisdiction over
others, such as non-navigable tributaries that do not typically flow year-round and wetlands
adjacent to such tributaries, will be determined on a case-by-case basis, to determine if the waters
in question have a significant nexus with a traditional navigable water. The guidance details how
the agencies should evaluate whether there is a significant nexus. The guidance is not intended to
increase or decrease CWA jurisdiction, and it does not supersede or nullify the January 2003
guidance, discussed above, which addressed jurisdiction over isolated wetlands in light of
SWANCC.
In accompanying documents, the agencies said that the Administration was considering a
rulemaking in response to the Rapanos decision, but they noted that developing new rules would
take more time than issuing the guidance. They also noted that, while the guidance provides more
clarity for how jurisdictional determinations will be made concerning non-navigable tributaries
and their adjacent wetlands, legal challenges to the scope of CWA jurisdiction are likely to
continue. The guidance was effective immediately, but the agencies also solicited public
comments and said that further guidance could be issued in the future. Thus, in December 2008,
the Corps and EPA issued revised guidance in an effort to clarify the scope of CWA protection,
providing more detail on several issues, including how to identify traditional navigable waters
and adjacent wetlands. The guidance takes the view that waters are jurisdictional if they satisfy
either the plurality or Kennedy tests in Rapanos. The revised guidance also updates the 2007
guidance with more detail for determining whether a wetland is adjacent to a traditional navigable
water and whether a tributary of a navigable water is subject to the act—key issues raised by the
Rapanos decision.16
15 For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA) Is
Revisited by the Supreme Court: Rapanos v. United States, by Robert Meltz and Claudia Copeland.
16 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following
(continued...)
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SWANCC and Rapanos generated confusion beyond what already existed as to the reach of
“waters of the United States.” The lack of a majority rationale in Rapanos has led lower courts to
extract different tests from the decision for measuring this reach, and Justice Kennedy’s
“significant nexus” concept remains amorphous and undefined. The EPA-Corps guidance was
intended to reduce the confusion, but many observers and stakeholders contend that jurisdictional
issues remain in dispute throughout the country, leading to costly project delays and uncertain
protection of wetland resources.
While the issue of how regulatory protection of wetlands is affected by the SWANCC and
Rapanos decisions continues to evolve, the remaining responsibility to protect affected wetlands
falls on states and localities. Whether states will act to fill in the gap left by removal of some
federal jurisdiction is likely to be constrained by budgetary and political pressures, but a few
states (Wisconsin and Ohio, for example) have passed new laws or amended regulations to do so.
In comments on the 2003 ANPRM, many states said that they do not have authority or financial
resources to protect their wetlands, in the absence of federal involvement.
Congressional Response
Legislation to reverse the SWANCC and Rapanos decisions has been introduced in each Congress
since the 107th, including again in the 111th Congress (S. 787, the Clean Water Restoration Act).
On June 18, the Senate Environment and Public Works Committee approved, 12-7, an amended
version of S. 787—the first such proposal to advance from a congressional committee. As
approved by the committee, the bill would amend the CWA to define “waters of the United
States” and to use this term to define the jurisdictional reach of the act. The term would be
defined to mean:
all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and
intrastate waters, including lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds,
all tributaries of any of the above waters, and all impoundments of the foregoing.
The bill would exclude prior converted cropland and certain waste treatment systems from the
term “waters of the United States,” and it would protect, or save, existing regulatory exclusions
such as for dredge or fill discharges from normal farming activities. During markup, the
committee rejected several amendments that would have struck some of the terms in the new
definition (such as mudflats and prairie potholes), but it approved language stating that the CWA’s
jurisdiction shall be construed consistent with EPA and Corps interpretation as of January 8,
2001, the day before the SWANCC ruling and consistent with Congress’ constitutional authority.
Proponents of the Senate committee legislation argue that Congress must clarify the important
issues left unsettled by the Supreme Court’s 2001 and 2006 rulings and by the recent Corps/EPA
guidance. Bill supporters argue that the legislation would “reaffirm” what Congress intended
when the CWA was enacted in 1972 and what EPA and the Corps have subsequently been
practicing until recently, in terms of CWA jurisdiction. It also would delete the word “navigable”
from the act, replaced by the term “waters of the United States,” in order to clarify that Congress
(...continued)
the Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, December 2, 2008,
http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf.
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intends the purpose of the law to be to broadly protect the quality of the nation’s waters, not just
sustain navigability in the traditional sense. But critics assert that the legislation would expand
federal authority, and thus would have unintended but foreseeable consequences that are likely to
increase confusion, rather than settle it. Critics question the constitutionality of the bill, arguing
that, by broadly including U.S. waters in the jurisdiction of the CWA, it exceeds the limits of
Congress’s authority under the Constitution. The version approved by the Senate committee
includes language stating that the bill shall be construed consistently with “the legislative
authority of Congress under the Constitution.”
Companion legislation was introduced in the House on April 23, 2010 (H.R. 5088, America’s
Commitment to Clean Water Act).17 Like S. 787, the House bill is intended to clarify regulatory
scope of the CWA and restore jurisdiction as it had been interpreted prior to the SWANCC and
Rapanos rulings. Like the Senate committee bill, H.R. 5088 would delete the word “navigable”
from the law and would amend the CWA to define “waters of the United States,” which would
become the operational term for jurisdiction. Unlike the Senate committee bill described above,
the new definition of that term would be drawn from existing EPA-Corps regulatory definitions,
with some modifications. The principal House sponsor, Representative Oberstar, stated that the
bill differs from prior proposals (such as H.R. 2421 in the 110th Congress), based on extensive
public comments and suggestions. Despite changes from earlier versions, the bill has been
criticized based on concern that it would increase the scope of federal jurisdiction, not merely re-
state what Congress enacted in 1972.
In light of the widely differing views of proponents and opponents, future prospects for this
legislation are uncertain. One difficulty of legislating changes to the CWA in order to protect
wetlands results from the fact that the complex scientific questions about such areas (see
discussion above, “Wetlands: Science and Information”) are not easily amenable to precise
resolution in law. The debate over revising the act highlights the challenges of using the law to do
so.
The Bush Administration did not take a position on any legislation to clarify the scope of “waters
of the United States” protected under the CWA. Officials of the Obama Administration are on
record as favoring legislation that would clarify waters protected by the CWA. In May 2009,
Administration officials sent letters to House and Senate committee leaders outlining principles
for such legislation, but the letters did not endorse any specific legislative proposal. The letters
urged Congress to consider four general principles:
• Broadly protect the nation’s waters;
• Make the definition of covered waters predictable and manageable;
• Promote consistency between CWA and agricultural wetlands programs; and
• Recognize long-standing practices, such as exemptions now in effect through
regulations and guidance.18
17 For information on the 111th Congress legislation, see CRS Report R41225, Legislative Approaches to Defining
“Waters of the United States”, by Claudia Copeland.
18 Nancy Sutley, Chair, Council on Environmental Quality, et al., letter to Senator Barbara Boxer, Chair, Senate
Environment and Public Works Committee (and other congressional leaders), May 20, 2009, http://epw.senate.gov/
public/index.cfm?FuseAction=Majority.PressReleases&ContentRecord_id=64739ae3-802a-23ad-4c30-36fc58cc1014&
Region_id=&Issue_id=.
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Should All Wetlands Be Treated Equally?
Under the Section 404 program, there is a perception that all jurisdictional wetlands are treated
equally, regardless of size, functions, or values. In reality, this is not the case, because the Corps’
general permits do provide accelerated regulatory decisions for many activities that affect
wetlands. However, this perception 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. Legislation introduced in past Congresses
proposed to establish multiple tiers (typically three)—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 and some others, for example) use such an approach for state-
regulated wetlands.
Three questions arise: (1) What are the implications of implementing a classification program?
(2) How clearly can a line separating each wetland category be defined? (3) Are there regions
where wetlands should be treated differently? 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
who view protection efforts as excessive, would seek the reverse. In response to these concerns,
Corps and EPA officials note that existing guidance and regulations already provide substantial
flexibility to implement current programs, allowing, for example, less vigorous permit review to
small projects with minor environmental impacts. Some types of wetlands are already 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. However, this differential treatment contributes to questions about federal
regulatory consistency on private property.
Locating the boundary line of a wetland can be 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 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 states have far more wetlands than others. Different treatment has been proposed for Alaska
because about one-third of the state is designated as wetlands, yet a very small portion has been
converted. In the past, legislative proposals have been made to exempt that state from the Section
404 program until 1% of its wetlands have been lost.
Agriculture and Wetlands
National surveys more than two decades ago indicated that agricultural activities had been
responsible for about 80% of wetland loss in the preceding decades, making this topic a focus for
policymakers seeking to protect the remaining wetlands. Congress responded by creating
programs in farm legislation starting in 1985.
Conservation programs in the farm bill use both disincentives and incentives to encourage
landowners to protect and restore wetlands. Swampbuster and the Wetlands Reserve Program are
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the two largest efforts, but others such as the Conservation Reserve Program’s wetland and buffer
acres pilot program and the Conservation Reserve Enhancement Program are also being used to
protect wetlands. The 110th Congress reauthorized farm programs through 2012 (Food,
Conservation, and Energy Act of 2008, P.L. 110-246). This bill authorized new programs that
could further assist wetlands conservation. The most recent wetland loss survey conducted by the
NRCS (comparing data from 1997 and 2002) indicates that there was a small annual increase for
the first time since these data have been collected, of 26,000 acres.19 However, the agency warns
that statistical uncertainties preclude concluding with certainty that gain is actually occurring.
Wetlands were a major topic of discussion in debate on the 2008 farm bill.
Members of the farm community have expressed a wide range of views about wetland protection,
from strong opposition to strong support. These views are frequently framed in the context of two
general concerns about wetland protection efforts. First, as a philosophical matter, some object to
federal regulation of private lands, regardless of the societal values those lands might provide.
Second, many farmers want certainty and predictability about the land they farm to limit their
financial risk. Therefore, if wetlands are located on farm property, they want assurances that the
boundary line delineating wetlands will remain where located for as long as possible.
Swampbuster
Swampbuster, enacted in 1985, uses disincentives rather than regulations to protect wetlands on
agricultural lands. It removes a farmer’s eligibility from all government price and income support
programs for activities such as draining, dredging, filling, leveling or otherwise altering a
wetland. Swampbuster 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 1995, the NRCS has made wetland
determinations only in response to requests because of uncertainty over whether changes in
regulation or law would modify boundaries that have already been delineated. NRCS has
estimated that more than 2.6 million wetland determinations have been made and that more than 4
million may eventually be required.
Swampbuster amendments in 1996 (P.L. 104-127) granted producers greater flexibility by making
changes, such as: exempting swampbuster penalties when wetlands are voluntarily restored;
providing that prior converted wetlands are not to be considered “abandoned” if they remain in
agricultural use; and granting good-faith exemptions. They also encourage mitigation, established
a mitigation banking pilot program, and repealed required consultation with the FWS.
Amendments enacted in the 2008 farm bill require an additional layer of review within USDA for
compliance with swampbuster.
Other Agricultural Wetlands Programs
Under the Wetland Reserve Program (WRP), enacted in 1990, landowners receive payments for
placing easements on farmed wetlands. It provides long-term technical and financial assistance to
landowners with the opportunity to protect, restore, and enhance wetlands on their property, and
to establish wildlife practices and protection. WRP offers permanent easements that pay 100% of
the value of an easement and up to 100% of easement restoration costs, and 30-year easements
19 See http://www.nrcs.usda.gov/technical/NRI/2003/nri03wetlands.html.
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that pay up to 75% of the value of an easement and up to 75% of easement restoration costs. WRP
also offers restoration cost-share agreements to restore wetland functions and values without
placing an easement on enrolled acres. Through May 2010, projects totaling nearly 2.3 million
acres have been enrolled in the program, in 22 states and Puerto Rico. A majority of the
easements are in five states, each with more than 100,000 acres: Louisiana, Mississippi, Arkansas,
Florida, and California. Most of the land is enrolled under permanent or 30-year easements, while
only about 10% is enrolled under 10-year restoration cost-share agreements, according to NRCS.
Strong farmer interest led Congress to raise the WRP enrollment ceiling in both the 2002 and
2008 farm bills. The 2008 legislation increased the WRP maximum enrollment cap from 2.275
million acres to 3.014 million acres and expanded eligible lands to include certain types of private
and tribal wetlands, croplands, and grasslands, as well as lands that meet the habitat needs of
wildlife species. The bill made certain program changes, including specifying criteria for ranking
program applications, and requiring USDA to submit a report to Congress on long-term
conservation easements under the program. The legislation authorized a new Wetlands Reserve
Enhancement Program, which will allow USDA to enter into agreements with states in order to
leverage federal funds for wetlands protection and enhancement.20
The 2002 farm bill expanded the 500,000-acre wetland and buffer acreage pilot program within
the Conservation Reserve Program (CRP) to a 1-million-acre program available nationwide. CRP
allows producers to enter into 10- to 15-year contracts to install certain conservation practices.
The 2008 farm bill amended the pilot program to increase the amount of acreage that states can
enroll (up to 100,000 acres, or a national maximum of one million acres). Participants must agree
to restore wetland hydrology, establish appropriate vegetation, and refrain from commercial use
of the land. The wetland and buffer program may become more important to overall protection
efforts in the wake of the SWANCC decision, discussed above, which limited the reach of the
Section 404 permit program to many small wetlands that are isolated from navigable waterways.
Through April 2010, more than 31 million acres had been enrolled in this program through more
than 739,000 contracts on 414,000 farms.
In August 2004, the Administration announced a new Wetland Restoration Initiative to allow
enrollment of up to 250,000 acres of large wetland complexes and playa lakes located outside the
100-year floodplain in the CRP after October 1, 2004. The Administration estimated that
implementation of this initiative will cost $200 million. Participants receive incentive payments
to help pay for restoring the hydrology of the site, as well as rental payments and cost sharing
assistance to install eligible conservation practices.
The 2008 farm bill included amendments affecting several agriculture conservation programs,
including the Environmental Quality Incentives Program (EQIP), the Farmland Protection
Program, and the Wildlife Habitat Incentive Program, in ways that may have incidental protection
benefits for wetlands, because of higher funding levels or because of program changes. For
example, EQIP supports the installation or implementation of structural and management
practices, and the 2008 farm bill expanded the program to include practices that enhance
wetlands. Finally, some programs could less directly help protect wetlands, including the
Conservation Security Program (renamed the Conservation Stewardship Program), which
provides payments to install and maintain practices on agricultural lands; the new Agricultural
20 USDA issued regulations to implement these changes to the Wetlands Reserve Program in January 2009. See 74
Federal Register 2317 (Jan. 15, 2009).
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Water Enhancement Program (replacing the previous Ground and Surface Water Conservation
Program; it is funded through EQIP), which is designed to address water quality and quantity
concerns on agricultural land; and several other programs to better manage water resources.21
Agricultural Wetlands and the Section 404 Program
The CWA Section 404 program applies to qualified wetlands in all locations, including
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 since 1977 the Clean Water Act has exempted “normal farming
activities.” The Supreme Court’s SWANCC decision exempts certain isolated wetlands from
Corps jurisdiction; NRCS estimated that about 8 million acres in agricultural locations might be
exempted by this decision.
While these exemptions and the MOA displease some protection advocates, they probably
dampened some of the criticism from farming interests over federal regulation of private lands.
On the other hand, the prospect that Congress might enact legislation to reverse the Court’s 2001
and 2006 rulings, discussed above, has particularly alarmed farm groups, who fear that changes in
law or regulations could negatively affect their activities. Because of differences between the
CWA and farm bill on the jurisdictional status of certain wetlands (e.g., isolated wetlands may be
regulated differently by federal agencies), in 2005 the Corps and NRCS signed a Memorandum of
Understanding and issued joint guidance clarifying circumstances where wetlands delineation
made by one agency can be accepted for determining the jurisdiction of the other agency.22 Some
of the wetlands that fall outside Section 404 requirements as a result of judicial decisions can now
be protected if landowners decide to enroll them into the revised farmable wetlands program or
under other new initiatives.
Private Property Rights and Landowner Compensation
An estimated 74% of all remaining wetlands in the coterminous states are on private lands.
Questions of federal regulation of private property stem from the argument 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. In 2002, the Supreme Court held that
a Rhode Island man, who had acquired property after the state enacted wetlands regulation
affecting the parcel, is not automatically prevented from bringing an action to recover
compensation from the state. Instead, the court ruled that the property retained some economic
use after the state’s action. (Palazzolo v. Rhode Island, 533 U.S. 606 (2002)).
21 For more information on these provisions, see CRS Report RL34557, Conservation Provisions of the 2008 Farm
Bill, by Tadlock Cowan, Renée Johnson, and Megan Stubbs.
22 See http://www.usace.army.mil/CECW/Documents/cecwo/reg/mou/foodsecurity_cleanwateract.pdf.
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Congress has explored these wetlands property rights issues on several occasions. An example is
an October 2001 hearing by the House Transportation and Infrastructure Committee,
Subcommittee on Water Resources and the Environment.23 Recent Congresses considered, but did
not enact, property rights protection proposals. Democratic leadership appears less interested in
bringing attention to this topic. The Bush Administration did not state an official position on these
types of proposals.24
Wetland Restoration and Mitigation
Federal wetland policies during the past 20 years 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. Examination of this record, presented in a June 2001 report from the National Research
Council, found it to be wanting. The NRC report said that mitigation projects called for in permits
affecting wetlands were not meeting the federal government’s “no net loss” policy goal for
wetlands function.25 Likewise, a 2001 GAO report criticized the ability of the Corps to track the
impact of projects under its current mitigation program that allows in-lieu-fee mitigation projects
in exchange for issuing permits allowing wetlands development.26 Both scientists and
policymakers debate 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.
Results so far seem to vary, depending on the type of wetland and the level of commitment to
monitoring and maintenance. Congress has repeatedly endorsed mitigation in recent years.
The Louisiana Experience
Much of the attention to wetland restoration has focused on Louisiana, where an estimated 80%
of the total loss of U.S. coastal wetlands has occurred and where about 40% of U.S. coastal
wetlands remaining in the lower 48 states are located (coastal wetlands are about 5% of all U.S.
wetlands). Changes to Louisiana’s coastal area result from a combination of natural
environmental processes (erosion, saltwater intrusion into fresh systems, sea level rise) and
human-related activities, according to the U.S. Geological Survey. Wetland loss has occurred
naturally for centuries, but until recently, land losses have been counterbalanced by various
natural wetland-building processes.
It is estimated that Louisiana has lost more than 2,300 square miles of wetlands since the 1930s
due to development and engineering projects such as levees and canals.27 As a result, the natural
flow of Mississippi River and floodwaters to feed sediment to the marshes has been reduced.
23 U.S. Congress, House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, The Wetland Permitting Process: Is It Working Fairly? Hearing 107-50, 107th Cong., 1st
sess., October 3, 2001.
24 For more information, see CRS Report RL30423, Wetlands Regulation and the Law of Property Rights “Takings”,
by Robert Meltz.
25 National Academy of Sciences, National Research Council, Compensating for Wetland Losses under the Clean
Water Act (Washington, DC: 2001), 267 pp.
26 U.S. Government Accountability Office, Wetlands Protection: Assessments Needed to Determine the Effectiveness of
In-Lieu-Fee Mitigation, GAO-01-325, 75 pp.
27 Loss rates have been calculated by U.S. Geological Survey’s Nation Wetlands Research Center, which has published
a number of reports describing past and predicted loss rates.
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Saltwater has invaded the brackish estuaries, destroying vegetation and areas that are needed for
fish, shellfish, and wildlife. In response to these losses, Congress authorized a task force, led by
the Corps, to prepare a list of coastal wetland restoration projects in the state, and also 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.28 The
projects range from reintroduction of freshwater and diversion of sediment to construction of
shoreline barriers and planting of vegetation. In total, the estimated total cost to complete all 147
approved projects is $1.78 billion.
In a 2007 report, GAO reported that it is impossible to determine the collective success of
restoring coastal wetlands in Louisiana, because of an inadequate approach to monitoring. GAO
had reviewed the Breaux Act program to identify the types of projects that have been designed
and lessons that have been learned from 74 projects that have been completed so far.29 Others,
including the National Oceanic and Atmospheric Administration, disagreed with GAO’s findings,
observing that long-term data being provided through ongoing project monitoring are intended to
yield insight into qualitative and quantitative project performance.
In the wake of hurricanes Katrina and Rita in 2005, multiple legislative proposals were
introduced to fund additional restoration projects already planned by the U.S. Army Corps of
Engineers and to explore other opportunities that would restore and stabilize wetlands in southern
Louisiana. Before the hurricanes, Congress was considering legislation that would have provided
about $2 billion to the restoration effort. Since the 2005 hurricanes, more expansive options
costing up to $14 billion that were proposed in the 1998 report Coast 2050 have also been
considered.30 S. 3711, the Gulf of Mexico Energy Security Act, was passed during the final days
of the 109th Congress.31 This legislation provides additional revenues to states adjacent to offshore
oil and gas production activities. One of the purposes for which these revenues can be spent is
wetland restoration, and the availability of these funds may affect the amount and scale of
wetland restoration activity in the central Gulf Coast.
Concern for Louisiana’s coastal wetlands has been heightened by the oil spill following the April
20 explosion of BP’s drilling rig, the Deepwater Horizon, in the Gulf of Mexico. Although efforts
are focused on preventing oil from reaching coastal shorelines, some oil escapes capture and is
pushed by wind and tides towards land. The degrees of impacts of oil on wetland vegetation are
variable and complex and can be both acute and chronic, ranging from short-term disruption of
plant functioning to mortality. The primary acute damage to the marshes is that plants, which hold
the soil in place and stabilize shoreline, will suffocate and die, especially if multiple coatings of
oil occur. Once vegetation dies, the soil collapses. Then the soil becomes flooded, and plants
cannot re-grow. If plants cannot re-establish, soil erosion is accelerated, giving rise to even more
flooding and further wetland loss. If oil penetrates into the sediments, roots are continuously
exposed to oil, with chronic toxicity making production of new shoots problematic.
28 For information on this program, see CRS Report RS22467, Coastal Wetlands Planning, Protection, and Restoration
Act (CWPPRA): Effects of Hurricanes Katrina and Rita on Implementation, by Jeffrey A. Zinn.
29 U.S. Government Accountability Office, Coastal Wetlands: Lessons Learned from Past Efforts in Louisiana Could
Help Future Restoration and Protection, GAO-08-130, 57 p.
30 For a more detailed discussion of the effects of the hurricanes on planning for wetland restoration, see CRS Report
RS22276, Coastal Louisiana Ecosystem Restoration After Hurricanes Katrina and Rita, by Jeffrey A. Zinn.
31 S. 3711 was attached to a broad tax relief measure that was enacted in December 2006 (H.R. 6111, P.L. 109-432).
For additional information, see CRS Report RL33493, Outer Continental Shelf: Debate Over Oil and Gas Leasing and
Revenue Sharing, by Marc Humphries.
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Consequently, plant recovery is diminished, and eventually land loss occurs. In addition to direct
impacts on plants, oil that reaches wetlands also affects animals that utilize wetlands during their
life cycle, especially benthic organisms which reside in the sediments and are a foundation of the
food chain.32
Public and private efforts are underway to protect the wetlands from oil that is moving through
Gulf waters towards coastal areas, but scientists believe that if high tides and wind push oil into
the marshes, the grasses and other vegetation that provide habitat for fish and wildlife are likely
to be destroyed. Wetland plants can be affected both by oil that floats over the surface of the
marsh and by oil that has been incorporated into sediment. There are several possible approaches
to cleaning up oil that reaches coastal wetlands—e.g., mechanical recovery, flushing with water,
burning, bioremediation, and doing nothing—and competing theories of different approaches in
different places. Moreover, experts acknowledge that there are tradeoffs for each approach. While
oil is still flowing from the Deepwater Horizon site, cleanup of marshes is limited to triage of
heavily oiled marshes and wetlands, because experts are concerned that greater harm than good
could be done to the sensitive environmental ecosystems. Once the oil stops flowing, recovery
could take many years, and experts say that it is still too early to know the full scope of
damages.33
Other Federal Protection Efforts
Many federal agencies have been active in wetland improvement efforts in recent years. In
particular, the Fish and Wildlife Service (FWS) has been promoting the success of its Partners for
Fish and Wildlife program, which Congress reauthorized through FY2011 in 2006 (P.L. 109-294).
Through voluntary agreements, the Partners program provides technical assistance and cost share
incentives directly to landowners for wetland restoration projects on private lands.34
FWS also administers the National Coastal Wetlands Conservation Grant Program. Under this
program, federal grants, matched by state and local contributions, as well as from private
landowners and conservation groups, are used to acquire, restore or enhance coastal wetlands and
adjacent uplands to provide long-term conservation benefits to fish, wildlife and their habitat. The
federal government generally provides 50% of the total costs of a project, but the federal share
can be increased to 75% if the state mains a fund for acquiring coastal wetlands. Since 1992,
about $183 million in grants have been awarded to 25 coastal states and one U.S. Territory for
projects involving 250,000 acres of coastal wetland ecosystems.35
Other programs also restore and protect domestic and international wetlands. One of these derives
from the North American Wetlands Conservation Act, reauthorized through FY2012 in P.L. 109-
322 with an appropriations ceiling of $75 million annually. This act provides grants for wetland
conservation projects in Canada, Mexico, and the United States. The FWS has combined funding
for this program with several other laws into what it calls the North American Wetlands
32 Dennis F. Whigham, Stephen W. Broome, and Curtis J. Richardson, et al., Statement of the Environmental Concerns
Committee, Society of Wetland Scientists, “The Deepwater Horizon Disaster and Wetlands,” http://www.sws.org/docs/
SWS_OilEffectsOnWetlands.pdf.
33 For additional information, see CRS Report R41311, The Deepwater Horizon Oil Spill: Coastal Wetland and
Wildlife Impacts and Response, by M. Lynne Corn and Claudia Copeland.
34 See http://ecos.fws.gov/partners/viewContent.do?viewPage=partners.
35 For information, see http://www.fws.gov/coastal/coastalgrants/.
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Conservation Fund. According to the FWS, through FY2009, the United States and its 4,000
domestic and international partners have protected, restored, or enhanced nearly 28 million acres
of wetlands through more than 1,900 projects.
Under the Convention on Wetlands of International Importance, more commonly known as the
Ramsar Convention, the United States is one of 159 nations that have agreed to slow the rate of
wetlands loss by designating wetland sites of international importance. These nations have
designated 1,880 sites, totaling 375 million acres, since the convention was adopted in 1971. The
United States has designated 25 sites pursuant to the convention, encompassing 3.3 million acres.
Mitigation
Mitigation also has become an important cornerstone of the Section 404 program in recent years.
A 1990 MOA signed by the agencies with regulatory responsibilities (EPA and the Corps)
outlines a sequence of three steps leading to 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.
Some wetland protection advocates are critical of mitigation, which they view as justifying
destruction of wetlands. They believe that the Section 404 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, even if well-designed,
are not adequately monitored or maintained. Supporters of current efforts counter that they
generally work as envisioned, but little data exist to support this view. Questions about
implementation of the 1990 MOA and controversies over the feasibility of compensating for
wetland losses further complicate the wetland protection debate.
In response to criticism in the NRC and GAO reports on mitigation (discussed above), in
November 2001, the Corps issued new guidance to strengthen the standards on compensating for
wetlands lost to development. The guidance was criticized by environmental groups and some
Members of Congress for weakening rather than strengthening mitigation requirements and for
the Corps’ failure to consult with other federal agencies. In December 2002, the Corps and EPA
released an action plan including 17 items that both agencies believe will improve the
effectiveness of wetlands restoration efforts.36
In March 2008, the Corps and EPA promulgated a mitigation rule to replace the 1990 MOA with
clearer requirements on what will be considered a successful project to compensate for wetlands
lost to activities like construction, mining, and agriculture.37 The rule sets performance standards
and criteria for three types of wetlands mitigation: mitigation banks, in-lieu programs, and
permittee-responsible compensatory mitigation. It sets standards to mitigate the loss of wetlands
and associated aquatic resources and is intended to improve the planning, implementation, and
management of compensatory mitigation projects designed to restore aquatic resources that are
36 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, “National Wetlands Mitigation Action
Plan, December 24, 2002.” See http://www.epa.gov/owow/wetlands/pdf/map1226withsign.pdf.
37 U.S. Army Corps of Engineers and Environmental Protection Agency, “Compensatory Mitigation for Losses of
Aquatic Resources, Final Rule,” 73 Federal Register 19594, April 10, 2008.
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affected by activities that disturb a half-acre or more of wetlands. It also is designed to help
ensure no net loss of wetlands by addressing key recommendations raised in the 2001 NRC
report. Under the rule, all compensation projects must have mitigation plans that include 12
fundamental components, such as objectives, site selection criteria, a mitigation work plan, and a
maintenance plan.38
The concept of “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, is widely endorsed. Numerous public and private
banks have been established, but many believe that it is too early to assess their success. In a
study of mitigation, the Environmental Law Institute determined that as of 2005, there were 330
active banks, 75 sold out banks, and 169 banks seeking approval to operate.39 Provisions in
several laws, such as the 1996 farm bill and the 1998 Transportation Equity Act (TEA-21),
endorse the mitigation banking concept. In November 2003, Congress enacted wetlands
mitigation provisions as part of the FY2004 Department of Defense (DOD) authorization act (P.L.
108-136). Section 314 of that act directed DOD to make payments to wetland mitigation banking
programs in instances where military construction projects would result or could result in
destruction of or impacts to wetlands.
For Additional Reading
Connolly, Kim Diana, Stephen M. Johnson, Douglas R. Williams. Wetlands Law and Policy,
Understanding Section 404. American Bar Association, Section of Environment, Energy, and
Resources. 2005. 528 pp.
Environmental Law Institute. Anchoring the Clean Water Act, Congress’s Constitutional Sources
of Power to Protect the Nation’s Waters. An Environmental Law Institute White Paper. July 2007.
http://www.endangeredlaws.org/pdf/ELI_Anchoring_the_CWA_2007.pdf
——. State Wetland Protection: Status, Trends & Model Approaches, a 50-state study by the
Environmental Law Institute, March 2008. 68 pp.
Kusler, Jon and Teresa Opheim. Our National Wetland Heritage: A Protection Guide.
Environmental Law Institute. [Washington] 1996. 149 pp.
National Academy of Sciences, National Research Council. Compensating for Wetland Losses
Under the Clean Water Act. [Washington] 2001. 267 pp.
U.S. Department of Agriculture, Economic Research Service. Wetlands and Agriculture: Private
Interests and Public Benefits, by Ralph Heimlich et al. [Washington] 2001, 123 pp. Agricultural
Economic Report No. 765.
U.S. Department of the Interior. U.S. Fish and Wildlife Service. Status and Trends of Wetlands in
the Coterminous United States 1998-2004. [Washington] 2006. 54 pp.
38 Information on compensatory mitigation can be found at http://www.epa.gov/wetlandsmitigation/.
39 For more information on mitigation generally, and mitigation banks specifically, see Environmental Law Institute,
2005 Status Report on Compensatory Mitigation in the United States, April 2006, 105 pp.
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U.S. Government Accountability Office. Wetlands Protection: Assessments Needed to Determine
the Effectiveness of In-Lieu-Fee Mitigation. (GAO-01-325) [Washington] May 2001. 75 pp.
——. Waters and Wetlands: Corps of Engineers Needs to Evaluate District Office Practices in
Determining Jurisdiction. (GAO-04-297) [Washington] February 2004. 45 pp.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
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