Wetlands: An Overview of Issues
Claudia Copeland
Specialist in Resources and Environmental Policy
December 5, 2013
Congressional Research Service
7-5700
www.crs.gov
RL33483
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.
The issue receiving the greatest attention recently has been determining which wetlands should be
included and excluded from permit requirements under the Clean Water Act’s (CWA) program
that regulates waste discharges affecting wetlands, which is administered by the Army Corps of
Engineers and the Environmental Protection Agency (EPA). As a result of Supreme Court rulings
in 2001 (in the SWANCC case) that narrowed federal regulatory jurisdiction over certain isolated
wetlands, and in 2006 (in the Rapanos-Carabell decision), the jurisdictional reach of the permit
program has been narrowed. 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 was approved by a congressional committee (S. 787, the Clean Water
Restoration Act); no further legislative action occurred. The Obama Administration did not
endorse any specific legislation, but identified general principles for legislation that would clarify
waters protected by the CWA. In 2011 the Administration proposed new interpretive guidance
intended to clarify jurisdictional uncertainties resulting from the Court’s rulings and to apply
protection to additional waters and wetlands, a conclusion that pleased some observers and
alarmed others. In September 2013, EPA and the Corps withdrew the 2011 proposed guidance,
which had not been finalized, in favor of draft revised regulations, which are being reviewed by
the Office of Management and Budget.
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 public and private efforts have sought to mitigate damage to wetlands and to protect them
through acquisition, restoration, enhancement, and creation, particularly coastal wetlands. While
recent data indicate success in some restoration efforts, leading to increases in some types of
wetlands, many scientists question if restored or created wetlands provide equivalent replacement
for natural wetlands that contribute multiple environmental services and values.
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 110.1 million acres in 2009. The national policy goal
of no net loss, endorsed by administrations for the past two decades, had been reached by 2004,
according to the Fish and Wildlife Service, as the rate of loss had been more than offset by net
gains through expanded restoration efforts authorized in multiple laws. However, more recent
data show wetlands losses of nearly 14,000 acres per year. Many protection advocates say that
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 these efforts 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
Wetlands and Climate Change ................................................................................................... 5
Selected Federal Wetlands Programs ............................................................................................... 7
The Clean Water Act Section 404 Program ............................................................................... 7
The Permitting Process........................................................................................................ 8
EPA’s Veto of Section 404 Permits ...................................................................................... 9
Nationwide Permits ........................................................................................................... 10
Section 404 Judicial Proceedings: SWANCC and Rapanos ............................................... 11
Congressional Response .................................................................................................... 14
Should All Wetlands Be Treated Equally? ........................................................................ 16
Agriculture and Wetlands ........................................................................................................ 17
Swampbuster ..................................................................................................................... 18
Other Agricultural Wetlands Programs ............................................................................. 18
Agricultural Wetlands and the Section 404 Program ........................................................ 20
Other Federal Protection Efforts .............................................................................................. 20
Private Property Rights and Landowner Compensation .......................................................... 21
State Protection Efforts .................................................................................................................. 22
The Louisiana Experience ............................................................................................................. 23
Wetland Restoration and Mitigation .............................................................................................. 25
Contacts
Author Contact Information........................................................................................................... 27
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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 (62% of all farmers received no direct payments from the farm subsidy
program in 2007) 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 George W. 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 rules on mitigation policies. The Obama
Administration has proposed controversial guidance on regulatory program jurisdiction (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 regulating privately owned
wet areas that provide few wetland values. They have been especially critical of
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the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental
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 recent legislative interest was 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
“waters of the United States,” including wetlands, especially since a 2001 Supreme Court ruling
in the so-called SWANCC decision and another in 2006 in Rapanos v. United States. In the 111th
Congress, legislation intended to reverse the SWANCC and Rapanos rulings was approved by a
Senate Committee (S. 787), but no further action occurred. Legislation that instead would narrow
the definition of “waters of the United States” also has been introduced, such as S. 890/H.R. 3377
in the 113th Congress.
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 floodplain
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
(FWS) 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 2011, total wetland
acreage in 2009 was estimated to be 110.1 million acres.2 Until recently, NWI data had shown
small annual gains overall in wetland acreage. However, the 2009 total was a slight decline in
acreage over the previous five years (62,300 acres), or about 13,800 acres lost per year, reflecting
a combination of some losses and some gains in acres and types of wetlands across the country.
FWS also has published reports on wetland status and trends in several individual regions and
states, such as Florida, Texas, Delaware, South Carolina, and Alaska.3
Of particular interest to scientists and natural resource managers are coastal wetlands, which
provide important ecosystems services, because they serve as buffers to protect coastal areas from
storm damage and sea level rise, while providing habitat for fish, shellfish, and wildlife that are
commercially and recreationally important. Coastal watersheds, where these wetlands are located,
are affected by population growth more than non-coastal areas, since 52% of the total U.S.
population lives in counties that drain to coastal watersheds, although these counties are less than
20% of U.S. land area, excluding Alaska. Coastal wetlands are vulnerable to direct and indirect
effects of residential and commercial development, pollutant discharges, and other human
activities. A 2013 report by the FWS and National Oceanic and Atmospheric Administration
(NOAA) found that in 2009 there were an estimated 41.1 million acres of wetlands in the coastal
watersheds of the United States, representing 37.3% of total wetland area in the lower 48 states.
The report also found that U.S. coastal wetlands are vanishing at a rate of more than 80,000 acres
per year, about six times greater than the estimated rate of wetland loss for the entire United
States. The increased loss, measured between 2004 and 2009, was attributed to severe weather in
the Gulf of Mexico and urban and rural development in other areas, and the reported loss was
25% greater than the annual loss rate found in a previous report covering the years 1998 to 2004.
The largest loss, according to the report, was in the Gulf region, where 257,150 acres of coastal
wetlands disappeared due to erosion and/or inundation. Throughout the Gulf region, saltwater
wetlands have been adversely affected by the cumulative effect of oil and gas development that
increased their vulnerability to intense storms.4
2 Thomas E. Dahl, Status and Trends of Wetlands in the Conterminus United States, 2004-2009, U.S. Department of the
Interior, Fish and Wildlife Service, 2011, 108p.
3 For information, see http://www.fws.gov/wetlands/Status-And-Trends/index.html.
4 Thomas E. Dahl and Susan-Marie Stedman, Status and Trends of Wetlands in the Coastal Watersheds of the
Conterminous United States 2004-2009, U.S. Department of the Interior, Fish and Wildlife Service, and National
Ocean and Atmospheric Administration, National Marine Fisheries Service, October 2013, 46 p.
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A study of national wetland condition by the EPA together with states, tribes, and other federal
partners is underway and is expected to provide information on both quality and quantity of
wetlands in the United States.5
In 2002, the George W. 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 to
achieve an overall increase of wetlands. The goal was to create, improve, and protect at least 3
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
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.
Scientists caution that there are a number of questions about the qualitative and ecological
integrity of existing wetlands. The wetlands trends data reported by FWS in 2011 show increases
in certain types of freshwater wetlands since 2004, particularly freshwater ponds constructed to
replace lost wetlands. However, FWS noted that there is no clear scientific consensus about the
functional equivalency of replacement wetlands.
Wetlands and Climate Change
As described above, coastal wetlands provide critical services such as absorbing energy from
coastal storms, preserving shorelines, protecting human populations and infrastructure, absorbing
5 See http://water.epa.gov/type/wetlands/assessment/survey/index.cfm.
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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pollutants, and serving as critical habitat for migratory species. Many scientists believe that these
resources and services will be threatened as sea-level rise associated with a changing climate
inundates wetlands. Due in part to their limited capacity for adaptation, wetlands have been
considered among the ecosystems most vulnerable to a changing climate. Changes in climatic
conditions that affect water conditions (e.g., wetter, drier, more saline) are predicted to have
substantial impact on species that use wetlands and on ecosystem services provided by wetlands,
or make efforts to reestablish wetlands more challenging.7
In 2010, a group of international scientists published results of research modeling efforts to
identify conditions under which coastal wetlands could survive rising sea level. Using a rapid sea-
level rise scenario, the scientists estimated that most coastal wetlands worldwide will experience
inundation that leads to rapid and irreversible conversion of marshland into unvegetated, subtidal
surfaces and will disappear near the end of the 21st century. Under moderate and slow sea-level
rise scenarios, some coastal wetlands would be vulnerable to inundation, depending on amounts
of sediment present: larger amount of sediment would enable the wetland to adapt and modify
naturally and thus be more likely to survive sea-level rise.8
Coastal wetlands also serve as a “sink” for absorbing carbon dioxide (CO2), the most common
greenhouse gas (GHG) that is associated with climate change. Scientists recognize that tidal
wetlands hold large amounts of carbon, some within standing plant biomass, but most within deep
organic-bearing soils. Carbon that is stored in soils has been built up over millennia and reflects
pools of CO2 that have been transferred from the atmosphere and sequestered within roots and
other organic material.9 However, the loss of wetland areas, for example through inundation and
erosion, eliminates its ongoing sequestration capacity, and draining wetlands for development
releases within a few decades carbon that took centuries to accumulate. In 2011, the World Bank
released a report which concluded that drainage and degradation of coastal wetlands has become
a major cause of carbon dioxide emissions that contribute to climate change, large enough
globally that carbon dioxide emissions from drained coastal wetlands should be included in
carbon accounting and emission inventories, and in policy frameworks to reduce emissions.10
Some policymakers concerned with mitigating climate change have begun to consider whether it
is possible to halt the release of carbon from converted or eroded wetlands and reverse carbon
losses through wetland restoration. Further, some are considering whether the ecosystem benefits
of wetlands, from a carbon sequestration standpoint, can be quantified in financial terms to enable
use of wetlands restoration and management as potential generators of GHG offsets in the context
of climate change policy.11
7 Dahl, T.E. Status and Trends of Wetlands in the Conterminus United States, 2004-2009, U.S. Department of the
Interior, Fish and Wildlife Service, 2011, p. 86.
8 Matthew L. Kirwan, Glenn R. Guntenspergen, and Andrea D'Alpaos et al., “Limits on the adaptability of coastal
marshes to rising sea level,” Geophysical Research Letters, vol. 37, no. L23401 (December 2010).
9 While tidal wetlands do effectively sequester carbon, some wetlands (especially those with low salinity levels) also
are a source of GHGs by emitting methane, which is approximately 21 times more powerful as a GHG than CO2.
10 Stephen Crooks, Dorothee Herr, and Jerker Tamelander et al., Mitigating Climate Change through Restoration and
Management of Coastal Wetlands and Near-shore Marine Ecosystems, Challenges and Opportunities, The World Bank
Environment Department, March 2011, http://siteresources.worldbank.org/ENVIRONMENT/Resources/
MtgtnCCthruMgtofCoastalWetlands.pdf.
11 Stephen Emmett-Mattox, Stephen Crooks, and Jette Findsen, “Wetland Grasses and Gases: Are Tidal Wetlands
Ready for the Carbon Markets?,” National Wetlands Newsletter, November-December 2010, pp. 6-10.
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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
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.
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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.
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 13 times in the 30-plus 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, George H.W. 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 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. 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, including H.R. 1837 in the 113th Congress, but no
further action has occurred.12
As previously described, three criteria—hydrology, soil type, and plants—are used in making
wetlands delineations under several environmental laws and programs, including Section 404
permitting. Scientists generally agree that each of the three parameters must be met to identify an
area as a wetland. Because growth of plants in wetland areas typically is contingent on the
presence of hydric soils and the availability of sufficient water, the vegetation parameter often is
determinative of whether an area qualifies as a wetland or not. In May 2012, the Corps revised
the National Wetlands Plant List (NWPL), which is used by federal and state agencies for
determining whether a particular area contains a prevalence of hydrophytic (i.e., wetland)
vegetation. This is the first major revision of the plant list since its publication in 1988 and is
12 For additional information, see CRS Report RL31411, Controversies over Redefining “Fill Material” Under the
Clean Water Act, by Claudia Copeland.
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intended to improve the accuracy of the overall list. The updated list contains 8,200 plant species,
an increase of 1,472 species, or 22%, primarily as a result of new taxonomic interpretations. The
Corps said it does not expect major changes to wetland delineations as a result of the updated list,
but some commenters contend that the new list is likely to cause more areas to qualify as
wetlands.13
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 reasons cited for not joining
these two states include 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. Efforts continue to encourage more states to assume program
responsibility.
EPA’s Veto of Section 404 Permits
In addition to directing EPA to issue the environmental guidelines used by the Corps to evaluate
permit applications (CWA Section 404(b)), Section 404 also authorizes EPA to prohibit or
otherwise restrict the specification by the Corps of a site for the discharge of dredged or fill
material, if the agency determines that the activity will have an unacceptable adverse effect on
water supplies, fish, wildlife, or recreational areas. EPA has used this veto authority, under
Section 404(c), only 13 times since 1972.
In January 2011, the agency issued the 13th veto when it vetoed a permit for a surface coal mining
operation in West Virginia. According to EPA, the Spruce No. 1 mine in Logan County, West
Virginia, as proposed, would be one of the largest surface mining operations ever authorized in
Appalachia, and waste disposal from the mine would bury over seven miles of streams, directly
impact 2,278 acres of forestland, and degrade water quality in streams adjacent to the mine. The
Corps issued a permit for the project in 2007, but it was subsequently delayed by litigation and
has been operating on a limited scale since then. EPA acknowledged that the project has been
modified in order to reduce impacts, but the veto determination was based on the agency’s
conclusion that the project could result in unacceptable adverse impacts to wildlife and fishery
resources.14
EPA’s veto of the permit has been very controversial, in part because it involves cancelling a
permit previously issued by the Corps.15 Coal industry groups and organizations representing
manufacturing and other sectors have been highly critical of EPA’s actions, many saying that to
revoke an existing permit creates huge uncertainty about whether water quality permits would be
rescinded in the future, producing a ripple effect beyond the coal industry. EPA argues that the
veto, while highly unusual, is justified because the project involves unacceptable environmental
13 The updated list of wetland plants is available at http://wetland_plants.usace.army.mil.
14 U.S. Environmental Protection Agency, “Final Determination of the Assistant Administrator for Water Pursuant to
Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV; Notice,” 76 Federal
Register 3126-3128, January 19, 2011. The Final Determination and related materials are available at
http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/404c_index.cfm.
15 There is some ambiguity about whether it is the first EPA veto of a previously issued permit. Initially, EPA said that
the agency had never done so, but agency officials subsequently have cited the 1980 veto of a project in North Miami
Beach, Florida as having involved a previously authorized project. The facts of that case, concerning a veto of a
proposed permit amendment for the project, differ from the Spruce No. 1 mine case.
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impacts. The agency says that it is not currently reviewing any other previously authorized
Appalachian surface coal mining project pursuant to Section 404(c).
The owner of the site, the Mingo Logan Coal Company, challenged EPA’s action in federal court,
even before the veto was finalized. In March 2012, a federal district court agreed with the
industry petitioners and concluded that the CWA does not give EPA the power to render a permit
invalid once it has been issued by the Corps. Although the language of 404(c) is “awkwardly
written and extremely unclear,” the court found EPA’s view that it has such authority an
unreasonable interpretation of the statute. Thus, it overturned the veto. But in April 2013, a
federal appeals court disagreed and reversed the district court’s ruling, thus upholding EPA’s
authority to retroactively veto Section 404 permits.16 The mining company has petitioned the
Supreme Court to review and overturn the appeals court’s ruling.
EPA’s veto of the Section 404 permit for the West Virginia mine also has drawn congressional
attention and criticism. In the 111th and 112th Congresses, legislation was introduced to delete
Section 404(c) from the CWA, thus removing EPA’s authority to veto permits for projects. In
addition, other bills were introduced that were intended to address the veto of the Spruce No. 1
mine project, including proposals to bar EPA from using the 404(c) authority “after the fact,” that
is, after the Corps has issued a 404 permit; set deadlines for EPA’s 404(c) authority; and clarified
procedures for elevating 404 permitting decisions to higher level agency and department officials.
Following the court of appeals ruling in April that upheld EPA’s authority to retroactively veto a
404 permit, similar bills have been introduced in the 113th Congress to prohibit EPA from using
the 404(c) authority after the Corps has issued a permit (H.R. 524 and S. 830).
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
authorize landowners to proceed without having to obtain individual permits in advance.17
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. Most recently, the Corps reissued the nationwide permits in February
2012. This action included reissuing 48 of the 49 existing NWPs, two new NWPs, three new
16 Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013).
17 For information, see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and
Regulatory Developments, by Claudia Copeland.
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general conditions, and three new definitions, and some modifications of the existing permits,
general conditions, and definitions.18
The major focus of the reissued permits was what to do with NWP 21, the nationwide permit
authorizing certain discharges associated with surface coal mining activities, which has a long
and controversial history. In reissuing the final permit in 2012, the Corps added a ½-acre and 300-
linear foot limit for the loss of stream beds when NWP 21 is used. It strictly prohibits use of NWP
21 to authorize discharges of dredged or fill material into U.S. waters to construct valley fills
associated with surface coal mining. With these new limitations, the Corps concluded that the
permit will ensure that activities covered by the permit will not result in more than minimal
adverse effects on the environment.19
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 (2001)) 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.20
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
the primary battleground for CWA jurisdiction questions, so long as neither the Administration
nor Congress takes steps to define jurisdiction.
18 For the full text, see http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/
NationwidePermits.aspx.
19 For background, see CRS Report RS21421, Mountaintop Mining: Background on Current Controversies, by Claudia
Copeland.
20 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 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 2003.21 It provided 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 called 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 undertook a comprehensive survey of its district
office practices to help promote greater consistency.22 Concerns over inconsistent or confusing
regulation of wetlands have also drawn congressional interest.23
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
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
21 See http://www.epa.gov/owow/wetlands/pdf/Joint_Memo.pdf.
22 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.
23 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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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, 547 U.S. 715
(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.24 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 in August 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 would 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, would 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 was
not intended to increase or decrease CWA jurisdiction, and it did not supersede or nullify the
January 2003 guidance memorandum, 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 took the view that waters are jurisdictional if they satisfy
either the plurality or Kennedy tests in Rapanos. The 2008 guidance also updated 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.
In April 2011, the Obama Administration weighed into the CWA jurisdiction debate as EPA and
the Corps proposed new joint agency guidance to clarify regulatory jurisdiction over U.S. waters
and wetlands and to replace the agencies’ 2008 guidance. Like the existing guidance, the
24 For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA):
Rapanos and Beyond, by Robert Meltz and Claudia Copeland.
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proposed revisions would adopt the Kennedy-test-or-plurality-test view of interpreting Rapanos.
However, the agencies believed that a wider evaluation of jurisdiction is possible than the existing
guidance suggests, stating, “after careful review of these opinions, the agencies concluded that
previous guidance did not make full use of the authority provided by the CWA to include waters
within the scope of the Act, as interpreted by the Court.”25
EPA and the Corps acknowledged that, compared with the existing guidance, the proposed
revisions were likely to increase the number of waters identified as protected by the CWA—a
conclusion that pleased some observers but alarmed others. Supporters believed that new
guidance will improve protection of U.S. waters and wetlands, while critics argue that it
represents over-reaching, beyond authority provided by Congress. Others faulted the continued
reliance on federal guidance, which is not binding and lacks the force of law, yet can have
significant impact on regulated entities. Final guidance was submitted to the White House Office
of Management and Budget (OMB) for review in February 2012, but it was not released. Instead,
in September 2013, EPA and the Corps withdrew the revised guidance document from OMB and
submitted draft regulations to OMB for interagency review. The substance of this proposal, and
when it might be proposed, are unknown for now.
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 2011 draft
guidance—now withdrawn—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 after
SWANCC a few states (Wisconsin and Ohio, for example) 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 was introduced on several occasions
since the 107th Congress. In the 111th Congress, the Senate Environment and Public Works
Committee approved S. 787—the first such proposal to advance from a congressional committee,
but no further legislative action occurred.
As approved by the Senate committee, the bill would have amended 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 have been defined to mean:
25 U.S. Environmental Protection Agency and Army Corps of Engineers, “Draft Guidance on Identifying Waters
Protected by the Clean Water Act,” April 27, 2011, p. 2, on file with author.
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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 have excluded prior converted cropland and certain waste treatment systems from
the term “waters of the United States” (terms now covered by regulatory exemptions), and it
would have protected, or saved, existing statutory 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 have argued that Congress must clarify the
important issues left unsettled by the Supreme Court’s 2001 and 2006 rulings and by the
Corps/EPA guidance. Bill supporters argued 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 have deleted the word
“navigable” from the act, replaced by the term “waters of the United States,” in order to clarify
that Congress intends the purpose of the law as broadly protecting the quality of the nation’s
waters, not just sustain navigability in the traditional sense. But critics asserted 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 questioned the constitutionality of
the bill, arguing that, by broadly including U.S. waters in the jurisdiction of the CWA, it would
exceed the limits of Congress’s authority under the Constitution. The version approved by the
Senate committee included language stating that the bill shall be construed consistently with “the
legislative authority of Congress under the Constitution.”
Companion House legislation was introduced in the 111th Congress (H.R. 5088).26 Like S. 787,
the House bill was 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 have deleted the word “navigable” from the law and would have amended 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 have been drawn from existing EPA-Corps regulatory definitions, with some
modifications. The bill was criticized based on concern that it would increase the scope of federal
jurisdiction, not merely re-state what Congress enacted in 1972. There was no further legislative
action on the bill.
Officials of the Obama Administration are on record as favoring legislation that would clarify
waters protected by the CWA, but they did not develop or endorse any specific proposal. In May
2009, Administration officials sent letters to House and Senate committee leaders outlining
principles for such legislation and urging Congress to consider four general principles:
• Broadly protect the nation’s waters;
26 For information on the 111th Congress legislation, see CRS Report R41225, Legislative Approaches to Defining
“Waters of the United States”, by Claudia Copeland.
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• 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.27
In light of the widely differing views of proponents and opponents, future prospects for
legislation on the geographic scope of CWA jurisdiction are highly uncertain. Critics have
questioned the constitutionality of legislation that has been proposed, and have asserted that it
would expand federal authority, thus likely increasing confusion, rather than settling it. An
additional 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 try to do so.
Efforts by EPA and the Corps to develop revised Rapanos guidance (which has now been
withdrawn) have been controversial in Congress and elsewhere. Legislative provisions to prohibit
the agencies from funding activities related to revising the guidance were included in several
appropriations bills in the 112th Congress, but none of these provisions was enacted. Interest in
similar legislation concerning the guidance has continued with bills in the 113th Congress, such as
S. 1006 and H.R. 1829, to prevent the agencies from finalizing the 2011 draft guidance, and S.
890/H.R. 3377, which would amend the CWA with a narrow definition of waters that are subject
to the act’s jurisdiction.
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. Further, a number of types of activities are fully exempt from 404 permit requirements
as a result of statutory provisions enacted in 1977 (including ongoing farming, ranching, and
forestry activities, as specified in Section 404(f)), and regulatory exemptions (including for prior
converted croplands, which are wetlands that were drained, dredged, filled, leveled, or otherwise
manipulated before December 23, 1985, to make production of an agricultural commodity
possible).
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, for example) use such an approach for state-regulated wetlands.
27 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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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 many 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, which have somewhat different definitions
under swampbuster (discussed below). 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 might 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 wetland
conservation 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
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 FY2012 (Food,
Conservation, and Energy Act of 2008, P.L. 110-246). Wetlands also were a major topic of
discussion in debate on this bill, which authorized new programs that could further assist
wetlands conservation.
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.
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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.
The 113th Congress is considering legislation to renew the farm bill, including limited
modifications to the swampbuster program. In June 2013, the Senate passed S. 954 with a
provision that would add the federally funded portion of crop insurance premiums to the list of
program benefits that could be lost if a producer is found to convert a wetland to crop production.
The House-passed bill (H.R. 2642) includes no comparable provision.28
Other Agricultural Wetlands Programs
Several USDA conservation programs provide federal payments to private agricultural
landowners for changes in land use or management to achieve environmental benefits, including
wetlands protection.29 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 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 FY2012, projects
totaling nearly 2.6 million acres have been enrolled in the program. 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.
28 For information, see CRS Report R43076, The 2013 Farm Bill: A Comparison of the Senate-Passed (S. 954) and
House-Passed (H.R. 2642, H.R. 3102) Bills with Current Law, coordinated by Ralph M. Chite.
29 For additional information, see CRS Report R40763, Agricultural Conservation: A Guide to Programs, by Megan
Stubbs.
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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, allowing USDA to enter into agreements with states in order to leverage
federal funds for wetlands protection and enhancement.30
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 1 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 be an 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. As of
October 2012, 27 million acres were enrolled in this program through more than 698,000
contracts on approximately 390,000 farms.
In 2004, USDA announced a Non-Floodplain 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. As of April 2012, there were 154,000 acres enrolled. USDA also
established a Floodplain Wetland Restoration Initiative to enroll wetlands located in the 100-year
floodplain in the CRP. As of April 2012, a total of 213,000 acres were enrolled. Participants
receive incentive payments equal to 25% of the cost 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 (FPP), and the Wildlife Habitat Incentive Program (WHIP), 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
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.31
30 USDA issued regulations to implement these changes to the Wetlands Reserve Program in January 2009. See 74
Federal Register 2317 (January 15, 2009).
31 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.
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Farm bill legislation in the 113th Congress would modify these programs in several respects.
Under both S. 954, passed by the Senate in June, and H.R. 2642, passed by the House in July, the
WRP and FPP would be repealed and consolidated in a new conservation program, the
Agricultural Conservation Easement Program (ACEP). The new program would retain most of
the program provisions in the current WRP by establishing an easement program to protect and
restore wetlands. Both bills would reauthorize EQIP with a 5% funding carve-out for wildlife
habitat practices (similar to WHIP, which would be repealed).32
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.33 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.
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 habitats.
32 For information, see CRS Report R43076, The 2013 Farm Bill: A Comparison of the Senate-Passed (S. 954) and
House-Passed (H.R. 2642, H.R. 3102) Bills with Current Law, coordinated by Ralph M. Chite.
33 See http://www.usace.army.mil/CECW/Documents/cecwo/reg/mou/foodsecurity_cleanwateract.pdf.
34 See http://www.fws.gov/partners/viewPage=partners.
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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 maintains 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
Conservation Fund. According to the FWS, since the program began in 1991, the United States
and its 4,800 domestic and international partners have conserved, restored, or enhanced 27
million acres of wetlands in the three countries, equivalent to an area larger than the state of
Tennessee.
Under the Convention on Wetlands of International Importance, more commonly known as the
Ramsar Convention, the United States is one of 168 nations that have agreed to slow the rate of
wetlands loss by designating wetland sites of international importance. These nations have
designated 2,169 sites, totaling 509 million acres, since the convention was adopted in 1971. The
United States has designated 35 sites pursuant to the convention, encompassing 4.5 million acres.
Private Property Rights and Landowner Compensation
An estimated 74% of all remaining wetlands in the conterminous 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)).
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.36 Recent Congresses considered, but did
not enact, property rights protection proposals.
35 For information, see http://www.fws.gov/coastal/coastalgrants/.
36 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.
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State Protection Efforts
In addition to federal programs and activities, wetlands in the United States are regulated and
protected through a variety of state and local laws and regulations, as well as through initiatives
and actions of nongovernmental organizations, schools and universities, and private citizens. The
role of states in wetland protection is especially important, as noted in a study by the
Environmental Law Institute.
States have long held the right and the responsibility to provide stewardship over their
resources, and state agency staff typically have a well-versed understanding of the “lay of the
land,” in terms of both topography and state priorities, policies, and practices. Finally, in
light of recent uncertainty over federal jurisdiction of wetlands and limited federal resources
for wetland protection, the role of states in conserving wetlands may be more important now
than ever before.37
States use a variety of programs and tools to protect and manage wetlands, including regulation
and mitigation, wetland water quality standards, monitoring and assessment, voluntary
restoration, tax incentives, coordination among state and federal agencies, and public/private
partnerships. Programs vary substantially from state to state and often derive their authorities
from more than one statute and/or regulation. As a result, different programs may be administered
by different state agencies. In addition, programs may change from year to year.38
Every state regulates, to some degree, activities that affect wetlands, but two-thirds of the states
lack regulatory programs that comprehensively regulate wetlands. Many states rely solely or
primarily on authority in CWA Section 401, under which states may review any activity that
requires a federal permit or license to determine its effect on the state’s water quality standards.39
Section 401 gives states the authority to approve, condition, or deny the federal permit—
including a Section 404 permit—or license based on their review. In areas where there is no
Section 404 permit requirement, and therefore no opportunity for review under Section 401, some
states also require a state permit for activities that affect aquatic resources: 23 states have
authority to issue permits for dredge and fill activities in wetlands and other waters of the state,
such as geographically isolated wetlands (although as described previously, only New Jersey and
Michigan have been delegated 404 permitting authority).
As is the case with the federal regulatory program under CWA Section 404, an important
consideration is how a state determines which waters fall within its regulatory jurisdiction. States’
definitions of their waters are typically much broader than the federal definition of “waters of the
United States,” meaning that states may exert jurisdiction over waters within their boundaries that
are not covered by the CWA. State definitions often includes phrases such as “all surface waters.”
They also may exclude certain waters, such as private lakes or ponds. Groundwater is not
included in the federal regulatory definition, but most states include groundwater in their
37 Environmental Law Institute, State Wetland Protection: Status, Trends & Model Approaches, March 2008, p. 6.
Hereinafter, ELI State Wetland Protection.
38 See Association of State Wetland Managers, “State Wetland Program Summaries,” at http://www.aswm.org/state-
summaries.
39 Twenty-two states rely on Section 401 as the sole form of state-level regulation, and 15 additional states rely on
Section 401 as the primary form of state-level regulation but also have adopted laws that provide additional protection
to certain wetland categories, such as coastal wetlands. ELI State Wetland Protection, p. 13.
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regulatory programs.40 All 50 states include wetlands in either or both their statutory and
regulatory definitions of state waters—32 make this inclusion explicit, and 18 define waters more
generally, including wetlands implicitly. The inclusion of wetlands in a state’s definition of state
waters does not give automatic protection to these waters; the state must also have some form of
complementary regulatory authority, such as to issue permits.41
Other findings of the ELI report include the following.
• The majority of states have adopted legislation, policies, and/or guidelines for
mitigating impacts to aquatic resources that are permitted in their states.
Mitigation provisions range from general requirements to specific replacement
ratios, site preferences, and mitigation options such as purchasing credits from a
mitigation bank (also see “Wetland Restoration and Mitigation”).
• One-third of states report having a wetland-specific monitoring and/or
assessment program or monitoring wetlands as part of a larger state monitoring
program.
• Nearly one-half of the states operate a formal program for partnering with private
landowners on restoration or conservation, and a majority of states report that
they conduct outreach or provide technical assistance to private landowners.
Ninety percent of states have one or more agencies that carry out education and
outreach activities related to wetlands.
The Louisiana Experience
Much of the attention to reverse wetland loss 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 (USGS). Wetland loss has
occurred naturally for centuries, but until recently, land losses have been counterbalanced by
various natural wetland-building processes.
USGS estimates that, since 1932, coastal Louisiana has experienced a net change in land area of
approximately 1,883 square miles—an area the size of Delaware. Land loss rates on the Louisiana
coast have slowed from an average of more than 30 square miles per year between 1956 and
1978, to an estimated 11.8 square miles per year from 1985 to 2004. When the hurricanes of 2005
and 2008 are factored in, the trend increased the amount of land loss to 16.6 square miles from
1985 to 2010. According to USGS, if this loss were to occur at a constant rate, it would equal
losing more than a football field every hour.42 As a result of wetlands loss, the natural flow of
40 See Environmental Council of the States, “The States’ Definitions of ‘Waters of the State,’” February 2009, at
http://www.ecos.org/section/publications.
41 ELI State Wetland Protection, p. 17.
42 B.R. Couvillion, J.A. Barras, and G.D. Steyer, et al., Land Area Change in Coastal Louisiana from 1932 to 2010,
U.S. Georglocal Survey, Pamphlet to accompany U.S. Geological Survey Scientific Investigations Map 3164, June
2011, http://pubs.usgs.gov/sim/3164/downloads/SIM3164_Pamphlet.pdf.
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Mississippi River and floodwaters to feed sediment to the marshes has been reduced. 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.43 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.44 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.45 The Gulf of Mexico Energy Security Act, legislation that authorizes additional
revenues to states adjacent to offshore oil and gas production activities, was passed during the
final days of the 109th Congress.46 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 was heightened by the oil spill following the April 2010
explosion of BP’s drilling rig, the Deepwater Horizon, in the Gulf of Mexico. Although efforts
focused on preventing oil from reaching coastal shorelines, some oil escaped capture and was
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, 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
43 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.
44 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.
45 See http://www.coast2050.gov. 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.
46 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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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.
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 use wetlands during their life
cycle, especially benthic organisms which reside in the sediments and are a foundation of the
food chain.47
Public and private efforts were taken to protect the wetlands from oil that moved through Gulf
waters towards coastal areas, but scientists remained concerned that high tides and wind could
push oil into the marshes, and that the grasses and other vegetation that provide habitat for fish
and wildlife would likely 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. While oil was still
flowing from the Deepwater Horizon site, cleanup of marshes was limited to triage of heavily
oiled marshes and wetlands, because experts were concerned that greater harm than good could
be done to the sensitive environmental ecosystems. The well was capped and oil stopped flowing
from the well site in mid-July 2010. Experts say that spill response efforts succeeded in keeping
large amounts of oil from reaching coastal marshes. Nevertheless, oil remains in the Gulf
environment, and potential for re-oiling of coastal areas, for example as a result of storms, will
remain a concern for some time.48
A recent federal report observes that Louisiana’s Coast 2050 is a comprehensive plan to protect
and restore the state’s coastal wetlands, but that other Gulf of Mexico states are only beginning
similar planning processes for restoration of the damage caused by the Deepwater Horizon spill.49
Wetland Restoration and Mitigation
Mitigation has become an important cornerstone of the Section 404 program in recent years. A
1990 MOA signed by the agencies with principal 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 cannot be avoided, impacts should be minimized; and
third, where minimum impacts are still unacceptable, mitigation is appropriate. Therefore,
mitigation may be required as a condition of a Section 404 permit.
Federal wetland policies during the past 30 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
47 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.
48 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.
49 Thomas E. Dahl and Susan-Marie Stedman, Status and Trends of Wetlands in the Coastal Watersheds of the
Conterminous United States 2004-2009, U.S. Department of the Interior, Fish and Wildlife Service, and National
Ocean and Atmospheric Administration, National Marine Fisheries Service, October 2013, p. 37.
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wetlands function.50 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.51 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.
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, in 2001, the Corps issued
new guidance to strengthen the standards on compensating for wetlands lost to development. But
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 2002, the Corps and EPA released an action plan including 17
items that both agencies believed would improve the effectiveness of wetlands restoration
efforts.52
In 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.53 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
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.54
50 National Academy of Sciences, National Research Council, Compensating for Wetland Losses under the Clean
Water Act (Washington, DC: 2001), 267 pp.
51 U.S. Government Accountability Office, Wetlands Protection: Assessments Needed to Determine the Effectiveness of
In-Lieu-Fee Mitigation, GAO-01-325, 75 pp.
52 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, “National Wetlands Mitigation Action
Plan, December 24, 2002.” See http://water.epa.gov/lawsregs/guidance/wetlands/upload/
2003_07_10_wetlands_map1226withsign.pdf.
53 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.
54 Information on compensatory mitigation can be found at http://water.epa.gov/lawsregs/guidance/wetlands/
wetlandsmitigation_index.cfm.
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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 and is the preferred option
under the 2008 mitigation rule. 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.55 Provisions in several laws, such as the 1996
farm bill and the 1998 Transportation Equity Act (TEA-21), endorse the mitigation banking
concept. In 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.
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
55 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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