Order Code IB97014
CRS Issue Brief for Congress
Received through the CRS Web
Updated May 22, 2006
Jeffrey A. Zinn and Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
What Is a Wetland?
How Fast Are Wetlands Disappearing, and How Many Acres Are Left?
The Clean Water Act Section 404 Program
The Permitting Process
Judicial Proceedings Involving §404: SWANCC
Treat All Wetlands Equally
Agriculture and Wetlands
Other Agricultural Wetlands Programs
Agricultural Wetlands and the §404 Program
Private Property Rights and Landowner Compensation
Wetland Restoration and Mitigation
Wetland Activities in the 109th Congress
FOR ADDITIONAL READING
The 109th Congress, like earlier ones,
may consider various wetland policy topics,
but the precise direction of legislative activity
is uncertain. Of interest are statements by the
Bush Administration shortly after the 2004
election that restoration of 3 million wetland
acres would be a priority. It had first announced this goal on Earth Day in 2004; and
this remains the most recent iteration of overall administration policies to protect wetlands.
These policies continue to attract congressional interest, while, in recent months, congressional interest has become focused on the role
restored wetlands could play in protecting
New Orleans, and coastal Louisiana more
generally, from hurricanes.
SWANCC ruling has been introduced (H.R.
1356, the Clean Water Authority Restoration
Act), as has a bill to narrow the government’s
regulatory jurisdiction (H.R. 2658, the Federal
Wetlands Jurisdiction Act).
Wetland protection efforts engender
intense 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
ways in which federal laws currently protect
them, and the fact that 75% of remaining U.S.
wetlands are located on private lands.
One reason for these controversies is that
wetlands occur in a wide variety of physical
forms, and the numerous values they provide,
such as wildlife habitat and water purification,
also vary widely. A second reason is that the
total wetland acreage in the lower 48 states is
estimated to have declined from more than
220 million acres three centuries ago to 107.7
million acres in 2004. The national policy
goal of no-net-loss has been reached, according to the Fish and Wildlife Service, as the
rate of loss has slowed, and has been more
than offset by net gains through expanded
restoration efforts. A third reason is that
wetlands are protected in different ways by
multiple laws, including the permit program in
§404 of the Clean Water Act; programs for
agricultural wetlands; laws that protect specific sites; and laws that protect wetlands
which perform certain functions.
The 108th Congress was less active in
wetlands issues than recent Congresses, and
no major bills were enacted. Earlier Congresses had reauthorized and amended many
wetland programs and examined controversies
over such topics as applying federal regulations on private lands; documenting rates of
wetlands loss; implementing farm bill provisions; and examining proposed changes to the
federal permit program.
Congress has also been involved at the
program level, responding to legal decisions
and administrative actions by examining
aspects of wetland protection efforts. Examples include implementation of Corps of
Engineers changes to the nationwide permit
program (changes generally opposed by developers); redefining key wetlands permit
regulatory terms in revised rules issued in
2002; and a 2001 Supreme Court ruling
(called the SWANCC case) that narrowed
federal regulatory jurisdiction over certain
isolated wetlands. Hearings on many of these
topics were held, and some legislation was
Legislation to reverse the
Congressional Research Service
Many protection advocates view these
laws as inadequate or uncoordinated. Others,
who advocate the rights of property owners
and development interests, characterize them,
especially the §404 program, as too intrusive.
Numerous state and local wetland programs
add to the complexity of the protection effort.
The Library of Congress
MOST RECENT DEVELOPMENTS
The U.S. Fish and Wildlife Service released its most recent periodic survey of changes
in wetland acreage in March. Covering 1998 to 2004, it concluded that during this time
period there was a small net gain in overall wetland acres for the first time in this survey.
Others caution, however, that much of the gain was in ponds, rather than natural wetlands.
Hurricanes Katrina and Rita caused widespread alteration and destruction of wetlands
along the central Gulf Coast. The net effect will likely be major permanent losses, especially
along the coast. These losses will be partially offset as destruction will be temporary and
some new wetlands are created. The extent of change and loss is being documented by
federal agencies and others. (For additional information, see CRS Report RS22276, Coastal
Louisiana Ecosystem Restoration After Hurricanes Katrina and Rita, by Jeffrey Zinn.)
Congress is considering numerous alternative legislative proposals that would fund wetland
restoration projects and activities to help mute the impact of future hurricanes. The 109th
Congress had been considering a set of proposals to restore coastal wetlands in Louisiana
before these hurricanes struck, and both the proposals and the funding level have been
expanded as a result of these hurricanes.
In the 109th Congress, about five dozen bills with wetland provisions have been
introduced; about two dozen of these address wetland loss and restoration along the central
Gulf Coast. The remainder address topics that attracted attention in earlier Congresses, but
were not acted on, including legislation to reverse a controversial 2001 Supreme Court ruling
concerning isolated wetlands, the SWANCC case (H.R. 1356, the Clean Water Authority
Restoration Act); legislation to narrow the government’s regulatory jurisdiction (H.R. 2658,
the Federal Wetlands Jurisdiction Act); other large-scale restoration efforts involving
wetlands (the Everglades, for example); and appropriations for wetland programs. Critics
say that guidance issued by EPA in 2003 interpreting the SWANCC case for field staff goes
beyond what the Supreme Court’s decision required and has allowed many streams and
wetlands to be unprotected from development. On May 18, the House adopted an
amendment to H.R. 5386 to prohibit EPA from spending funds to implement the
Federal courts have had a key role in interpreting and clarifying the limits of federal
jurisdiction to regulate activities that affect wetlands, especially since the SWANCC decision.
On February 21, 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 Clean Water Act permit program as it applies to development of wetlands. A
decision in these cases is expected by the end of June.
BACKGROUND AND ANALYSIS
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 on a daily basis as tides rise and fall.
Functional values, both ecological and economic, at each wetland depend on its
location, size, and relationship to adjacent land and water areas. Many of these values have
been recognized only recently. Historically, many federal programs encouraged wetlands to
be drained or altered because they were seen as having little value as wetlands. Wetland
values can include:
habitat for aquatic birds and other animals and plants, including numerous
threatened and endangered species; production of fish and shellfish;
water storage, including mitigating the effects of floods and droughts;
education and research;
and open space and aesthetic values.
Usually wetlands provide some composite of these values; no single wetland in most
instances provides all these values. The composite value typically declines when wetlands
are altered. In addition, the effects of alteration often extend well beyond the immediate area
because wetlands are usually part of a larger water system. For example, conversion of
wetlands to urban uses has increased flood damages; this value is receiving considerable
attention as natural disaster costs have mounted through the 1990s.
Federal laws that affect wetlands have changed since the mid-1980s as the values of
wetlands have been recognized in different ways in numerous national policies. Previously,
some laws encouraged destruction of wetland areas, such as selected provisions in the federal
tax code, public works legislation, and farm programs. Federal laws now either encourage
wetland protection, or prohibit or do not support their destruction. These laws, however, do
not add up to a fully consistent or comprehensive national approach. The central federal
regulatory program, §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. An 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 have no reason to participate. Several acquisition and incentive programs
complete the current federal protection effort.
Although numerous wetland protection bills have been introduced in recent Congresses,
the only major new wetlands legislation to be enacted has been in the two most recent farm
bills, in 1996 and 2002. During this period, Congress also reauthorized several wetlands
programs, mostly setting higher appropriations ceilings, without making significant shifts in
policy. President Bush endorsed wetland protection in signing the farm bill and the North
American Wetlands Conservation Act reauthorization in 2002. The Bush Administration has
issued guidance on mitigation policies and regulatory program jurisdiction; the latter has
raised controversy with some groups (see discussion below).
In 2002 the Bush Administration endorsed the concept of “no-net-loss” of wetlands —
a goal declared by President George H.W. Bush in 1988 and also embraced by President
Clinton to balance wetlands losses and gains in the short term and achieve net gains in the
long term. On Earth Day 2004, the President announced a new national goal, moving beyond
no-net-loss, of achieving an overall increase of wetlands (see [http://www.whitehouse.gov/
news/releases/2004/04/20040422-1.html].) The goal is 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.) To meet
the new goal, President Bush urged Congress to pass his FY2005 budget request for
conservation programs, and he focused on the FY2005 request for two wetlands programs,
the Wetlands Reserve Program (WRP) and the North American Wetlands Conservation Act
Grants Program (NAWCP). The FY2005 budget request, $349 million, was 10% more than
FY2004 levels for those two programs. (However, Congress disagreed, providing level
funding for the NAWCP and an 18% reduction for the WRP.) The President’s strategy also
calls for better tracking of wetland programs and enhanced local and private sector
In April 2005 the Administration issued a report (Conserving America’s Wetlands:
Implementing the President’s Goal) saying that about 832,000 acres of wetlands have been
created, protected, or improved in the past year as part of the President’s program. Another
1.6 million acres is expected to be added by the end of FY2006, the report said.
Environmental groups criticized the report as presenting an incomplete picture, because it
fails to mention wetlands lost to agriculture and development.
Congress has provided a forum in numerous hearings where conflicting interests in
wetland issues have been debated. 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, and that privately owned wet areas
that provide few wetland values have been aggressively protected. They
have been especially critical of the U.S. Army Corps of Engineers (Corps)
and the U.S. Environmental Protection Agency (EPA) for administering the
§404 program in an overzealous and inflexible manner.
Wetland issues revolve around disparate scientific and programmatic questions, and
conflicting views of the role of government where private property is involved. Scientific
questions include how to define wetlands, the current rate and pattern of wetland declines
and losses, and the importance of these physical changes. Federal program issues include
the administration of programs to protect, restore, or mitigate wetland resources (especially
the §404 program); relationships between agriculture and wetlands; whether all wetlands
should be treated the same in federal programs and which wetlands should be subject to
regulation; federal funding of wetland programs; and is protecting wetland by acres a good
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, and some property owners believe they
should be compensated when federal programs limit how they can use their land, and thereby
diminish its value.
What Is a Wetland?
There is general agreement that scientists can determine the presence of a wetland by
a combination of soils, plants, and hydrology. The only definition of wetlands in law, in the
swampbuster provisions of farm legislation (P.L. 99-198) and reproduced in the Emergency
Wetlands Resources Act of 1986 (P.L. 99-645), lists those three components but does not
include more specific criteria, such as what conditions must be present and for how long.
Controversies are exacerbated when many sites that have those three components, including
sites that have wetland characteristics only some portion of the time, do not look like what
many people visualize as wetlands.
Wetlands subject to federal regulation are a large subset of all places that the scientific
community would call a wetland. These regulated wetlands, under the §404 program
discussed below, are currently identified using technical criteria in a wetland delineation
manual issued by the Corps in 1987. It was prepared jointly and is used by all federal
agencies to carry out their responsibilities under this program (the Corps, EPA, FWS, and
the National Marine Fisheries Service (NMFS)). The manual provides guidance and
field-level consistency among 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, is used for delineating agricultural lands.) While the agencies try to
improve the objectivity and consistency of wetland identification and delineation, judgement
continues to play a role and can lead to site-specific controversies. Cases discussed below
(see “Judicial Proceedings Involving §404”) are efforts to exclude wetlands in certain
physical settings or certain activities affecting them from the regulatory program.
How Fast Are Wetlands Disappearing, and
How Many Acres Are Left?
The U.S. Fish and Wildlife Service periodically surveys national net trends in wetland
acreage using the National Wetlands Inventory (NWI). It has estimated that when European
settlers first arrived, wetland acreage in the area that would become the 48 states was more
than 220 million acres, or about 5% of the total land area. By 2004, total wetland acreage
was estimated to be 107.7 million acres, according to data it presented in its most recent
survey published in March 2006, Status and Trends of Wetlands in the Coterminous United
States 1998 to 2004. Data compiled by the NRCS and the FWS in separate surveys and
using different methodologies have identified similar trends. Both show that the annual net
loss rate dropped from almost 500,000 acres annually nearly three decades ago to slight net
annual gains in recent years. The FWS survey estimated the average annual gain between
1998 and 2004 was 32,000 acres, primarily associated with the expansion of shallow ponds,
while NRCS (using its Natural Resources Inventory (NRI) of privately-owned lands)
estimated that there was an average annual gain of 26,000 acres between 1997 and 2002.
NRCS cautioned against making precise claims of net increases because of statistical
uncertainties. Some environmentalists caution that the increases identified in the latest FWS
data are tied to a proliferation of small ponds rather than natural wetlands.
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 is a large time lag from the announcement and
implementation of changes in policy to 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 and development pressures.
Further, these data only measure acres, and do not provide any insights into changes in
the quality of remaining wetlands as measured by the values they provide. Nevertheless, in
his Earth Day 2004 wetlands announcement (discussed above), President Bush said that as
the nation is nearing the goal of no-net-loss, it is appropriate to move towards policies to
increase wetlands acres and quality.
The Clean Water Act Section 404 Program
The principal federal program that provides regulatory protection for wetlands is found
in §404 of the Clean Water Act (CWA). Its intent is to protect water and adjacent wetland
areas from adverse environmental effects due to discharges of dredged or fill material.
Established in 1972, §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 §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 §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 §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 §404, major categories of activities are not
required to obtain permits. These include normal, ongoing farming, ranching, and
silvicultural (forestry) activities. Further, permits generally are not required for activities
which drain wetlands (only for those that fill wetlands), which excludes a large number of
actions with potential to alter wetlands. Third, in the view of protection advocates, the
multiple values that wetlands can provide (e.g., fish and wildlife habitat, flood control) are
not effectively recognized through a statutory approach based principally on water quality,
despite the broad objectives of the Clean Water Act.
The Permitting Process. The Corps’ regulatory process involves both general
permits for actions by private landowners that are similar in nature and will likely have a
minor effect on wetlands and individual permits for more significant actions. According to
the Corps, it evaluates more than 85,000 permit requests annually. Of those, more than 90%
are authorized under a general permit, which can apply regionally or nationwide, and is
essentially a permit by rule for activities with minor impact. Most do not require
pre-notification or prior approval. About 9% are required to go through the more detailed
evaluation for a standard individual permit, which may involve complex proposals or
sensitive environmental issues and can take 180 days or longer for a decision. Less than 0.3%
of permits are denied; most other individual permits are modified or conditioned before
issuance. About 5% of applications are withdrawn prior to a permit decision. In FY2003
(the most recent year for which data are available), Corps-issued permits authorized activities
having a total of 21,330 acres of wetland impact, while those permits required that 43,379
acres of wetlands be restored, created, or enhanced as mitigation for the authorized losses.
Regulatory procedures on individual permits allow for interagency review and
comment, a coordination process that can generate delays and an uncertain outcome,
especially for environmentally controversial projects. EPA is the only federal agency having
veto power over a proposed Corps permit; EPA has used its veto authority 11 times in the
30-plus years since the program began. Critics have charged that implied threats of delay by
the FWS and others practically amount to the same thing. Reforms during the Reagan,
earlier Bush, and Clinton Administrations streamlined certain of these procedures, with the
intent of speeding up and clarifying the Corps’ full regulatory program, but concerns
continue over both process and program goals.
Controversy also surrounded revised regulations issued by EPA and the Corps in May
2002, which redefine two key terms in the 404 program, “fill material” and “discharge of fill
material.” 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, but environmental groups contended that the changes allow for less
restrictive and inadequate regulation of certain disposal activities, including disposal of coal
mining waste, which could be harmful to aquatic life in streams. The Senate Environment
and Public Works Committee held a hearing in June 2002 to review these issues, and
legislation to reverse the agencies’ action was introduced, but no further action occurred.
(For additional information, see CRS Report RL31411, Controversies over Redefining “Fill
Material” Under the Clean Water Act, by Claudia Copeland.) That legislation was reintroduced in the 108th Congress, and again in the 109th Congress (H.R. 2719).
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.
General permits minimize the burden of the Corps’ regulatory program by authorizing
landowners to proceed without having to obtain individual permits in advance.
The current program has few strong supporters, for differing reasons. Developers say
that it is too complex and burdened with arbitrary restrictions. Environmentalists say that
it does not adequately protect aquatic resources. At issue is whether the program has become
so complex and expansive that it cannot either protect aquatic resources or provide for a fair
regulatory system, which are its dual objectives.
Nationwide permits are issued for periods of no longer than five years and thereafter
must be reissued by the Corps. The most recent reissuance, in January 2002, included some
changes, including relaxation of certain permit conditions, intended by the Corps to add
flexibility. Reactions to the permits were mixed: environmental advocates contend that the
re-issued permits are not adequately protective of water quality and will result in a net loss
of wetland acres, while developer groups argue that the overall program continues to focus
on arbitrary regulatory thresholds that result in undue burden on developers and the Corps.
(For more information, see CRS Report 97-223, Nationwide Permits for Wetlands Projects:
Issues and Regulatory Developments, by Claudia Copeland.) In July 2005, a federal court
of appeals panel held that the Corps’ issuance of the 2000 and 2002 nationwide permits
constitutes final agency action, thus permitting a challenge to the permits that had been
brought by developers to proceed.
Citizen groups have filed lawsuits seeking to halt the Corps’ use of one of its
nationwide permits, NWP 21, to authorize a type of coal mining practice called mountaintop
mining. In 2004, a federal district court in West Virginia ruled that NWP 21 violates the
CWA by authorizing activities that have more than minimal adverse environmental effects.
The district court’s ruling was overturned on appeal, but a request for rehearing is pending.
Another lawsuit challenging the applicability of nationwide permits to mountaintop mining
in Kentucky also has been filed. (For background, see CRS Report RS21421, Mountaintop
Mining: Background on Current Controversies, by Claudia Copeland.)
Section 404 authorizes states to assume many of the permitting responsibilities. Two
states, Michigan (in 1984) and New Jersey (in 1992), have done this. Others have cited the
complex process of assumption, the anticipated cost of running a program, and the continued
involvement of federal agencies because of statutory limits on waters that states could
regulate as reasons for not joining these two states. Efforts continue towards encouraging
more states to assume program responsibility.
Judicial Proceedings Involving §404: SWANCC. The §404 program has been
the focus of numerous lawsuits, most of which have sought to narrow the geographic scope
of the regulatory program. In that context, an issue of long-standing controversy is whether
isolated waters are properly within the jurisdiction of §404. Isolated waters (those that lack
a permanent surface outlet to downstream waters) which are not physically adjacent to
navigable surface waters often appear to provide few of the values for which wetlands are
protected, even if they meet the technical definition of a wetland. In January 2001, the
Supreme Court ruled on the question of whether the CWA provides the Corps and EPA with
authority over isolated waters and wetlands. The Court’s 5-4 ruling in Solid Waste Agency
of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (531 U.S. 159) held
that the denial of a §404 permit for disposal on isolated wetlands solely on the basis that
migratory birds use the site exceeds the authority provided in the act. The full extent of
retraction of the regulatory program resulting from this decision remains unclear, even four
years after the ruling. Environmentalists believe that the Court misinterpreted congressional
intent on the matter, while industry and landowner groups welcomed the ruling. (For
additional information, see CRS Report RL30849, The Supreme Court Addresses Corps of
Engineers Jurisdiction Over ‘Isolated Waters’: The SWANCC Decision, by Robert Meltz and
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. However, in April 2004, the Court declined to
review three cases that support a narrow interpretation of SWANCC. Environmentalists were
pleased that the Court rejected the petitions, but 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.
The government’s current 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 on January 15, 2003 (see [http://www.epa.gov/owow/wetlands/guidance
/SWANCC/index.html]). It provides a legal interpretation essentially based on a narrow
reading of the Court’s decision, thus allowing federal regulation of some isolated waters to
continue (in cases where factors other than the presence of migratory birds may exist, thus
allowing for assertion of federal jurisdiction), but it calls for more Headquarters review in
such cases. Administration press releases say 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 jurisdiction of the regulatory program. 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 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 will 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. Environmentalists and state representatives expressed
relief at the announcement. 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 GAO report
concludes that Corps districts differ in how they interpret and apply federal rules when
determining which waters and wetlands are subject to federal jurisdiction, documenting
enough differences that the Corps has begun a comprehensive survey of its district office
practices to help promote greater consistency (GAO, Corps of Engineers Needs to Evaluate
Its District Office Practices in Determining Jurisdiction, GAO-04-297, February 2004). In
response to continuing controversies about the 2003 guidance, on May 18 the House adopted
an amendment to a bill providing FY2007 appropriations for EPA (H.R. 5386). The
amendment (passed by a 222-198 vote) would bar EPA from spending funds to implement
the 2003 policy guidance. Supporters of the amendment said that the guidance goes beyond
what the Supreme Court required in SWANCC, has allowed many streams and wetlands to
be unprotected from development, and has been more confusing than helpful. Opponents
of the amendment predicted that it would make EPA’s and the Corps’ regulatory job more
difficult than it already is.
While the issue of how regulatory protection of wetlands is affected by the SWANCC
decision and subsequent developments continues to evolve, the remaining responsibility to
protect affected wetlands falls on states and localities. Whether states will act to fill in the
gap left by removal of some federal jurisdiction is likely to be constrained by budgetary and
political pressures, but a few states (Wisconsin and Ohio, for example) have passed new laws
or amended regulations to do so. In comments on the ANPRM, many states said that they
do not have authority or financial resources to protect their wetlands, in the absence of
federal involvement. Federal courts continue to have a key role in interpreting and clarifying
the SWANCC decision. On February 21, 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. A decision in these cases is expected by the end of June. (For
additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean
Water Act is Revisited by the Supreme Court: Rapanos and Carabell, by Robert Meltz and
Legislation to reverse the SWANCC decision has been introduced in the 109th Congress
(H.R. 1356, the Clean Water Authority Restoration Act of 2005); identical legislation was
introduced in the 108th Congress (H.R. 962, S. 473). It would provide a broad statutory
definition of “waters of the United States;” clarify that the CWA is intended to protect U.S.
waters from pollution, not just maintain their navigability; and include a set of findings to
assert constitutional authority over waters and wetlands. Other legislation to restrict
regulatory jurisdiction also has been introduced in the 109th Congress (H.R. 2658, the Federal
Wetlands Jurisdiction Act of 2005). It would narrow the statutory definition of “navigable
waters” and define certain isolated wetlands and other areas as not being subject to federal
regulatory jurisdiction. It also would give the Corps sole authority to determine §404
jurisdiction, for permitting purposes. Similar legislation also was introduced in the 108th
Congress (H.R. 4843).
Treat All Wetlands Equally. Under the §404 program, there is a perception that all
jurisdictional wetlands are treated equally, regardless of size, functions, or values. This has
led critics to focus on situations where a wetland has little apparent value, but the
landowner’s proposal is not approved or the landowner is penalized for altering a wetland
without a federal permit. Critics believe that one possible solution may be to have a tiered
approach for regulating wetlands. Several legislative proposals introduced in recent
Congresses would establish three tiers — from highly valuable wetlands that should receive
the greatest protection to the least valuable wetlands where alterations might usually be
allowed. Some states (New York, for example) use such an approach for state-regulated
wetlands. The Corps and EPA issued guidance to field staff emphasizing the flexibility that
currently exists in the §404 program to apply less vigorous permit review to small projects
with minor environmental impacts.
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, and (3) Are
there regions where wetlands should be treated differently? Regarding classification, even
most wetland protection advocates acknowledge that there are some situations where a
wetland designation with total protection is not appropriate. But they fear that classification
for different degrees of protection could be a first step toward a major erosion in overall
wetland protection. Also, these advocates would probably like to see almost all wetlands
presumed to be in the highest protection category unless experts can prove an area should
receive a lesser level of protection, while critics who view protection efforts as excessive,
would seek the reverse.
Locating the boundary line can be controversial when the line encompasses areas that
do not meet the image held by many. Controversy would likely grow if a tiered approach
required that lines segment wetland areas. On the other hand, a consistent application of an
agreed-on definition may lead to fewer disputes and result in more timely decisions.
Some states have far more wetlands than others. Different treatment has been proposed
for Alaska because about one-third of the state is designated as wetlands, yet a very small
portion has been converted. Legislative proposals have been made to exempt it from the
§404 program until 1% of its wetlands have been lost. Some types of wetlands are already
treated differently. For example, playas and prairie potholes have somewhat different
definitions under swampbuster (discussed below), and the effect is to increase the number
of acres that are considered as wetlands. This differential treatment contributes to questions
about federal regulatory consistency on private property.
Agriculture and Wetlands
National surveys almost 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. Congress responded by creating programs in farm legislation
starting in 1985 that use 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’s Farmed Wetlands Option and
Conservation Reserve Enhancement Program are also being used to protect wetlands. The
most recent wetland loss survey conducted by NRCS (comparing data from 1997 and 2002)
indicates that there is a small annual increase, for the first time since these data have been
collected, of 26,000 acres. However, the agency warns that statistical uncertainties preclude
concluding with certainty that gain is actually occurring.
Swampbuster. Swampbuster, enacted in 1985, uses disincentives rather than
regulations to protect wetlands on agricultural lands. It remains 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 estimates that more than 2.6 million wetland determinations
have been made and that more than 4 million may eventually be required.
Swampbuster was amended in the 1996 farm bill (P.L. 104-127) and the 2002 farm bill
(P.L. 107-171). Amendments in 1996 granted producers greater flexibility by making
changes such as: exempting swampbuster penalties when wetlands are voluntarily restored;
providing that prior converted wetlands are not be considered “abandoned” if they remain
in agricultural use; and granting good-faith exemptions. They also encourage mitigation,
establish a mitigation banking pilot program, and repeal required consultation with the U.S.
Fish and Wildlife Service. The 2002 farm bill made a single amendment that should not
affect either the acres that are protected or the characteristics of the protection effort.
Other Agricultural Wetlands Programs. Under the Wetland Reserve Program
(WRP), enacted in 1990, landowners receive payments for placing easements on farmed
wetlands. All easements were permanent until provisions in the 1996 farm bill, requiring
temporary easements and multi-year agreements as well, were implemented. The 2002 farm
bill reauthorized the program through FY2007 and raised the enrollment cap to 2,275,000
acres, with 250,000 acres to be enrolled annually. In addition, in June 2004, it announced
a new enhancement program on the lower Missouri River in Nebraska to enroll almost
19,000 acres at a cost of $26 million, working with several public and private partners.
Through FY2004, 8,391 projects had enrolled 1.627 million acres. Almost 35% of the
enrollment is in three states: Louisiana, Mississippi, and Arkansas. Most of the land is
enrolled under permanent easements, while only about 5% is enrolled under 10-year
restoration agreements. Prior to the 2002 farm bill, farmer interest had exceeded available
funding, which may explain why Congress raised the enrollment ceiling in that legislation.
The 2002 farm bill also expanded the 500,000-acre Farmable Wetlands Pilot Program
within the Conservation Reserve Program to a 1 million acres program available nationwide.
Only wetland areas that are smaller than 10 acres that are not adjacent to larger streams and
rivers are eligible. This program may become more important to overall protection efforts
in the wake of the SWANCC decision, discussed above, which limited the reach of the §404
permit program so that it does not apply to many small wetlands that are isolated from
navigable waterways. Through January, 2005, more than 122,800 acres had been enrolled.
On August 4, 2004, the Administration announced a new Wetland Restoration Initiative
to allow enrollment of up to 250,000 acres of large wetland complexes and playa lakes
located outside the 100-year floodplain in the CRP after October 1, 2004. The estimated cost
of this initiative is $200 million. Participants will receive incentive payments to help pay for
restoring the hydrology of the site, as well as rental payments and cost sharing assistance to
install eligible conservation practices.
Several other large conservation programs, including the Environmental Quality
Incentives Program, the Farmland Protection Program, and the Wildlife Habitat Incentive
Program, were also amended in the 2002 farm bill in ways that may have incidental
protection benefits for wetlands, both because of much higher funding levels and because of
program changes. Finally, some new programs could less directly help protect wetlands,
including the Conservation Security Program, which would provide payments to install and
maintain practices on working agricultural lands, a Surface and Groundwater Conservation
Program (funded through the Environmental Quality Incentive Program), a new program to
retire wetlands that are part of a cranberry operation; and several programs to better manage
water resources. (For more information on these provisions, see CRS Report RL31486,
Resource Conservation Title of the 2002 Farm Bill: A Comparison of New Law with Bills
Passed by the House and Senate, and Prior Law; and for the status of implementation, see
the 2002 farm bill implementation subsection of CRS Issue Brief IB96030, Soil and Water
Conservation Issues, both by Jeffrey A. Zinn.)
Agricultural Wetlands and the §404 Program. The §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 §404 permit requirements under a memorandum of agreement (MOA), and since 1977
the Clean Water Act has exempted “normal farming activities.” The January 2001 Supreme
Court SWANCC decision, discussed above, apparently will exempt certain isolated wetlands
from Corps jurisdiction; NRCS has estimated that about 8 million acres in agricultural
locations might be exempted by this decision. In December 2002, the Supreme Court
affirmed a lower court decision, without comment, that deep ripping to prepare wetland soils
for planting was more than a “normal farming activity” and therefore subject to §404
While these exemptions and the MOA have displeased some protection advocates, they
have probably dampened some of the criticism from farming interests over federal regulation
of private lands. On the other hand, how NRCS responds to the SWANCC decision on
isolated wetlands could cause that criticism to rise. The Corps and NRCS have been
unsuccessful in revising the MOA since 1996, although they signed a very general
partnership agreement on July 7, 2005. There has been no official comment on how
additional changes in the 2002 farm bill will affect interagency cooperation. Some of the
wetlands that fall outside §404 requirements as a result of the SWANCC decision can now
be protected if landowners decide to enroll them into the revised farmable wetlands program
or under the new initiatives.
Private Property Rights and Landowner Compensation
An estimated 74% of all remaining wetlands in the coterminous states are on private
lands. Questions of federal regulation of private property stem from the belief that land
owners should be compensated when a “taking” occurs and alternative uses are prohibited
or restrictions on use are imposed to protect wetland values. The U.S. Constitution provides
that property owners shall be compensated if private property is “taken” by government
action. The courts generally have found that compensation is not required unless all
reasonable uses are precluded. Many individuals or companies purchase land with the
expectation that they can alter it. If that ability is denied, they contend, then the land is
greatly reduced in value. Many argue that a taking should be recognized when a site is
designated as a wetland. 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, but
ruled that the state’s action had not taken all economic value of the property into account
(Palazzolo v. Rhode Island, 533 U.S. 606).
Congress has explored these issues; an example is the October 2001 hearing by the
House Transportation and Infrastructure Committee, Subcommittee on Water Resources and
the Environment. The record of this hearing is titled The Wetland Permitting Process: Is It
Working Fairly? (Hearing 107-50). Recent Congresses have considered, but did not enact,
property rights protection proposals, and the Bush Administration has not stated an official
position on these types of proposals. (For more information, see CRS Report RL30423,
Wetlands Regulation and the Law of Property Rights “Takings”, by Robert Meltz.)
Wetland Restoration and Mitigation
Federal wetland policies during the past decade have increasingly emphasized
restoration of wetland areas. Much of this restoration occurs as part of efforts to mitigate the
loss of wetlands at other sites. The mitigation concept has broad appeal, but implementation
has left a conflicting record. Examination of this record, presented in a June 2001 report
from the National Research Council, found it to be wanting. The NRC report said that
mitigation projects called for in permits affecting wetlands were not meeting the federal
government’s “no net loss” policy goal for wetlands function (Compensating for Wetland
Losses under the Clean Water Act). Likewise, a 2001 GAO report criticized the ability of
the Corps to track the impact of projects under its current mitigation program that allows inlieu-fee mitigation projects in exchange for issuing permits allowing wetlands development
(Wetlands Protection: Assessments Needed to Determine the Effectiveness of In-Lieu-Fee
Mitigation, GAO-01-325). 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.
Much of the attention to wetland restoration has focused on Louisiana, where an
estimated 80% of the total loss of U.S. coastal wetlands has occurred (coastal wetlands are
about 5% of all U.S. wetlands). 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
provided funding to plan and carry out restoration projects in this and other coastal states
under the Coastal Wetlands Planning, Protection and Restoration Act of 1990, also known
as the Breaux Act. According to the FWS, more than $139 million had been spent in 25
states and one territory by the end of FY2004 to restore or protect more than 167,000 acres,
and according to the Corps, almost $220 million had been spent by the Corps in coastal
Louisiana through July 2003, mostly under the Breaux Act. In the wake of hurricanes
Katrina and Rita, multiple legislative proposals have been introduced to fund many
restoration projects that have already been planned by the U.S. Army Corps of Engineers and
to explore other opportunities that would restore and stabilize additional wetlands.
Many federal agencies have been active in wetland improvement efforts in recent years.
In particular, the FWS has been promoting the success of its Partners for Wildlife program.
According to the program website, visited on July 14, 2005, the program had entered into
almost 29,000 agreements with landowners to protect or restore about 640,000 acres of
wetlands and more than 4,700 miles of riparian and in-stream habitat (and more than 1
million acres of upland habitat also) through FY2002.
Other programs also restore and protect domestic and international wetlands. One of
these derives from the North American Wetlands Conservation Act, reauthorized through
FY2007 in P.L. 107-304 with an appropriations ceiling that will increase from $55 million
in FY2003 to $75 million in FY2007. The act provides grants for wetland conservation
projects in Canada, Mexico, and the United States. According to the FWS FY2005 budget
notes, the United States. and its partners have protected almost 7.5 million acres and restored,
created, or enhanced an additional 5.4 million acres of wetlands. The FWS has combined
funding for this program with several other laws into what it calls the North American
Wetlands Conservation Fund.
Under the Convention on Wetlands of International Importance, more commonly known
as the Ramsar Convention, the United States is one of 134 nations that have agreed to slow
the rate of wetlands loss by designating important sites. These nations have designated
1,229 sites since the convention was adopted in 1971. The United States has designated 19
wetlands, encompassing 3 million acres.
Mitigation has also become an important cornerstone of the §404 program in recent
years. A 1990 MOA signed by the agencies with regulatory responsibilities outlines a
sequence of three steps leading to mitigation: first, activities in wetlands should be avoided
when possible; second, when they can not be avoided, impacts should be minimized; and
third, where minimum impacts are still unacceptable, mitigation is appropriate. It directs that
mitigated wetland acreage be replaced on a one-for-one functional basis. Therefore,
mitigation may be required as a condition of a §404 permit.
Some wetland protection advocates are critical of mitigation, which they view as
justifying destruction of wetlands. They believe that the §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 (discussed above), in November 2001,
the Corps issued new guidance to strengthen the standards on compensating for wetlands lost
to development, but the guidance has been criticized by environmental groups and some
Members of Congress for weakening rather than strengthening mitigation requirements and
for the Corps’ failure to consult with other federal agencies. In December 2002, the Corps
and EPA released an action plan including 17 items that both agencies believe will improve
the effectiveness of wetlands restoration efforts (see [http://www.epa.gov/owow/wetlands/
guidance/index.html#mitigation]). The Corps is developing a wetlands mitigation rule,
expected to be released later in 2005, that would replace the 1990 MOA with clearer
requirements on what will be considered a successful project to compensate for wetlands lost
to development or agriculture. The rule is being developed in response to a provision in the
2003 defense authorization bill (P.L. 107-314) that directed the Corps to establish mitigation
project performance standards by 2005. Environmental activists fear that the rule will be
even less protective than current policy.
The concept of “mitigation banks,” in which wetlands are created, restored, or enhanced
in advance to serve as “credits” that may be used or acquired by permit applicants when they
are required to mitigate impacts of their activities, is widely endorsed. Numerous public and
private banks have been established, but many believe that it is too early to assess their
success. The U.S. Army Corps of Engineers estimated that about 230 banks had been
established by January1, 2000 through some form of agreement (although construction had
not started at all those sites), and if state -approved banks are included, the total grew to 370
to 400 banks. Provisions in several laws, such as the 1996 farm bill and the 1998
Transportation Equity Act (TEA-21), endorse the mitigation banking concept. (For more
information on the early history of banking, see CRS Report 97-849, Wetland Mitigation
Banking: Status and Prospects, by Jeffrey A. Zinn.) In November 2003, Congress enacted
wetlands mitigation provisions as part of the FY2004 Department of Defense authorization
act, P.L. 108-136, discussed below.
Wetland Activities in the 109th Congress
While almost five dozen legislative proposals with wetland provisions have been
introduced, none, other than appropriations legislation, has been enacted as yet.
FOR ADDITIONAL READING
Kusler, Jon and Teresa Opheim. Our National Wetland Heritage: A Protection Guide.
Environmental Law Institute. [Washington] 1996. 149 p.
National Academy of Sciences, National Research Council. Compensating for Wetland
Losses Under the Clean Water Act. [Washington] 2001.
Strand, Margaret N. Wetlands Deskbook. Environmental Law Institute. [Washington]
1993. 883 p.
U.S. Department of Agriculture, Economic Research Service. Wetlands and Agriculture:
Private Interests and Public Benefits, by Ralph Heimlich, et al. [Washington] 2001,
123p. Agricultural Economic Report No. 765.
U.S. Department of the Interior. U.S. Fish and Wildlife Service. Status and Trends of
Wetlands in the Coterminous United States 1986 to 1997. [Washington] 2000. 82p.
U.S. General Accountability Office. Wetlands Protection: Assessments Needed to Determine
the Effectiveness of In-Lieu-Fee Mitigation. (GAO-01-325) [Washington] May 2001.
—— Waters and Wetlands: Corps of Engineers Needs to Evaluate District Office Practices
in Determining Jurisdiction. (GAO-04-297) [Washington] February 2004. 45 p.
CRS Report 97-223. Nationwide Permits for Wetlands Projects: Regulatory Developments
and Current Issues, by Claudia Copeland.
CRS Report RL31486. Resource Conservation Title of the 2002 Farm Bill: A Comparison
of New Law with Bills Passed by the House and Senate, and Prior Law, by Jeffrey Zinn.
CRS Report 97-849. Wetland Mitigation Banking: Status and Prospects, by Jeffrey Zinn.
CRS Report RL30423. Wetlands Regulation and the Law of Property Rights “Takings”, by
CRS Report RL30849. The Supreme Court Addresses Corps of Engineers Jurisdiction over
“Isolated Waters”: The SWANCC Decision, by Robert Meltz and Claudia Copeland.
CRS Report RL33263. The Wetlands Coverage of the Clean Water Act is Revisited by the
Supreme Court: Rapanos and Carabell, by Robert Meltz and Claudia Copeland.