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 some destruction will be temporary and other new wetlands are created. The extent of change and loss is being documented by federal agencies and others.1 Congress is considering numerous alternative legislative proposals that would fund wetland restoration projects and activities to help lessen the impact of future hurricanes. The 109th Congress had been considering a set of proposals to restore coastal wetlands in Louisiana, 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. Concerning the SWANCC case, critics say that guidance issued by the Environmental Protection Agency (EPA) in 2003 interpreting the 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, 2006, the House adopted an amendment to H.R. 5386 to prohibit EPA from spending funds to implement the controversial guidance.

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 (CWA) permit program as it applies to development of wetlands. The Court’s ruling was issued on June 19. In a 5-4 decision, a plurality of the Court 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 dissenting justices, leading to uncertainty about interpretation and implications of the ruling.

Abstract: The 110th Congress, like earlier ones, may consider numerous policy topics that involve wetlands. The 109th Congress examined controversies such as applying federal regulations on private lands, wetland loss rates, implementation of farm bill provisions, and implications of court decisions affecting the jurisdictional boundaries of the federal wetland permit program. It considered almost 100 bills with wetlands provisions, but only enacted legislation reauthorizing the Partners for Fish and Wildlife Program (P.L. 109-294) and the North American Wetlands Conservation Act (P.L. 109-322). In the aftermath of Hurricanes Katrina and Rita, congressional interest focused on the role that restored wetlands could play in protecting New Orleans, and coastal Louisiana more generally, but no legislation was enacted, beyond FY2006 appropriations and the offshore oil and gas revenue sharing bill (a provision of P.L. 109-432) passed at the end of 2006. The Bush Administration exhibited its interest in wetland protection when it stated shortly after the 2004 election that restoration of 3 million wetland acres would be a priority.

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Topics: Wetlands, Federal Agencies, Water