Redistributed as a Service of the National Library for the Environment*
IB97014: Wetland Issues
Jeffrey A. Zinn and Claudia Copeland
August 7, 2001
Wetlands, in a wide variety of forms, are found throughout the country. The various values of these areas have been increasingly recognized in recent years, but the remaining acreage continues to disappear. When European settlers first arrived, total wetland acreage was more than 220 million acres in the lower 48 states, according to estimates by the U.S. Fish and Wildlife Service. It estimates that by 1997 total wetland acreage was 105.5 million acres. Losses continue, although the rate of loss has slowed considerably during the past decade and restoration efforts have grown, and some regions are approaching the national policy goal of no-net-loss. Recent losses have been concentrated in forested wetlands, and net losses are greatest in the eastern United States.
Several laws provide varying levels of protection under different circumstances: §404 in the Clean Water Act; the swampbuster and other programs in federal farm law; and laws that protect specific sites or types of wetlands, such as the enactments that have established National Wildlife Refuge System units and the Wetland Reserve Program. Although the rate of wetland loss has slowed, these laws and their implementation are viewed by many protection advocates as inadequate. Others, who advocate the rights of property owners and development interests, by contrast, characterize these same efforts as overzealous and too extensive. Numerous state and local wetland programs increase the complexity of the protection effort.
Both the Clinton and earlier Bush Administrations made wetland protection a priority. Clinton Administration policies, stated in 1993, included: using the best available science to define and delineate wetlands; improving the regulatory program and encouraging non-regulatory options; and expanding partnerships in wetland protection. In 1998, it announced a strategy to achieve a net gain of as many as 100,000 acres annually by 2005 in its Clean Water Action Plan.
Numerous wetland bills have been introduced in Congress during the past decade either to implement Administration policies or to initiate alternative approaches. Many hearings have been held, but the only major wetland legislation to be enacted has addressed agricultural wetlands (in 1996).
In recent years, wetlands issues have involved controversy over the rate of wetlands loss, continuing efforts to reauthorize the Clean Water Act and other legislation that affects wetlands, implementation of farm bill provisions, and specific actions that raise concerns about changes in wetlands programs. Examples of actions that have drawn attention were implementation of Corps of Engineers changes to a nationwide permit (changes generally opposed by the development community), and a federal decision that overturned the 1993 "Tulloch" rule, which had expanded regulated actions to include excavation. New rules issued by the Clinton Administration in January 2001 to clarify the rejected Tulloch rule and a January Supreme Court decision affecting regulation of isolated wetlands are likely to attract attention from policymakers.
The 107th Congress is addressing agricultural wetland protection in the next farm bill. A bill reported by the House Agriculture Committee on July 27, 2001 (H.R. 2646) would expand the Wetland Reserve Program, and other proposals have been introduced which may be considered during the legislative process.
The 107th Congress is already considering wetlands provisions within its efforts to reauthorize omnibus farm legislation; members have introduced bills to enlarge the wetland reserve and have been listening to witnesses address several wetland topics at farm bill hearings. The House Agriculture Committee reported out its version of this legislation on July 27, 2001 (H.R. 2646). Other recent events may attract congressional attention, and legislation is possible. These include court decisions that would limit the geographic reach of the Clean Water Act §404 program and rules issued in January 2001 by the Clinton Administration affecting regulated activities, which the Bush Administration has allowed to go into effect.
The 106th Congress did not enact major new wetlands legislation, but it did raise the FY2001 enrollment ceiling in the Wetlands Reserve Program from 975,000 acres to 1,075,000 acres and supported increased appropriations for many activities that contribute to protecting wetlands. Many of these actions were proposed by the Clinton Administration in its Clean Water Action Plan or Lands Legacy Initiative.
Wetlands, in a variety of forms, are found throughout the country. They are known in different regions as swamps, marshes, fens, potholes, playa lakes, or bogs. While these places can differ greatly, they all have distinctive plant and animal assemblages because of the wetness of the soil. Some wetland areas may be continuously inundated by water, while other areas may not be flooded at all. In coastal areas, flooding may occur on a daily basis as tides rise and fall.
Functional values, both ecological and economic, at each wetland depend on its location, size, and relationship to adjacent land and water areas. Many of these values have been recognized only recently. Historically, many federal programs encouraged wetlands to be drained or altered because they were seen as having little value as wetlands. Wetland values can include:
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 value of wetlands has been recognized. Previously, some laws, such as selected provisions in the federal tax code, public works legislation, and farm programs, encouraged destruction of wetland areas. Federal laws now either encourage wetland protection, or prohibit or do not support their destruction. These laws, however, do not add up to a fully consistent or comprehensive national approach. The central federal regulatory program, §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 other acquisition and incentive programs complete the current protection effort.
While numerous wetland protection bills have been introduced in recent Congresses, no major new wetlands legislation has been enacted. The Clinton Administration took a strong interest in the wetlands debate. In 1993, it announced new federal policies based on five principles: 1) supporting no overall net loss of the Nation's remaining wetlands together with increasing the quality and quantity of wetlands as a long-term goal; 2) making regulatory programs fair, flexible, and predictable; 3) encouraging options to regulatory programs; 4) expanding partnerships to protect and restore wetlands in an ecosystem/watershed context; and 5) basing wetland policies on the best scientific information available. Subsequently, it sought increased funding for wetlands protection efforts through the Clean Water Action Plan and the Lands Legacy Initiative, and set a goal of a net gain of 100,000 acres annually starting in FY2005.
While Congress has not enacted major changes, it has provided a forum where conflicting interests in wetland issues have been debated. These conflicts are between:
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 losses, and the importance of these losses. Federal program questions include; the operation of the principal federal regulatory program and other programs to protect, restore, or mitigate wetland resources; relationships between agriculture and wetlands; whether all wetlands should be treated the same in federal programs and which wetlands should be subject to regulation; and federal funding of wetland programs. In addition, private property questions are raised because almost three-quarters of the remaining wetlands are located on private lands, and some property owners believe they should be compensated when federal programs limit land use and thereby diminish its value.
There is general agreement that the presence of a wetland can be determined by a combination of soils, plants, and hydrology. The only definition of wetlands in law, in the swampbuster provisions of farm legislation, lists those three components but does not include more specific criteria, such as what conditions must be present, for how long, and during what portion of the year. Controversies are exacerbated when many sites that have those three components, 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 are judged to be wetlands according to criteria used in the scientific community. 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, in the subsection titled Judicial Proceedings Involving §404, are efforts to exclude certain types of wetlands from the regulatory program.
It has been estimated that when European settlers first arrived, wetland acreage in the area that would become the 48 states was more than 220 million acres, or about 5% of the total land area. By 1997, total wetland acreage was estimated to be 105.5 million acres, according to data compiled through the FWS National Wetlands Inventory (NWI). Data compiled by the NRCS and the FWS in separate surveys and using different methodologies (and yielding different results) both show that the annual loss rate has been dropping from almost 500,000 acres annually nearly three decades ago to less than 100,000 annually. The FWS survey estimated the average annual rate of loss was 58,500 acres between 1986 and 1997 while NRCS used its Natural Resources Inventory (NRI) to estimate that the average annual loss rate was 32,600 acres between 1992 and 1997.
This difference in loss statistics has led to disagreements over the actual rate of loss and the effectiveness of current policies. The Clinton Administration announced in March 1998 that FWS and NRCS would coordinate future assessments of wetlands loss, based on data collected by the NRCS every 5 years in the NRI. The Administration sought to end this "battle of the numbers" that has obscured other wetland protection issues. This battle was explored in a July 1998 General Accounting Office report titled Wetlands Overview: Problems with Acreage Data Persist. The recent joint announcement of inconsistent loss rates and statements by the two agencies that it is infeasible to produce statistically reliable data for a single report on wetlands gains and losses indicate that the battle continues.
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. There is a large time lag from changes in policy to release of data that measure these changes. 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.
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 significantly amended by Congress 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 program data compiled by the Corps, the agency received an average of 74,500 §404 permit requests annually from FY1996 to FY1999. Of those, more than 84% were authorized under a general permit, and the average length of time for action was 14 days. A general permit, which can apply regionally or nationwide, is essentially a permit by rule for activities with minor impact; most do not require pre-notification or prior approval. About 7% were required to go through the more detailed evaluation for an individual permit, which may involve complex proposals or sensitive environmental issues. The average time to complete review of these applications was 107 days; only 0.3% of applications for individual permits were denied. In FY1999, Corps-issued permits authorized a total of 21,556 acres of wetland impact (30% less than in FY1998), while those permits required that 46,433 acres of wetlands be restored, created, enhanced, or preserved as mitigation for the losses authorized.
Regulatory procedures on individual permits allow for interagency review and comment, a coordination process that can generate delays and an uncertain outcome, especially for environmentally controversial projects. EPA is the only federal agency having veto power over a proposed Corps permit; EPA has used its veto authority 11 times since the program began. Critics have charged that implied threats of delay by the FWS and others practically amount to the same thing. Reforms during the Reagan, 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.
Nationwide Permits. Nationwide permits are a key means by which the Corps minimizes the burden of its regulatory program. These general permits authorize activities that are similar in nature and are judged to cause only minimal adverse effect on the environment. General permits minimize the burden of the Corps' regulatory program by authorizing landowners to proceed without having to obtain individual permits in advance. They are issued for 5-year periods and thereafter must be renewed by the Corps.
In December 1996 the Corps reissued the 37 existing nationwide permits and 2 new permits. The Corps made changes to strengthen the environmental restrictions of nationwide permit 26 (NWP 26), which has been particularly controversial because of concern that it results in significant cumulative unmonitored wetlands losses. The changes to NWP 26 pleased wetland protection advocates but displeased development and commercial interests who contended that permitting would now be more burdensome. At the same time, the Corps announced it would replace NWP 26 in 2 years with more specific activity-based permits.
Fulfilling that pledge, the Corps issued final replacement permits for NWP 26 on March 6, 2000; these permits took effect June 7, 2000 (65 Federal Register 12818-12899). In contrast to NWP 26, which authorized activities in certain categories of waters, the replacement permits authorize projects for five specific types of activities, with terms and conditions to ensure that the activities result in minimal adverse effects on the aquatic environment, individually and cumulatively. The major change that the Corps believed will strengthen protection of aquatic resources is a maximum acreage limit under the new NWPs of one-half acre, reduced from the previous maximum of three acres. The Corps also issued additional general conditions applicable to all nationwide permits to further ensure protection of aquatic resources, such as limitations on discharges of fill material into 100-year floodplains. Developers said the replacement permits are too restrictive of the regulated public and would require more landowners to seek individual permits, which is more costly and time-consuming for the regulated public. The Corps acknowledges that more individual permits will be required and that costs for landowners and the Corps itself will increase as a result of the permit changes, but the Corps believes that these impacts will be less severe than developer groups contend and will be outweighed by the additional resource protection that the permits will provide. (For more information, see CRS Report 97-223, Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues and Controversies.)
A key developer group, the National Association of Home Builders, challenged the replacement NWPs in a lawsuit filed the same day the permits package was published in the Federal Register. The lawsuit challenges a number of details in the permits and more generally contends that the new permits are contrary to the intent of Congress that the Corps provide a streamlined process in its nationwide permitting program. Other lawsuits challenging the permits have been brought by the National Stone Association and the National Federation of Independent Business.
Section 404 authorizes states to assume many of the permitting responsibilities. Two states, Michigan (in 1984) and New Jersey (in 1992), have done this. Others have cited the complex process of assumption, the anticipated cost of running a program, and the continued involvement of federal agencies because of statutory limits on waters that states could regulate as reasons for not joining these two states. Efforts (both administrative and legislative) continue towards encouraging more states to assume program responsibility.
Judicial Proceedings Involving §404. The §404 program has been the focus of a number of lawsuits recently. The status of aspects of the Corps' regulatory program was made uncertain by a federal court ruling in January 1997. The U.S. District Court for the District of Columbia overturned regulations issued by the Corps and EPA in 1993 that had extended the scope of regulation to include certain landclearing and excavation activities. Those regulations were issued as part of the settlement of a lawsuit brought by environmental groups over the agencies' failure to regulate discharges associated with excavation (North Carolina Wildlife Federation et al. v. Tulloch). At issue was whether "fallback" from dredging activities constituted pollution, under the CWA. The court ruled that incidental fallback is not pollution and, thus, the agencies had exceeded their authority under the Clean Water Act. In January 2001, the Clinton Administration issued a regulation to close what the government viewed as a "loophole" resulting from the Tulloch case, which it estimated to have resulted in conversion of 20,000 acres of wetlands. The regulation seeks to clarify circumstances in which mechanized landclearing or excavation activity in waters of the U.S. will result in discharges which are subject to CWA regulation. After reviewing this new rule, the Bush Administration announced on April 16 that it would allow the regulation to take effect without modification. Regulated industries are displeased with the new rule, and two groups have filed lawsuits challenging it.
In December 1997, the U.S. 4th Circuit Court of Appeals ruled in favor of a Maryland developer, finding that the Corps had exceeded its authority in claiming jurisdiction over isolated wetlands. The court in U.S. v. Wilson said that the Corps exceeded its authority in trying to regulate wetlands whose degradation or destruction could have an impact on interstate commerce. Rather, a "case-by-case" determination is necessary to decide whether an activity has an effect on a wetland and whether the effect is substantial. Environmentalists said that the ruling, if interpreted broadly, would make it harder for the federal government to justify regulating interstate wetlands. However, the ruling only affected Corps districts covered by the 4th Circuit (Virginia, West Virginia, Maryland, and the Carolinas). A U.S. request for a rehearing of the case was denied in January 1998, and the government subsequently decided not to seek Supreme Court review. In May 1998, the Corps issued guidance outlining how to address isolated wetlands in the 5 states affected by the ruling. The Corps will continue to assert jurisdiction over isolated wetlands, but only where it can show a substantial connection between the wetland and interstate commerce.
U.S. v. Wilson is one recent example of long-standing controversy and litigation over whether isolated waters are properly within the jurisdiction of §404. Isolated waters that are wetlands 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. On January 9, the Supreme Court ruled on the question of whether the CWA provides the Corps and EPA with authority over isolated waters. The Court's 5-4 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (No. 99-1178) held that the Corps' denial of a §404 permit for a disposal site 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 is unclear for now. Environmentalists believe that the Court misinterpreted congressional intent on the matter, while industry and landowner groups welcomed the ruling. Policy implications of how much the decision restricts federal regulation depend on how broadly or narrowly the opinion is applied. The government's view on this key question was answered in a January 19 memorandum issued jointly by EPA and the Corps in which the agencies provide a legal interpretation based on a narrow reading of the Court's decision, thus allowing federal regulation of some isolated waters to continue. While it likely will take some time to assess how regulatory protection of wetlands will be affected as a result of the decision, the remaining responsibility to protect affected wetlands falls on states and local governments. Whether states will act to fill in the gap left by removal of some federal jurisdiction is unclear, but a few states (Wisconsin and Ohio, for example) have passed new laws to do so. (For additional information, see CRS Report RL30849, The Supreme Court Addresses Corps of Engineers Jurisdiction Over 'Isolated Waters': The SWANCC Decision.)
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.
National surveys almost two decades ago indicated that agricultural activities had been responsible for a large percentage of wetland loss in the preceding decades, making this topic a focus for policymakers. Congress responded by creating programs in farm legislation that use disincentives and incentives to encourage landowners to protect and restore wetlands. Swampbuster and the Wetlands Reserve are the two largest efforts, but other programs such as the Conservation Reserve and Conservation Reserve Enhancement Programs are also being used to protect wetlands. For example, provisions in the FY2001 Agriculture Appropriations (P.L. 106-387) established a 500,000 acre pilot program within the Conservation Reserve Program, with signup bonuses to encourage participation, to enroll farmed wetlands smaller than 5 acres in six North Central states. Data compiled by both NRCS and FWS in their 1997 surveys indicate that the number of acres lost to agriculture has plunged from a majority of all conversions to between 25% and 30% of them, at the same time that the total number of acres lost also plunged.
Wetland programs are being discussed in the 107th Congress in the context of omnibus farm bill legislation. The House Agriculture Committee reported out its version of the farm bill (H.R. 2646) just before the August recess. Wetlands provisions in this bill would: clarify application of the swampbuster provision so that producers would only be penalized for the crop which was produced on the converted wetland; move the administration of the swampbuster program from the Natural Resources Conservation Service to the Farm Security Agency; permit the enrollment of 150,000 acres annually into the Wetlands Reserve; and make a number of other changes to the Reserve, such as amending the payment limit provisions. (Background on swampbuster and the Reserve are provided below.) Several alternative proposals on these topics and proposals on other wetland topics have been introduced, and some of these are likely to be considered as the farm bill moves through the legislative process.
The §404 program applies to 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." Another MOA signed in January 1994 by the NRCS, the Corps, EPA, and FWS gives NRCS the responsibility for making wetland determinations for the §404 program on agricultural lands. These determinations are made under §404 rules and procedures. Finally, the January 2001 Supreme Court SWANCC decision, discussed above, will exempt certain isolated wetlands from Corps jurisdiction; NRCS has estimated that about 8 million acres might be exempted by this decision. While these exemptions and the MOA have displeased some protection advocates, they have probably dampened some of the criticisms from farming interests over federal regulation of private lands. These agencies are revising the MOA to address changes made in the 1996 farm bill and to respond to problems that have emerged in implementing the original MOA.
Swampbuster. Swampbuster, enacted in 1985, uses incentives to protect wetlands on agricultural lands. Although it is a disincentive rather than a regulatory program, it has been controversial, with farmers concerned about redefining an appropriate federal role in wetland protection on agricultural lands, and with wetland protection advocates concerned about inadequate enforcement. Since March 1995, the NRCS has suspended making wetland determinations, except on request, because of 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 sites may eventually require a determination.
It was amended most recently in the Federal Agricultural Improvement and Reform Act of 1996 (P.L. 104-127). Congress responded to producer concerns by granting producers greater flexibility. Changes include:
An interim final rule with request for comments was issued on September 6, 1996. A final rule has not been issued.
Wetland Reserve Program (WRP). Under the WRP, enacted in 1990, landowners receive payments for placing easements on farmed wetlands. All easements were permanent until provisions in the 1996 farm bill were implemented. This law made the WRP an entitlement, extended its authorization through 2002, and capped enrollment at 975,000 acres. The FY2001 Agriculture Appropriations legislation (P.L. 106-387) raised the enrollment cap to 1,075,000 acres. Legislative proposals that were considered but not enacted during the 106th Congress sought to replace the cap with an annual enrollment limit. (Increased enrollment was a goal of the Clinton Administration's Clean Water Action Plan.)
Data released in March 2001 show almost 1,050,000 acres in the program. 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. Farmer interest exceeds available funding, but Congress had repeatedly limited enrollment in appropriations legislation. For FY2002, the Bush Administration requested no new funding for the WRP, noting that the authorized enrollment ceiling will be reached in FY2001. The House and Senate Appropriations Committees have concurred, pending completion of the current farm bill debate. (For more information on agriculture programs to protect wetlands, see CRS Issue Brief 96030, Soil and Water Conservation Issues.)
An estimated 74% of all remaining wetlands in the coterminous states are on private lands, and only 13% are located on federal lands. Questions of federal regulation of private property stem from the belief that land owners should be compensated when a "taking" occurs and alternative uses are prohibited or restrictions on use are imposed to protect wetland values. The U.S. Constitution provides that property owners shall be compensated if private property is "taken" by government action. The courts generally have found that compensation is not required unless all reasonable uses are precluded. Many individuals or companies purchase land with the expectation that they can alter it. If that ability is denied, they contend, then the land is greatly reduced in value. Many argue that a taking should be recognized when a site is designated as a wetland. In February, the Supreme Court heard arguments in the latest such case, Palazzolo v. Rhode Island (No. 99-2047), in which a landowner alleges that, although the state's wetlands regulations predated his acquisition of the property in question, the state's denial of a permit constitutes a regulatory taking. A decision by the Court is expected soon. The previous three Congresses considered, but did not enact, property rights protection proposals, in part because the Clinton Administration had strongly hinted that it would have vetoed such legislation. (For more information, see CRS Report RL30423, Wetlands Regulation and the Law of Property Rights "Takings.")
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. The most recent examination of this record, presented in a June 2001 report from the National Research Council, found it to be wanting. Likewise, a GAO report issued in May criticizes the ability of the Corps to track the impact of in-lieu-fee projects under its current mitigation program. Whether it is possible to restore or create wetlands with ecological and other functions equivalent to or better than those of natural wetlands that have been lost over time is a subject that both scientists and policymakers debate. Results so far seem to vary, depending on the type of wetland. Congress has repeatedly endorsed mitigation in recent years.
Much of the attention on wetland restoration has focused on Louisiana; it is estimated that 80% of the total loss of coastal wetlands in the United States has taken place in this state (coastal wetlands are about 5% of all wetlands in the United States). 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, 24 coastal states received funding under this program between 1992 and 1997 for 96 projects. For the $43.3 million expended, 51,184 acres of wetlands were protected, over 42,000 through acquisition and nearly 8,600 through restoration.
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 in Wildlife program, which it says has restored almost 500,000 acres of wetlands and almost 3,000 miles of riparian and in-stream habitat (and upland habitat also) with about 22,000 landowners.
Other programs also restore and protect domestic and international wetlands. The North American Wetlands Conservation Act, was reauthorized through FY2003 in the 105th Congress (P.L. 105-312) and authorized appropriations were increased from $30 million to $50 million annually in §902(i) of P.L. 106-554, omnibus FY2001 appropriations. It has been combined with funding created under several other laws to create the North American Wetlands Conservation Fund. The fund provides federal matching grants for wetland conservation projects to help implement the North American Waterfowl Management Plan. Projects are located in Canada, Mexico, and the United States. According to the Department of the Interior, this program has contributed $288 million for more than 700 projects through FY2000 which have protected, restored, or improved nearly 9.1 million acres of wetlands in the United States and Canada. Partners have provided matching funds exceeding $727 million.
Under the Convention on Wetlands of International Importance, more commonly known as the Ramsar Convention, the United States is one of 123 nations that have agreed to slow the rate of wetlands loss by designating important sites. These nations have designated almost 1,050 sites since the convention was adopted in 1971. The United States has designated 17 wetlands, encompassing almost 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, because it justifies destroying 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 there is little data 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.
Interest has grown recently in creating "mitigation banks," in which wetlands are created, restored, or enhanced in advance to serve as "credits" that may be used or acquired by permit applicants when they are required to mitigate impacts of their activities. Numerous public and private banks have been established, but many believe that it is too early to assess their success. Detailed federal guidance for establishment, use, and operation of mitigation banks was finalized by the Corps, EPA, FWS, NRCS, and NMFS in the Federal Register on November 28, 1995. Provisions in several recent laws, such as the 1996 farm bill, endorse the mitigation banking concept. (For more information, see CRS Report 97-849, Wetland Mitigation Banking: Status and Prospects.)
Recent congressional activities center on reauthorizing omnibus farm legislation, discussed in the agriculture section, but they also include whether to continue funding for Clinton Administration proposals from prior years that are being discussed in the context of FY2002 appropriations, including the Clean Water Action Plan and the Lands Legacy Initiative, and considering other legislative proposals. It is unclear what direction wetland policies might take in the future, as the Bush Administration has not stated any opinions.
Clinton Administration Initiatives. In 1998, the Clinton Administration released a Clean Water Action Plan intended to address the nation's remaining water quality challenges. Restoring and protecting wetlands was a key feature of the plan. It called for achieving a net gain of 100,000 acres of wetlands annually by the year 2005. The Clinton Administration believed this could be achieved by tightening permit rules under §404, by placing more wetlands into the Wetlands Reserve Program, Conservation Reserve Program, and similar federal and non-federal programs, and by increasing the wetland acres restored and enhanced by the Corps of Engineers. The action plan was not accompanied by proposals or legislation concerning the CWA or other laws, and in Congress, it was considered mainly through the appropriations process. Overall, FY1999, FY2000, and FY2001 appropriations bills provided only a portion of the increased funds requested by the Administration. (For further information, see CRS Report 98-150, The Clean Water Action Plan: Background and Early Implementation.)
The Clinton Administration also proposed a Lands Legacy Initiative with the FY2000 and FY2001 budgets. This initiative centered on providing more funding for natural resource programs, especially land acquisition programs under the Land and Water Conservation Fund and the North American Wetlands Conservation Fund. In FY2000, Congress provided funding for the initiative beyond the regular agency appropriations, but less in total than the Administration had requested, while in FY2001, Congress provided more than the Administration had requested. (For further information, see CRS Issue Brief IB10015, Managing Growth and Related Issues in the 107th Congress.)
Legislative Activity in the 106th Congress. The most significant wetlands legislative activity in the 106th Congress involved increasing appropriations. While about 40 bills with wetland provisions were introduced, only a few that were not controversial saw any legislative action. For example, in October 1999, the House passed H.R. 2821 (H.Rept. 106-388), a bill to add two members to the North American Wetlands Conservation Council. In November 1999, the Senate approved S. 1119 (S.Rept. 106-193), a bill to reauthorize the Coastal Wetlands Planning, Protection and Restoration Act through FY2009. Neither bill received further action.
Some regulatory issues were addressed in appropriations legislation. The FY2000 Energy and Water Development Appropriations bill (P.L. 106-60). This bill included language providing that $5 million in additional funds for the Corps' regulatory program to establish an administrative process for appeals of jurisdictional determinations by the Corps. It also directed the Corps to study the workload impacts and costs of compliance of the proposed replacement nationwide permits (see Nationwide Permits, above). The issue of nationwide permits was addressed again, following publication of the replacement permits in March 2000, through the FY2001 Energy and Water Development Appropriations bill (P.L. 106-377). This bill included legislative language requiring the Corps to report to Congress on changed costs and increased workload caused by of the final replacement permits, to prepare a biannual report on the performance of the Corps' regulatory program, and to provide information to the public on permit applications and processing.
Kusler, Jon and Teresa Opheim. Our National Wetland Heritage: A Protection Guide. Environmental Law Institute. [Washington] 1996. 149 p.
National Academy of Science, National Research Council. Wetlands: Characteristics and Boundaries. [Washington] 1995.
-----. 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. Department of the Interior. U.S. Geological Survey. National Water Summary on Wetland Resources. [Washington] 1997. 431 p. Water Supply Paper 2425
U.S. General Accounting Office. Wetlands Protection: Assessments Needed to Determine the Effectiveness of In-Lieu-Fee Mitigation. [Washington] May 2001. 75 p.
CRS Report 96-330. Conservation Provisions in the 1996 Farm Bill: A Summary, by Jeffrey Zinn. 6 p.
CRS Report 97-223. Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues and Controversies, by Claudia Copeland. 17 p.
CRS Report 97-849. Wetland Mitigation Banking: Status and Prospects, by Jeffrey Zinn. 21 p.
CRS Report RL30423. Wetlands Regulation and the Law of Property Rights "Takings", by Robert Meltz. 41 p.
CRS Report RL30849. The Supreme Court Addresses Corps of Engineers Jurisdiction over "Isolated Waters": The SWANCC Decision, by Robert Meltz and Claudia Copeland. 11 p.
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