IB97014 - Wetland Issues
5-Apr-2006; Jeffrey A. Zinn and Claudia Copeland; 18 p.
Update: May 24, 2006
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.
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.
Abstract: 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.
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 introduced. Legislation to reverse the 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.
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.