HTML _ 95-796 - Wetlands Legislation: Comparison of Two Bills
5-Jul-1995; Claudia Copeland; 11 p.

Abstract: How best to protect the Nation's remaining wetlands and regulate activities taking place in wetlands has become one of the most contentious environmental policy issues, with much of the legislative attention having recently focused on section 404 of the Clean Water Act, the principal Federal regulatory program. Section 404 has increasingly become a source of conflict between those who view it as critically important to wetland protection and others who see it as excessively intruding on privately owned property and private land-use decisions. Efforts to reform section 404 are underway in the 104th Congress. On May 16, 1995, the House passed H.R. 961, a Clean Water Act reauthorization bill that includes a rewrite of section 404. On May 25 Senator Bennett Johnston introduced S. 851, the Wetlands Regulatory Reform Act of 1995. This report summarizes and discusses the wetlands provisions of H.R. 961 and S. 851. (Other bills dealing with agriculture and the farm bill are not discussed.) The bills are conceptually similarly: both would establish a new Federal wetlands regulatory program and revise section 404. Both include provisions to streamline the permitting process by clarifying Federal agency roles, expanding permit exemptions, and setting permit time limits. The U.S. Army Corps of Engineers would be the lead Federal agency, except for identifying wetlands on agricultural lands. Both include a new administrative appeals process and less stringent penalties for wetlands-related violations of the law. The question of ¨what is a wetland¨ for purposes of determining the geographic reach of regulatory programs has been a key controversy. Both bills would specify in law the criteria to be used in identifying or delineating lands as wetlands. Both provide for the revised section 404 to separate wetlands into three categories according to ecological significance and functions and then to regulate them accordingly. Proposed activities in those classified as most ecologically valuable would undergo detailed analysis before a permit could be issued. Activities in areas classified as least valuable because they serve limited or marginal wetlands functions would be allowed without a Federal permit. The major differences between the two bills are that H.R. 961 includes provisions requiring the Federal Government to compensate landowners if a section 404 action diminishes the fair market value of the property by 20 percent or more (as do provisions of House-passed H.R. 9), while S. 851 does not. The Senate bill does include certain administrative procedures, including consultation roles for EPA and the U.S. Fish and Wildlife Service, that are not found in the House bill. The most controversial provisions in the bills are the compensation requirements of H.R. 961, statutory wetlands classification and delineation criteria, restrictions on EPA's involvement in order to streamline regulation, and expanded permit exemptions. There also is opposition to a number of other provisions in the bills (those dealing with enforcement and procedural matters, for example), yet these are less controversial than compensation, classification and delineation, EPA's role, and exemptions. [read report]

Topics: Wetlands

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