RL33483 - Wetlands: An Overview of Issues
12-Jul-2010; Claudia Copeland; 25 p.
Update: Previous Releases:
December 30, 2009
July 8, 2008
June 26, 2007
March 13, 2007
December 11, 2006
July 30, 2006
MOST RECENT DEVELOPMENTS:
The U.S. Fish and Wildlife Service released its most recent periodic survey of changes in wetland acreage in March 2006. 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 this 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 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: Recent Congresses have considered numerous policy topics that involve wetlands. Many reflect issues of long-standing interest, such as applying federal regulations on private lands, wetland loss rates, and restoration and creation accomplishments. In the 110th Congress, a few of the topics were new, such as wetlands provisions in the 2008 farm bill (P.L. 110-246). The 110th Congress also considered wetland topics at the program level, responding to legal decisions and administrative actions affecting the jurisdictional boundary limits of the federal wetland permit program in the Clean Water Act (CWA).
Perhaps the issue receiving the greatest attention has been determining which wetlands should be included and excluded from permit requirements under the CWA’s regulatory program, as a result of Supreme Court rulings in 2001 (in the SWANCC case) that narrowed federal regulatory jurisdiction over certain isolated wetlands, and in June 2006 (in the Rapanos-Carabell decision) that left the jurisdictional reach of the permit program to be determined on a case-by-case basis. In response, legislation intended to reverse the Court’s rulings in these cases has been introduced regularly since the 107th Congress. In the 111th Congress, for the first time, one such bill has been approved by a congressional committee (S. 787, the Clean Water Restoration Act). The Obama Administration has not endorsed any specific legislation, but has identified general principles for legislation that would clarify waters protected by the CWA.
Wetland protection efforts continue to engender 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 effectiveness of the current suite of laws in protecting them, and the fact that 75% of remaining U.S. wetlands are located on private lands.
Many recent public and private efforts have sought to mitigate damage to wetlands and to protect them through acquisition, restoration, and enhancement, particularly coastal wetlands. The 3.4 million acres of marsh, swamp, forests, and barrier islands in coastal Louisiana constitute the largest wetland complex in the lower 48 states and are important spawning grounds for fish and shellfish, as well as habitat for migratory birds. The state’s wetlands have been weakened by flood control and other engineering projects that have altered water flow and led to erosion of land. These areas were damaged by hurricanes in 2005 and now are threatened by oil from the April 2010 explosion of the Deepwater Horizon rig in the Gulf of Mexico, as are other coastal wetlands in the Gulf.
One reason for controversies about wetlands is that they occur in a wide variety of physical forms, and the numerous values they provide, such as wildlife habitat, also vary widely. In addition, 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, endorsed by administrations for the past two decades, has been reached, according to the Fish and Wildlife Service, as the rate of loss has been more than offset by net gains through expanded restoration efforts authorized in multiple laws. Many protection advocates say that net gains do not necessarily account for the changes in quality of the remaining wetlands, and many also view federal protection efforts as inadequate or uncoordinated. Others, who advocate the rights of property owners and development interests, characterize them as too intrusive. Numerous state and local wetland programs add to the complexity of the protection effort.