Wetland Issues

Publication Date: May 2006

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

Type:

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 section 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 section 404 program, as too intrusive. Numerous state and local wetland programs add to the complexity of the protection effort.