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95028: Wetland IssuesJeffrey A. Zinn and
Claudia Copeland Updated January 21, 1997 CONTENTSSUMMARY LEGISLATION 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 has been disappearing rapidly. 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. By 1980, total wetland acreage was estimated to be 104 million acres. Losses continue, although the rate of loss has slowed considerably during the past decade. Recent losses have been concentrated in the lower Mississippi River Valley, the upper Midwest, and the Southeast. Several laws provide varying levels of protection under different circumstances: Section 404 in the Clean Water Act; the swampbuster and other programs in the federal farm bill; the Fish and Wildlife Coordination Act; and the numerous enactments that have established National Wildlife Refuge System units. Although the rate of wetland loss has apparently slowed in recent years, these laws are viewed by many environmentalists and other protection advocates as inadequate. Others, who advocate the rights of property owners and development interests, by contrast, maintain that federal protection efforts are being implemented overzealously and too extensively. The complexity of the protection effort is compounded by numerous state and local wetland protection programs. No major wetland legislation was enacted in the 102nd or 103rd Congresses, even though dozens of wetlands bills were introduced in each. Numerous hearings were held, and both the Bush and Clinton Administrations took a major interest in wetland policy. Many topics were addressed by a wide-ranging Clinton Administration announcement on August 24, 1993, including: using the best available science in defining and delineating wetlands; improving the current regulatory program and encouraging non-regulatory options; and expanding the use of partnerships in wetland protection efforts. In the 104th Congress, three areas garnered much of the legislative attention. First, early in the first session, provisions in the House Republican "Contract with America" dealing with private property rights and regulatory reform passed the House--but the Senate did not act on this legislation. Second, on May 16, 1995, the House passed legislation to reauthorize the Clean Water Act that contained wetland reform provisions (H.R. 961)--the Senate did not pass legislation with similar provisions (S. 851). Third, wetlands reform was one focus of the farm bill reauthorization process, which occurred late in the first session and early in the second. Several wetland provisions are contained in the Federal Agricultural Improvement and Reform Act of 1966 (P.L. 104-127). These provisions amend swampbuster to make it more flexible, amend the Wetland Reserve Program, and provide funds to restore the Everglades. The Department of Agriculture is currently implementing these provisions. In the 105th Congress, wetlands issues are likely to revolve around continuing efforts to reauthorize the Clean Water Act, implementation of farm bill provisions, and actions by the Administration that raise concerns about changes in wetlands programs. The major wetlands legislation enacted by the 104th Congress was contained in provisions in The Federal Agricultural Improvement and Reform Act of 1966 (P.L. 104-127), signed into law April 4, 1996. The Department of Agriculture is issuing regulations to implement these provisions. Numerous hearings in both Chambers addressed wetland topics. In the 105th Congress, wetlands issues are likely to revolve around continuing efforts to reauthorize the Clean Water Act, implementation of farm bill provisions, and actions by the Administration that raise concerns about changes in wetlands programs. 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. Wetlands can be identified many different ways based on these physical characteristics. Functional values, both ecological and economic, at each wetland depend on its location, size, and relationship to adjacent land and water areas. 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. In Western states, for example, many reservoirs and water projects (often inundating former wetlands) are used to regulate water flows; because of the regulation of the water, downstream wetlands have been frequently lost. Throughout the country, conversion of wetlands to urban uses can increase flood damages because wetland areas typically provide natural storage and slower release of flood waters. This value is receiving considerable attention because of flooding in the upper Midwest in 1993. Federal laws affect wetlands in a variety of ways. Some laws have directly or indirectly encouraged destruction of wetland areas, such as selected provisions in the federal tax code, public works legislation, and farm commodity programs. As the values of wetlands have been recognized, many of these laws have been amended to reduce or neutralize adverse effects on wetland resources. Many federal laws now encourage wetland protection. These protective laws, however, do not add up to a fully consistent or comprehensive national approach. The central federal regulatory program, Section 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 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. Several acquisition and incentive programs also have been enacted, especially in recent years. During each of the past three Congresses, approximately 100 bills with wetland provisions were introduced. In the 103rd Congress, wetlands were a major component of the debate on reauthorization of the Clean Water Act and were partly the reason that no clean water legislation was enacted. The 104th Congress was different because under new leadership in both Chambers, Congress considered wetland issues in ways that differed from recent preceding Congresses (for example, the House Resources Committee organized a task force on wetland issues, reform proposals that had been blocked in previous Congresses were viewed more favorably, and initiatives favored by environmental organizations received less attention). These changed views were reflected in legislative provisions that the House passed on regulatory reform and protection of private property rights (H.R. 9) and reauthorization of the Clean Water Act (H.R. 961). The Clinton Administration has taken a strong interest in the wetlands debate. On August 24, 1993, it announced new federal policies in an effort to reconcile conflicting interests in wetland issues. These initiatives were developed by a nine-agency working group convened by the White House Office on Environmental Policy after hearing from farmers, environmentalists, developers, scientists, state and local public officials, and Members of Congress. The views they heard capture the basic characteristics of the debate which continues today:
The policies announced by the Clinton Administration in August 1993 embodied five principles that remain at the heart of its approach to wetlands: 1) support for 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) regulatory programs that are fair, flexible, and predictable; 3) encouragement for non-regulatory programs, such as advance planning, restoration, and cooperative efforts to reduce reliance on regulatory programs; 4) expanded partnerships to protect and restore wetlands in an ecosystem/watershed context; and 5) wetland policies based upon the best scientific information available. Administration progress in implementing the 1993 policies has been mixed. Action was swift on some items -- for example, signing and implementing the MOA clarifying interagency roles regarding wetlands on agricultural lands. But momentum has been slower on others, such as developing an interagency appeals process and establishing deadlines for completing permit decisions. In 1995, final regulations were published which provide guidance on mitigation banking, and a rule providing for a nationwide general permit for single family homes and other property improvements under certain circumstances was issued. Reasons cited for the apparent slowdown in policy implementation include complexity of the issues, funding cutbacks that have limited agency staffing for new initiatives, and a lack of Administration cohesion on wetland issues since 1993. In July 1995 the Corps proposed rules to establish a new administrative appeals process (regulatory decisions currently only can be challenged in federal court), which would set up different appeal processes for various types of Corps decisions. However, a funding shortfall could hinder efforts to develop this appeals process, Corps officials have indicated. IssuesWetland issues revolve around disparate scientific and federal program 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 those losses. Federal program questions include: operation of the federal regulatory program and other programs that address the protection of wetland resources (including mitigation and restoration); relationships between agriculture and wetlands; whether all wetlands should be treated the same in federal programs; 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 view federal programs that designate wetlands and limit how they can be used as diminishing the value, real and potential, of the parcel. What is a Wetland?There is general agreement that the presence of a wetland can be determined by a combination of soils, plants, and hydrology. But the definition that scientists use includes places that many people do not generally visualize as wetlands. The only definition of wetlands in law is in the swampbuster provisions of farm legislation. It lists the three components -- soils, plants, and hydrology -- but does not include more specific criteria. Scientists have been at the center of federal efforts to define wetlands for regulatory purposes and to classify wetlands so that they can be inventoried as well. At the heart of these discussions is what conditions must be present, for how long, and during what portion of the year to distinguish a wetland. Wetlands subject to federal regulation represent a large subset of all wetlands which are judged to be wetlands according to scientific criteria. These regulated wetlands, under the Section 404 program discussed below, are currently identified using technical criteria in a wetland delineation manual issued by the Corps in 1987. The Corps applies the manual in making about 25,000 jurisdictional determinations each year. The purpose of the manual is to provide field-level consistency among the agencies that have roles in wetland protection. 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)). Public attention to the wetland issue rapidly increased when the 1987 manual was temporarily replaced by a revised manual in 1989. Revisions in the 1989 manual led to an increase in the area under Section 404 jurisdiction in some regions of the country. Many complained about the 1989 manual and its impact: (1) the Corps had considered it to be a technical document, and it was implemented without a formal public review; (2) many of the sites that were designated as wetlands did not have the visible features or appear to perform the functions for which wetlands were valued; and (3) sometimes even the experts disagreed as to where the boundary of a wetland should be located. This dissatisfaction led the Bush Administration to propose further changes in August 1991 that would have greatly reduced the area subject to regulations. Congress has responded to this controversy by prohibiting the Corps from implementing the 1989 manual, so the 1987 manual is now being used. (This action occurred as part of appropriations legislation, P.L. 102-104 and P.L. 102-377.) Congress also responded to this controversy by authorizing funding for the National Academy of Sciences to study the science of identifying and delineating wetlands (P.L. 102-389). This study, released in May 1995, offers a reference definition of wetlands. This definition could serve as a standard against which regulatory definitions and actions could be assessed. Other findings in the report include the need to recognize regional differences in wetlands, the importance of better training for wetland delineators, and the need for more research on the functions and values of wetlands. The committee preparing the report concluded that if these findings are implemented, it may improve the objectivity and consistency of wetland identification and delineation. The committee also recognized that judgement will continue to play a role in delineating some wetlands. How Fast are Wetlands Disappearing, and How Many Acres are Left?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 1980, total wetland acreage was estimated to be 104 million acres, according to the U.S. Fish and Wildlife Service (FWS). The most recent published national FWS survey of wetland loss trends, covering the years from the mid 1970s through the mid 1980s, shows that the rate of loss averaged 290,000 acres per year. This is a decline from an earlier survey, which showed that losses averaged nearly 500,000 acres annually between 1954 and 1974. (A more recent Department of Agriculture survey covering changes between 1982 and 1992, using a different methodology, estimates the gross average annual loss rate at 135,000 acres of non- federal land per year and that the net rate of loss, after accounting for restorations and other factors is about 80,000 acres per year. The survey data also show that the average annual net loss due to agriculture declined to less than 20,000 acres per year in 1992. When all restoration and protection efforts are considered, agricultural wetlands actually may be approaching a no-net-loss condition.) The numerous major shifts in federal policies since 1985 (and changes in basic economic conditions as well) have probably affected the rate and pattern of wetland loss more recently, but the composite effects are unknown. Further, these data provide no insight into changes in the quality of remaining wetlands as measured by the values they provide. Section 404 ProgramThe principal federal program that provides regulatory protection for wetlands is found in Section 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, Section 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 Section 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 Section 404 is the best approach to federal wetland protection. Some protection advocates and critics of the current program have proposed that it be replaced or greatly altered for several reasons. 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. As a result, according to William Reilly (EPA Administrator in the Bush Administration), the 404 program addresses only proposals to alter about 40,000 acres of the 290,000 acres that FWS has said were being converted each year. Second, because of exemptions provided in 1977 amendments to Section 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. These exempted activities may be responsible for much of the current loss of wetlands nationwide. Third, approximately 20% of the Nation's wetlands are excluded from the regulatory program because of small size or not being linked to a tributary water system. Fourth, the multiple values 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 nationwide or general permits for actions that will likely have a minor effect on wetlands and individual permits for more significant actions. According to data compiled by the Corps, more than 62,000 permits were requested in FY1995. More than 83% were authorized under a general permit, and the average length of time for action was 17 days. A general permit, which can apply regionally or nationwide, is essentially a permit by rule; most do not require pre-notification or approval. Less than 8% 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 123 days. Only 274 applications (0.5%) were denied. 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, and EPA has used its veto authority only 11 times. However, critics have charged that implied threats of delay by the FWS and others practically amount to the same thing. Regulatory reforms during the Reagan Administration 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. Some of this concern has been recently manifested through the congressional appropriations process. In 1995, the House passed legislation providing EPA funding for FY1996 (H.R. 2099) and included a legislative rider to bar EPA from implementing or enforcing the Section 404 program for FY1996, or until the current program is superseded by statutory changes to reform the wetlands program in the CWA (see discussion below of H.R. 961). The Senate passed its version of H.R. 2099 with a modified rider which, instead, would have barred EPA from implementing its Section 404(c) veto authority. Proponents said that the intent was to eliminate duplicative activities between EPA and the Corps and streamline wetlands permitting. The conference version of H.R. 2099 endorsed the Senate's wetland-related limitation. However, President Clinton vetoed this bill in December 1995. Congress and the Administration reached agreement on FY1996 funding for EPA in April 1996 as part of an omnibus appropriations bill (P.L. 104-134) that did not include any legislative rider affecting the wetlands permit program. Nationwide permits are issued for 5-year periods and thereafter must be renewed by the Corps. In June 1996 the Corps proposed to reissue the 37 existing nationwide permits (including modification of some) and to issue 4 new permits for additional activities believed to have minimal environmental effects. Final notification was issued on December 13, with the reissued permits taking effect on February 11. Only 2 of the 4 new permits were included. Changes to Nationwide Permit 26 is getting considerable attention. The Corps is proposing to lower the threshold for coverage of activities under this permit. Currently, it covers discharges of up to 10 acres in isolated waters and headwaters; it will be reduced to 3 acres, then replaced with activity-based permits, according to the Corps. This change pleases wetland protection advocates, but is questioned by development and commercial interests. Section 404 authorizes states to assume many of the permitting responsibilities. Only two states, Michigan (in 1984) and New Jersey (in 1992), have successfully done this. Others have cited the complex process of assumption, the anticipated cost of running a program, and the continued involvement of federal agencies as reasons for not joining these two states. Efforts (both administrative and legislative) continue towards encouraging more states to assume full or partial program responsibility. Treat All Wetlands Equally. Under the Section 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, perhaps with some conditions. Some states (New York, for example) have implemented such an approach for state-regulated wetlands with mixed results. The Corps and EPA issued guidance to field staff emphasizing the flexibility that exists to apply less vigorous permit review to small projects with minor environmental impacts, as part of the 1993 Clinton Administration initiative. An example of this effort is the Corps' March 1995 memorandum to its field staff stating that mitigation will not be needed for building a structure or small business that affects less than 2 acres of non-tidal wetlands. Further, in March 1996 the Corps proposed a new nationwide permit that would authorize activities for construction or expansion of a single-family home that impacts no more than one-half acre of wetlands; this action is intended to address concerns of landowners. Two questions arise: What are the implications of implementing a classification program, and how clearly can the line that would separate each wetland category be defined? 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 reduction 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. Critics of the current program would probably seek to have relatively few acres in the highest protection category and many in the lowest. The second question, locating the boundary line, is critical. Considerable controversy over the past two decades has revolved around determining where to draw a line around a wetland area because many of the areas that are designated as wetlands do not meet the image that many people have formed. Controversy would likely grow if a tiered approach were adopted, requiring that lines be drawn to 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 information in the National Academy of Sciences wetland study is likely to be used in debating questions like these. Beyond the question of individual wetlands are the composite wetlands of a region. The most visible current examples are proposals to treat Alaska differently because a large portion of the state is designated as wetlands and a very small portion has been converted. Proposals have been made to exempt Alaska from the Section 404 program until 1% of its wetlands have been lost. Some types of wetlands are also treated differently. For example, playas and prairie potholes have somewhat different definitions under swampbuster, and the effect is to increase the number of acres that are considered as wetlands. This differential treatment contributes to grassroots concern about the consistency and effectiveness of federal regulation on private property. Clean Water Act Reauthorization in the 104th Congress. In May 1995 the House approved legislation to reauthorize the Clean Water Act that, in part, would have significantly amended the wetlands permit program in Section 404. It included elements of legislation passed by the House concerning private property owner compensation (division B of H.R. 9), requiring that landowners be compensated if a federal agency action under Section 404 diminished the fair market value of property by 20% or more. Also, wetlands would have been classified into three categories, allowing for differential regulatory procedures. In wetlands classified as least ecologically valuable, no permit would have been required. A new administrative appeals process would have been established. Penalties for violations of Section 404 would have been modified and made less stringent than for violations of others provisions of the Act. (For further information, see CRS Report 95-427 ENR, Clean Water: Summary of H.R. 961, As Passed.) These provisions of H.R. 961 were opposed by EPA and environmental groups, but were endorsed by landowner, construction, and homebuilding groups. In H.R. 961, the House was able to pass Section 404 reform legislation that had previously been stalemated. During debate on H.R. 961, the House defeated several amendments intended to modify the wetlands provisions of the bill (for example, to delete statutory wetlands classification). However, the Senate did not take up Clean Water Act legislation during the 104th Congress, and key committee leaders there were on record as not favoring all of the wetlands reforms included in H.R. 961. Instead, a Senate Environment and Public Works subcommittee held three hearings on S. 851, a wetlands reform bill that was similar to Title VIII of H.R. 961 but without a compensation provision. (For further information, see CRS Report 95-796 ENR, Wetlands Legislation: Comparison of Two Bills.) Agriculture and WetlandsNational surveys indicate that agricultural activities have been responsible for a large portion of wetland modification in recent decades. By memorandum of agreement, the Corps and EPA do exempt "prior converted lands" (wetlands modified for agricultural purposes before 1985) from Section 404 permits requirements, and the Clean Water Act exempts "normal farming activities." Although these exemptions displeased some protection advocates, they have probably dampened some of the criticisms from farming interests over federal regulation of private lands. The principal wetland protection program specifically for agricultural lands is known as swampbuster. Enacted in 1985, it is designed to remove federal farm program incentives that encourage farmers to convert wetlands to agricultural production. While it is a disincentive rather than a regulatory program, it was still controversial with farmers when implemented. Many specific controversies were addressed in the 1990 farm bill (P.L. 101-624), but broader debate over the appropriate federal role in wetland protection has continued to grow. In March 1995, the NRCS announced that it was suspending making wetland determinations, except on request, because of this controversy over wetland delineation and uncertainty as to whether new interpretations will mean that boundaries will have to be modified. With swampbuster in place, farmers have been confused and concerned over how it might be related to the Section 404 program. The Clinton Administration responded in its 1993 policy announcement by endorsing NRCS as the lead agency for wetland determinations under both programs on agricultural land. On January 6, 1994, USDA, the Corps, the Department of the Interior, and EPA signed a MOA implementing that endorsement. Initially, this agreement was strongly supported by the agriculture community, although a portion of that community is now seeking changes through the 1995 farm bill because it is concerned about the strong oversight role retained by EPA and FWS. With the MOA in place, NRCS had started to make more determinations until it announced the suspension in March 1995. In preparation for the 1995-96 farm bill debate, wetland issues were discussed at several hearings and other congressional forums. At the center of discussions at most of these gatherings were anecdotes from producers who had been adversely affected by the wetland protection efforts, especially agency processes for determinations and delineations, at a personal level. The Federal Agricultural Improvement and Reform Act of 1996, signed by President Clinton on April 4 (P.L. 104-127), better known as the 1996 farm bill amended the swampbuster program in ways that provide greater program flexibility by:
The 1996 farm bill also amended the Wetlands Reserve Program (WRP is discussed below, Wetland Mitigation and Restoration) making it an entitlement and extending its authorization through 2002. Program enrollment is capped at 975,000 acres. Enrollment is to be 1/3 in permanent easements, 1/3 in 30-year easements, and 1/3 in restoration cost-share agreements after Oct. 1, 1996, with 75,000 acres enrolled in temporary easements before permanent easements can be used again. The specified coordination role of FWS is replaced by consultation with state technical committees in restoration planning. The Department issued an interim final rule implementing the swampbuster amendments on September 6, 1996 and a final rule implementing WRP amendments on August 14, 1996. This new law also authorizes an appropriation of $200 million to the Secretary of the Interior to restore the Everglades ecosystem. These funds can be used to acquire land, and can be transferred to the Corps, the State of Florida, or the South Florida Water Management District. These funds must be spent by Dec. 31, 1999. In addition, the federal government is authorized to sell excess or surplus property (excluding lands protected for conservation purposes) in Florida to raise up to an additional $100 million for this restoration effort. These additional funds can only be spent if Florida provides funds equal to at least half the appraised value of the lands to be acquired. (For further information, see CRS Report 96-35 ENR, Agricultural Wetlands: Current Programs and Legislative Proposals which discuses the swampbuster and CWA 404 programs, how they relate to each other, and the likely effect of earlier proposed revisions to swampbuster on wetland protection efforts; and CRS Report 96-330 ENR, Conservation Provisions in the 1996 Farm Bill: A Summary.) Private Property Rights and Landowner CompensationAn estimated 74% of all remaining wetlands are on private lands, and 13% are located on federal lands. Questions of federal regulation of private property have been increasing. Critics of the current program believe that since wetlands are often claimed as valuable and restrictions on use are imposed, landowners should be compensated when alternative uses are prohibited. This issue has a long history; 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" occurs when a site is designated as a wetland. (For more information, see CRS Report 95-200 A, The Private Property Rights Issue.) The U.S. Constitution provides that property owners shall be compensated if private property is "taken" by government action. Landowners are particularly distressed when they do not agree that a site should be designated as a wetland. Even if certain areas meet the technical definition of a wetland, some contend, the areas still do not provide many of the values and functions that underlie the efforts to protect wetlands. The House passed legislation (H.R. 925/division B of H.R. 9) in 1995 as part of the Contract with America that would have required the federal government to compensate a landowner if a regulatory decision to protect wetlands (or for any of several other specified reasons) decreased land value by 20%. If the value were decreased by more than 50%, the federal government would have been required to purchase the land. All payments would have come from agency appropriations. Further, language identical to the House-passed compensation provision of H.R. 9 was included in Title VIII of H.R. 961, Clean Water Act reauthorization legislation approved by the House in May 1995. The Senate did not act on either of these bills. In the 104th Congress, the principal property rights bill in the Senate was S. 605, introduced by Senator Dole and reported by the Committee on the Judiciary in December 1995. Opposition to the bill and the threat of a filibuster on it prevented Senate leadership from bringing S. 605 to the floor. Wetland Mitigation and RestorationFederal 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. 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 an issue of concern both to scientists and to policy makers. Mitigation of proposed actions that would adversely affect wetlands has been a cornerstone of wetland policies for several federal agencies in recent years, although it is not required under most federal laws. Currently, EPA and the Corps operate the Section 404 program under a 1990 MOA that 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 Section 404 permit. The Clinton Administration has endorsed mitigation. Some wetland protection advocates are critical of mitigation, claiming that it justifies destroying wetlands. They believe that the 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 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 mitigation -- implementation of the MOA and controversies over the feasibility of compensating for wetland losses -- are issues that further complicate the debate about protecting wetland resources. Much of the attention on this issue 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. In response to concerns over continued loss of coastal wetlands, the 101st Congress passed the Coastal Wetlands Planning, Protection and Restoration Act (Title III of P.L. 101-646), authorizing a task force of federal and Louisiana officials, led by the Corps, to prepare a list of coastal wetland restoration projects in the state. Also, it authorized funding to plan and carry out restoration projects in the state and a smaller amount for grants to other coastal states to plan wetland conservation projects. In recent years, federal agencies have been active in wetland improvement efforts. A summary of federal wetland restoration and enhancement activities shows that 18 federal agencies "restored" or "enhanced" 1.3 million acres of wetlands with FY1988-1992 funds. In particular, the FWS has been promoting the success of its Partners in Wildlife program, which it says has grown from restoring less than 100,000 acres in 1990 under less than 6,000 agreements on private property to restoring an estimated 300,000 acres under more than 14,000 agreements in 1995. A key effort in restoration on agricultural lands is the Wetland Reserve Program (WRP). Under WRP, landowners can place easements on farmed wetlands in return for payments that are based on the reduction in value. All easements under this program so far have been permanent. The Administration has consistently sought more funds than Congress has been willing to provide. Congress provided funding in FY1992 appropriations and since FY1994, as well as in emergency legislation in response to the Midwest floods in 1993. USDA representatives reported that about 325,000 acres were enrolled in the program at a September 1996 hearing. Farmer interest far exceeded available funding for every signup, even with participation limited to permanent easements. 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. The Administration's August 1993 comprehensive wetlands proposals included support for the use of mitigation banks within environmentally sound limits as a means of compensating for authorized wetland impacts that result from regulatory and agricultural programs. 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 the 1996 farm law, mentioned above, encourage additional use of the mitigation banking concept. The Senate Environment and Public Works Committee held a hearing on mitigation banking on March 14, 1996. Funding for WetlandsOverall federal funding for wetland-related activities has increased in recent years; it was almost $600 million in FY1993, more than $730 million in FY1994, $800 million in FY1995, and is proposed to be $922 million in FY1996. As in previous years, Congress did not provide all the funding that the Clinton Administration requested. In FY1995, for example, while Congress provided $800 million for wetland activities, the budget request from the Clinton Administration was for nearly $1 billion. This difference occurred largely because the Administration proposed that the WRP be increased from $93 million to $210 million; however, Congress decreased it to $77 million. The Administration again requested a substantial increase for FY1997, to $188 million; Congress responded in the farm bill by making funding an entitlement to be funded through the Commodity Credit Corporation. Under the North American Wetlands Conservation Act (P.L. 101-233), federal matching grants are authorized for wetland conservation projects to help implement the North American Waterfowl Management Plan. Projects are located in Canada and Mexico, as well as in the United States. This Act was reauthorized late in the 103rd Congress (P.L. 103-375). For FY1997, the Administration requested $11.75 million, an increase of $5 million above FY1996. However, Congress agreed to provide $9.75 million. Finally, policy aspects of wetlands programs also have been evident in congressional action on funding for EPA. The conference version of H.R. 2099, the FY1996 VA-HUD- Independent Agencies appropriation bill approved by Congress but vetoed by President Clinton in December 1995, included a legislative rider that would have prohibited EPA from vetoing a Corps permit, as it is allowed to do under Section 404(c). (See discussion above, Section 404 Program, the Permitting Process.) More than four dozen bills with wetland provisions were introduced in the 104th Congress. This list is a sampling of those bills. It includes bills where significant congressional action occurred, and reflects the range of issues and approaches taken in legislative proposals. P.L.
104-127, H.R.
2854 H.R.
925 (Canady) H.R.
961 (Shuster) H.R.
2542 (Allard and Roberts) H.R.
3692 (Jones) S.
605 (Dole) S.
851 (Johnston) S.
1541 (Lugar) CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS U.S. Congress. House. Committee on Agriculture. Subcommittee on Environment, Credit, and Rural Development. Review of the Impact of Wetlands and Nonpoint Source Pollution Regulations on Agricultural Land. Hearings, 103rd Congress, 2nd session. March 23, 1994. 234 p. Serial No. 103-61 U.S. Congress. House. Committee on Agriculture. Subcommittee on Resource Conservation, Research and Forestry. Consideration of Agricultural Wetlands and Wetlands Issues in the 1995 Farm Bill. Hearings, 104th Congress, 1st session. April 6, 1995, 215 p. Serial No. 104-12 U.S. Congress. House. Committee on Merchant Marine and Fisheries. The Administration's New Wetlands Policy. Hearings, 103rd Congress, 1st session. September 28, 1993. 1994. 113 p. Serial No. 103-62 -----Clean Water Act Reauthorization--Part II. Hearing, 103rd Congress, 1st session, on H.R. 350, H.R. 1330, H.R. 2543, H.R. 2727, and H.R. 3465. March 22, 1994. 730 p. Serial No. 103-105 U.S. Congress. House. Committee on Resources. Wetlands--Roseville, California. 3948): The Impact and Cost of Wetlands Regulations. Hearings, 104th Congress, 1st session. April 19, 1995. 299 p. Serial No. 104-9 U.S. Congress. Senate. Committee on Environment and Public Works. Subcommittee on Clean Water, Fisheries and Wildlife. Reauthorization of the Clean Water Act. Hearings, 103rd Congress, 1st session. June 16, 23; July 1,14, 27; August 4,5; and September 15, 1993. 1702p. (S. Hrg. 103-328) ----- Wetland Mitigation Banking. Hearing, 104th Congress, 2nd session. March 14, 1996. 242p. (S. Hrg. 104-644) Association of State Wetland Managers. State Wetland Regulation: Status of Programs and Emerging Trends. Berne, New York, n.d. 178 p. National Academy of Science, National Research Council. Wetlands: Characteristics and Boundaries. [Washington] 1995. Scodari, Paul F. Measuring the Benefits of Federal Wetland Programs. Environmental Law Institute, Washington 1997. 103p. U.S. Army Corps of Engineers. Regulatory Branch. Section 404 of the Clean Water Act and Wetlands, Special Statistical Report. [Washington] 1995. 13 p. U.S. Department of the Interior. The Impact of Federal Programs on Wetlands. Vol. I. [Washington] 1988. 114 p. -----The Impact of Federal Programs on Wetlands. Vol. II [Washington] 1994. 333 p. -----Status and Trends of Wetlands and Deepwater Habitats in the Coterminous United States, 1970s to 1980s. [Washington] 1991. 31 p. U.S. Department of the Interior. U.S. Fish and Wildlife Service. Wetlands Losses in the United States: 1780s to 1980s. [Washington] 1990. 13 p. U.S. General Accounting Office. Wetlands Protection: The Scope of the Section 404 Program Remains Uncertain. [Washington] April 1993. 89 p. GAO/RCED-93-26 U.S. Library of Congress. Congressional Research Service. Agricultural Wetlands: Current Programs and Legislative Proposals, by Jeffrey Zinn and Claudia Copeland. [Washington] 1996. 12 p. CRS Report 96-35 ENR -----Clean Water: Summary of H.R. 961, as passed, by Claudia Copeland. [Washington] 1995. 26 p. CRS Report 95-427 ENR -----Conservation Provisions in the 1996 Farm Bill: A Summary, by Jeffrey Zinn. [Washington, D.C.] 1996. 6 p. CRS Report 96-330 ENR -----Wetlands Legislation: Comparison of Two Bills, by Claudia Copeland [Washington] 1995. 13 p. CRS Report 95-796 ENR |
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