Wetlands: An Overview of Issues
Wetlands: An Overview of Issues
Updated November 25, 2008
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Wetlands: An Overview of Issues
The 110th Congress, like earlier ones, considered numerous policy topics that
involve wetlands. A few of the topics were new to this Congress, such as wetlands
provisions in the 2008 farm bill (P.L. 110-246), while most were examined but not
resolved in earlier Congresses, such as applying federal regulations on private lands,
wetland loss rates, and restoration and creation accomplishments.
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 was 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.th
In the 110 Congress, House and Senate committees held hearings on legislation
intended to reverse the Court’s rulings (H.R. 2421, S. 1870).
Wetland protection efforts continue to 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 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.
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, 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.
In troduction ......................................................1
Wetlands: Science and Information....................................2
What Is a Wetland?............................................3
What Functional Values Are Provided by Wetlands?..................4
How Fast Are Wetlands Disappearing, and How Many Acres Are Left?...4
Selected Federal Wetlands Programs...................................6
The Clean Water Act Section 404 Program..........................6
The Permitting Process.....................................7
Section 404 Judicial Proceedings: SWANCC and Rapanos.........9
Should All Wetlands Be Treated Equally?.....................12
Agriculture and Wetlands......................................13
Other Agricultural Wetlands Programs........................15
Agricultural Wetlands and the Section 404 Program..............16
Private Property Rights and Landowner Compensation...............16
Wetland Restoration and Mitigation..............................17
The Louisiana Experience..................................18
Other Federal Protection Efforts.............................19
For Additional Reading............................................22
Wetlands: An Overview of Issues
Wetlands, with a variety of physical characteristics, are found throughout the
country. They are known in different regions as swamps, marshes, fens, potholes,
playa lakes, or bogs. Although 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 daily as tides rise and fall.
Prior to the mid-1980s, federal laws and policies to protect wetlands were
generally limited to providing habitat for migratory waterfowl, especially ducks and
geese. Some laws encouraged destruction of wetland areas, including selected
provisions in the federal tax code, public works legislation, and farm programs.
Since the mid-1980s, the values of wetlands have been recognized in different
ways in numerous national policies, and federal laws either encourage wetland
protection, or prohibit or do not support their destruction. These laws, however, do
not add up to a fully consistent or comprehensive national approach. The central
federal regulatory program, found in 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 may adversely affect wetlands do not require
permits, and some places that scientists define as wetlands are exempt from this
permit program because of physical characteristics or the type of activity that takes
place. One agricultural program, Swampbuster, is a disincentive program that
indirectly protects wetlands by making farmers who drain wetlands ineligible for
federal farm program benefits; those who do not receive these benefits (56% of all
farmers received no federal farm payments of any kind in 2006) have no reason to
observe the requirements of this program. Numerous other acquisition, protection,
and restoration programs complete the current federal effort.
Although numerous wetland protection bills have been introduced in recent
Congresses, the most significant new wetlands legislation to be enacted has been in
farm bills, in 1996, 2002, and 2008. During this period, Congress also reauthorized
several wetlands programs, mostly setting higher appropriations ceilings, without
making significant shifts in policy. The Bush Administration endorsed wetland
protection in legislation, such as the farm bill and the North American Wetlands
Conservation Act reauthorization, and at events, such as Earth Day presentations.
The Bush Administration also issued guidance on mitigation policies and regulatory
program jurisdiction; the latter has been controversial (see discussion below).
Congress has provided a forum in numerous hearings where conflicting interests
in wetland issues have been debated. These debates encompass disparate scientific
and programmatic questions, and conflicting views of the role of government where
private property is involved. Broadly speaking, the conflicts are between:
!Environmental interests and wetland protection advocates who have
been pressing for greater wetlands protection as multiple values have
been more widely recognized, by improving coordination and
consistency among agencies and levels of governments, and
strengthened programs; and
!Others, including landowners, farmers, and small businessmen, who
counter that protection efforts have gone too far, by aggressively
protecting privately owned wet areas that provide few wetland
values. They have been especially critical of the U.S. Army Corps
of Engineers (Corps) and the U.S. Environmental Protection Agency
(EPA), asserting that they administer the Section 404 program in an
overzealous and inflexible manner.
Wetland legislative activity in the 110th Congress centered broadly on two
issues. One was on wetlands conservation provisions in the 2008 farm bill, which
was enacted in June 2008 (Food, Conservation, and Energy Act of 2008, P.L. 110-
246). The new law reauthorizes and increases the acreage enrollment cap in the
wetlands reserve program, with a goal of enrolling 250,000 acres annually, and
extends provisions to enroll up to a million acres of wetlands and buffers in the
Conservation Reserve Program. Other agricultural conservation programs, while
lacking explicit wetlands protection provisions, are still likely to be beneficial to
The second major area of legislative interest centered on proposals to reverse
Supreme Court rulings that addressed and narrowed the scope of geographic
jurisdiction of wetlands regulations under the Clean Water Act. This interest arises
because federal courts have played a key role in interpreting and clarifying the limits
of federal jurisdiction to regulate activities that affect wetlands, especially since a
2001 Supreme Court ruling in the so-called SWANCC decision and a 2006 ruling in
Rapanos v. United States. House and Senate committees held hearings on legislation
intended to reverse the SWANCC and Rapanos rulings (H.R. 2421, S. 1870 — the
Clean Water Authority Restoration Act).
Wetlands: Science and Information
Scientific questions about wetlands, with answers that can be important to
policy makers, include how to define wetlands; how to catalogue the rate and pattern
of wetland declines and losses as well as restorations and increases; and how to
assess the importance of wetland changes to broader ecosystems. Wetlands science
has made considerable strides in developing a fuller and more sophisticated
knowledge about many aspects of wetlands in the more than two decades since
protecting wetlands became a general policy goal in federal law and program
Two topics where scientific information and wetland protection policies remain
inconsistent continue to be: should all regulated wetlands be treated equally; and if
all scientifically-defined wetlands are not covered by the federal regulatory program,
what subset should be covered, and how should such decisions be made? While
discussion of either question has major science elements, both are primarily
addressed in the section below about the Clean Water Act Section 404 program.
What Is a Wetland?
Scientists generally agree that the presence of a wetland can be determined by
a combination of soils, plants, and hydrology. The only definition of wetlands in
law, in the swampbuster provisions of farm legislation (P.L. 99-198) and in the
Emergency Wetlands Resources Act of 1986 (P.L. 99-645), lists those three
components. This definition does not include more specific criteria, such as exactly
what conditions must be present and for how long, thus leaving interpretation to
scientists and regulators on a case-by-case basis. Controversies are exacerbated when
many sites that have those three components and are identified as wetlands by
experts, either may have wetland characteristics only some portion of the time, or
may not look like what many people visualize as wetlands. Also, many of these sites
have been directly or indirectly modified by human activities that diminish their
appearance (and their ability to perform wetland functions).
Wetlands currently subject to federal regulation are a large subset of all places
that members of the scientific community would call a wetland. 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.
This manual was prepared jointly and is used by all federal agencies to carry out their
responsibilities under this program (the Corps, EPA, Fish and Wildlife Service
(FWS), and the National Marine Fisheries Service (NMFS)). It provides guidance
and field-level consistency for the agencies that have roles in wetland regulatory
protection. (A second and slightly different manual, agreed to by the Corps and the
Natural Resources Conservation Service (NRCS), is used for delineating wetlands
on agricultural lands.) While the agencies try to improve the objectivity and
consistency of wetland identification and delineation, judgment continues to play a
role and can lead to site-specific controversies. Cases discussed below (see “Section
404 Judicial Proceedings: SWANCC and Rapanos”) center on whether wetlands
should be included or exempted from the regulatory program in certain
circumstances, such as the physical setting.
1 Two places to view some of the changes in scientific knowledge and understanding are
through the products of the Society of State Wetlands Managers [http://www.aswm.org] and
the Society of Wetland Scientists [http://www.sws.org].
What Functional Values Are Provided by Wetlands?
Functional values, both ecological and economic, at each wetland depend on its
location, size, and relationship to adjacent land and water areas. Many of these
values have been recognized only recently. Historically, many federal programs
encouraged wetlands to be drained or altered because they were seen as having little
value as wetlands (for example, flood protection programs of the Corps and
Department of Agriculture have modified or eliminated many flood plain wetlands
through alterations of the hydraulic/hydrologic regime). Wetland values can include:
!habitat for aquatic birds and other animals and plants, including
numerous threatened and endangered species; production of fish and
!water storage, including mitigating the effects of floods and
! recreat i on;
!education and research; and
!open space and aesthetic values.
Usually wetlands provide some combination of these values; single wetlands
rarely provide all of 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. For
example, conversion of wetlands to urban uses has increased flood damages; this
value has received considerable attention as the costs of natural disaster costs
mounted since the 1990s.
How Fast Are Wetlands Disappearing, and
How Many Acres Are Left?
A number of reports document recent changes in wetland acres. The U.S. Fish
and Wildlife Service periodically surveys national net trends in wetland acreage using
the National Wetlands Inventory (NWI). It has 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. According to its most
recent report, issued in 2006, by 2004, total wetland acreage was estimated to be
Data compiled by the NRCS and the FWS in separate surveys and using
different methodologies have identified similar trends. Both show that the annual net
loss rate dropped from almost 500,000 acres annually nearly three decades ago to
2 U.S. Fish and Wildlife Service, National Wetlands Inventory, Status and Trends of
Wetlands in the Coterminus United States, 1998 - 2004, March 2006, 110 pp. This is the
most recent of several reports by the Inventory over the past 25 years, which document
wetlands trends at both a national and regional scale.
slight net annual gains in recent years. The FWS survey estimated that the average
annual gain between 1998 and 2004 was 32,000 acres, while NRCS (using its Natural
Resources Inventory of privately-owned lands) estimated that there was an average
annual gain of 26,000 acres between 1997 and 2002.3 NRCS cautioned against
making precise claims of net increases because of statistical uncertainties. Some
environmentalists caution that the increases identified in the latest FWS data are tied
to a proliferation of small, shallow ponds rather than natural wetlands.
In 2002, the Bush Administration endorsed the concept of “no-net-loss” of
wetlands — a goal declared by President George H. W. Bush in 1988 and also
embraced by President Clinton to balance wetlands losses and gains in the short term
and achieve net gains in the long term. On Earth Day 2004, President Bush
announced a new national goal, moving beyond no-net-loss, of achieving an overall
increase of wetlands.4 The goal was to create, improve, and protect at least three
million wetland acres over the next five years in order to increase overall wetland
acres and quality. (By comparison, the Clinton Administration in 1998 announced
policies intended to achieve overall wetland increases of 200,000 acres per year by
2005.) The President’s strategy also called for better tracking of wetland programs
and enhanced local and private sector collaboration.
In April 2008, the Administration issued a report saying that more than 3.6
million acres of wetlands had been restored, protected, or improved as part of the
President’s program to create, improve and protect wetlands since April 2004, and
that the number will climb to 4.5 million acres by the original date set by that
program — Earth Day 2009.5 The report documents gains, but not offsetting loses.
It summarizes accomplishments for each federal wetland conservation program.
Environmental groups criticized the report as presenting an incomplete picture,
because it fails to mention wetlands lost to agriculture and development.
Numerous shifts in federal policies since 1985 (and changes in economic
conditions as well) strongly influence wetland loss patterns, but the composite effects
remain unmeasured beyond these raw numbers. There usually is a large time lag
from the announcement and implementation of changes in policy to collection and
release of data that measure how these changes affect loss rates. Also, it is often very
difficult to distinguish the role that policy changes play from other factors, such as
agricultural markets, development pressures, and land markets.
Further, these data only measure acres. This may have been appropriate two
decades ago when scientists knew less about how to measure the specific functions
and values found in wetlands. By providing data limited to number of acres, these
data provide few insights into changes in their quality, as measured by the values they
provide, which is often determined by factors such as where a wetland is located in
3 Natural Resources Conservation Service, National Resources Inventory; 2002 Annual NRI
(Wetlands). See [http://www.nrcs.usda.gov/technical/NRI/2003/nri03wetlands.html].
4 See [http://www.whitehouse.gov/news/releases/2004/04/20040422-1.html].
5 Office of the President, Council on Environmental Quality, Conserving America’s
Wetlands 2008: Four Years of Progress Implementing the President’s Goal, April 2008.
a watershed, and what are the surrounding land uses. Nevertheless, in his Earth Day
2004 wetlands announcement (discussed above), President Bush said that as the
nation is nearing the goal of no-net-loss, it is appropriate to move towards policies
that will result in a net increase of wetland acres and quality.
Selected Federal Wetlands Programs
Federal program issues include the administration of programs to protect,
restore, or mitigate wetland resources (especially the Clean Water Act Section 404
program); relationships between agricultural and regulatory programs; whether all
wetlands should be treated the same in federal programs, and which wetlands should
be subject to regulation; and whether protecting wetlands by acres is an effective
proxy for protecting wetlands based on the functions they perform and the values
they provide. In addition, private property questions are raised, because almost
three-quarters of the remaining wetlands are located on private lands. Some property
owners believe that they should be compensated when federal programs limit how
they can use their land, and for decisions that arguably diminish the value of the land.
The Clean Water Act Section 404 Program
The 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. Enacted 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,
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 amended in 1977.
This judicial/regulatory/administrative evolution of the Section 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
Some wetland protection advocates have proposed that it be replaced or greatly
altered. 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. 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. Third, in the view of protection advocates, the multiple values that
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
general permits for actions by private landowners that are similar in nature and will
likely have a minor effect on wetlands and individual permits for more significant
actions. According to the Corps, it evaluates more than 85,000 permit requests
annually. Of those, more than 90% are authorized under a general permit, which can
apply regionally or nationwide, and is essentially a permit by rule, meaning the
proposed activity is presumed to have a minor impact, individually and cumulatively.
Most general permits do not require pre-notification or prior approval by the Corps.
About 9% of all permits are required to go through the more detailed evaluation for
a standard individual permit, which may involve complex proposals or sensitive
environmental issues and can take 180 days or longer for a decision. Less than 0.3%
of permits are denied; most other individual permits are modified or conditioned
before issuance. About 5% of applications are withdrawn prior to a permit decision.
In FY2003 (the most recent year for which data are available), Corps-issued permits
authorized activities having a total of 21,330 acres of wetland impact, while those
permits required that 43,379 acres of wetlands be restored, created, or enhanced as
mitigation for the authorized losses.6
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; EPA has used its veto authority
fewer than a dozen times in the 30-plus years since the program began. However,
critics have charged that implied threats of delay by the FWS and others practically
amount to the same thing. Reforms during the Reagan, earlier Bush, and Clinton
Administrations 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.
Controversy also surrounded revised regulations issued by EPA and the Corps
in May 2002, which redefine two key terms in the 404 program: “fill material” and
“discharge of fill material.” The agencies said that the revisions were intended to
clarify certain confusion in their joint administration of the program due to previous
differences in how the two agencies defined those terms. However, environmental
groups contended that the changes allow for less restrictive and inadequate regulation
of certain disposal activities, including disposal of coal mining waste, which could
be harmful to aquatic life in streams. The Senate Environment and Public Works
6 U.S. Army, Corps of Engineers, “Regulatory Statistics, All Permit Decisions, FY2003.”
Committee held a hearing in June 2002 to review these issues, and legislation was
introduced to reverse the agencies’ action by clarifying in the law that fill material
cannot be composed of waste, but no further action occurred.7 Similar legislation
was introduced in the 108th and 109th Congresses, and was again introduced in the
Nationwide Permits. Nationwide permits are a key means by which the
Corps minimizes the burden of its regulatory program. A nationwide permit is a
form of general permit which authorizes a category of activities throughout the nation
and is valid only if the conditions applicable to the permit are met. These general
permits authorize activities that are similar in nature and are judged to cause only
minimal adverse effect on the environment, individually and cumulatively. General
permits minimize the burden of the Corps’ regulatory program by authorizing
landowners to proceed without having to obtain individual permits in advance.
The current program has few strong supporters, for differing reasons.
Developers say that it is too complex and burdened with arbitrary restrictions.
Environmentalists say that it does not adequately protect aquatic resources. At issue
is whether the program has become so complex and expansive that it cannot either
protect aquatic resources or provide for a fair regulatory system, which are its dual
Nationwide permits are issued for periods of no longer than five years and
thereafter must be reissued by the Corps. On March 12, 2007, the Corps issued a
package of nationwide permits, replacing those that had been in effect since 2002.
The 2007 permits establish six new nationwide permits (for a total of 49) and also
revise a number of existing permits and general terms and conditions that apply to
all nationwide permits.8
Citizen groups have filed lawsuits seeking to halt the Corps’ use of one of its
nationwide permits, NWP 21, to authorize a type of coal mining practice called
mountaintop mining. These critics contend that the adverse environmental impacts
of activities authorized by NWP 21 are far greater than the “minimal adverse effects”
limits prescribed by the Clean Water Act for all nationwide permits. In 2004, a
federal district court in West Virginia ruled that NWP 21 violates the CWA by
authorizing activities that have more than minimal adverse environmental effects.
The district court’s ruling was overturned on appeal. Another lawsuit challenging the
applicability of nationwide permits to mountaintop mining in Kentucky also has been9
filed and is pending.
Section 404 authorizes states to assume many of the Corps’ permitting
responsibilities. Two states have done this: Michigan (in 1984) and New Jersey (in
7 For additional information, see CRS Report RL31411, Controversies over Redefining “Fill
Material” Under the Clean Water Act, by Claudia Copeland.
8 U.S. Department of Defense, Department of the Army, Corps of Engineers, “Reissuance
of Nationwide Permits; Notice,” 72 Federal Register 11091-11198, March 12, 2007.
9 For background, see CRS Report RS21421, Mountaintop Mining: Background on Current
Controversies, by Claudia Copeland.
1992). Others have cited the complex process of assumption, the anticipated cost of
running a program, and the continued involvement of federal agencies because of
statutory limits on waters that states could regulate as reasons for not joining these
two states. Efforts continue to encourage more states to assume program
Section 404 Judicial Proceedings: SWANCC and Rapanos. The
Section 404 program has been the focus of numerous lawsuits, most of which have
sought to narrow the geographic scope of the regulatory program.
SWANCC. An issue of long-standing controversy is whether isolated waters
are properly within the jurisdiction of Section 404. Isolated waters (those that lack
a permanent surface outlet to downstream waters) which are not physically adjacent
to navigable surface waters often appear to provide few of the values for which
wetlands are protected, even if they meet the technical definition of a wetland. In
January 2001, the Supreme Court ruled on the question of whether the CWA
provides the Corps and EPA with authority over isolated waters and wetlands. The
Court’s 5-4 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v.
U.S. Army Corps of Engineers (531 U.S. 159) held that the denial of a Section 404
permit for disposal on isolated wetlands solely on the basis that migratory birds use
the site exceeds the authority provided in the CWA. The full extent of retraction of
the regulatory program resulting from this decision remains unclear, even more than
seven years after the ruling. Environmentalists believe that the Court misinterpreted
congressional intent on the matter, while industry and landowner groups welcomed
Policy implications of how much the decision restricts federal regulation depend
on how broadly or narrowly the opinion is applied, and since the 2001 Court
decision, other federal courts have issued a number of rulings that have reached
varying conclusions. Some federal courts have interpreted SWANCC narrowly, thus
limiting its effect on current permit rules, while a few read the decision more broadly.
Attorneys for industry and developers say that the courts will remain the primary
battleground for CWA jurisdiction questions, so long as neither the Administration
nor Congress takes steps to define jurisdiction.
The government’s view on the key question of the scope of CWA jurisdiction
in light of SWANCC and other court rulings came in a legal memorandum issued
jointly by EPA and the Corps in January 2003.11 It provides a legal interpretation
essentially based on a narrow reading of the Court’s decision, thus allowing federal
regulation of some isolated waters to continue (in cases where factors other than the
presence of migratory birds may exist, thus allowing for assertion of federal
jurisdiction), but it calls for more review by higher levels in the agencies in such
cases. Administration press releases said that the guidance demonstrates the
government’s commitment to “no-net-loss” wetlands policy. However, it was
10 For additional information, see CRS Report RL30849, The Supreme Court Addresses
Corps of Engineers Jurisdiction Over ‘Isolated Waters’: The SWANCC Decision, by Robert
Meltz and Claudia Copeland.
11 See [http://www.epa.gov/owow/wetlands/pdf/Joint_Memo.pdf].
apparent that the issues remained under discussion, because at the same time, the
Administration issued an advance notice of proposed rulemaking (ANPRM) seeking
comment on how to define waters that are under the regulatory program’s
jurisdiction. The ANPRM did not actually propose rule changes, but it indicated
possible ways that Clean Water Act rules might be modified to further limit federal
jurisdiction, building on SWANCC and some of the subsequent legal decisions. The
government received more than 133,000 comments on the ANPRM, most of them
negative, according to EPA and the Corps. Environmentalists and many states
opposed changing any rules, saying that the law and previous court rulings call for
the broadest possible interpretation of the Clean Water Act (and narrow interpretation
of SWANCC), but developers sought changes to clarify interpretation of the SWANCC
In December 2003, EPA and the Corps announced that the Administration
would not pursue rule changes concerning federal regulatory jurisdiction over
isolated wetlands. The EPA Administrator said that the Administration wanted to
avoid a contentious and lengthy rulemaking debate over the issue. Nonetheless,
interest groups on all sides have been critical of confusion in implementing the 2003
guidance, which constitutes the main tool for interpreting the reach of the SWANCC
decision. Environmentalists remain concerned about diminished protection resulting
from the guidance, while developers said that without a new rule, confusing and
contradictory interpretations of wetland rules likely will continue. In that vein, a
Government Accountability Office (GAO) report concluded that Corps districts differ
in how they interpret and apply federal rules when determining which waters and
wetlands are subject to federal jurisdiction, documenting enough differences that the
Corps has begun a comprehensive survey of its district office practices to help
promote greater consistency.12 Concerns over inconsistent or confusing regulation
of wetlands have also drawn congressional interest.13
Rapanos-Carabell. Federal courts continue to have a key role in interpreting
and clarifying the SWANCC decision. In February 2006, 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 CWA permit
program as it applies to development of wetlands. The issue in both cases had to do
with the reach of the CWA to cover “waters” that were not navigable waters, in the
traditional sense, but were connected somehow to navigable waters or “adjacent” to
those waters. (The act requires a federal permit to discharge dredged or fill materials
into “navigable waters.”) Many legal and other observers hoped that the Court’s
ruling in these cases would bring greater clarity about the scope of federal regulatory
The Court’s ruling was issued on June 19, 2006 (Rapanos et al., v. United
States, 126 S.Ct. 2208 (2006)). In a 5-4 decision, a plurality of the Court, led by
12 U.S. Government Accountability Office, Corps of Engineers Needs to Evaluate Its
District Office Practices in Determining Jurisdiction, GAO-04-297, February 2004, 45 pp.
13 U.S. Congress, House of Representatives, Committee on Transportation and
Infrastructure, Subcommittee on Water Resources and Environment, Inconsistent Regulationthnd
of Wetlands and Other Waters, Hearing 108-58, 108 Cong., 2 sess., March 30, 2004.
Justice Scalia, 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 other dissenting justices.14 Legal observers suggested
that the implications of the ruling (both short-term and long-term) are far from clear.
Because the several opinions written by the justices did not draw a clear line
regarding what wetlands and other waters are subject to federal jurisdiction, one
likely result is more case-by-case determinations and continuing litigation. There
also could be renewed pressure on the Corps and EPA to clarify the issues through
an administrative rulemaking. The Senate Environment and Public Works
Committee held a hearing on issues raised by the Court’s ruling on August 1, 2006.
Members and a number of witnesses urged EPA and the Corps to issue new guidance
to clarify the scope of the ruling.
On June 5, 2007 — nearly one year after the Rapanos ruling — EPA and the
Corps did issue guidance to enable their field staffs to make CWA jurisdictional
determinations in light of the decision.15 According to the guidance, the agencies will
assert regulatory jurisdiction over certain waters, such as traditional navigable waters
and adjacent wetlands. Jurisdiction over others, such as non-navigable tributaries
that do not typically flow year-round and wetlands adjacent to such tributaries, will
be determined on a case-by-case basis, to determine if the waters in question have a
significant nexus with a traditional navigable water. The guidance details how the
agencies should evaluate whether there is a significant nexus. The guidance is not
intended to increase or decrease CWA jurisdiction, and it does not supersede or
nullify the January 2003 guidance, discussed above, which addressed jurisdiction
over isolated wetlands in light of SWANCC.
In accompanying documents, the agencies said that the Administration was
considering a rulemaking in response to the Rapanos decision, but they noted that
developing new rules would take more time than issuing the guidance. They also
noted that, while the guidance provides more clarity for how jurisdictional
determinations will be made concerning non-navigable tributaries and their adjacent
wetlands, legal challenges to the scope of CWA jurisdiction are likely to continue.
The guidance was effective immediately, but the agencies also solicited public
comments for a six-month period. Further changes could follow, after reviewing the
public comments, the agencies said, but no changes have been made so far.
While the issue of how regulatory protection of wetlands is affected by the
SWANCC and Rapanos decisions continues to evolve, the remaining responsibility
to protect affected wetlands falls on states and localities. Whether states will act to
fill in the gap left by removal of some federal jurisdiction is likely to be constrained
by budgetary and political pressures, but a few states (Wisconsin and Ohio, for
14 For additional information, see CRS Report RL33263, The Wetlands Coverage of the
Clean Water Act Is Revisited by the Supreme Court: Rapanos and Carabell, by Robert
Meltz and Claudia Copeland.
15 The guidance and related documents are available at [http://www.epa.gov/owow/wetlands/
example) have passed new laws or amended regulations to do so. In comments on
the 2003 ANPRM, many states said that they do not have authority or financial
resources to protect their wetlands, in the absence of federal involvement.
Legislation to reverse the SWANCC and Rapanos decisions was introduced in
the 110th Congress (H.R. 2421 and S. 1870, the Clean Water Authority Restoration
Act of 2007); similar legislation was introduced in the 108th and 109th Congresses.
It would provide a broad statutory definition of “waters of the United States”; is
intended to clarify that the CWA is meant to protect U.S. waters from pollution, not
just maintain their navigability; and includes a set of findings to assert constitutional
authority over waters and wetlands.16
The House Transportation and Infrastructure Committee held hearings on H.R.
2421 and related jurisdictional issues on July 17 and July 19, 2007. Another hearing
was held April 16, 2008. The full Senate Environment and Public Works Committee
held a hearing on issues related to the Rapanos ruling on December 13, 2007, and
held a legislative hearing on S. 1870 on April 9, 2008. Proponents of the legislation
argue that Congress must clarify the important issues left unsettled by the Supreme
Court’s 2001 and 2006 rulings and by the recent Corps/EPA guidance. Bill sponsors
argue that the legislation would “reaffirm” what Congress intended when the CWA
was enacted in 1972 and what EPA and the Corps have subsequently been practicing
until recently, in terms of CWA jurisdiction. But critics assert that the legislation
would expand federal authority, and thus would have unintended but foreseeable
consequences that are likely to increase confusion, rather than settle it. Critics
question the constitutionality of the bill, arguing that, by including all non-navigable
waters in the jurisdiction of the CWA, it exceeds the limits of Congress’s authority
under the Commerce Clause. Supporters contend that the legislation is properly
grounded in Congress’s commerce power.
In light of the widely differing views of proponents and opponents, future
prospects for this legislation are uncertain. The Bush Administration did not take a
position on any legislation to clarify the scope of “waters of the United States”
protected under the CWA.17 One difficulty of legislating changes to the CWA in
order to protect wetlands results from the fact that the complex scientific questions
about such areas (see discussion above, “Wetlands: Information and Science”) are
not easily amenable to precise resolution in law. The debate over revising the act
highlights the challenges of using the law to do so.
Should All Wetlands Be Treated Equally? Under the Section 404
program, there is a perception that all jurisdictional wetlands are treated equally,
16 Other legislation to restrict regulatory jurisdiction was introduced in the 109th Congress
(H.R. 2658). It sought to narrow the statutory definition of “navigable waters” and define
certain isolated wetlands and other areas as not being subject to federal regulatory
jurisdiction. It also would give the Corps sole authority to determine Section 404
jurisdiction, for permitting purposes.
17 For additional information, see CRS general distribution memorandum, “Analysis of the
Clean Water Restoration Act of 2007, H.R. 2421 and S. 1870,” by Claudia Copeland and
Robert Meltz, October 3, 2007.
regardless of size, functions, or values. In reality, this is not the case, because the
Corps’ general permits do provide accelerated regulatory decisions for many
activities that affect wetlands. However, this perception 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. Legislation introduced in past Congresses proposed to
establish multiple tiers (typically three) — from highly valuable wetlands that should
receive the greatest protection to the least valuable wetlands where alterations might
usually be allowed. Some states (New York, for example) use such an approach for
state-regulated wetlands. The Corps and EPA issued guidance to field staff
emphasizing the flexibility that currently exists in the Section 404 program to apply
less vigorous permit review to small projects with minor environmental impacts.
Three questions arise: (1) What are the implications of implementing a
classification program? (2) How clearly can a line separating each wetland category
be defined? (3) Are there regions where wetlands should be treated differently?
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 erosion 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, while critics who view protection efforts as excessive, would seek
Locating the boundary line of a wetland can be controversial when the line
encompasses areas that do not meet the image held by many. Controversy would
likely grow if a tiered approach required that lines 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 states have far more wetlands than others. Different treatment has been
proposed for Alaska because about one-third of the state is designated as wetlands,
yet a very small portion has been converted. Legislative proposals have been made
to exempt that state from the Section 404 program until 1% of its wetlands have been
lost. Some types of wetlands are already treated differently. For example, playas and
prairie potholes have somewhat different definitions under swampbuster (discussed
below), and the effect is to increase the number of acres that are considered as
wetlands. This differential treatment contributes to questions about federal
regulatory consistency on private property.
Agriculture and Wetlands
National surveys more than two decades ago indicated that agricultural activities
had been responsible for about 80% of wetland loss in the preceding decades, making
this topic a focus for policymakers seeking to protect the remaining wetlands.
Congress responded by creating programs in farm legislation starting in 1985.
Conservation programs in the farm bill use both disincentives and incentives to
encourage landowners to protect and restore wetlands. Swampbuster and the
Wetlands Reserve Program are the two largest efforts, but others such as the
Conservation Reserve Program’s wetland and buffer acres pilot program and the
Conservation Reserve Enhancement Program, are also being used to protect
wetlands. The 110th Congress enacted legislation to reauthorize farm programs
through 2012 (Food, Conservation, and Energy Act of 2008, P.L. 110-246). The
2008 farm bill authorized new programs that could further assist wetlands
conservation. The most recent wetland loss survey conducted by the NRCS
(comparing data from 1997 and 2002) indicates that there was a small annual
increase for the first time since these data have been collected, of 26,000 acres.18
However, the agency warns that statistical uncertainties preclude concluding with
certainty that gain is actually occurring. Wetlands were a major topic of discussion
in debate on the 2008 farm bill.
Members of the farm community have expressed a wide range of views about
wetland protection, from strong opposition to strong support. These views are
frequently framed in the context of two general concerns about wetland protection
efforts. First, as a philosophical matter, some object to federal regulation of private
lands, regardless of the societal values those lands might provide. Second, many
farmers want certainty and predictability about the land they farm to limit their
financial risk. Therefore, if wetlands are located on a property that they farm, they
want assurances that the boundary line delineating wetlands will remain where
located for as long as possible.
Swampbuster. Swampbuster, enacted in 1985, uses disincentives rather than
regulations to protect wetlands on agricultural lands. It removes a farmer’s eligibility
from all government price and income support programs for activities such as
draining, dredging, filling, leveling or otherwise altering a wetland. Swampbuster
has been controversial with farmers concerned about redefining an appropriate
federal role in wetland protection on agricultural lands, and with wetland protection
advocates concerned about inadequate enforcement. Since 1995, the NRCS has
made wetland determinations only in response to requests because of uncertainty
over whether changes in regulation or law would modify boundaries that have
already been delineated. NRCS has estimated that more than 2.6 million wetland
determinations have been made and that more than 4 million may eventually be
Swampbuster amendments in 1996 (P.L. 104-127) granted producers greater
flexibility by making changes, such as: exempting swampbuster penalties when
wetlands are voluntarily restored; providing that prior converted wetlands are not to
be considered “abandoned” if they remain in agricultural use; and granting good-faith
exemptions. They also encourage mitigation, established a mitigation banking pilot
program, and repealed required consultation with the FWS. Amendments enacted
in the 2008 farm bill will require an additional layer of review within USDA for
compliance with swampbuster.
18 See [http://www.nrcs.usda.gov/technical/NRI/2003/nri03wetlands.html].
Other Agricultural Wetlands Programs. Under the Wetland Reserve
Program (WRP), enacted in 1990, landowners receive payments for placing
easements on farmed wetlands. It provides long-term technical and financial
assistance to landowners with the opportunity to protect, restore, and enhance
wetlands on their property, and to establish wildlife practices and protection. The
2002 farm bill reauthorized the program through FY2007 and raised the enrollment
cap to 2,275,000 acres, with 250,000 acres to be enrolled annually. NRCS has also
taken administrative actions implementing this program, such as announcing a new
enhancement program on the lower Missouri River in Nebraska to enroll almost
19,000 acres at a cost of $26 million, working with several public and private
partners, in June 2004.
Through FY2005, 9,226 projects had enrolled 1.744 million acres, and
easements have been perfected on 1.37 million of those acres. A majority of the
easements are in three states: Louisiana, Mississippi, and Arkansas. Most of the land
is enrolled under permanent easements, while only about 10% is enrolled under 10-
year restoration agreements, according to data supplied by NRCS in support of its
FY2007 budget request. Prior to the 2002 farm bill, farmer interest had exceeded
available funding, which may help to explain why Congress raised the enrollment
ceiling in that legislation.
The 2008 farm bill increased the WRP maximum enrollment cap from 2.275
million acres to 3.014 million acres and expanded eligible lands to include certain
types of private and tribal wetlands, croplands, and grasslands, as well as lands that
meet the habitat needs of wildlife species. The bill made certain program changes,
including specifying criteria for ranking program applications, and requiring USDA
to submit a report to Congress on long-term conservation easements under the
program. The legislation authorized a new Wetlands Reserve Enhancement Program,
which will allow USDA to enter into agreements with states in order to leverage
federal funds for wetlands protection and enhancement.
The 2002 farm bill expanded the 500,000-acre wetland and buffer acreage pilot
program within the Conservation Reserve Program (CRP) to a 1-million-acre
program available nationwide. CRP allows producers to enter into 10- to 15-year
contracts to install certain conservation practices. The 2008 farm bill amended the
pilot program to increase the amount of acreage that states can enroll (up to 100,000
acres, or a national maximum of one million acres). Participants must agree to
restore wetland hydrology, establish appropriate vegetation, and refrain from
commercial use of the land. The wetland and buffer program may become more
important to overall protection efforts in the wake of the SWANCC decision,
discussed above, which limited the reach of the Section 404 permit program to many
small wetlands that are isolated from navigable waterways. Through September
2006, more than 166,000 acres had been enrolled in this program through more than
In August 2004, the Administration announced a new Wetland Restoration
Initiative to allow enrollment of up to 250,000 acres of large wetland complexes and
playa lakes located outside the 100-year floodplain in the CRP after October 1, 2004.
The Administration estimated that implementation of this initiative will cost $200
million. Participants receive incentive payments to help pay for restoring the
hydrology of the site, as well as rental payments and cost sharing assistance to install
eligible conservation practices.
The 2008 farm bill included amendments for several agriculture conservation
programs, including the Environmental Quality Incentives Program (EQIP), the
Farmland Protection Program, and the Wildlife Habitat Incentive Program, in ways
that may have incidental protection benefits for wetlands, because of higher funding
levels or because of program changes. For example, EQIP supports the installation
or implementation of structural and management practices, and the 2008 farm bill
expanded the program to include practices that enhance wetlands. Finally, some
programs could less directly help protect wetlands, including the Conservation
Security Program (renamed the Conservation Stewardship Program), which provides
payments to install and maintain practices on agricultural lands; the new Agricultural
Water Enhancement Program (replacing the previous Ground and Surface Water
Conservation Program; it is funded through EQIP), which is designed to address
water quality and quantity concerns on agricultural land; and several other programs
to better manage water resources.19
Agricultural Wetlands and the Section 404 Program.The CWA
Section 404 program applies to qualified wetlands in all locations, including
agricultural lands. But the Corps and EPA exempt “prior converted lands” (wetlands
modified for agricultural purposes before 1985) from Section 404 permit
requirements under a memorandum of agreement (MOA), and since 1977 the Clean
Water Act has exempted “normal farming activities.” The Supreme Court’s
SWANCC decision apparently exempts certain isolated wetlands from Corps
jurisdiction; NRCS estimated that about 8 million acres in agricultural locations
might be exempted by this decision.
While these exemptions and the MOA displease some protection advocates,
they have probably dampened some of the criticism from farming interests over
federal regulation of private lands. On the other hand, the prospect that Congress
might enact legislation to reverse the Court’s 2001 and 2006 rulings, discussed
above, has particularly alarmed farm groups, who fear that changes in law or
regulations could negatively affect their activities. The Corps and NRCS have been
unsuccessful in revising the MOA since 1996 despite a decade of negotiation,
although they signed a very general partnership agreement on July 7, 2005. Some of
the wetlands that fall outside Section 404 requirements as a result of judicial
decisions can now be protected if landowners decide to enroll them into the revised
farmable wetlands program or under other new initiatives.
Private Property Rights and Landowner Compensation
An estimated 74% of all remaining wetlands in the coterminous states are on
private lands. Questions of federal regulation of private property stem from the
argument that land owners should be compensated when a “taking” occurs and
alternative uses are prohibited or restrictions on use are imposed to protect wetland
19 For more information on these provisions, see CRS Report RL34557, Conservation
Provisions of the 2008 Farm Bill, by Tadlock Cowan and Renee Johnson.
values. The U.S. Constitution provides that property owners shall be compensated
if private property is “taken” by government action. 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 should be recognized when a site is designated as a wetland. In
2002, the Supreme Court held that a Rhode Island man, who had acquired property
after the state enacted wetlands regulation affecting the parcel, is not automatically
prevented from bringing an action to recover compensation from the state. Instead,
the court ruled that the property retained some economic use after the state’s action.
(Palazzolo v. Rhode Island, 533 U.S. 606, 2002).
Congress, while under Republican control, explored these wetlands property
rights issues on several occasions. An example is an October 2001 hearing by the
House Transportation and Infrastructure Committee, Subcommittee on Water
Resources and the Environment.20 Recent Congresses considered, but did not enact,
property rights protection proposals. Democratic leadership appears less interested
in bringing attention to this topic. The Bush Administration did not state an official
position on these types of proposals.21
Wetland Restoration and Mitigation
Federal 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. Examination of this record,
presented in a June 2001 report from the National Research Council, found it to be
wanting. The NRC report said that mitigation projects called for in permits affecting
wetlands were not meeting the federal government’s “no net loss” policy goal for
wetlands function.22 Likewise, a 2001 GAO report criticized the ability of the Corps
to track the impact of projects under its current mitigation program that allows in-
lieu-fee mitigation projects in exchange for issuing permits allowing wetlands
development.23 Both scientists and policymakers debate 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. Results so far seem to
vary, depending on the type of wetland and the level of commitment to monitoring
and maintenance. Congress has repeatedly endorsed mitigation in recent years.
20 U.S. Congress, House of Representatives, Committee on Transportation and
Infrastructure, Subcommittee on Water Resources and Environment, The Wetlandthst
Permitting Process: Is It Working Fairly? Hearing 107-50, 107 Cong., 1 sess., October
21 For more information, see CRS Report RL30423, Wetlands Regulation and the Law of
Property Rights “Takings”, by Robert Meltz.
22 National Academy of Sciences, National Research Council, Compensating for Wetland
Losses under the Clean Water Act (Washington, DC: 2001), 267 pp.
23 U.S. Government Accountability Office, Wetlands Protection: Assessments Needed to
Determine the Effectiveness of In-Lieu-Fee Mitigation, GAO-01-325, 75 pp.
The Louisiana Experience. Much of the attention to wetland restoration
has focused on Louisiana, where an estimated 80% of the total loss of U.S. coastal
wetlands has occurred (coastal wetlands are about 5% of all U.S. wetlands). The
current rate of loss is more than 15,000 acres per year, a decline from higher rates in24
earlier years. In response to these losses, Congress authorized a task force, led by
the Corps, to prepare a list of coastal wetland restoration projects in the state, and
also provided funding to plan and carry out restoration projects in this and other
coastal states under the Coastal Wetlands Planning, Protection and Restoration Act25
of 1990, also known as the Breaux Act. The projects range from reintroduction of
freshwater and diversion of sediment to construction of shoreline barriers and
planting of vegetation. In total, the estimated total cost to complete all 147 approved
projects is $1.78 billion.
In a 2007 report, GAO reported that it is impossible to determine the collective
success of restoring coastal wetlands in Louisiana, because of an inadequate approach
to monitoring. GAO had reviewed the Breaux Act program to identify the types of
projects that have been designed and lessons that have been learned from 74 projects
that have been completed so far.26 Others, including the National Oceanic and
Atmospheric Administration, disagreed with GAO’s findings, observing that long-
term data being provided through ongoing project monitoring are intended to yield
insight into qualitative and quantitative project performance.
In the wake of hurricanes Katrina and Rita in the summer of 2005, multiple
legislative proposals were introduced to fund additional restoration projects already
planned by the U.S. Army Corps of Engineers and to explore other opportunities that
would restore and stabilize wetlands in southern Louisiana. Without remedial action,
the net effect of these storms will likely be major permanent losses, especially along
the coast. These losses are partially offset as some destruction was temporary and
in a few situations, new wetlands were created. The extent of change and loss
continues to be documented by federal agencies and others. More specifically, before
the hurricanes, Congress was considering legislation that would have provided about
$2 billion to the restoration effort. Since the 2005 hurricanes, more expansive
options costing up to $14 billion that were proposed in the 1998 report Coast 2050
are also being considered.27 S. 3711, the Gulf of Mexico Energy Security Act, wasth28
passed during the final days of the 109 Congress. This legislation provides
24 Loss rates have been calculated by U.S. Geological Survey’s Nation Wetlands Research
Center, which has published a number of reports describing past and predicted loss rates.
25 For information on this program, see CRS Report RS22467, Coastal Wetlands Planning,
Protection, and Restoration Act (CWPPRA): Effects of Hurricanes Katrina and Rita on
Implementation, by Jeffrey Zinn.
26 U.S. Government Accountability Office, Coastal Wetlands: Lessons Learned from Past
Efforts in Louisiana Could Help Future Restoration and Protection, GAO-08-130, 57 p.
27 For a more detailed discussion of the effects of the hurricanes on planning for wetland
restoration, see CRS Report RS22276, Coastal Louisiana Ecosystem Restoration After
Hurricanes Katrina and Rita, by Jeffrey Zinn.
28 S. 3711 was attached to a broad tax relief measure that was enacted in December 2006
additional revenues to states adjacent to offshore oil and gas production activities.
One of the purposes for which these revenues can be spent is wetland restoration, and
the availability of these funds may affect the amount and scale of wetland restoration
activity in the central Gulf Coast.
Other Federal Protection Efforts. Many federal agencies have been active
in wetland improvement efforts in recent years. In particular, the Fish and Wildlife
Service (FWS) has been promoting the success of its Partners for Fish and Wildlife
program, which Congress reauthorized through FY2011 in 2006 (P.L. 109-294).
Through voluntary agreements, the Partners program provides technical assistance
and cost share incentives directly to landowners for wetland restoration projects on
Other programs also restore and protect domestic and international wetlands.
One of these derives from the North American Wetlands Conservation Act,
reauthorized through FY2012 in P.L. 109-322 with an appropriations ceiling of $75
million annually. This act provides grants for wetland conservation projects in
Canada, Mexico, and the United States. According to the FWS FY2007 budget
notes, the United States and its partners have protected more than 18.5 million acres
and restored, created, or enhanced an additional 5.9 million acres through almost
1,500 projects. The FWS has combined funding for this program with several other
laws into what it calls the North American Wetlands Conservation Fund.
Under the Convention on Wetlands of International Importance, more
commonly known as the Ramsar Convention, the United States is one of 158 nations
that have agreed to slow the rate of wetlands loss by designating important sites.
These nations have designated 1,822 sites, totaling 415 million acres, since the
convention was adopted in 1971. The United States has designated 24 wetland sites,
encompassing 5.6 million acres.
Mitigation. Mitigation also has become an important cornerstone of the
Section 404 program in recent years. A 1990 MOA signed by the agencies with
regulatory responsibilities (EPA and the Corps) 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.
Some wetland protection advocates are critical of mitigation, which they view
as justifying destruction of wetlands. They believe that the Section 404 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
(H.R. 6111, P.L. 109-432). For additional information, see CRS Report RL33493, Outer
Continental Shelf: Debate over Oil and Gas Leasing and Revenue Sharing, by Marc
29 See [http://ecos.fws.gov/partners/viewContent.do?viewPage=partners].
that mitigation measures, even if well-designed, are not adequately monitored or
maintained. Supporters of current efforts counter that they generally work as
envisioned, but little data exist to support this view. Questions about implementation
of the 1990 MOA and controversies over the feasibility of compensating for wetland
losses further complicate the wetland protection debate.
In response to criticism in the NRC and GAO reports (discussed above), in
November 2001, the Corps issued new guidance to strengthen the standards on
compensating for wetlands lost to development. The guidance was criticized by
environmental groups and some Members of Congress for weakening rather than
strengthening mitigation requirements and for the Corps’ failure to consult with other
federal agencies. In December 2002, the Corps and EPA released an action plan
including 17 items that both agencies believe will improve the effectiveness of
wetlands restoration efforts.30
In March 2008, the Corps and EPA promulgated a mitigation rule to replace the
1990 MOA with clearer requirements on what will be considered a successful project
to compensate for wetlands lost to activities like construction, mining, and
agriculture.31 The rule sets performance standards and criteria for three types of
wetlands mitigation: mitigation banks, in-lieu programs, and permittee-responsible
compensatory mitigation. It sets standards to mitigate the loss of wetlands and
associated aquatic resources and is intended to improve the planning,
implementation, and management of compensatory mitigation projects designed to
restore aquatic resources that are affected by activities that disturb a half-acre or more
of wetlands. It also is designed to help ensure no net loss of wetlands by addressing
key recommendations raised in the 2001 NRC report. Under the rule, all
compensation projects must have mitigation plans that include 12 fundamental
components, such as objectives, site selection criteria, a mitigation work plan, and
a maintenance plan.32
The concept of “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, is widely
endorsed. Numerous public and private banks have been established, but many
believe that it is too early to assess their success. In a study of mitigation, the
Environmental Law Institute determined that as of 2005, there were 330 active banks,
30 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, “National
Wetlands Mitigation Action Plan, December 24, 2002.” See [http://www.epa.gov/owow/
31 U.S. Army Corps of Engineers and Environmental Protection Agency, “Compensatory
Mitigation for Losses of Aquatic Resources, Final Rule,” 73 Federal Register 19594, April
32 Information on compensatory mitigation can be found at [http://www.epa.gov/
33 For more information on mitigation generally, and mitigation banks specifically, see
several laws, such as the 1996 farm bill and the 1998 Transportation Equity Act
(TEA-21), endorse the mitigation banking concept. In November 2003, Congress
enacted wetlands mitigation provisions as part of the FY2004 Department of Defense
(DOD) authorization act (P.L. 108-136). Section 314 of that act directed DOD to
make payments to wetland mitigation banking programs in instances where military
construction projects would result or could result in destruction of or impacts to
Environmental Law Institute, 2005 Status Report on Compensatory Mitigation in the United
States, April 2006, 105 pp.
For Additional Reading
Connolly, Kim Diana, Stephen M. Johnson, Douglas R. Williams. Wetlands Law and
Policy, Understanding Section 404. American Bar Association, Section of
Environment, Energy, and Resources. 2005. 528 pp.
Kusler, Jon and Teresa Opheim. Our National Wetland Heritage: A Protection
Guide. Environmental Law Institute. [Washington] 1996. 149 pp.
National Academy of Sciences, National Research Council. Compensating for
Wetland Losses Under the Clean Water Act. [Washington] 2001. 267 pp.
U.S. Department of Agriculture, Economic Research Service. Wetlands and
Agriculture: Private Interests and Public Benefits, by Ralph Heimlich et al.
[Washington] 2001, 123 pp. Agricultural Economic Report No. 765.
U.S. Department of the Interior. U.S. Fish and Wildlife Service. Status and Trends
of Wetlands in the Coterminous United States 1998-2004. [Washington] 2006.
U.S. Government Accountability Office. Wetlands Protection: Assessments Needed
to Determine the Effectiveness of In-Lieu-Fee Mitigation. (GAO-01-325)
[Washington] May 2001. 75 pp.
——. Waters and Wetlands: Corps of Engineers Needs to Evaluate District Office
Practices in Determining Jurisdiction. (GAO-04-297) [Washington] February