Thursday, December 26, 2013
Specialist in Resources and Environmental Policy
Recent Congresses have considered numerous policy topics that involve wetlands. Many reflect issues of long-standing interest, such as applying federal regulations on private lands, wetland loss rates, and restoration and creation accomplishments.
The issue receiving the greatest attention recently has been determining which wetlands should be included and excluded from permit requirements under the Clean Water Act’s (CWA) program that regulates waste discharges affecting wetlands, which is administered by the Army Corps of Engineers and the Environmental Protection Agency (EPA). As a result of Supreme Court rulings in 2001 (in the SWANCC case) that narrowed federal regulatory jurisdiction over certain isolated wetlands, and in 2006 (in the Rapanos-Carabell decision), the jurisdictional reach of the permit program has been narrowed. In response, legislation intended to reverse the Court’s rulings in these cases has been introduced regularly since the 107th Congress. In the 111th Congress, for the first time, one such bill was approved by a congressional committee (S. 787, the Clean Water Restoration Act); no further legislative action occurred. The Obama Administration did not endorse any specific legislation, but identified general principles for legislation that would clarify waters protected by the CWA. In 2011 the Administration proposed new interpretive guidance intended to clarify jurisdictional uncertainties resulting from the Court’s rulings and to apply protection to additional waters and wetlands, a conclusion that pleased some observers and alarmed others. In September 2013, EPA and the Corps withdrew the 2011 proposed guidance, which had not been finalized, in favor of draft revised regulations, which are being reviewed by the Office of Management and Budget.
Wetland protection efforts continue to engender controversy over issues of science and policy. Controversial topics include the rate and pattern of loss, whether all wetlands should be protected in a single fashion, the effectiveness of the current suite of laws in protecting them, and the fact that 75% of remaining U.S. wetlands are located on private lands.
Many public and private efforts have sought to mitigate damage to wetlands and to protect them through acquisition, restoration, enhancement, and creation, particularly coastal wetlands. While recent data indicate success in some restoration efforts, leading to increases in some types of wetlands, many scientists question if restored or created wetlands provide equivalent replacement for natural wetlands that contribute multiple environmental services and values.
One reason for controversies about wetlands is that they occur in a wide variety of physical forms, and the numerous values they provide, such as wildlife habitat, also vary widely. In addition, the total wetland acreage in the lower 48 states is estimated to have declined from more than 220 million acres three centuries ago to 110.1 million acres in 2009. The national policy goal of no net loss, endorsed by administrations for the past two decades, had been reached by 2004, according to the Fish and Wildlife Service, as the rate of loss had been more than offset by net gains through expanded restoration efforts authorized in multiple laws. However, more recent data show wetlands losses of nearly 14,000 acres per year. Many protection advocates say that 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 these efforts as too intrusive. Numerous state and local wetland programs add to the complexity of the protection effort.
Date of Report: December 5, 2013
Number of Pages: 30
Order Number: RL33483
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