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Wetlands Policy (5-13-04)

Wetlands are complex ecosystems that are among some of the nation's most valuable resources. They serve several ecological functions including improving water quality, controlling floods, diminishing droughts, and stabilizing shorelines. Home to many rare and endangered species of plants and animals, they not only serve the interests of natural ecosystems, but also serve hazard management, economic, and commercial interests, such as coastal drilling for oil and natural gas. Prior to the mid-1970's, wetlands were regularly drained and filled in for development projects, leading to a loss of about half of the wetlands in the contiguous United States since the 1600's. In the 1970's, however, wetlands were recognized as a resource of ecological value, and concern about their loss led to federal efforts to protect them on both public and private lands.

Most Recent Action

President Bush declared a new policy on April 22nd to increase total wetland area in the United States by 1 million acres and to increase protection of an additional 2 million acres during the next five years. This policy will largely be implemented through a Natural Resources Conservation Service program in which farmers receive grants when they set aside wetlands on their property, and through an increase of Wetlands Reserve Program funding from $15 million to $280 million next year. The Bush administration also advocates the mitigation bank approach, which allows developers to fill in wetlands if they pay for creation of new wetlands elsewhere. Some concerns have been raised by organizations such as the National Wildlife Federation about the higher quality of wetlands that have already been lost compared to those that will be constructed (5/13/04).

On April 5th the Supreme Court turned down petitions to hear three cases in which appeals courts previously affirmed the authority of the Army Corps of Engineers to regulate isolated wetlands. This harkens back to the 2001 ruling in which the high court ruled in favor of a consortium of Chicago-area towns (known as SWANCC) who had previously been denied a permit to build a landfill because of isolated ponds on the property that were used by migrating birds. After the SWANCC decision there has been much debate about what criteria, other than migratory bird habitat, the Army Corps of Engineers could use to regulate wetlands. Since that ruling, other federal courts have interpreted the decision to allow protections for manmade ditches and other isolated water-bodies. A spokesperson for the National Wetlands Coalition told Greenwire that today's decision by the Supreme Court "highlights the need for Congress to step in and resolve the question of jurisdiction with [Clean Water Act Section] 404 legislatively." (4/7/04)

On December 17th the Bush Administration announced that it would not follow through with a new rule that would have narrowed the scope of the Clean Water Act. Earlier in the year the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers instructed field agents to exclude wetlands from regulatory review unless the waters are linked to interstate commerce in some way. After the EPA and the Corps received 133,000 comments regarding the proposed changes, state representatives, interest groups, and elected officials all told the EPA and Corps that they would oppose any regulatory change that differs too much from the current regulations. The Bush Administration said that the decision not to go forward with the rule was based in part on negative public comment, but was also due to the fact that federal judges have interpreted the high court's rulings very narrowly in this matter. Greenwire reported that environmentalists hailed the decision as a victory for the nation's waters, while the National Association of Homebuilders stated they were "very disappointed" with the decision and is deciding what course of action to take. (1/8/04)

Continuing its response to the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers limiting federal authority to regulate isolated wetlands, the Bush administration has prepared a draft regulation that would narrow the scope of the Clean Water Act, by lifting CWA protection from "ephemeral washes or steams" that do not have a groundwater source or flow for less than six months per year. Greenwire reported that this proposed rule would "exempt millions of acres of wetlands and steams from federal oversight." While still being developed internally within the administration, the EPA and the Corps will have to seek public comment on the rule before it can be issued in its final form.

On January 10, 2003, the U.S. Army Corps of Engineers and the Environmental Protection Agency issued an advance notice of proposed rulemaking on issues associated with the definition of "waters of the United States" that are subject to regulation under the Clean Water Act. The new guidelines affirm federal regulations over traditional waterways and tributaries, but relinquish jurisdiction over isolated wetlands if the sole authority for the wetland designation was based on the migratory bird rule. The new guidelines are in response to the Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers limiting federal authority to regulate isolated wetlands, which constitute approximately 20 percent of the wetlands in the lower 48 states. Environmentalists are worried the guidelines will favor industry and housing developments over wetland protection. (11/19/03)

Greenwire reported on October 27th that a Maryland couple will ask the Supreme Court to decide whether culverts and drainage ditches fall under the domain of the Clean Water Act. This appeal, the first major challenge to the federal government's regulation of wetlands in almost two years, questions a decision handed down earlier this year by the Fourth U.S. Circuit Court of Appeals, which found that the federal Clean Water Act applies to wetlands and small water bodies located far from large waterways, including drainage ditches and culverts. The ruling reaffirmed the authority of the federal government to regulate such wetlands, which had been limited by the 2001 Supreme Court decision in Solid Waste of Northern Cooke County (SWANCC) v. U.S.Army Corps of Engineers. The SWANCC decision rejected migratory bird usage as a reason to recognize isolated water bodies for federal oversight under the Commerce Clause. Subsequent guidelines set forth by the Environmental Protection Agency (EPA) and the Army Corps of Engineers relinquished jurisdiction over isolated wetlands designated solely for this reason. The new ruling established the criteria of any hydrological connection to navigable waterways, noting that degraded water quality moves downstream. The decision left the Army Corps with the authority to decide what constitutes a tributary to a navigable waterway. The Fourth Circuit upheld fines imposed by the Corps for polluting U.S. waterways without a permit on a Maryland couple, the Deatons, who drained a small wetland into a roadside culvert in the early 1990s. The controversy over the boundary between state and federal oversight of small wetlands will be decided by the Supreme Court. The attorney representing the couple, Raymond Stevens Smethurst, told Greenwire that he is working with the Deatons to file the appeal, which is known as a petition for certiorari. He believes the appeal will meet criteria necessary to be heard by the Supreme Court, and that the facts of the case will clearly demonstrate to the high court that the Fourth Circuit decision leaves too little authority over state and local waters to the states. The Bush Administration, meanwhile, is still considering a regulatory maneuver (rulemaking) that would remove small wetlands from protection under the Clean Water Act. (10/28/03)

Background

Wetlands, which include marshes, swamps, and bogs, represent the transition zone from terrestrial to aquatic habitats. They are found throughout the country, with local climate, soil, hydrology, and vegetation resulting in their different expressions. Due to their variable characteristics in time and space, determining exactly what is a wetland has often be controversial in itself. The only definition of wetlands in federal law occurs in the "swampbuster" provisions of farm legislation; however, the definition is extremely broad and does not include criteria such as what conditions must be present, for how long, and during what portion of the year. Most wetlands subject to federal regulations are identified based on the 1987 wetland delineation manual issued by the Army Corps of Engineers.

Wetlands are primarily regulated by the Environmental Protection Agency and the Army Corps of Engineers under Section 404 of the Clean Water Act of 1977. Section 404 seeks to protect wetlands and adjacent waterways though permitting of dredged or fill materials that might cause environmental degradation. It does not regulate other acts, such as those that drain or flood wetlands. Many environmentalists disagree with the use of section 404 as the primary means for wetland protection, often sighting that the program is weak because it was not comprehensive and not created specifically for wetland protection. Landowners generally feel they should be allowed to alter their land as they see fit, and taking away that right through wetland designation decreases the value of their property.

Recognizing the importance of wetlands for water quality, water storage including mitigating the effect of floods and droughts, and wildlife habitat, federal policies have more recently shifted towards preventing wetland loss, and, when that is not possible, mitigation of wetland acreage on a one-for-one basis. Implementation of this policy, as laid out in the 1990 Memoranda of Agreement between wetland regulatory agencies, further complicated wetland issues. Critics argue the policy is justification of wetland destruction, and state that evidence is unclear as to whether it is possible to create wetlands with ecological functions equal to natural wetlands. Further, a June 2001, National Research Council report stated that mitigations projects affecting wetlands were not meeting the federal government's "no net loss" goal for wetland functions. In December of 2002, the U.S. Army Corps of Engineers and the EPA released a comprehensive plan they believe will improve the effectiveness of wetland restoration efforts. In contrast, the concept of "mitigation banks" (where wetlands are created in advance of potentially damaging activities) are widely endorsed.

For information on the South Florida Everglades, see http://stage.agiweb.org/gap/legis108/everglades.html.

The U.S. Army Corps of Engineers and the Environmental Protection Agency issued an advance notice of proposed rulemaking on January 10th. It covers issues associated with the definition of "waters of the United States" that are subject to regulation under the Clean Water Act. The new guidelines affirm federal regulations over traditional waterways and tributaries, but relinquish jurisdiction over isolated wetlands if the sole authority for the wetland designation was based on the migratory bird rule. The new guidelines are in response to the Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers limiting federal authority to regulate isolated wetlands, which constitute approximately 20 percent of the wetlands in the lower 48 states. Environmentalists are worried the guidelines will favor industry and housing developments over wetland protection. (5/1/03)

On July 18th, the U.S. Geological Survey (USGS) presented a briefing on the future of the Northern Gulf Coast. The current rapid loss of coastal Louisiana lands threatens resources and infrastructure valuable to the national economy, according to several speakers. The assets at stake include a massive port system tied to the waterways of the entire Mississippi valley, the largest commercial fishing center in the lower 48 states, significant petroleum resources, and a major habitat. Speakers recognized that the land loss results from unsustainable past policies, but were unanimously optimistic that the problem can be solved through sound science and collaboration between many actors. William R. Dawson, the Chief of Planning and Policy for the U.S. Army Corps of Engineers (USACE) described the efforts of the Corps to implement a comprehensive long-term solution that would maintain the sustainability of both the ecosystem and the existing infrastructure. USGS Director Charles Groat explained the geological, hydrological, and biological projects the survey is undertaking as part of the restoration. Groat said the USACE's commitment to science was "commendable", and Dawson showed appreciation for the supporting research and monitoring efforts of the USGS. Jack C. Caldwell, Secretary of the Louisiana Department of Natural Resources, emphasized that the effort will require billions of dollars over the next 15-25 years. Caldwell called for federal expenditures beyond the provision in the Senate's energy bill (S. 14) that would authorize some offshore oil and gas revenues for the restoration effort. He said that money committed to the project would be "well spent." More information can be found at http://www.usgs.gov/solutions/northern_gulf.html
(7/23/03)

Sources: National Academy of Sciences, Environmental Protection Agency, Wetlands International, Greenwire, USGS Briefing.

Contributed by Charna Meth, 2003 Spring Semester Intern; Brett Beaulieu, AGI/AIPG 2003 Summer Intern; Emily M. Lehr, Government Affairs Program Staff; Gayle Levy, 2004 Spring Semester Intern and Bridget Martin, AGI/AIPG 2004 Summer Intern.

Background section includes material from AGI's Update on Wetlands Legislation for the 107th Congress.

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on May 13, 2004


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