Wetlands and Coastal Resources Policy (4-28-06)
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.
Federal efforts to protect and preserve coastal barriers from major
development have similarly gathered momentum over the last few decades.
Coastal barriers, such as barrier islands and sand spits, play an
important ecological role by protecting human communities and ecosystems,
including coastal wetlands, from storm damage. In addition to being
the first line of defense against major storms, coastal barriers provide
habitat for valuable seafood and wildlife species and are often popular
recreation areas. The U.S.
Fish and Wildlife Service is responsible for managing coastal
barriers that are protected under the Coastal Barriers Resources Act.
On April 25, 2006, the Coastal Barrier Resources Reauthorization
Act of 2005 (S.1869)
was passed by the House Committee on Resources. The bill, which was
passed by the Senate on December 16, 2005, reauthorizes the 1982 act
through fiscal year (FY) 2010. It also includes amendments to create
digital maps of the John H. Chafee Coastal Barrier Resources System
lands, a series of undeveloped coastal barriers along the Atlantic,
Gulf, and Great Lakes coasts. According to the Fish and Wildlife Service,
the act "encourages the conservation of hurricane prone, biologically
rich coastal barriers by restricting Federal expenditures that encourage
development, such as Federal flood insurance through the National
Flood Insurance Program." More information about the Coastal
Barrier Resources System is available on the Fish
and Wildlife Service web site. S.1869 is now ready for consideration
by the House. (4/28/06)
Representative Wayne Gilchrest (R-MD) introduced H.R.3552,
the Coastal Barrier Resources Reauthorization Act of 2005, which amends
the original 1982 act to create a digital mapping pilot project that
would enable more effective decision-making about coastal land that
falls under CBRA jurisdiction. The CBRA governs the management of
lands that are a part of the John H. Chafee Coastal Barrier Resources
System (CBRS), a network of undeveloped coastal barriers along the
Atlantic, Gulf and Great Lakes coasts. The law encourages the conservation
of coastal barriers that are biologically diverse and particularly
vulnerable to hurricanes by restricting federal flood insurance and
other expenditures that are used to encourage development in similar
environments. The proposed reauthorization bill attempts to provide
ways for states to better identify, assess and recommend coastal barriers
that could be incorporated into the Act. More information about the
act is available on the Fish
and Wildlife Service website. (11/9/05)
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
been 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.
Coastal barriers are geomorphic features formed of unconsolidated
sediments that are found between the mainland and the open ocean.
Although distinct from coastal wetlands, coastal barriers serve to
protect wetlands and other fragile aquatic habitat. Barrier islands
are the best known form of coastal barrier, but the term also includes
sand spits, tombolos, bay barriers, and mangrove forests. Barriers
form on all coastlines of the United States, but the best developed
network of barriers are found along the Gulf and Atlantic coasts.
The Coastal Barrier Resources System only includes barriers on these
coasts, as well as a few barriers on the shorelines of the Great Lakes.
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/legis109/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. By April 2004, the Supreme Court had
declined three petitions to appeal the decision.
In a December 2003 victory for environmentalists, 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.
President Bush declared a new policy in April 2004 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.
The Coastal Barriers Resources Act (CBRA) was first enacted in 1982
following concerns that development in high risk coastal areas should
not be subsidized by the federal government. The original legislation
had three goals: to minimize the loss of human life by discouraging
development in dangerous places; to reduce wasteful federal expenditures;
and to protect the natural resources associated with coastal barriers.
CBRA was praised as an example of a free market approach to conservation,
since land within the Coastal Barrier Resources System (CBRS) is not
technically restricted from development, but is deemed not eligible
for federal aid such as flood insurance. The act put the U.S. Fish
and Wildlife Service in charge of creating maps to define the units
of the CBRS and deciding which properties fell within these units.
The agency also has the responsibility of updating these maps based
on geomorphic changes every five years. The Fish and Wildlife Service
estimates that the act covers approximately 3.1 million acres of coastal
barriers and that the program has saved over $1 billion in taxpayer
In 1990 the Coastal Barrier Improvement Act added units, including
areas in the Virgin Islands, Puerto Rico, and the Great Lakes. This
reauthorization bill also added an additional category, Otherwise
Protected Areas (OPAs), which include areas set aside for conservation
or research purposes. OPAs are eligible for federal aid other than
flood insurance. In 2000 Congress again reauthorized CBRA, and directed
the Fish and Wildlife Service to start a pilot digital mapping project
in order to eventually replace the outdated paper maps the agency
was using to enforce the act. Currently the agency has digitized approximately
7% of the CBRA maps, and estimates that it will finish the digitization
process in ten to fifteen years. A General Accountability Office (GAO)
from July 1992 indicated that development was occurring in many CBRS
units, and that many agencies were not enforcing the act. In particular
it reported that FEMA did not have the resources to oversee whether
subcontractors were denying flood insurance to housing within CBRS
units. Since 1992 there has been little tracking of the effectiveness
of CBRA, although the Fish and Wildlife Service did conduct an economic
assesment in 2000. That assesment indicated the act had saved the
federal government about $1.3 billion.
For additional information on water policy issues in the 109th Congress,
see AGI's Clean
Water Issues, Water
Resources, and Great
Lakes and Other Watersheds pages.
Sources: National Academy of Sciences, Environmental Protection
Agency, Wetlands International, Greenwire, USGS Briefing, U.S. Fish
and Wildlife Service, Hearing Testimony.
Contributed by David R. Millar 2004 AGI/AAPG Fall Intern; Peter Douglas,
2005 AGI/AAPG Fall Intern, and Jenny Fisher, 2006 AGI/AAPG Spring
Background section includes material from AGI's Update
on Wetlands Legislation for the 108th Congress.
Please send any comments or requests for information to AGI Government Affairs Program.
Last updated on April 27, 2006.