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Wetlands and Coastal Resources Policy (4-28-06)

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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.

Recent Action

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)

Previous Action

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)

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 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 dollars.

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 Intern.

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.


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