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  Environmental Policy Issues

Wetland Issues
(Released March 1998)

 

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Review Article

The first report is Wetland Issues in the 105th Congress (February 24, 1998). The report defines wetlands and addresses the laws most applicable to wetlands preservation. In particular, the 1996 farm bill (the Federal Agricultural Improvement and Reform Act of 1996), which describes swampbuster provisions, is examined.

The second offering is a new report on The Clean Water Initiative (February 20, 1998). This report refers to an initiative by Vice President Gore to strengthen water pollution controls throughout federal agencies. The agencies' report to the vice president was released in February. Over 100 actions are identified in the report, most of them actions already in operation. The President's FY1999 budget requests $2.2 billion to implement the measures.

The next report is Reauthorizing the Clean Water Act (February 10, 1998), taken from the CRS Issue Brief Environmental Protection Legislation in the 105th Congress. The report covers funding under the bill, runoff pollution, the bill's impact on wetlands and the proposed reorganization of the EPA.

The last report, Agricultural Wetlands: Current Programs and Legislative Proposals (January 4, 1996), examines wetlands in agricultural regions and the specific impact of the swampbuster statute on agriculture, as well as the section 404 program of the Clean Water Act.

© Copyright 1998, All Rights Reserved, CSA

 

CRS Reports

Wetland Issues in the 105th Congress

Summary

Wetlands, in a wide variety of forms, are found throughout the country. The various values of these areas have been increasingly recognized in recent years, but the remaining acreage has been disappearing rapidly. When European settlers first arrived, total wetland acreage was more than 220 million acres in the lower 48 states, according to estimates by the U.S. Fish and Wildlife Service. By 1980, total wetland acreage was estimated to be 104 million acres. Losses continue, although the rate of loss has slowed considerably during the past decade. Recent losses have been concentrated in the lower Mississippi River Valley, the upper Midwest, and the Southeast.

Several laws provide varying levels of protection under different circumstances: Section 404 in the Clean Water Act; the swampbuster and other programs in the federal farm bill; the Fish and Wildlife Coordination Act; and the numerous enactments that have established National Wildlife Refuge System units. Although the rate of wetland loss has apparently slowed in recent years, these laws and their implementation are viewed by many protection advocates as inadequate. Others, who advocate the rights of property owners and development interests, by contrast, characterize these same efforts as overzealous and too extensive. Numerous state and local wetland protection programs increase the complexity of the protection effort.

Both the Bush and Clinton Administrations have made wetland protection a major priority. The Clinton Administration announced its policies on August 24, 1993: they include using the best available science in defining and delineating wetlands; im proving the current regulatory program and encouraging non-regulatory options; and expanding the use of partnerships in wetland protection efforts.

Dozens of wetland bills were introduced in each of the last three Congresses either to implement these policies or to initiate alternative approaches. Numerous hearings were held but with the exception of the Federal Agricultural Improvement and Reform Act of 1996 (P.L. 104-127), better known as the 1996 farm bill, no major wetland legislation was enacted. 1996 farm bill provisions, currently being implemented by the Department of Agriculture, amend swampbuster to make it more flexible and amend the Wetland Reserve Program.

In the 105th Congress, wetlands issues may involve continuing efforts to reauthorize the Clean Water Act and other wetland legislation, implementation of farm bill provisions, and specific actions that raise concerns about changes in wetlands programs. Two recent examples of specific actions that have attracted congressional attention are implementation of Corps of Engineers changes to a nationwide permit (changes that are generally opposed by the development community), and a U.S. District Court decision that overturn the socalled "Tulloch" rule, which had expanded regulated actions to include excavation. A House subcommittee held an oversight hearing on these regulatory program developments on April 29, and a Senate subcommittee held a hearing covering similar topics on June 26.

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The Clean Water Initiative

Summary

In October 1997, Vice President Gore directed federal agencies to develop a Clean Water Initiative to improve and strengthen water pollution control efforts. The multi-agency plan was released on February 19, 1998, and identifies nearly 100 key actions. Most are existing activities, now labeled as part of the Initiative. The President's FY1999 budget requests $2.2 billion for five departments and agencies to fund implementation. The Initiative will be considered in Congress primarily through the appropriations process. How the President's priorities will fare depends both on support for activities in the Initiative and on whether the budgetary requests are viewed as taking funds away from other programs or projects that have congressional priority.

Introduction and Background

In October 1997, on the 25th anniversary of the Clean Water Act (CWA), Vice President Al Gore announced an initiative intended to build on the environmental successes of that Act and to address the Nation's remaining water quality challenges. While much progress has been made in achieving the ambitious goals of the law to restore and maintain the chemical, physical and biological integrity of rivers, lakes, and coastal waters, problems persist. About 40% of those waters do not meet applicable water quality standards. The types of remaining water quality problems, especially runoff from farms and ranches, city streets, and other diffuse sources, are more complex than is controlling pollution discharged from the end of pipes at factories and sewage treatment plants.

The Vice President directed the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) to coordinate the work of other federal agencies to develop an Action Plan within 120 days to improve and strengthen water pollution control efforts across the country. (See Endnote 1.) It was to focus on three goals: enhanced protection from public health threats posed by water pollution, more effective control of polluted runoff, and promotion of water quality protection on a watershed basis. The Departments of Commerce and the Interior and the U.S. Army Corps of Engineers also have roles in the Initiative. The purpose of the Action Plan is to coordinate federal efforts to achieve the three goals. Over all, the Initiative seeks primarily to address the wide range of activities that cause nonpoint source pollution (polluted runoff), including agriculture, mining, urban development, and forestry. EPA and states believe polluted runoff causes more than one-half of remaining water quality problems. Agriculture is believed responsible for the largest portion of water quality impairments due to polluted runoff.

The Action Plan

President Clinton and Vice President Gore released the Action Plan on February 19 (the text is available at http://www.epa.gov/cleanwater/ ). The components of the plan, nearly 100 actions, correspond to specific elements identified by the Vice President in October and fit into eight categories. It consists mainly of existing programs, including some planned regulatory actions that agencies have had underway, now to be enhanced with increased funding or accelerated with performance-specific deadlines. Requests for increased funding, included in the FY1999 budget request, are discussed below.

Protecting public health. The Initiative directed EPA and the National Oceanic and Atmospheric Administration (NOAA) to assure that fish and shellfish are safe to eat, including steps to reduce the need for fish consumption advisories. Advisories are a risk management tool used by states and localities to inform the public on the health risks of consuming chemically contaminated fish and shellfish. The Plan seeks increased enforcement and assistance to states to control discharges contaminating fish and shellfish, beaches, and drinking water sources. It calls for a national survey of contaminants in fish and shellfish by the year 2000, and it also calls for new water quality criteria and state standards to ensure that beaches are safe.

Controlling polluted runoff. The Initiative called for EPA to develop and implement water quality criteria for nitrogen and phosphorous, major pollutants associated with runoff, by the year 2000. These criteria would help states set site-specific standards to control nutrient pollution and thus reduce nutrient loadings to rivers and lakes.

The Initiative also directed EPA to update existing CWA regulations for animal feeding operations and to ensure that final regulations for stormwater runoff are in place by Mar. 1, 1999. EPA already plans to revise regulations that limit animal waste discharges from large feeding operations; current rules were issued in 1975. The Plan sets a goal of issuing discharge permits to the largest animal feeding operations by the year 2005 (1% of the 450,000 facilities are subject to permits now). The Agency recently proposed permit rules for small urban stormwater discharges. When these rules are final in 1999, they will complete EPA's program to regulate stormwater discharges from large and small cities. These elements are included in the Action Plan, which also directs increased grant funding to assist states and Indian tribes in managing polluted runoff.

Incentives for private land stewardship. Both the Initiative and the Action Plan call for increased incentives and assistance to help farmers control polluted runoff and encourage conservation of critical private lands. The Initiative called for USDA to work with states to implement the Conservation Reserve Enhancement Program (CREP) to ensure that as many agreements as practicable will address critical water quality, soil erosion, and fish and wildlife habitat needs. The Conservation Reserve Program, established in the 1985 farm bill, assists owners and operators of highly erodible cropland in conserving and improving soil and water resources. CREP, added by the 1996 farm bill, expands on it. USDA will partner with states and localities to provide cost-share and technical assistance for long-term protection of environmentally-sensitive lands. The first CREP partnership, signed by USDA and Maryland in October 1997, focuses on planting vegetative cover on streamside lands to reduce pollutants from reaching Chesapeake Bay waters. The second partnership, announced along with release of the Action Plan, is between USDA and Minnesota.

The Initiative directed USDA to develop a strategy so that agricultural producers in 1,000 critical rural watersheds have the technical and financial assistance needed to abate polluted runoff and comply with applicable standards. In that regard, the Plan and the FY1999 budget target new resources to help farmers. The Plan also calls for creation of 2 million miles of buffer zones, to protect waterways from agricultural runoff, and development of pollution prevention plans covering more than 35 million acres by 2002.

New resources for watersheds. The Plan calls for joint efforts with states, local communities, and tribes to identify watersheds that are not meeting clean water goals and to set restoration priorities. The concept of managing water quality and resources on a watershed basis, as a framework for considering the highest priority water-related problems within geographic areas, has emerged in public and private sector efforts to address water quality impairments. The Plan seeks expanded funding (grants and technical assistance) to support local organizations that promote watershed partnerships and to support implementation of pollution controls on the basis of watershed approaches.

Restoring and protecting wetlands. The Plan calls for a coordinated strategy to achieve a net gain of as many as 100,000 acres of wetlands annually by the year 2005. This is likely to be one of the more difficult elements to implement since it requires reversing current wetlands losses, which are estimated to be 80,000 to 120,000 acres annually. The Plan also calls for a 50% increase in wetlands restored and enhanced by the Corps of Engineers and increased enrollment of acres for wetlands restoration under USDA conservation programs. Data on wetland acreage, especially the rate and pattern of wetland loss, are imperfect and often controversial. The Plan calls for a new interagency system to more accurately track wetland loss, as well as restoration and creation.

Protecting coastal waters. One-half of the U.S. population lives within 50 miles of the coast, an area that comprises only 20% of the Nation's total land. The cumulative impact of man's activities in the coastal environment has resulted in water quality degradation, habitat losses, and declines of living resources. Polluted runoff is a major source of coastal water pollution and one of the primary factors associated with outbreaks of harmful algal blooms such as Pfiesteria in coastal waters. The Plan calls for a coordinated response to support state and local efforts during events such as outbreaks of harmful algal blooms. Major federal efforts in this regard have been underway since mid-1997, following a Pfiesteria outbreak in Maryland and nearby coastal waters.

In more specific terms, NOAA and EPA are directed to ensure that all state Coastal Nonpoint Pollution Control Programs are in place by mid-1998, and are fully approved by Dec. 31, 1999. The Coastal Zone Act Reauthorization Amendments of 1990 directed coastal and Great Lakes states to develop nonpoint pollution plans as part of overall coastal zone management programs. Coastal states and territories were required to submit coastal nonpoint programs to NOAA and EPA for approval in July 1995. As of February 1998, 11 of 29 state and territorial programs have been approved.

Finally, the Plan calls for amending Fisheries Management Plans to identify essential fish habitat and options for minimizing adverse effects of state and federal activities.

Expanding citizens' right to know. The Action Plan calls for several actions to increase citizens' understanding of the health of their waterways. One particular focus is Internet-based systems to provide information on watersheds nationwide and on watershed programs and services. EPA has had such information available on its Internet site for some time, and, along with other agencies, will presumably be working to enhance it (see http://www.epa.gov/surf/) .

In this regard, the Plan calls for point source dischargers (industrial and municipal facilities) to provide standardized reporting and monitoring of pollution discharge information to support watershed planning. It also calls for a national report that will identify gaps in the monitoring and assessment of sources and impacts of polluted runoff.

Enhanced federal stewardship. The concept underlying these elements of the Plan is that the federal government, through its stewardship of public lands, should be as responsible as private landowners in protecting water quality and the health of aquatic ecosystems on federal lands. Federal agencies often are criticized for supporting or authorizing activities on public lands that are environmentally harmful. As part of the Initiative, lands and facilities owned, managed, or controlled by federal agencies will be national models for control of polluted runoff and effective watershed planning

The Plan calls for a number of actions affecting federal lands, including relocation and improved water quality protection for 2,000 miles of roads and trails a year through 2005 and removal or decommissioning of 5,000 miles a year by 2002. These actions in the Plan are consistent with efforts already underway by the Forest Service regarding roads on National Forest System lands. It also calls for accelerated efforts by land management agencies to improve or restore 25,000 miles of stream corridor by 2005.

Budgetary Support for the Initiative

The President's FY1999 budget, presented on February 2 (in advance of release of the agencies' Action Plan), identified the Clean Water Initiative as a high-priority for environmental programs in the budget. It requested a total of $2.2 billion a $568 million, or 35%, increase over 1998 for multi-agency funding of a Clean Water and Watershed Restoration Initiative. Almost one-half of the total FY1999 increases, $265 million, is designated as assistance to states and localities or to individuals (farmers). It would include funds for five departments and agencies, plus interagency funds, allocated as shown in Figure 1. Amounts shown are the increases above FY1998 levels.

The increases for EPA consist of $95 million more for grants to states to manage nonpoint source pollution (a 95% increase for CWA Section 319 grants); $20 million more for grants for state administration of water quality programs (a 20% increase for Section 106 grants); and $30 million for various water quality activities, including EPA development of water quality criteria for nutrients and updated regulations for animal feeding operations, other grants for watershed restoration and wetlands protection, and EPA actions to reduce the need for fish advisories

The largest increase for USDA, $100 million (50% more than FY1998 funding), would be targeted to expand assistance to farmers under the Environmental Quality Incentives Program (EQIP) to $300 million annually. Established in the 1996 farm bill, EQIP provides farmers with assistance for structural or land management practices to protect water, soil, or related resources, with emphasis on problems of runoff from livestock production. USDA funds also include $60 million more for the Forest Service to address problems associated with abandoned mines, forestland management, and road maintenance. The Natural Resources Conservation Service (NRCS) will direct $20 million in competitive grants to help communities build local capacity for watershed restoration work . It includes $2 million for the Agricultural Research Service for research on management practices to minimize loss of nutrients and pathogens from farm lands to the environment.

Several Department of Interior agencies would receive increases. Funds are included for the U.S. Geological Survey for monitoring and research to aid states with watershed assessment and work with other federal agencies concerning federal facilities and lands. Also included is additional funding for the Bureau of Land Management for watershed health projects on western public lands (projects include cleanup of pollution from abandoned hard rock mine sites, which is an interagency effort); a 38% increase for the Office of Surface Mining's Clean Streams Initiative for cleanup of waters contaminated by runoff from abandoned coal mines; support for Fish and Wildlife Service partnership programs to protect and restore wetland ecosystems and habitats within critical watersheds (10% increase for the Partners for Fish and Wildlife Program and 26% increase for the North American Wetlands Conservation Fund); and funds for the Bureau of Indian Affairs to initiate water quality and watershed management planning for reservation lands in certain western river basins.

The bulk of the increase for the Corps of Engineers, $25 million, is intended to begin a new riverine ecosystem initiative, called Challenge 21, to plan and implement projects that restore watersheds while providing flood hazard mitigation for communities. It will use such non-traditional strategies as purchase of easements and land acquisition that have less impact on ecosystems than structural projects.

Increases for NOAA are to support grants to implement and develop Coastal Nonpoint Pollution Control programs ($12 million) and NOAA's participation in research, particularly concerning harmful algal blooms ($9 million).

Interagency resources will support continued commitment to restore two nationally significant watersheds. These activities are restoration of the Florida Everglades (a $54 million, or 24%, increase above FY1998) and the Bay-Delta Program for ecosystem and water supply problems in California (a $58 million, or 68% increase).

Although planning for the FY1999 budget began in advance of the Vice President's announcement in October 1997, Administration officials say that the additional funds requested for FY1999 are intended to match closely with resources needed to carry out the Initiative. Most of the activities in the Plan are ongoing programs or projects. To a significant degree, including the additional resources in the FY1999 budget as a Clean Water and Watershed Restoration Initiative is more labeling or packaging of current activities than new undertakings, as the term "initiative" might typically imply.

Issues for Congress

Interest groups generally voiced support for the Action Plan when it was released on February 19. How the President's priorities will fare in Congress depends both on support for the funding requests themselves and on whether the requests are viewed as taking funds away from other programs or projects having congressional priority. Administration documents accompanying the FY1999 budget indicate that financing for these activities is deficit neutral and will be managed through transfers of funds available under discretionary spending caps. Congress may not support all of the President's priorities and recommendations in this regard. For example, within the budget proposal for EPA, the President requested a 17% increase for grants to states to support the Initiative, but at the same time requested 11% less for state revolving fund grants (to aid clean water and drinking water treatment construction), as well as 55% less for specially earmarked grants assisting water projects in needy cities. States and others are likely to urge Congress to support funding both for Initiative programs and for other important environmental and water quality activities.

There is no single forum in Congress, either authorizing or appropriating committee, where the entire Clean Water Initiative will be debated. Multiple authorizing committees have jurisdiction over the departments, agencies, and programs that comprise the Initiative. They are likely to assess the details in terms of compatibility with purposes and goals of the underlying programs, irrespective of priorities outlined by the Administration. Few elements of the Plan require authorizing legislation, except for the requested increase for USDA's EQIP, a mandatory spending program now authorized at $200 million per year. On the budgetary side, where the Initiative will primarily be considered, the FY1999 budget proposals will be handled by five separate subcommittees of the Senate and House Appropriations Committees. There will be no single opportunity for making funding tradeoffs where the several agencies are concerned, e.g., more for USDA, less for EPA. Individual appropriations actions may yield congressional support for a different Initiative than the Plan proposed by the President, if the FY1999 funding bills alter or reject some aspects. Improved federal agency coordination on clean water issues, a key purpose of the Initiative and one not needing express congressional action, would be a positive outcome that all could support.

ENDNOTES

1. Notice of Vice President Gore's Clean Water Initiatives. 62 Federal Register 60447-60449, Nov. 7, 1997.

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Reauthorizing the Clean Water Act

Congressional committees with jurisdiction over the Clean Water Act (CWA) gave priority attention to other environmental issues during the first session of the 105th Congress, but little to water quality issues. Most observers expect this to be the case during the second session, as well. No major reauthorization legislation has been introduced in the 105th Congress, and no House or Senate committee activity has been scheduled.

The Clean Water Act is the principal law governing pollution in the nation's lakes, rivers, and coastal waters and authorizing funds to aid construction of municipal wastewater treatment plants. Originally enacted in 1948 and significantly revised in 1972 (P.L. 92-500), the Act was last amended in 1987 (P.L. 100-4). Authorizations for most programs under the 1987 amendments expired Sept. 30, 1990. The CWA has been viewed as one of the nation's most successful environmental laws in terms of achieving the statutory goals, which have been widely supported by interest groups and the public, but lately has been criticized over whether further benefits are worth the costs.

Prospects for enacting CWA legislation in the 105th Congress are uncertain. All of the CWA issues which might receive attention have been open for debate for several years. What currently is at issue is how these issues are framed and whether proposed changes are seen as sustaining, strengthening, or weakening the law. If the 105th Congress does take up the Act, a number of specific issues are likely to be the core of clean water legislative activity. Among these are funding; management of nonpoint source pollution; and regulation or protection of wetlands. Also likely is oversight and possible legislation concerning administrative initiatives at EPA that affect water quality programs.

Funding
The 1987 CWA amendments authorized $18 billion to aid construction of wastewater treatment facilities through FY1994 and established a new program of federal grants to capitalize State Water Pollution Control Revolving Funds, or state loan programs (SRFs). The most recent survey by states and EPA estimates that total national wastewater treatment and related eligible funding needs are $140 billion from all sources to be spent over the next two decades. Because remaining funding needs are still so large, at issue is how to extend SRF assistance to address those needs and modify the SRF program to aid priority projects. Of particular concern in the 105th Congress, is how to assist small and economically disadvantaged communities that have had the most difficulty in adjusting from the Act's previous categorical grants program to loans.

Nonpoint Source Pollution
Surveys by states and EPA report that polluted runoff from agriculture and city streets and storm sewers is now the leading cause of water quality impairment in the United States. These nonpoint sources of water pollution, along with runoff from forestry and construction sites, land disposal activities, and atmospheric deposition of air pollution contaminants, are believed to contribute more than 50% of remaining water quality problems in rivers, lakes, and coastal waters. The 1987 CWA amendments established the first comprehensive program in the Act to address nonpoint source pollution through state management programs utilizing technical and financial assistance from EPA. At issue is the adequacy of current efforts and whether and how to establish CWA programs with minimum standards to ensure that progress towards water quality goals continues to be made, while providing sufficient state and local flexibility and incentives for sources to manage, as necessary, polluted runoff.

Wetlands
How to protect the nation's remaining wetlands and regulate activities taking place in wetlands has become one of the most contentious environmental policy issues, especially in the context of the CWA which contains a key wetlands regulatory tool, the permit program in Section 404. It requires landowners or developers to obtain permits from the U.S. Army Corps of Engineers to carry out activities involving disposal of dredged or fill material into navigable waters of the United States, which include wetlands. EPA provides environmental guidance on permitting and can veto a permit, based on environmental impacts. Controversy has grown over the extent of federal jurisdiction, burdens and delay of permit procedures, and roles of federal agencies and states in the permitting process on private property.

In the context of recent proposals for amending Section 404, a number of issues have been raised, including: whether all wetlands should be treated the same or not and whether some could be accorded less stringent regulatory protection; whether activities or areas covered by federal regulation should be modified; and whether federal and state roles in implementing Section 404 should be revised. Some recent proposals have been controversial because they would require the government to compensate landowners if federal agency action under Section 404 diminishes the fair market value of property by 20% or more. Other controversial proposals would establish a wetlands classification system with differential regulatory procedures and require no federal permits in areas classified as least ecologically valuable.

Reinventing Government at EPA
EPA has been at the center of some of the Clinton Administration's efforts to reinvent government, to create "a government that works better and costs less." At EPA, these activities include new flexible funding and regulatory arrangements for states and industries, proposals for alternative compliance strategies, and a great many program-specific initiatives affecting water quality and other program areas, as well. Congressional oversight of these activities is possible in the 105th Congress, in response to criticism from a wide range of interests that the initiatives are delivering far less than has been expected. Some in Congress may propose legislation -- possibly in connection with CWA reauthorization -- to provide a clear statutory basis for the initiatives and to clarify the scope and direction of EPA's government reinvention activities. (For further information, see CRS Issue Brief 97001.)

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Agricultural Wetlands: Current Programs and Legislative Proposals

Summary

Amending Federal laws to protect wetlands, especially agricultural wetlands, is a contentious issue for the 104th Congress. Critics contend that current programs are excessive in their reach and unfairly restrict private landowners. Supporters counter that these programs are critical if the Nation is to achieve the stated goal of no-net-loss of wetlands. The two major statutes under which agricultural wetlands are protected are swampbuster, enacted in the Agriculture, Food, Trade, and Conservation Act of 1985, and section 404, enacted in the 1972 Clean Water Act.

This debate has been contentious, in part because of a lack of information and understanding about these programs and how they work, and different perceptions of what might happen to the wetland protection effort if one or both of these laws is amended. This report describes both programs, emphasizing how they relate to each other. It explains how each program works, especially on agricultural wetlands, and the likely effect of proposed revisions to swampbuster. Also, it briefly considers other legislative proposals that would amend the section 404 program, which, if enacted, would further affect how agricultural wetlands are protected.

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