15-May-2002; Jeffrey A. Zinn and Claudia Copeland; 18 p.
Update: July 18, 2003
MOST RECENT DEVELOPMENTS
The 108th Congress may address various wetland policy topics. Congress may be
interested in implementation of wetland provisions enacted in the 2002 farm bill (P.L. 107-
171) and in the North American Wetlands Conservation Act (P.L. 107-304), in large-scale
restoration efforts involving wetlands (the Everglades, for example), and in appropriations
for wetland programs. Other events that have recently attracted public and congressional
attention include Administration issuance of revised guidance regarding mitigation policies
and announcement of possible rule changes in response to a January 2001 Supreme Court
decision limiting which wetlands are regulated. These actions have been criticized by
wetland protection advocates, and legislation to reverse the 2001 Supreme Court ruling was
introduced February 27 (H.R. 962, S. 473). The Subcommittee on Fisheries, Wildlife, and
Water of the Senate Environment and Public Works Committee held a hearing to learn more
about Administration efforts in response to this ruling on June 10, 2003.
Abstract: The 108th Congress, like earlier
Congresses, may address various wetland
policy topics. Protection of wetlands has been
a priority of administrations for the past 20
years, generating congressional interest. The
Bush Administration has made some initial
pronouncements on wetlands, issuing "clarifying
guidance" for mitigation policies and
stating that it would be reviewing rules affecting
alteration of isolated wetlands in response
to a January 2001 Supreme Court ruling. It
also endorsed the no-net-loss concept and
emphasized related wetland protection efforts.
Legislation to reverse the 2001 Court ruling
has been introduced (H.R. 962, S. 473), and a
subcommittee of the Senate Committee on
Environment and Public Works held a hearing
on the effects of this ruling on June 10, 2003.
The 107th Congress reauthorized and
amended both agricultural wetland protection
programs in the 2002 farm bill and a migratory
waterfowl habitat protection program in
the North American Wetlands Conservation
Act. Even with these actions, it was less
active in considering wetland topics than
recent Congresses, which had examined controversies
over such topics as: applying federal
regulations on private lands; rates and causes
of wetlands loss; acceptable rates of loss;
implementing farm bill provisions; and
changes to the federal permit program.
Legal decisions and administrative actions
raise concerns that cause Congress to
examine aspects of wetland protection efforts.
Examples of such actions include: implementation
of Corps of Engineers changes to the
nationwide permit program (changes generally
opposed by developers); a 1997 court decision
that overturned the Tulloch rule, which had
expanded regulation to include excavation;
and redefining key wetlands permit regulatory
terms in revised rules issued in May 2002.
Reasons for frequent and intense controversy
over wetland protection include their physical
characteristics, the rate of loss, the ways in
which federal laws currently protect them, and
the fact that 75% of remaining U.S. wetlands
are located on private lands.
Wetlands occur in a wide variety of
physical forms throughout the country. The
numerous values these areas provide, such as
wildlife habitat and water storage and purification,
also vary widely.
The U.S. Fish and Wildlife Service
estimates that total wetland acreage in the
lower 48 states has declined from more than
220 million acres 3 centuries ago to 105.5
million acres in 1997. The remaining acreage
continues to be modified or disappear, although
at a much slower rate, while restoration
efforts have greatly expanded in recent
years. Some regions reportedly are approaching
the national policy goal of no-net-loss.
Instead of a single comprehensive federal wetland protection
law, multiple laws provide varying levels of protection in different
forms: the permit program authorized in 404 in the Clean Water
Act; programs for agricultural wetlands; laws that protect specific
sites, such as in National Wildlife Refuge System units; and
laws that protect wetlands which perform certain functions,
such as sites along migratory bird flyways. Many protection
advocates view these laws and their implementation as inadequate
or uncoordinated. Others, who advocate the rights of property
owners and development interests, by contrast, characterize
these efforts, especially the 404 permit program, as too intrusive.
Numerous state and local wetland programs add to the complexity
of the protection effort. [read
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