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 report]