Wetlands: An Overview of Issues

Recent Congresses have considered numerous policy topics that involve wetlands. Many reflect issues of long-standing interest, such as applying federal regulations on private lands, wetland loss rates, and restoration and creation accomplishments. In the 110th Congress, a few of the topics were new, such as wetlands provisions in the 2008 farm bill (P.L. 110-246). The 110th Congress also considered wetland topics at the program level, responding to legal decisions and administrative actions affecting the jurisdictional boundary limits of the federal wetland permit program in the Clean Water Act (CWA). Perhaps the issue receiving the greatest attention has been determining which wetlands should be included and excluded from permit requirements under the CWA’s regulatory program, as a result of Supreme Court rulings in 2001 (in the SWANCC case) that narrowed federal regulatory jurisdiction over certain isolated wetlands, and in June 2006 (in the Rapanos-Carabell decision) that left the jurisdictional reach of the permit program to be determined on a case-by-case basis. In response, legislation intended to reverse the Court’s rulings in these cases has been introduced regularly since the 107th Congress. In the 111th Congress, for the first time, one such bill has been approved by a congressional committee (S. 787, the Clean Water Restoration Act). The Obama Administration has not endorsed any specific legislation, but has identified general principles for legislation that would clarify waters protected by the CWA. Wetland protection efforts continue to engender controversy over issues of science and policy. Controversial topics include the rate and pattern of loss, whether all wetlands should be protected in a single fashion, the effectiveness of the current suite of laws in protecting them, and the fact that 75% of remaining U.S. wetlands are located on private lands. Many recent public and private efforts have sought to mitigate damage to wetlands and to protect them through acquisition, restoration, and enhancement, particularly coastal wetlands. The 3.4 million acres of marsh, swamp, forests, and barrier islands in coastal Louisiana constitute the largest wetland complex in the lower 48 states and are important spawning grounds for fish and shellfish, as well as habitat for migratory birds. The state’s wetlands have been weakened by flood control and other engineering projects that have altered water flow and led to erosion of land. These areas were damaged by hurricanes in 2005 and now are threatened by oil from the April 2010 explosion of the Deepwater Horizon rig in the Gulf of Mexico, as are other coastal wetlands in the Gulf. One reason for controversies about wetlands is that they occur in a wide variety of physical forms, and the numerous values they provide, such as wildlife habitat, also vary widely. In addition, the total wetland acreage in the lower 48 states is estimated to have declined from more than 220 million acres three centuries ago to 107.7 million acres in 2004. The national policy goal of no net loss, endorsed by administrations for the past two decades, has been reached, according to the Fish and Wildlife Service, as the rate of loss has been more than offset by net gains through expanded restoration efforts authorized in multiple laws. Many protection advocates say that net gains do not necessarily account for the changes in quality of the remaining wetlands, and many also view federal protection efforts as inadequate or uncoordinated. Others, who advocate the rights of property owners and development interests, characterize them as too intrusive. Numerous state and local wetland programs add to the complexity of the protection effort