Serial no. tmi
TUL WSL
97th Congress 1
2d Session /
COMMITTEE PRINT
WETLAND MANAGEMENT
A REPORT
PREPARED BY THE
ENVIRONMENT AND NATURAL RESOURCES POLICY
DIVISION
OF THE
CONGRESSIONAL RESEARCH SERVICE
OF THE
LIBRARY OF CONGRESS
FOR THE
COMMITTEE ON ENVIRONMENT AND
PUBLIC WORKS
U.S. SENATE
WHOI
DOCUMENT
COLLECTION
SERIAL NO. 97-11
Printed for the use of the
Committee on Environment and Public Works
96-073 O
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1982
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97th Congress 1
2d Session J
COMMITTEE PRINT
WETLAND MANAGEMENT
A REPORT
PREPARED BY THE
ENVIRONMENT AND NATURAL RESOURCES POLICY
DIVISION
OF THE
CONGRESSIONAL RESEARCH SERVICE
OF THE
LIBRARY OF CONGRESS
FOR THE
COMMITTEE ON ENVIRONMENT AND
PUBLIC WORKS
U.S. SENATE
<3H
■ MS
WHOI
DOCUMENT
COLLECTION
SERIAL NO. 97-11
Printed for the use of the
Committee on Environment and Public Works
96-073 O
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1982
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ROBERT T. STAFFORD, Vermont, Chairman
HOWARD H. BAKER, Jr., Tennessee JENNINGS RANDOLPH, West Virginia
PETE V. DOMENICI, New Mexico LLOYD BENTSEN, Texas
JOHN H. CHAFEE, Rhode Island QUENTIN N. BURDICK, North Dakota
ALAN K. SIMPSON, Wyoming GARY HART, Colorado
JAMES ABDNOR, South Dakota DANIEL PATRICK MOYNIHAN, New York
STEVE SYMMS, Idaho GEORGE J. MITCHELL, Maine
SLADE GORTON, Washington MAX BAUCUS, Montana
FRANK H. MURKOWSKI, Alaska
Bailey Guard, Staff Director
John W. Yago, Jr., Minority Staff Director
(II)
ROBERT T. STAFFORD, VT., CHAIRMAN
HOWARD M. BAKCR, JR., TENM. JENNINGS RANDOLrH. W. VA.
PETT V. DOMENlCl. N. MIX. LLOYD BENTBEN. TEX.
JOHN M. CHAFEC. R.I. OUENTIN N. BURDICK. N. DAK.
ALAN K. BIMPSON. WYO. GARY MART. COLO.
irr^E'sY'MMT'lDAHO0'' SIobm" MITCHELL. MAIN. XICtHICD j&)lcitC& ^>CTXCtl(f
.LADE OORTON. WAEK. MAX BAUCUS. MONT. »W ' »•"*"
FRANK M. MURKOWSKI. ALASKA COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
BAILEY CUARO. 6TAFT DIRECTOR
JOHN W. YAOO. JR.. MINORITY STAFF OIRECTOB1 WASHINGTON, D.C. 20510
July 1, 1982
Mr. Gilbert T. Gude
Director
Congressional Research Service
Library of Congress
Washington, D.C. 20540
Dear Mr. Gude:
Both the Congress and the Executive Branch are examining
issues related to reauthorization of the Clean Water Act. Among
the issues of interest are the Act's Section 404 dredge and fill
permit program and, more broadly, management of the nation's
wetland resources.
I would like to inquire whether the Congressional
Research Service would be in a position to develop a wetlands
management report — one designed to be of assistance to those of
us engaged in the examination of these problems and programs.
If so, it seems to me that such a report might well include:
(1) discussion of the nation's wetland resources, their
functions and values, and impacts of typical activities on
wetlands;
(2) review of current Federal programs (particularly
Section 404 of the Clean Water Act) , and also of State programs
relating to wetlands; and
(3) review of past Congressional action with respect to
wetlands legislation.
It would also be useful to the Committee if your analysts
could summarize pro and con views on such topics as the scope or
coverage of the Section 404 program, the roles and interaction of
Federal agencies, roles of the Federal Government and the States
in managing wetlands, and research activities aimed at studying
and defining wetlands .
(Ill)
I understand that this proposal has been discussed with
Claudia Copeland and Jeffrey Zinn of the Environment and Natural
Resources Policy Division of CRS , who have expressed the view
that public discussion would benefit from a coherent examination
of these issues as well as their interest in pursuing this
opportunity.
The Senate Committee on Environment and Public Works has
scheduled hearings in late July on reauthorization of the Clean
Water Act, so that your early response could be especially
worthwhile.
Sincerely" yours, p
Robert T. Staff ord.
Chairman
RTS/BG
(IV)
Congressional Research Service
The Library of Congress
Washington. DC 20540 LETTER OF SUBMITTAL
July 6, 1982
Honorable Robert T. Stafford
Chairman
Committee on Environment and Public Works
U. S. Senate
Washington, D. C. 20510
Dear Mr. Chairman:
In response to your request, I am pleased to submit the report,
Wetland Management.
The first chapter summarizes pro and con views on several issues that
may arise during congressional debate about wetlands, including the scope
and coverage of the Clean Water Act Section 404 program, the roles and inter-
action of Federal agencies in wetland management, roles of the Federal Govern-
ment and the States in managing wetlands, and research activities aimed at
defining and evaluating wetland resources. The remaining four chapters pro-
vide background information on these issues.
The report describes the status of our knowledge about wetlands — the
general characteristics of wetlands, functions that they perform, and effects
of activities that alter wetlands. It also examines two alternative view-
points on wetlands: those of scientists, who emphasize the functions and
values of diverse wetland resources, and those of regulators, who focus on
elements that are common to all wetlands. The report describes Federal wet-
land programs, particularly regulatory programs under Section 404 and related
authorities, as well as other wetland acquisition and protection programs.
It examines varied approaches to wetland management developed by State and
local jurisdictions in recent years, discussing similarities and differences
between some of these State programs and the Federal regulatory program.
The report concludes with a review of Federal wetland legislation considered
from the 93rd Congress (1973-1974) up to the 97th Congress.
The report was prepared by Dr. Jeffery A. Zinn and Claudia Copeland of
the Environment and Natural Resources Policy Division. Mrs. Rosemary Pan-
zenbeck and Mrs. Arlette Gillis of the Environment and Natural Resources
Policy Division typed the manuscript.
We hope this report provides valuable information that will assist
congressional examination of these issues.
(V)
Congressional Research Service
The Library of Congress
Washington, D.C. 20540
WETLAND MANAGEMENT
Dr. Jeffrey A. Zinn
Specialist in Natural Resources Policy
and
Claudia Copeland
Analyst in Environmental Policy
Environment and Natural Resources Policy Division
July 2, 1982
(VIIi
CONTENTS
INTRODUCTION XI
WETLAND ISSUES NOW FACING CONGRESS 1
INTRODUCTION 1
WETLAND SCIENCE 3
WETLAND LAW 10
FEDERAL/STATE RELATIONS 25
WETLANDS : THE STATUS OF KNOWLEDGE 34
INTRODUCTION 34
DEFINING WETLANDS 35
General Characteristics 35
Scientists and Wetland Managers 38
Wetland Boundaries 41
WETLAND RESOURCES 44
Functions of Wetlands 44
Food Chain 45
Habitat 46
Hydrologic and Hydraulic 48
Water Quality Maintenance 49
Harvest and Heritage 50
Value of Wetlands 51
WETLAND ALTERATION 54
Filling 55
Dredging 56
Draining 57
Impoundment 59
Indirect Alterations 59
Creating Wetlands 60
WETLAND CENSUS— MEASURING CHANGE 61
SUMMARY 68
FEDERAL WETLAND PROGRAMS 71
INTRODUCTION 71
HISTORY OF NATIONAL INTEREST IN WETLANDS 72
FEDERAL PROGRAMS REGULATING ACTIVITIES IN WETLANDS 74
Section 10 74
Creation of the Section 404 Program 76
Implementing Section 404 78
Responses 79
The Permitting Process 88
The Role of EPA 93
Roles of the Fish and Wildlife Service and National Marine Fisheries
Service 95
(IX)
OTHER WETLAND PROGRAMS 96
Water Bank Program 96
Wetland Acquisition Programs of the Fish and Wildlife Service 97
Executive Order 11990 — Protection of Wetlands 98
Adverse Effects of Other Federal Programs 100
SUMMARY 101
STATE AND LOCAL WETLAND MANAGEMENT PROGRAMS 103
INTRODUCTION 103
STATE AND LOCAL PROGRAM CHARACTERISTICS 104
VIEWS FROM STATE PROGRAMS 110
SUMMARY 117
CONGRESSIONAL INTEREST IN WETLANDS 118
INTRODUCTION 118
THE 93rd CONGRESS 121
THE 94th CONGRESS 122
THE 95th CONGRESS 126
THE 96th CONGRESS 132
THE 97th CONGRESS 136
SUMMARY 137
SELECTED BIBLIOGRAPHY 140
APPENDIX A: TRANSPORTATION FILLS— A CASE STUDY 143
APPENDIX B: GUIDE TO FEDERAL WETLANDS— RELATED PROGRAMS 146
TABLES AND CHARTS
Figure 1 83
TABLE 1. Common Activities Which Impact Wetlands 54
TABLE 2. Summary of Changes in Extent of Corps Jurisdictional Authority
as Brought About by Changes in Definition of Navigable Water 85
TABLE ^3 . State Wetland Programs 106
TABLE 4. Numbers of Wetlands-Related Bills Introduced by Topical Category:
93rd through 97th Congresses 120
(X)
INTRODUCTION
Wetlands have been of high interest in Congress, as measured by the number
of bills introduced in the recent past. This interest can be traced to growing
conflict between two viewpoints about wetlands. The first viewpoint is that
wetlands are of high value, if left unmodified, and typically perform numerous
desirable services, from providing habitat to water purification and flood con-
trol. The second viewpoint is that many wetland areas could be better-used for
other purposes, but alteration is hindered by inflexible management at the Fed-
eral level, sustained and augmented by judicial decisions. Some believe that
the regulatory program unfairly limits personal property rights and usurps the
traditional prerogatives of land use planning at the local level. Seen from
this viewpoint, the potential values of natural wetlands are usually outweighed
by benefits to be derived from alteration to support other uses.
Both viewpoints have been strengthened since the most recent protracted
debate on wetlands that accompanied reauthorization of section 404 of the
Clean Water Act in 1977, and have generated growing controversy. The first
point of view has been reinforced by scientific research projects and pub-
lications about different functions of all types of wetlands; the second has
been reinforced by agency and court decisions that continue to support a broad
definition of wetland areas, and at the same time provide little latitude for
direct or indirect modification once an area has been defined as a regulated
wetland. As a result of the increased support for both of these two positions,
a large number of wetland-related bills have been introduced, many having
(XI)
CRS- xii
provisions which address the definition of wetland areas to which the section
404 dredge and fill permit program should apply.
Congress is considering reathorizing the Clean Water Act in 1982. One of
the most contentious issue areas is likely to be the section 404 permit pro-
gram. Topics of debate will include geographic coverage under section 404,
our present understanding of wetlands and their values, whether a Federal wet-
lands law is needed, whether the Clean Water Act or some other law is the
appropriate vehicle, and possible changes in the present relationship among
Federal, State, and local governments in the management of wetland areas.
Another impetus to Congressional consideration of wetlands issues is the
proposals of the Presidential Task Force on Regulatory Reform to modify the
section 404 program. The Task Force announced five initiatives on May 7, 1982
to streamline this program. These initiatives will be implemented through
administrative, rather than legislative channels. They include: simplifying
multilevel permit reviews, expanding use of general permits, increasing the
role of states in the permit program, reducing conflicting and overlapping
policies, and clarifying the scope of the permit program. Congress may want
to consider these initiatives in a legislative context.
This report provides background information that should be helpful in this
debate. The first chapter defines and briefly reviews issues of likely interest
in Congress during the anticipated wetland debate in 1982, summarizing pro and
con arguments for each issue. The second chapter examines the status of wetlands
from a scientific viewpoint; it includes a review of the status of the Nation's
wetland resources, current views on their functions and values, and impacts of
typical activities on wetlands. The third chapter reviews the array of Federal
programs that address wetlands, with particular attention to the development
and status of the section 404 dredge and fill permit program. The fourth
CRS-xiii
chapter reviews State and local programs which have been developed to manage
wetland resources. The fifth chapter takes a closer look at congressional
interests in wetlands during the past five Congresses (since 1973), with
emphasis on the legislative history of the section 404 program.
This report provides an overview of available information. Each chapter
contains numerous references to more detailed analyses. This document is
designed to help Congress focus on the policy questions; other sources should
be consulted for additional information on specific wetland topics.
CHAPTER I: WETLAND ISSUES NOW FACING CONGRESS
INTRODUCTION
Congress may examine a number of issues while it is considering reauthor-
ization of the Clean Water Act and other wetland legislative initiatives that
have been introduced in the 97th Congress. Brief discussions of each issue
are presented in Chapter I. They are cross-referenced to more detailed infor-
mation and analysis in Chapters II through V. These issues fall into three
categories: wetland science, wetland law, or Federal/State relations. Dis-
cussion of each issue includes a definition, followed by a brief presentation
of contrasting points of view. Neither the issue statements nor the discussion
represent conclusions or opinions of the Congressional Research Service. These
points of view have been expressed by individuals involved in wetland manage-
ment and wetland science.
Wetland management is primarily concerned with whether an area Is a wet-
land; if it is then certain rules apply. Wetland science is concerned with
variations among wetlands, and tends to include within Its boundaries of study
the broadest possible array of areas. These alternative perspectives are a
main source of divergent views. The regulatory programs attempt to balance
these views. Differences among State regulatory programs, and between these
programs and the Federal program are expressions of how these divergent views
are implemented.
The following issues are addressed in the remainder of Chapter I.
CRS-2
Wetland Science
1. Should Federal funding for wetland research be Increased?
2. In conducting research activities, should emphasis be given to
studying freshwater wetland resources?
3. Should future research activities be aimed at defining and evaluating
the economic value of wetlands?
Wetland Law
1. Should the area covered under the present section 404 program be
reduced?
2. Should some wetlands, by virtue of size, location, or other factors,
be excluded from a national resource management program or be managed differ-
ently?
3. Should the statutory relationship between the Environmental Protec-
tion Agency (EPA) and the U.S. Army Corps of Engineers under the Clean Water
Act's section 404 program be revised to give the Corps a clear leadership role?
4. Should Congress clarify national goals for a wetland management pro-
gram through some other legislative vehicle than a water pollution control law?
5. Should Federal law define the requirements for mitigation of adverse
impacts on wetlands as habitats and restoration of altered wetlands, which
currently are in the form of policy of the Fish and Wildlife Service (FWS)?
Should those requirements be extended to other Federal agencies, as well?
6. Should the process of section 404 permit review be streamlined?
State/Federal Relations
1. Should States be given a stronger role in managing the nation's wet-
land resources?
CRS-3
2. Should section 404 be revised to authorize delegation of wetland man-
agement authority by States to local governments?
3. Should State wetland programs be required to conform to a uniform
national definition of wetlands for regulatory purposes?
4. Should the national wetlands inventory be used as the basis for deter-
mining wetland boundaries under the regulatory program?
WETLAND SCIENCE
Issue 1
Should Federal funding for wetland research be increased? Many persons
contend that wetlands management efforts would be improved if there were
increased understanding of biological, chemical, and hydrological functions of
various types of wetlands, understanding that could best be provided as a
result of additional research activities. Other persons counter that we know
enough about wetlands now to make sound management decisions and that additional
research at this time is unlikely to provide a justifiable return, in terms of
improved management capability.
Pro
Many persons support the concept of additional wetlands research as a
means of improving wetlands management. In particular, these persons argue
that additional research can help to determine how to minimize adverse effects
of altering wetlands before pressures to convert these areas to other economic
uses actually result in loss of valued resources. For example, before about
1970, most wetland research was concentrated in coastal areas. As the Federal
and State coastal zone management programs developed during the 1970s, they
have been able to take advantage of the products from wetland research pro-
jects to place management of wetland resources within a broader context of
96-073 0-82-2
CRS-4
coastal resources management. Development of knowledge and understanding at
a similar level is needed for other wetland areas, a need that is reinforced
by the continued rapid conversion of wetland areas.
Proceedings of recent symposia show that gains in knowledge are being made
on all wetlands. Traditionally-valued functions, especially habitat for water-
fowl, have a strong research heritage. But knowledge about other functions
where the value could be very high, such as in waste assimilation and flood
control, are limited. A modest investment in research on these topics now may
save substantial Federal expenditures in public works projects in the future.
(See discussion of wetland values, pages 51-54.) Scientists have developed a
basic understanding of the roles wetlands can play in providing these valuable
services, and a limited amount of site-specific data (see pages 44-51). More
information that compares different types, sizes, locations, and conditions
of wetlands is now needed.
Knowledge about other functions was gained through research. Th~re may
be additional important functions to be discovered — those discoveries would
not be possible without research funds. The benefits of research are some-
times disappointing. Even when results do not demonstrate a hypothesis, the
knowledge gained is useful in focusing further lines of inquiry. Wetland
research has provided substantial advances in knowledge in the past 10 to 15
years — future benefits from continued research seem apparent.
Con
In response, other persons argue that we already know enough about wet-
lands in general to make reasonable management decisions. Increased knowledge
would improve that capability, but the cost-effectiveness of substantial new
research programs does not seem appropriate, especially in this time of budget
CRS-5
constraints. The payoff for increments of additional research is never cer-
tain, and in the case of wetlands research, even if such a program reached its
goals, the payoff would be modest, these persons contend. Research results
have helped solve practical problems occassionally , but often they just lead
to further research and answers to obscure questions of interest to the scien-
tific community alone.
One possible result of additional research data would be a growing justi-
fication for wetland acquisition. Increased knowledge and growing efforts to
protect areas, typically by acquisition, seem reinforcing, whether the topic is
wetlands or farmland or beaches. Additional acquisition, which might be stimu-
lated by additional research on a large scale, is not needed, nor does it appear
that the Nation can afford it at this time. In a few cases, wetland acquisi-
tion may be appropriate, but in most circumstances, other forms of protection,
even those that allow some modification, are more appropriate. Wetlands already
receive substantial recognition for their special values, which have been iden-
tified in completed research programs.
Issue 2
In conducting research activities, should emphasis be given to studying
freshwater wetland resources? Some persons take the position that freshwater
wetlands are more diverse, yet our knowledge of these resource systems is more
limited than is knowledge of coastal wetlands. Hence, special research atten-
tion should be paid to scientific studies of freshwater areas. Others respond
that the functions and values of most freshwater wetlands are reasonably well
understood today, so that there is little reason to emphasize research on one
wetlands type over another.
CRS-6
Pro
Proponents of additional research on freshwater systems point out that
before about 1970, most wetland research was concentrated on coastal areas.
As Federal and State coastal zone management programs developed, those pro-
grams have been able to take advantage of the products from such research
projects to place management of wetlands resources within a broader context of
coastal resources.
In contrast, our knowledge and understanding of non-coastal wetland areas
is considerably less, although it is these areas that are under the greatest
pressure for conversion. State and regional surveys have repeatedly shown that
losses in many freshwater areas have been high and accelerated from past levels
in recent years. (See discussion of wetlands inventory, pages 65-66.) But
relatively little is known about freshwater wetlands. They are more diverse
than coastal wetlands. Consequently, research results from one wetland type
generally are not transferable to draw conclusions about nearby wetlands of
another type. Only with increased and focused research can these functions
and their values in the diverse array of freshwater wetlands be understood.
Freshwater wetlands need to be studied just as coastal wetlands have; a result
of such studies should be recognition of high values, where appropriate, and
difficult degrees of protection under different circumstances.
Some of the largest conflicts over wetlands management decisions seem to
occur where research information is limited. Agencies charged with protecting
these resources will tend to be more skeptical of proposed changes if data are
lacking. Research results can provide a base for informed dialogue between
opposing points of view, especially when a strong protection program is com-
peting with a major development proposal.
CRS-7
Research is especially needed in areas where wetlands are scarce, where
they can perform particularly important functions, or where a large portion
of the wetland resource has already been lost. In a period of scarce research
funds, it is probably more important to increase work on fresh water wetlands
that are disappearing rapidly. One goal of research should be to gain enough
knowledge so that the functional value of all types of wetlands can be com-
pared. This capability would greatly enhance the decision-makers' capacity
to reach sound conclusions.
Con
Other persons counter that the functions and values of most freshwater
wetlands are already generally understood. Additional research would refine
our knowledge, but not at a level commensurate with dollars spent. Without
special incentives, freshwater wetlands research has increased greatly in the
past few years. Knowledge about freshwater wetlands is growing rapidly. Sci-
entific research has already produced a number of significant results. There
appears to be sufficient information on most of these areas to allow managers
to make informed decisions. Additional information may be of interest to sci-
entists, but it is less clear that it would provide incremental benefits to
managers.
If any special priority is to be given, perhaps it should go to research
on special wetlands in a natural condition. These areas include small wet-
lands, edge zones of wetlands, heavily modified wetlands, and created wetlands.
These types of areas appear to have different values from large, unmodified
wetlands. We need to learn more about these values, and whether valuable
natural resources are being lost when additional modification occurs.
CRS-8
Issue 3
Should future research activities be aimed at defining and evaluating the
economic value of wetlands? Some persons contend that wetland management
might be assisted by improved capability to translate the multiple functions
of wetlands into economic values which might then be utilized in management
decisions. Others take the position that, in dealing with resources as varied
as wetlands, it probably is not feasible and may not be desirable to emphasize
economic values above scientific considerations.
Pro
Some persons assert that the best decisions for society about resources
are typically made in economic terms. Economic terms should serve as a common
baseline for comparing alternatives, they say. While scientific investigation
of wetlands has been extensive, relatively little attention has been given
to improving valuation capabilities. Even for those wetlands where a great
deal of scientific research data are available, translation into economic
terms has usually not occurred. (See discussion on problems of valuation,
pages 52-53.) The figures available today are fragmentary. Economists dis-
agree on the best approach. Efforts to improve these capabilities will pay
considerable dividends in wetland managment in the future.
Before decisions can be made using economic terms, certain improvements
on present capabilities are required. They are:
1) A need for more analysis on how best to translate functions into
values;
2) An ability to compare different types of wetlands, and to incorporate
values based on the relative scarcity of a particular wetland; and
3) Tools to determine how proposed alterations in a portion of a wetland
area will affect values in other portions of that area.
CRS-9
Con
Other persons oppose increased emphasis on the role of economics in wet-
land management. Wetland management has been based on a consideration of
scientific facts within a political process. They assert that there are a
number of cases in which scientific knowledge has been translated into eco-
nomic terms does not appear to have affected the decision process. That pro-
cess may be less effective if It is too imprecise. Further, economic con-
siderations may be used in decisions where other considerations should be
more important.
These persons argue that economic terms offer no particular advantage
over scientific terms. In fact, using the economic structure may lead an
analyst to conclude that values can be more precisely compared than, in fact,
is possible. The problems associated with trying to attach economic measures
to natural resouce values have been discussed in a number of forums. Efforts
to use these measures frequently result in disagreements over procedure,
rather than resolution of the actual issue in question. This difficulty of
using economic measures has occurred in a number of topics in the past, most
notably water resource development projects.
Finally, economic measures can only be developed based on scientific
knowledge. Without the necessary base of knowledge, It will be impossible
to develop supportable values. Before developing an economic analysis
capability for most wetlands, considerably more scientific information is
needed on each wetland type, on comparing functions, and on functional
relationships among different wetlands.
CRS-10
WETLANDS LAW
Issue 1
Should the area covered under the present section 404 program be reduced?
Legal Interpretations of the Clean Water Act (FWPCA) have extended jurisdiction
to waters of the United States (see Chapter V), and the Corps has consequently
expanded the geographic scope of its regulatory program (see Chapter III). The
desirability of applying dredge and fill permit requirements to such an exten-
sive area, beyond the traditional navigable waters and adjacent wetlands, is
in question. Proponents of narrowing the scope of section 404 argue that the
current program is overly intrusive in private land use decisions, while oppon-
ents respond that valuable wetlands would be left unprotected by such a change.
Pro
Proponents of narrowing the scope of section 404 argue that the present
jurisdiction is too extensive. The resulting regulatory program is an undue
intrusion into traditional economic activities, including farming and harvesting
of timber, and into local land use planning. If these local and private activ-
ities are restricted, the land owner is denied use of his land. The section 404
program has become a form of Federal land use control in some areas, rather
than a water pollution control measure, as envisioned when enacted in 1972. In
addition, this provision, as applied, does not except wetlands that may have a
reduced value because they are small or have been created incidental to other
activities. The result is a lack of regulatory flexibility which has caused
numerous project delays and alterations that can be measured in economic costs
that outweigh the apparent values of the wetlands that are protected.
Limiting the scope of the program to waters considered to be traditionally
navigable, or capable of being made navigable (i.e., Phase I waters under the
CRS-11
current program), could have a number of administrative benefits, these persons
contend, since the miles of waters regulated would be reduced by a small per-
centage, while the number of wetland acres regulated would be reduced by a
large percentage (see pages 83-85). Such curtailment of the program would re-
duce the Corps' permit processing task and would enable Corps personnel to con-
centrate on permitting activities directly relating to navigation. In turn,
this would benefit persons interested in navigation who may have suffered per-
mit processing delays in the past as a result of the broad scope of the pro-
gram. Four bills have been introduced in the 97th Congress to reduce Federal
wetlands jurisdiction.
Con
Persons who oppose reducing the scope of section 404 argue that all wet-
land areas have a high value. The functions that combine to make up that
value are becoming better understood every year. But at the same time, the
Nation's wetland areas have been disappearing at a rapid rate (see pages 65-
68). As more is learned about the unique functions and capabilities of wet-
lands, the need to protect this disappearing resource becomes more apparent.
One means of protecting wetlands is protecting water quality in adjacent water-
ways. Protecting water quality, especially around small wetlands, may mean
some special management practices on adjacent buffer areas. A policy that per-
mits reduction of overall wetland resources would appear to be inconsistent
with newly recognized facts regarding the valued services provided by wetlands
in their natural condition and the rapid disappearence of such existing wetland
resources, these persons contend.
Supporters of the current section 404 program hold the view that the
Corps' regulatory program is an important mechanism for protecting the integ-
rity and use of the entire aquatic ecosystem, including wetlands. This
CRS-12
program may be the only means of protecting the entire aquatic ecosystem,
including wetlands. Moreover, it may be the only means of protecting some
particular types of wetlands, such as the pocosins in North Carolina (sev-
eral hundred thousand acres of freshwater wetlands concentrated in that
State). At the same time, there are other wetlands, particularly bottomland
hardwoods of the Lower Mississippi Valley, that are not protected under any
program. Thus, it could be argued that the geographic scope of the Corps
program should be enlarged, so as to encompass resources not presently pro-
tected.
Moreover, if the current program were restricted to so-called Phase I
waters — those considered to be navigable in the traditional sense — it is
likely that there would be reduced protection of water quality and of wetlands
in the other areas no longer included, except in those few States with strong
management programs.
Furthermore, it is uncertain whether major administrative savings would
be achieved by narrowing the scope of the current Federal program to Phase I
waters. The Corps of Engineers has reported that the majority of projects
which actually experience lengthy permitting delays are, in fact, located in
Phase I waters. Thus, it is unlikely that removal of Phase II and III waters
from the Federal program would provide relief or time savings to large, con-
troversial projects.
Issue 2
Should some wetlands, by virtue of size, location, or other factors, be
excluded from a national resource management program or be managed differently?
Some persons argue that certain wetlands (including very small wetlands, arti-
ficially created wetlands, and heavily modified wetlands) should be recog-
nized as different from all others and should be given special treatment under
CRS-13
the regulatory program. Recognition might take the form of modified review
procedures or complete exemption from regulatory review. Others respond that
the varied functions performed by wetlands, regardless of size or location,
require that they all should be afforded the protection of a uniform regulatory
process intended to determine the environmental impact of any material removal
or disposal project, before the project can be permitted.
Pro
Some persons contend that there should be a mechanism to exempt or modify
permitting requirements for certain wetland areas of the United States. They
argue that such wetlands, including substantially-altered wetlands and those
created ancillary to other activities, are not critical to maintenance and
enchancement of water quality in navigable waters — waters which were the
original focus of the section 404 program. Further, the value of many of these
areas to perform wetland functions is minimal because they are less likely
to provide multiple functions such as flood control, groundwater recharge, and
food chain productivity. Most State wetland programs recognize some differ-
ences by only applying to wetlands larger than a certain size and by recog-
nizing that wetlands of differing characteristics require different levels of
protection (see pages 104-105). It is inappropriate to require the same Fed-
eral review and permitting procedures for wetlands adjacent to navigable water-
ways and for other wetlands of limited value as well. The administrative costs
of carrying out permit review for certain wetland areas are not commensurate
with benefits these areas may provide. The costs are particularly burdensome
to small landowners.
These persons point out that it may be possible to eliminate the time-con-
suming permit review procedures of section 404 for small or artifically created
wetlands, as well as for others that have already been heavily modified by man's
CRS-14
activities in the past. One means of at least modifying the requirements might
be to adopt the Corps' abbreviated permit procedures for minor projects coming
only under section 10 of the Rivers and Harbors Act. Such activities can be
authorized through Letters of Permission, after coordination with appropriate
Federal and State agencies, but without a public hearing or administrative
referral process. Extension of that section 10 process to projects in lesser
wetland areas could achieve administrative and time savings but without
adversely affecting the wetland environment.
Con
Opponents of modifying the regulatory process for certain types of wet-
lands contend that water quality is not the only function that comes under the
umbrella of the Corps' public interest review. Other valued functions should
continue to be equally protected by the Corps' regulatory program. Many small
wetland areas and artif ically created wetlands are more fragile and may have
greater value than coastal wetlands. Such areas actually should be afforded
greater protection, rather than less, which would likely be the case under a
modified management arrangement. For example, isolated inland wetlands are
more easily disturbed and permanently altered by direct and indirect changes,
perhaps because of their small size and because of their separation from larger
hydrologic/hydraulic systems. But these small wetlands are highly valued for
waterfowl habitat. They are the principal areas of interest in the wetland
acquisition programs of the Interior and Agriculture Departments, evidence of
the high value of such areas (see pages 96-98).
Artif ically created wetlands often have similar high value. For example,
dredged material has created several thousand man-made islands, many of which
are being managed for wildlife habitat. The Corps has reported that a large
CRS-15
number of these artificial islands, located along the Intracoastal Waterway
System, shelter endangered species or provide critical habitat (see pages
60-61).
Likewise, areas such as bogs and swamps that may appear to have little
tangible value, often are associated with officially listed rare and endangered
species.
Finally, the functions performed by wetlands are diverse and dependent on
many characteristics other than size alone (including location and condition)
(see pages 35-38). It is not possible to accurately generalize about wetlands,
on the basis of only one or two factors, or to conclude that some have less
value .
Issue 3
Should the statutory relationship between EPA and the Corps of Engineers
under the section 404 program be revised to give the Corps the clear leader-
ship role? Because of a 1979 Attorney General's opinion, EPA currently defines
the jurisdictional reach of the section 404 program, although the Corps has
principal regulatory responsibilities. Some persons see this distinction as
confusing and inappropriate in view of original congressional intent and long-
standing administrative practice concerning the role of the Corps. Other per-
sons support the current process of shared responsibilites and consultation
and would oppose altering this relationship.
Pro
Under the current program there exist overlapping responsibilities and
confu sion about which Federal agencies are involved in examining a section 404
permit application, especially when trying to untangle the complex interagency
review processes called for in the Act (see pages 88-95). According to some
CRS-16
persons, the result can be delayed permit Issuance, particularly In cases of
complex applications — delays which may be costly to the applicant. Attorney
General Civiletti's 1979 advisory opinion stating that EPA, not the Corps,
should have the final say in determining the jurisdictional limits of the pro-
gram, has focused attention on this issue. It raises the question not only
of which agency has full regulatory authority but also of who has authority
to bring enforcement actions over activities occurring in navigable waters,
including the discharge and disposal of dredged material. Under the Reagan
Administration, the Justice Department has not taken steps to reverse the
Civiletti opinion. One reason that the Corps was given major responsibilities
under section 404 in 1972 was pressure from the dredging industry and others
to keep EPA out of matters concerning dredging and filling (see page 78).
Con
Other persons argue that the current Corps-EPA relationship should remain
unchanged. They contend that there should be little or no confusion regarding
responsibility under section 404, which is set out in the statutory provision
itself, and thus no need for legislative clarification. The Attorney General's
1979 advisory opinion spelled out the Corps-EPA relationship that is already
in the law, these persons say. In particular, EPA develops environmental
guidelines for the Corps' use In reviewing permit requests (section 404(b)),
and the agency may deny or restrict specific sites for dredged material dis-
posal, based on determination of adverse environmental effect (sec. 404(c)).
Each of these EPA activities is to be accomplished in conjunction or consul-
tation with the Corps of Engineers. Because section 404 is, in fact, part of
a water quality law, EPA's limited activities concerning water quality pro-
tection are entirely appropriate. EPA is not authorized, for example, to de-
termine the Corps' regulatory jurisdiction under section 10 of the Rivers and
CRS-17
Harbors Act, a related statute and program concerned with activity occurring
in waters that are navigable under the traditional definition. However, if
certain administrative confusion does exist between EPA and the Corps of Engi-
neers, it could be handled without legislative change.
Issue 4
Should Congress clarify national goals for a wetland management program
through some other legislative vehicle than a water pollution control law?
Some persons contend that, if a comprehensive wetland management program is
desired, Congress should enact such a program directly, rather than continuing
to take an indirect approach principally through section 404 of the Clean Water
Act. Others respond that the current water quality approach is, in fact, com-
prehensive enough as a national approach to managing wetlands.
Pro
Many persons believe that the established water quality approach to wet-
land management has a number of disadvantages, including the following, which
could be remedied by explicit wetland legislation.
1) Responsibility for wetland protection has been placed with an agency
(the Corps) that has not traditionally been concerned with environmental pro-
tection and has only slowly developed the expertise to deal with complex issues
of wetland science. In fact, the primary responsibilities of the Corps are
water resource development and navigation (see page 77-79). The Corps has be-
come overly-burdened by being made responsible for the additional water qual-
ity considerations inherent in section 404. It would be more sensible to locate
all wetland management responsibilities in a single agency that has environmen-
tal protection activities as one of its major missions, and that can Interre-
late water quality enhancement with other environmental goals.
CRS-18
2) Vast acreages of freshwater wetlands, particularly bottomland hard-
woods and prairie potholes, are excluded from effective regulatory protection
under the current program (see page 39). These wetlands represent a signif-
icant nonrenewable resource which should be protected by a national program,
as should all wetland areas identified in the national wetlands inventory.
3) Current debate — particularly about the section 404 program — tends to
concentrate on the question of which of the Nation's waterways are navigable
and which waterways, therefore, should be subject to some Federal regulatory
jurisdiction. Unfortunately, this focus does not set clear policy for wetland
areas of the United States because navigable streams and wetlands are not al-
ways associated with one another. Consequently, the current approach fails
to present national goals for a wetland management program. While wetland
protection may be an indirect beneficiary of this approach, a more direct
focus could involve some newer management tools including the critical area
concept and special area management planning.
4) The water quality functions performed by wetlands are among the high-
est values of such areas. However, the section 404 regulatory program is an
inefficient tool for recognizing other functions and values (see pages 77, 82).
For example, under a pollution control program, it is difficult to consider
the value of wetlands for migratory and waterfowl habitat, values that have
been recognized in separate Federal land acquisition and conservation programs.
A more comprehensive approach would allow a weighing of all functional changes
when considering effects of proposed alterations.
Con
In response, other persons contend that the current water quality approach
provides ample protection for wetlands and need not be revised. In fact, this
approach ensures thorough consideration of activities most likely to alter or
CRS-19
destroy such areas, namely draining, filling, and dredging of lands adjacent
to the Nation's waterways (see pages 54-59). To enact and implement a new
approach, perhaps with different emphasis, would risk disruption of programs
that have been reasonably successful in identifying and protecting valuable
wetland areas (see pages 88-93 for summary of permit program). Implementation
of a new program also would require identification of which wetlands would be
included, definition of agency responsibility, and decisions on other program
details that could disrupt ongoing efforts. Furthermore, the alternative to
the current approach preferred by some persons — Federal land use planning and
management — has so far proven to be unacceptable to many groups and individuals.
Interest in Federal land use legislation peaked in the early 1970s, and at the
present time it seems unlikely that Congress and the general public would
endorse moves in that direction.
Despite the Corps' traditional focus on water resources and navigation,
these persons point out that since 1977 the Corps has increasingly accepted
responsibility for additional areas of interest, including the environment
(see pages 78-88). The composition of the Corps' staff has changed, and more
recent hirings include personnel having ecological science background. These
experts now form a large portion of Corps of Engineers staff involved in permit
processing evaluation. That fact, coupled with high levels of Involvement by
EPA, the Fish and Wildlife Service, and the National Marine Fisheries Service,
help to assure consideration of environmental protection issues during review
of section 404 permit applications.
Issue 5
Should Federal law define the requirements for mitigation of adverse
impacts on wetlands as habitats and restoration of altered wetlands, which cur-
rently are in the form of policy of the Fish and Wildlife Service, and extend
96-073 0-82-3
CRS-20
those requirements to other Federal agencies, as well? Some persons contend
that giving statutory basis to this policy would promote interagency consis-
tency and elevate the stature of the mitigation concept when agencies review
a dredge or fill permit application. Other persons respond that the policy
could be adopted administratively by other Federal agencies, without any need
for statutory change, and could thus be applied flexibly, depending on a spe-
cific situation.
Pro
In January 1981 the Fish and Wildlife Service adopted a mitigation pol-
icy for making recommendations on proposed actions that may adversely affect
habitat (see page 54). The policy has two principles: (1) either avoidance
of the activity or compensation for the impact should be recommended in the
case of highly valued habitat resources; and (2) the degree of mitigation
requested should correspond to the value and scarcity of the habitat at risk.
Proponents argue that giving statutory basis to the current Fish and Wildlife
Service policy could overcome a number of current limitations. First, the
policy applies only to the Service; other agencies having major wetland review
responsibilities, such as the Corps, EPA, and the National Marine Fisheries
Service, do not have similar requirements. The value of this policy in
enhancing the Nation's dwindling wetland resources has already been demon-
strated in several cases. However, this limitation of the policy to a single
agency tends to be uneven within the Federal community, sometimes leading to
interagency conflict.
Second, giving the policy statutory basis could also succeed in broadening
its current focus, which Is now mitigating losses of fish and wildlife habitat.
Other possible impacts on proposed actions, on public health or heritage values,
CRS-21
for example, are not specifically included. Moreover, the policy does not pro-
vide for consideration of other functions in wetland areas, such as flood con-
trol, groundwater recharge, or nutrient productivity, which may be as highly
valued but may also be incompatible with wildlife habitat in some cases (see
page 50). Involving other agencies and their programmatic coverage in wetlands
could enlarge application of the mitigation program to include these additional
functions.
Third, the definition of mitigation incorporated in the policy statement
was derived from Council on Environmental Quality regulations for implementing
the National Environmental Policy Act. Lacking a statutory basis, the defin-
ition of such an important concept is likely to be subject to considerable
debate and challenge. This has been true, for example, of the term "wetlands,"
which has had various judicial and regulatory interpretations, but no statutory
definition.
Finally, Congress has had no formal role in formulating the Fish and Wild-
life Service mitigation policy. Considering the importance of the issues in-
volved— making recommendations that may alter landowners' and developers' plans
and affect land values — there is major interest in the policy, which should be
reviewed by Congress and, if judged appropriate, authorized in law.
Con
Other persons take the position that it would be unwise to define in law
the roles of wetland mitigation and restoration. Doing so could prove to be
overly restrictive in view of the variability of wetland types and their func-
tions.
First, an administrative policy offers greater flexibility, both for
developers (project applicants) and Federal agencies. With flexibility, the
agency can respond more easily to case-by-case differences, which frequently
CRS-22
arise in plans that may affect wetlands, and to any changing national views
about the need to protect wetland areas. Explicit legislative language might
be so rigid as to hinder the agency from considering situations that are
exceptions.
Second, although the Fish and Wildlife Service is the only agency that so
far has adopted an explicit mitigation policy, others could do so, in order to
mitigate damage to other wetlands functions besides habitat. Indeed, Presi-
dential Executive Order 11990 does require each Federal agency to minimize
damage or loss of wetlands, and to protect or enhance their beneficial values
(see pages 98-99).
Finally, these persons point out there is considerable public and scien-
tific dispute about the relative functions of different wetlands types. The
congressional forum may be inappropriate for resolving complex disputes about
mitigating damages. While Congress might give Federal agencies general policy
guidance on mitigation and restoration, the administrative agencies should con-
tinue to develop many more specific policies or rules, within their areas of
expertise.
Issue 6
Should the process of section 404 permit review be streamlined? Several
Federal agencies are involved in reviewing and consulting on permit appli-
cations. Frequently the result is duplication, poor interagency coordination,
confusion, and delays. Some persons — particularly those who find themselves
"victims" of the review process — argue that administrative and legislative
changes should be made to speed up the process. Opponents respond that, as
currently operating, the review process is necessary to ensure environmental
protection and to balance public interest considerations.
CRS-23
Pro
Several steps could be taken to streamline section 404 permitting. These
efforts would be beneficial to small landowners who frequently cannot afford
delay, as well as to larger developers who bear large costs when regulatory
delays occur. The regional and national permit programs have already been
helpful, and other actions could be initiated (see pages 91-92 for discussion
of regional and national permits).
1) Formalize interagency coordination. The Corps could be required to
enter into formal agreements with other Federal agencies to coordinate permit
review and specific activities such as site inspection. A number of Corps
districts have individual arrangements of this type now with some Federal agen-
cies and with some States, as well. If extended to all districts, it would be
possible to avoid duplication of efforts and achieve time savings. In specific
areas where States or other Federal agencies have a comprehensive program in
place, the Corps could delegate its authority, subject to a recapture provis-
ion, so that wetlands considerations are integrated into planning by the lead
agency in the area (see North Carolina example, page 110).
2) Impose time limits on permit issuance. Section 404 could be amended to
provide that a permit would issue automatically within 90 days after a complete
application is filed, unless the Corps denies a permit within that time or
determines that the proposal's magnitude requires an environmental impact state-
ment. Such a time limitation would not only reduce an applicant's delay and
uncertainty, but would also provide incentive to other Federal agencies to ex-
amine a permit request promptly. Ninety days is an appropriate limit for two
reasons: first, section 404 now provides that Federal agencies should attempt
to make permit decisions within 90 days, to the maximum extent practicable;
and second, the Corps reports that 70 percent of all applications are, in fact,
CRS-24
processed within 75 days. Computerizing applications and developing programs
to combine State and Federal applications are further reducing time require-
ments, and greater efficiencies are anticipated in the future.
3) Modify the authority of other Federal agencies to refer a disputed
application to higher level officials. Under this authority, EPA or the Fish
and Wildlife Service can object to the District Engineer's decision and request
that the permit be elevated to higher levels in the Department of the Army (see
pages 90-91, 95) Some persons contend that the referral authority tends to hold
some applicants hostage: in order to avoid delays that would result from
referral, an applicant may simply alter his project plan and thus satisfy the
reluctant agency. Moreover, it has been argued that the referral authority
results in greater consideration actually being given to environmental matters,
thus unbalancing the Corps' consideration of issues within its public interest
review. Finally, it may no longer be necessay to provide explicitly for
referral by environmental agencies, since during the last several years, the
Corps staff has been augmented with personnel fully capable of representing
such interests.
Con
Opponents of streamlining say that, while it may be desirable to obtain
better interagency cooperation, it would not necessarily be better to artifi-
cially limit the time for the permit review process. The current system of
permit review, involving several agencies having different missions (water
quality, fish and wildlife, impacts on marine species), serves to insure a
balancing of the public interest. In many cases, the thoroughness of review
would be reduced if a precise time limit were imposed on permit review, and
it is possible that adverse effects of a project might not be fully aired. The
CRS-25
same problems could result if the referral authority of other Federal environ-
mental agencies were eliminated or modified. Increasing State involvement in
the permit program, national permits and other initiatives are already reducing
permit processing time. If these changes provide the same levels of protection
while reducing permit processing time, their value will be proven in actual
experience, rather than rest on an arbitrary legislative mandate.
It also is questionable how much delay actually results from interagency
review procedures. The Fish and Wildlife Service estimates that most permit
applications are processed efficiently and that the average review time for a
permit is brief. In addition, the Corps has reported that projects that do
experience lengthy delays prior to construction frequently are waiting for
more than just a section 404 permit. Many, in fact, are held up by various
State and local permit decisions rather than Federal approvals.
FEDERAL/STATE RELATIONS
Issue 1
Should States be given a stonger role in managing the Nation's wetland
resources, for example, by encouraging transfer of program responsibility that
is now partially authorized in section 404 of the Clean Water Act or, if
necessary, by developing new incentives for the States to assume these respon-
sibilities? Many persons contend that programs for wetland protection and
management are best carried out primarily by the States, which have greater
familiarity with conditions within their jurisdictions. Other persons respond
that wetland protection is better served by a section 404 program that Is
national in character, in order to ensure consistent application of resource
management principles.
CRS-26
Pro
Proponents of transfering wetland regulatory responsibilities to the
States favor reduced Federal control over land use decisions that tradition-
ally have been the responsibility of State and local government. With program
transfer, they assert, such decisionmaking could be done by officials who are
likely to be most familiar with local needs and unique situations. A reduced
Federal role would eliminate problems that may exist now of the Federal govern-
ment second-guessing the States in areas of their decisionmaking and expertise.
It would also be consistent with the New Federalism concept, which seeks to
shift such program responsibilities away from the Federal level.
Certain savings are likely to be achieved as well, according to these per-
sons. First, program transfer would eliminate problems of Federal and State
duplication of paperwork during review of permit applications. Problems of
duplication and even contradiction are most likely to occur in the case of
States that have strong wetland protection programs authorized by their own
statutes (see page 108-109, 114-116). Second, project applicants could expect
benefits as a result of dealing primarily with State government rather than
both Federal and State (see pages 115-116 for comments on this problem). These
benefits would be in the form of reduced time delay for permit issuance and
of basic administrative cost savings. Such a program would still recognize a
national interest and Federal involvement for the few very large projects pro-
posed every year that are truly of national significance.
Con
Other persons argue that the Federal regulatory role is necessary in order
to ensure consistent national application of resource management principles.
Many of the resources protected under the Federal program have interstate value,
such as migratory fish and wildlife, which would not necessarily be as well
CRS-27
protected under State-based programs (see pages A5-51 for discussion of wetland
functions). The Federal regulatory role may well serve to make existing State
and local programs more effective and more consistant. At the same time, the
decentralized offices of the Corps' 38 District Engineers provide flexibility
to recognize specific State and regional needs.
Another concern of some of these persons is that greater State assumption
of regulatory responsibility in these areas could result in reduced water qual-
ity and wetland protection, as well as uneven regulatory patterns among the
States. For example, States with coastal wetlands have, in many cases, oper-
ated strong wetland programs (see Chapter IV), and it is likely that these
States would continue their efforts. However, in the absence of a visible Fed-
eral leadership role and without adequate Federal funding support other States
may be unwilling to assume added or new responsibilities, and they might conduct
only a minimal program.
Finally, it is uncertain whether major time savings will be achieved in
project review, particularly for large development projects, some of which have
experienced lengthy permit delays. The Corps has reported that the few large
projects which account for the preponderance of economic activity (commercial
and industrial developments) regulated under its program would continue to fall
under the National Environmental Policy Act. In addition, according to the
Corps' analyses, it is frequently State and local activities, such as review
and issuance of water quality certificates, that are the greatest cause of pro-
ject delay.
Issue 2
Should section 404 be revised to authorize delegation of wetland manage-
ment authority by States to local governments? Since States may already assume
responsibility for a portion of the section 404 program, some persons contend
CRS-28
that is would be desirable to encourage delegation of this State authority to
local governments, as well, because of strong local interest in and knowledge
of wetlands within their jurisdictions. Other persons respond, however, that
problems of conflicting interest, inconsistency, and administrative difficul-
ties, would be greater under locally-managed wetland programs.
Pro
In the 1977 Clean Water Act amendments, Congress authorized delegation
of section 404 authority to qualified States but provided no mechanism for
delegation of the national program to local governments. However, some persons
contend that there are several reasons why it may now be appropriate to do so.
Several States have wetland programs that rely on local government for
implementation. In these States, such as Connecticut, the State cannot partic-
ipate in the Federal program because it has delegated management responsibil-
ities for freshwater wetlands to local government. Yet the State/local partner-
ship, at least in Connecticut, is working well, according to a State official.
Lessons from the Federal coastal zone management program may also be in-
structive, according to this viewpoint. Several States with approved coastal
plans are implementing them by requiring local jurisdictions to develop detailed
plans that are then approved by the State. These plans become the vehicle for
implementing the more general State plan. When local jurisdictions refuse to
take on these responsibilities, the State steps in, but most local jurisdic-
tions apparently prefer the option of operating their own programs. Local pro-
grams can allow for State review and involvement when the issue is of more than
local concern.
The best program can occur when local officials, who know local conditions,
have a strong role. States should retain an ability to intercede in a local
program, just as the Federal government now can intercede in an approved State
CRS-29
program under certain circumstances. Based on experience with coastal zone
management and other Federal programs, it may be most efficient to delegate
authority to States and let them determine how that delegated authority will
be allocated among the State and local levels.
Con
Other persons cite reasons why delegation to local government should not
occur. Local government represents local interests. But most wetlands, even
small ones, are of greater than local value. These persons contend that one
result of local management would be that State and even national interests
may not be properly represented. Political influences are strong at the local
level, and States would have to retain a major capacity to deal with local
governments and project proposals. One result might be considerable duplica-
tion between State and local efforts, just as Federal and State efforts are
often duplicative, yet inconsistent, at present (see Chapter IV).
The coastal zone management experience offers some negative examples,
where communities have been unwilling to participate. The result is a check-
ered pattern of State administration and local administration, as some commun-
ities take the initiative while others neglect this responsibility, requiring
States to impose controls. Reasons to oppose this approach can be summarized
as follows: local governments are subject to political influence, local gov-
ernments lack technical capability, and there may be institutional or other
barriers perventing the Federal government from dealing directly with local
governments. Experience with other Federal resource management programs in
which local governments have major roles generally indicates that this approach
is no panacea.
CRS-30
Issue 3
Should State wetland programs be required to conform to a single national
definition of wetlands for regulatory purposes? Some persons contend that,
because current State wetland programs utilize different definitions, all of
which are at variance with the Federal definition of wetlands, it would be ad-
ministratively more efficient if all were to adopt a single, consistent defin-
ition. Other persons respond that to force consistency among all programs,
by imposing a single definition, would hinder the flexibility of States.
Pro
The present regulatory situation where States define wetlands using dif-
ferent parameters leads to inconsistencies and inequities, some persons assert.
These definitions may be fine for individual State programs, but they will cause
confusion for applicants if States assume responsibilities in the Federal pro-
gram. It is easy to imagine an applicant's confusion when the State indicates
it operates two programs (a Federal and a State wetland program) with differ-
ent geographic boundaries on the same topic. Problems with the present approach
derive from some States that are only managing wetlands larger than a defined
size, and from soil, vegetation, and water coverage being used differently to
define regulated areas In various States.
A single definition would reinforce uniform national wetland management
goals. States could identify additional management goals, and additional wet-
land areas for purposes of attaining those goals, but the Federal-State program
should provide a nationally-consistent baseline for wetlands management. This
consistency may help permit applicants to be better aware of the requirements
of this program. It would also improve the image of the Federal and State pro-
grams as consistent and coordinated efforts.
CRS-31
Con
Other persons respond that the present system works acceptably. States
have defined wetlands and management goals for purposes that are different from
the Federal water quality goal. Some States that have initiated a wetland pro-
gram would now like to gain increased responsibilities through a stronger role
in the Federal program. So long as the administering State agency can properly
maintain the separated identities of these two programs, there is no reason to
force consistency. The benefits to applicants would be negligible so long as
the State agency can clearly indicate how, geographically and procedurally,
the two programs operate, and how they overlap and differ.
The Federal program should not alter the flexibility of States to admin-
ister more, the same, or less wetlands or wetland parameters than the Federal
program. The Federal government should try to encourage States to participate
more actively in the Federal program; a requirement to adopt a uniform defin-
ition of key terms would be a strong disincentive. The present Federal program
should remain in place in States that choose not to assume responsibilities.
Issue 4
Should the national wetlands inventory be used as the basis for deter-
mining wetland boundaries under the regulatory program? Some persons contend
that the current national assessment is designed to identify all of the
Nation's wetlands and, thus, is an appropriate definitional tool for the
section 404 regulatory program. Other persons respond that the wetlands inven-
tory is primarily a scientific effort, with purposes and goals that differ from
those of a regulatory program, and should not be utilized for purposes of regu-
lation.
CRS-32
Pro
The Federal wetlands inventory, now being conducted by the Fish and Wild-
life Service is designed to identify all the Nation's wetlands. It will pro-
vide a current national assessment of wetland resources (see page 62). The
inventory should be periodically updated to show changes in each of the major
categories of wetlands resources. As an all-inclusive survey, it locates
wetland areas that are both within and outside the jurisdiction of section 404
as the regulations currently define wetlands. Some persons argue that the
inventory would be a good point of departure for determining If a wetland area
is to be subject to section 404. Their view Is that is an area is identified
as a wetland by the inventory, then it should be regulated as a wetland, that
is, making the area subject to section 404.
Con
Other persons respond that the inventory is a tool of wetlands science.
Its purpose and goals are primarily scientific, while the wetland regulatory
program has different goals (compare pages 61-64 to pages 79-82). Further,
State programs already use different definitions for wetlands, and many of
these programs even have their own inventory requirements. As with the Fed-
eral regulatory program, the key question at State and local levels Is whether
an area is or is not part of a regulated wetland. Therefore, the inventory
should not be a major tool in the regulatory program.
The maps, covering large areas, are prepared from aerial photography.
Many wetlands are located in dense vegetation or forested areas. Consequently,
for reasons of scale and ground cover, boundaries can only be approximated.
While these boundaries are accurate, they are not of the precision necessary
to make regulatory decisions. Most regulatory proposals require a site visit
or precise mapping to determine resource boundaries and predict possible
CRS-33
impacts. These persons point out that the inventory will be extremely valuable
for wetlands scientists and as a resource survey tool; it should not be placed
in a situation where it could be discredited through attempts to use it to
solve regulatory questions.
The new classification system and more sophisticated survey tools show
areas that have not been designated as wetlands before, for scientific pur-
poses. The regulatory program is not going to expand because the inventory
has designated additional wetland areas. Some States have found the Federal
inventory to be insufficient, initiating their own efforts at determining
boundaries and areas under jurisdiction. The roles of the regulatory program
and the inventory should not be blurred together — to do so would discredit
each effort.
CRS-34
CHAPTER II: WETLANDS: THE STATUS OF KNOWLEDGE
INTRODUCTION
Wetlands have characteristics that make them different from other land-
forms. Because of these characteristics, certain functions are provided more
successfully than in other areas, functions that have considerable value. But
if wetland areas are altered, they can provide still different functions of
high value. In this conflicting set of choices, society has, in recent years,
decided to manage and preserve more wetland areas.
Management of wetland areas requires knowledge about the qualities of this
resource, about measuring and comparing functions and values found in wetlands,
and about the status of these functions and values in current policy. In man-
aging wetland resources, scientists are the knowledge brokers, managers the
implementers, and policy makers the rule setters. One presumes that the rules
will be most logical and the management most effective if the rules are set
and wetlands managed using the best knowledge base. This chapter sets out
the current status of knowledge about wetlands and discusses the implications
of what is known, as well as what is not known, for wetlands management. The
contribution of science to wetlands management is addressed by reviewing the
functions and values which research has identified as associated with wetlands.
Forms of wetland alteration are also reviewed.
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DEFINING WETLANDS
General Characteristics
Swamps, tidal marshes, fens, freshwater marshes, bogs, prairie potholes —
these are but a few of the many names that describe wetland areas. No single
generally-accepted definition of the term wetland exists — a fact that makes
public controversy more difficult to resolve. Some are sandy, intertidal
areas with little vegetation, others have high water tables and grasses or
shrubs, while still others are dominated by tall trees and little water is
apparent from a cursory glance. But all wetlands have important unifying
characteristics that distinguish them from other landscape features.
First, wetland areas are distinguished by the degree of exposure to
water. Plant communities and animal populations found in wetlands are dif-
ferent from surrounding areas because the ground is wetter, often saturated
or inundated, and the specialized plant and animal communities that succeed
in wet conditions are found in this habitat. Yet wetlands vary greatly,
depending in part on the pattern of wetness at individual sites. Different
plant species tolerate water at different depths; some wetland plants are
found where there is no visible standing water during a portion of the year.
Coastal wetlands maybe inundated by tides each day. Other wetland areas may
be wet seasonally. Other characteristics of water, or the hydrologic regime,
that influence the nature of wetlands include temperature, water depth, and
water chemistry.
Second, wetland areas lie on the margin that separates water areas from
upland areas. Runoff from upland areas flows into wetlands, carrying sedi-
ments and pollutants. When adjacent water bodies flood, water elevations in
wetlands are raised and the wetland community is stressed. But even in nor-
mal conditions, wetlands are influenced by inputs from both environments.
96-073 0-82
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While all wetlands have these two characteristics, they differ from site
to site. Three additional characteristics, size, location and condition, fur-
ther distinguish each wetland.
Wetlands vary greatly in size, from broad expanses along the Southeast
and Gulf Coasts to small pockets in the arid West and the formerly-glaciated
Northeast. Some large wetland areas have been the sites of large manmade alter-
ations. One might rationalize that any recognized functions that are reduced
by alteration of small portions of larger wetland areas are insignificant,
since only a small part of the total area is altered. 1/ This reasoning is
often inaccurate, however. Wetlands are water systems and any alteration
affecting the movement or quality of water is transmitted to other areas where
water movement patterns or quality are also changed.
Size does not necessarily correlate with the ability to perform the var-
ious functions associated with each type of wetland. While some of the smallest
wetlands contain less complex ecosystems and may, therefore, have less overall
natural value, the opposite also may be true.
The location of any wetland area in relation to adjacent ecosystems and
human activities has a major influence on the functions it performs. Human
activities that alter land adjacent to wetlands, such as clearing surrounding
vegetated areas for agriculture or developing land as building sites, affect
wetland functions. These changes alter key natural inputs that sustain wet-
lands, including the rate and pattern of water flow and the rate, pattern,
and makeup of sediments. Wetlands most distant from developments will usually
be altered least. A second aspect of location is relationships among wetland
1/ The terms "function" and "value" are used throughout the report.
"Function" means the service provided by wetlands such as habitat or flood
control. "Value" is a measure, usually economic, of wetlands performing one
or more functions.
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types. In many coastal areas different types of wetlands are found In close
proximity, exchanging materials and chemicals, and increasing the overall
ecological diversity and natural productivity of the composite wetland and
water system.
Condition (the degree to which a wetland has been altered by human
activity) is an important variable for assessing the functional potential
of wetlands. The most productive wetlands, that is areas that support large
and diverse populations, are usually associated with minimal human modifica-
tion. Wetlands are dynamic and transitory systems that respond easily and
rapidly to external changes. Wetlands can also be manipulated to provide
more of a desired function, but often at the expense of the diversity of the
system's productivity. For example, the U.S. Fish and Wildlife Service has
been mandated by Congress to establish wildlife refuges that provide habitat
for waterfowl. In some locations this habitat has been enhanced by construc-
ting low dams and establishing permanent shallow water areas for nesting and
feeding. This change in habitat may be an improvement for the waterfowl,
but it may reduce the overall wetland ecosystem's productivity.
Different types of wetlands are being altered at different rates, largely
in response to local economic activities rather than determinations that wet-
land losses will not be significant. For example, with the accelerated demand
for farmland, the prairie potholes in the Northern Plains have been drained
at a fast rate in recent years. In south Louisiana, the increased pressure
to locate and develop domestic sources of oil and gas has intensified efforts
to modify coastal wetlands.
Given the wide variation in size, location, and condition, many distinct
wetland types can be identified. A layman's list might include marshes,
swamps, and potholes. Similar wetlands may have different names in various
CRS-38
regions. Scientists have developed a complex taxonomic structure for differ-
entiating wetlands. For example, the Fish and Wildlife Service's current
scientific classification system identifies 55 classes of wetlands and deep-
water habitats. If These have complex names such as tidal rocky shore, or
intertidal scrub-shrub wetland.
Scientists and Wetland Managers
Two distinct interests in wetlands have evolved during the past years.
One is the study of wetlands, or wetland science. The other is management of
wetlands through regulations designed to control their modification, either
through prohibiting or modifying changes or through enhancing certain funtions.
These interests overlap considerably. Research results contribute to an under-
standing of wetlands that will, in theory, lead to an improved management pro-
gram. Management programs have been designed to protect the functions and
values articulated by scientists. These programs have become more prominent
at a time when a growing number of wetland areas have been altered and when
scientists are learning more about functions and values. While management
programs and science often work together, they have significant differences.
These differences include defining the extent of wetland areas of interest,
on the one hand, and concerns for the functions and values of wetlands on the
other. While both interests agree that wetlands are described by the qualities
described in the preceding subsection, they define the term in different ways.
Wetland science takes an expansive and flexible approach to the subject.
The most recent national scientific classification system was developed and
2/ U.S. Department of the Interior, Fish and Wildlife Service, Office of
Biological Services. Classification of Wetlands and Deepwater Habitats of
the United States. FWS/OBS-79/31 . Prepared by Lewis Cowardin, et al. Wash-
ington, U.S. Govt. Print. Off., Dec 1979. p. 50.
CRS-39
adopted by the U.S. Fish and Wildlife Service in 1980. 3/ In it, wetlands
are defined as follows:
Wetlands are lands transitional between terrestrial and
aquatic systems where the water table is usually at or near the
surface or the land is covered by shallow water. For purposes
of this classification wetlands must have one or more of the
following three attributes: (1) at least periodically, the
land supports predominantly hydrophytes, (2) the substrate is
predominantly undrained hydric soil, and (3) the substrate is
nonsoil and is saturated with water or covered by shallow water
at some time during the growing season of each year. 4/
Federal regulatory programs 5/ 6/ take a more circumscribed view, so the
area regulated is smaller than the area encompassed by the types of conditions
described as wetlands for scientific purposes. These Federal programs apply
only to wetlands greater than a minimum size (10 acres) and areas with water
flows greater than a minimum rate (5 cubic feet per second). The definition
of each area, this is, whether it is a wetland or not, is critical, having
economic and other implications. The Federal regulatory definition found in
the U.S. Army Corps of Engineers regulations, " describes them in the following
way:
The term "wetlands" means those areas that are inundated
by surface or ground water with a frequency sufficient to support
and under normal circumstances does or would support a prevalence
3/ The U.S. Fish and Wildlife Service has interests in both wetland
science and wetland management. It has traditionally been the leading
Federal agency in wetland science.
4/ U.S. Department of the Interior, Classification of Wetlands, p. 3.
5/ Unless otherwise stated, all references to management programs refer
specifically to the Federal permit programs administered by the U.S. Army
Corps of Engineers under Section 404 of the Clean Water Act, as amended, and
under Section 10 of the Rivers and Harbors Act of 1899. The complex structure
of the Federal programs is discussed in Chapter III.
6/ A further confusing factor is that State and local regulatory pro-
grams, using different wetland definitions, regulate different wetland areas.
CRS-40
of vegetative or aquatic life that requires saturated or season-
ally saturated soil conditions for growth and reproduction. Wet-
lands generally include swamps, marshes, bogs, and similar areas
such as sloughs, potholes, wet meadows, river overflows, mud flats,
and natural ponds. 7/
Scientists are particularly interested in variations among wetlands. What
are the functions and values of different wetland types under different con-
ditions? For example, recent research results show tidal wetlands less impor-
tant in supporting juvenile populations of commercially-valuable fish popu-
lations in southern California than in the southeastern United States. 8/
Tidal wetlands, although located in similar positions in the hydrologic sys-
tems of both regions of the country, are performing different functions at
different levels. Economists and ecologists have been using this knowledge
of functions to attempt to estimate the economic value of wetlands. Success
in these efforts has become increasingly important as all levels of government
have been confronted with the need to define more precisely why wetland areas
should be protected.
Wetland managers' needs may seem less complicated. Most importantly, they
must determine if a site is a wetland. When a site is determined to be a wet-
land, then the regulatory rules apply. (These rules have limited latitude to
accommodate variations in wetland functions.) While scientists are concerned
with understanding the differences in the two types of tidal wetlands described
above, managers treat them in a similar way in the present Federal regulatory
program. One wetland question that exemplifies the differing concerns of the
scientist and the manager is determining wetland boundaries.
7/ 33 C.F.R. 323.2.
8/ Clark, John and Judith Clark, eds. Scientists' Report: The National
Symposium on Wetlands. Washington, National Wetlands Technical Council, 1979.
p. 11 , 15.
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Wetland Boundaries
Setting wetland boundaries Is an especially critical Issue because they
determine who may be subject to regulation. Areas outside defined wetland
areas are generally subject to less stringent regulation and planning stan-
dards. Pressures to define wetland boundaries can be extensive. One author
noted that economic factors are extremely important:
Although many boundary problems appear to be of a technical
nature, very few really are. Almost all difficulties are directly
caused by or relating to money, sometimes big money.
The Problem. Three kinds of money are involved:
1. The money which the land owner expects to gain by developing water-
front property and other wetlands.
2. The money which each city or town must spend to define wetlands
under the Act. [Act refers to the Connecticut State wetlands law]
3. The money which will be needed for the policing of the Act and
the defense of the wetlands. 9/
A major problem with determining where boundaries should be drawn for
purposes of regulation is that all areas included under a definition of wet-
land areas do not perform the same functions. From an ecological point of view,
the wetland communities with the greatest diversity and productivity are gen-
erally of highest value. Other points of view recognize other measures of
comparative value such as hydrologlc recharge /discharge potential, pollution
control, general economics, and aesthetics. Boundaries for each value may
differ. Federal regulations recognize a number of functions that can give
value to wetlands, but are silent on how these functions are to be measured
9/ Greullch, Gunther. Problems in Delineating Wetlands Boundaries. In
Proceedings: Second Wetlands Conference. Report No. 24. Storrs, University
of Connecticut, Institute of Water Resources, 1974. p. 55.
CRS-42
in the evaluation of a permit for activities that may affect a wetland area. 10/
One group of wetland scientists made the following observation:
An area can be considered a wetland when its value to society
as a wetland is higher than when it is used for any other purpose.
If wetlands are appreciated only for their dollar value then
most of these areas might rapidly disappear to take the form of
housing developments, dumping grounds for pollutants, filled land,
etc. This definition points out sharply that no one factor, neither
dollar value nor soils characteristics nor biology, should be used
to define wetlands. 11/
Defining wetland areas is still a difficult legal and regulatory problem.
In a 1981 U.S. District Court decision in Louisiana, the court was asked to
determine what is a wetland. 12/ The judge considered wetlands based on three
characteristics: frequency of inundation, soil type, and plant type. Of par-
ticular importance is that the judge determined that if water tolerant plants
10/ 33 C.F.R. 320.4. Recognized functions, "important to the public
interest," include:
(i) Wetlands which serve important natural biological functions,
including food chain production, general habitat, and nesting, spawning,
rearing and resting sites for aquatic or land species;
(ii) Wetlands set aside for study of the aquatic environment or as
sanctuaries or refuges;
(iii) Wetlands the destruction or alteration of which would affect
detrimentally natural drainage characteristics, sedimentation patterns,
salinity distribution, flushing characteristics, current patterns, or
other environmental characteristics;
(iv) Wetlands which are significant in shielding other areas from
wave action, erosion, or storm damage. Such wetlands are often
associated with barrier beaches, islands, reefs and bars;
(v) Wetlands which serve as valuable storage areas for storm and
flood waters;
(vi) Wetlands which are prime natural recharge areas. Prime re-
charge areas are locations where surface and ground water are directly
interconnected; and
(vii) Wetlands which through natural water filtration processes
serve to purify water.
11/ Helfgott, T.B., et al. Island wetland definitions. In Proceedings:
Third Wetlands Conference. Report No. 26. Storrs, University of Connecticut,
Institute of Water Resources, 1976. p. 11.
12/ Avoyelles Sportsmen's League v. Alexander, 511 F. Supp 278 (W.D.La.
1981).
CRS-43
define a wetland area, then their absence must define the end of the wetland
area. 13/ Decisions such as this one have ramifications for large areas where
it is unclear whether lands should be defined as wetlands for regulatory pur-
poses. Of particular concern in this decision is the area known as bottomland
hardwoods in the lower Mississippi basin. Some say that thousands of acres
located in this area should be classified as wetlands while others say they
should be classified as non-wetlands. At stake are areas that would generate
high returns if they could be logged and then converted to other uses, especially
agriculture.
Pressure to set wetland boundaries can also be influenced by values that
vary among or within wetland areas. Past modifications, often associated with
changes in water flow patterns, have reduced wetland values at many sites.
In other areas, human action has accidentally created or expanded exist-
ing wetlands which actually may have enhanced values. For example, in certain
areas of the arid West, poor construction practices on irrigation canals have
led to extensive seepage and a high water table, creating adjacent wetlands.
Wetlands in these areas are usually of high habitat value as few alternative
sites exist. Increases in knowledge about wetlands, especially when changes
such as the examples cited above are being considered, have influenced the
evolution of wetlands policy. Knowledge about the functions of wetlands, and
measurements of value that those functions can provide are reviewed in the
next section.
13/ Anonymous. Judge Scott Decides Landmark Case — What is a Wetland.
In Aquanotes, v. 10, Issue 2. Louisiana State University, Sea Grant Col-
lege Program, June 1981. p. 1-3
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WETLAND RESOURCES
Functions of Wetlands
Wetland functions, the beneficial roles for which wetlands may be val-
ued, have been described extensively by scientists. The values of these
functions, individually and in composite, have been articulated by policy
makers and the public as rationale for protecting wetlands. The result has
been a sometimes confusing justification for halting conversion of wetlands
to other uses on national, State, and local levels. The functions that
scientists generally attribute to wetlands are reviewed below. It is impor-
tant to remember that all functions are not reinforcing, and some are in-
compatible. A leading wetland scientist noted the variability among wetland
functions:
Each state and federal regulatory program does not recog-
nize or protect all functional values of wetlands. When
viewed collectively, however, these programs recognize values
of wetlands that involve flood control, storm damage, water
quality, fish nursery, nutrient productivity, groundwater
supply, visual-cultural values, and wildlife. It Is widely
accepted, but not well specified by scientific documentation,
that each wetland functions neither to provide all of these
values nor any of them equally. 14/
The functions of wetlands can be variously described. A recent national
conference of wetland scientists was organized around the following functions:
food chain, habitat, hydrologic and hydraulic, water quality maintenance, and
harvest and heritage. 15/
14/ Larson, Joseph S. Wetland Value Assessment — State of the Art. In
National Wetlands Newsletter, v. 3, no. 2. Washington, Environmental Law
Institute, March-April 1981. p. 5.
15/ Greeson, Phillip, John Clark and Judith Clark (eds.). Wetland
Functions and Values: The State of Our Understanding. TPS79-20. Minneapolis,
American Water Resources Association. 1979. 674 p. and Clark and Clark,
Scientists' Report, 129 p.
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Food Chain
The food chain (relationships between production and consumption of plants
and animals) in wetlands, as in all ecosystems, is based on primary productivity,
in which plants produce plant tissue through photosynthesis. A portion of the
tissue is consumed by animals while the plants are living and another portion
is consumed after plants die. Wetlands are among the most productive ecosys-
tems in the world. Wetlands along the East Coast produce about 5 to 10 tons
of organic matter per acre annually. By comparison, moist agriculture produces
1.5 tons to 5 tons per acre annually, dry agriculture produces 0.3 tons to
1.5 tons per acre annually, and coastal waters (estuarine and nearshore areas)
produce 1.0 tons to 1.5 tons per acre annually. 16/
Only a few studies have compared food chain values in different wetlands.
One study of two large drainage systems with extensive wetland areas along the
Gulf Coast of Florida, the Apalachicola and the Apalachee, concluded that the
food webs in the two systems which appear to be similar in terms of hydrology
and physical characteristics were different. The chief researcher determined
that these differences were caused by a number of factors.
Overall, these studies indicate that hydrologic cycles and
wetland functions which mediate peak inflow and material trans-
port can control macro and micro-habitat distribution in the
coastal bay ecosystem, as well as nutrient flux and productivity.
The form and composition of wetlands-related foodwebs may be
the result of combinations of individual population strategies
and physically controlled biological interactions .. .Within spe-
cific spatial and temporal boundaries, upland (fresh water) wet-
lands are inextricably linked, directly and indirectly, with
riverine and near-shore productivity. 17/
16/ Teal, John and Mildred Teal. Life and Death of a Salt Marsh. Boston,
Little, Brown and Co., 1969. p. 196-197.
17/ Livingston, Robert J. and Orie L. Loucks. Productivity, trophic
interactions and food-web relationships in wetlands and associated systems.
In Greesen, Clark and Clark (eds.), Wetland Functions and Values, p. 114.
Robert Livingston studied both systems for six years.
CRS-46
Most productivity studies have been undertaken in coastal areas, espe-
cially along the Southeast and Gulf Coasts. Few freshwater systems have been
investigated for productivity. Scientists are still debating a number of
basic questions, including total system productivity relationships between
primary production and individual species of commercial Importance — oysters
and finfish species for example, and relationships between changing wetland
plant communities (successional stages) and productivity. 18/
Habitat
Wetlands may provide a wide variety of animals with food, breeding sites,
resting areas, nesting materials or sites, moulting grounds, or protection
from weather or predators. Some animals depend on wetlands for all these
functions while others may use them for just one or two, or only during a
portion of their life cycle. The pattern of use, including time and spe-
cific site needs within a wetland, makes it difficult to calculate the com-
posite value of wetland habitat. Habitat function is also affected by sur-
rounding land uses, natural changes in wetlands over time and the species
diversity and carrying capacity of each wetland type.
Habitat for fish has been most extensively studied along the East and
Gulf Coasts. In 1980, an estimated 62.7 percent of the 6.7 billion pounds
of commercial fish caught by American fishermen was dependent on estuarine
areas, and wetlands are a key source of nutrients in most estuaries. 19/
Some regional catches, such as those from the South Atlantic and Gulf Coast
18/ Clark and Clark, Scientists' Report, p. 8-9.
19/ U.S. Department of Commerce. National Oceanic and Atmospheric
Administration. National Marine Fisheries Service. Fisheries of the United
States, 1980. Current Fishing Statistics, No. 8100. Washington, U.S. Govt.
Print. Off., 1.981. p. 11.
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fisheries, were estimated to be more then 90 percent estuarine-dependent . 20/
Vegetative wetlands provide nursery and feeding areas for a large number of
species. Knowledge about wetland functions for fisheries in fresh water
areas is spotty and confined mostly to the Great Lakes.
Enhancement of waterfowl may still be the strongest force behind wet-
land protection in this country. One scientist has noted that salt marshes
are the home of up to 60 species of birds, and that 200,000 waterfowl are
produced in the best years in eastern coastal marshes and 700,000 in the
marshes bordering 14 southern coastal States. 21/
Wetlands may be most important for habitat where they are least common
and animals have no alternative sites. The importance of small prairie
marshes to ducks has been demonstrated in research. 22/ When scarce wetlands
are lost as habitat, the migratory bird populations may decline because al-
ternative potential habitat is not available.
Wetlands also provide necessary habitat for many rare or endangered plant
and animal species identified by the U.S. Fish and Wildlife Service. More
than half of the areas identified as critical habitat under provisions of the
Endangered Species Act involve wetland areas. 23/ In addition, wetland areas
20/ Chapman, Charles R. Freshwater Discharge. In John R. Clark, ed.
Coastal Ecosystems Management. New York, John Wiley and Sons, 1977. p. 635.
21/ Niering, William A. Salt Marshes. In John R. Clark, ed. Coastal
Ecosystems Management. New York, John Wiley and Sons, 1977. p. 701.
22/ Clark and Clark, Scientists' Report, p. 34.
23/ Hirsch, Allen. Wetland Protection Programs of the U.S. Fish and
Wildlife Service. In National Wetlands Protection Symposium Proceedings.
FWS/OBS-78/97. U.S. Department of the Interior, Fish and Wildlife Service,
Office of Biological Services. Washington, U.S. Govt. Print. Off., 1978.
p. 113-114.
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directly support a large and diverse community of invertebrates and verte-
brates, including beaver and other fur-bearers, and, indirectly, animals that
inhabit adjacent upland areas but use the wetlands as a source of food and
water. The condition of wetland habitat is important for these animal popu-
lations.
Hydrologlc and Hydraulic
Hydrologic and hydraulic functions of wetlands include damping floods,
stabilizing shorelines or absorbing the destructive energy of storm waves,
and recharging groundwater sources. Different types of wetlands vary widely
in their ability to carry out these functions.
Controlling floods may be the most important wetland function on a nat-
ional basis. Wetlands can serve as basins that both detain and retain flood
waters. Their effectiveness depends on their size and location in the drainage
basin, as well as on the hydrologic characteristics of the entire basin. Wet-
lands are most effective during floods of high intensity and short duration.
Statistical studies have shown that if a watershed has 15 percent of its area
in wetlands or lakes, peak flow will be 60 to 65 percent lower than if no wet-
lands or lakes are present. 24/ Case studies have been conducted at several
sites. Perhaps the best-known is in the Charles River basin in Massachusetts,
where the Corps of Engineers decided to acquire and protect more than 8,000
acres of wetlands because it was more cost-effective for flood control than
channelizing 10 miles of the river at an estimated cost of $30 million. 25/
24/ Clark and Clark, Scientists' Report, p. 54.
25/ Larson, Wetland Value Assessment, p. 5.
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Shoreline erosion control can be an important function, especially adjacent
to large water bodies in coastal areas. Many of the plant species found in wet-
land areas dampen the intensity of waves and dissipate their energy. They also
slow the rate of water flow, trapping sediments. Scientists debate under what
conditions wave energies prevent establishment of wetland areas along exposed
coasts and how effective these areas are, in fact, in controlling erosion. 26/
Wetlands have an important role in groundwater recharge. For example,
one of the principal identified functions of the Pine Barrens, an area of
swamps and forest in southern New Jersey, is as a water source stabilizing an
aquifer of immense dimensions. 27/ However, not all wetlands recharge ground-
water, and some actually discharge water, especially in coastal areas.
Water Quality Maintenance
Water flow is slowed when passing through wetlands, allowing increased
sedimentation and some absorption of pollutants. One scientist summarized
these processes:
In the anaerobic soils of wetlands, denitrif ication removes
nitrogen from the water and during the growing season, plant uptake
of nitrogen and phosphorous removes the nutrients from water pass-
ing in and through wetlands. 28/
Major mechanisms for removing waste include filtration, sedimentation,
anaerobic decomposition, and biological assimilation. Each operates differ-
ently in different types of wetlands. For example, in most tidal wetlands,
wastes are assimilated during the summer growing season only, but in wetlands
of central Florida, nitrogen is assimilated throughout the year. Wetlands have
26/ Clark and Clark, Scientists' Report, p. 62-64.
27/ Representative William Carney has introduced a bill, H.R. 5362, to
protect the eastern portion of Long Island, also a groundwater recharge area.
28/ Larson, Wetland Value Assessment, p. 6.
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widely varying assimilative capacities and some re-release of wastes also
occurs. Plants can also take up heavy metals, toxic chemicals, and other
waste materials. 29/ Some small wetland areas are being used for waste
treatment; scientists are closely following these experiments.
The ability of wetlands to treat wastes varies with the wetland' s con-
dition. Stressed wetlands usually have diminished capacities, and further
introduction of waste increasingly stresses the overall system. Waste assim-
ilation reduces other functional values, especially for living resources.
Waste assimilation capacity of wetlands also varies with "time (diurnal, sea-
sonal, historical) and water flow distance," according to a recent review
of the scientific literature. 30/
Harvest and Heritage
Harvest functions are difficult to define because wetland boundaries are
not respected by many of the harvestable resources, such as fish and fur
bearers, and because timber resources lie on both sides of wetland boundaries.
Harvesting includes recreational activities, especially hunting and fishing,
as well as commercial activities. The potential yield of a wetland can be
estimated as a composite of all harvestable resources present in optimum pro-
portions. Actual catch figures are lower than the potential yield. Many
studies have been published on individual resources, such as ducks, crab or
mink, but there are no data on the composite harvest for all plants and animals
of commercial and recreational value in a wetland site or wetland type. 31/
29/ Clark and Clark, Scientists' Report, p. 90-94.
30/ Kadlec, Robert H. and John A. Kadlec. Wetlands and Water Quality.
In Greeson, Clark and Clark, eds. Wetlands Functions and Values, p. 451-452.
31/ Ibid., p. 102.
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The heritage function of wetlands has received some attention in litera-
ture and lore. The human experience in wetlands such as canoeing, and the
high recognition of habitat for endangered species convey these values. The
size of the wetland for these functions is usually less important than loca-
tion. A small but accessible and productive wetland in an urban area may have
a high value to many people. The value of heritage functions is subjective,
but presumed to increase as the resource becomes increasingly scarce, or as
the public grows increasingly interested in the functions unique to wetland
areas.
Value of Wetlands
Increased knowledge about wetland functions and the value of wetlands
to perform certain beneficial services has led to the development of several
evaluation techniques. A recent study prepared for the U.S. Water Resources
Council surveyed evaluation methods presently in use around the country. 32/
The researchers found that all the methodologies addressed one or more of
the following wetland functions: habitat, hydrology, recreation, agricul-
ture/silviculture, and heritage features. Most of the evaluation techniques
yield qualitative, rather than quantitative, results. At least two major dif-
ferent points of view are identified in the various evaluation efforts — bio-
logical and economic. One reason for the large number of different approaches
and a general reliance on qualitative methods is an inability to evaluate cate-
gorically wetlands according to physical classification, type, or location.
For now, the best capability appears to be individual evaluations of a specific
site based on observed functional capabilities. Determining whether wetlands
32/ Lonard, Robert I., et. al. Analyses of Methodologies for the Assess-
ment of Wetland Values. (final draft report). Vicksburg, U.S. Army Engineers,
Waterways Experiment Station, 1981. 121 p.
96-073 0-82-5
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will continue to perform desired services or maintain their functional value
over an extended period of time cannot be measured at this time and the answer
probably varies with the size, location and condition of each wetland.
The different methods of calculation, the need to translate some noneco-
nomic values into economic terms, and the broad range of values found in var-
ious types of wetlands lead to estimated values varying widely. One method
has yielded estimated values of $15,000 to $33,000 per acre in Maine, $2,500
per acre in Massachusetts, $6,000 per acre in a Texas estuary, and $8,000 for
mangroves in South Florida. A second method has yielded lower values: $400
per acre in New York, $2,200 per acre in Massachusetts, and $138 per acre in
Florida (at a 5 percent rate of interest). Three ecologists using an "energy
theory of value" estimated wetland worth at $83,000 per acre. Finally, eco-
nomists at Virginia Polytechnic Institute have estimated values to range from
$9 to $2,000 per acre, depending on location and choice of capitalization rate. 33/
The wide range of estimated values and the lack of estimated values for
many types of wetlands tend to limit the usefulness of these economic measures
for policy making purposes. The wide range of estimated values makes a compar-
ison of different combinations of functions or of different wetland types
almost meaningless. The limited figures, for example, make it impossible to
33/ For a brief summary of past estimating efforts, see Gary L. Lynne
and Patricia Conroy. Methodological Considerations in Estimating the Eco-
nomic Value of Marsh and Estuarine Areas to Marine Production Processes. Staff
Paper 127. Gainesville, University of Florida Food and Resources Economics
Department, 1979. p. 2-4. A more detailed summary was recently released and
has an extensive bibliography. National Wildlife Federation. Wetlands Func-
tions and Examples of Economic Values. Washington, 1982. 18 p. Debate over
the most appropriate methodology within the discipline of economics has been
extensive, and no single approach has been generally accepted by the profession.
Analyses of economic benefits of wetlands have been based on the poten-
tial of an area to perform certain functions, or on its biological carrying
capacity. Most do not appear to take into accout value lost or gained for
other functions as a result of performing one or more these functions.
CRS-53
compare directly a prairie pothole to a southeastern coastal marsh. Addi-
tional capability is also lacking to translate the individual functions briefly
reviewed above into economic terms to allow value tradeoffs. For example,
even after three years of detailed study of relatively homogeneous coastal wet-
lands in Virginia, two economists concluded:
The point of this discussion is not to suggest that the eco-
logical services of wetlands are nonexistent; however, there is a
high degree of uncertainty about these services. Therefore, as
indicated by the discussion of oysters, improved estimation of the
technical linkages between wetlands and natural services must exist
before sound economic values for wetlands can be estimated. 34/
One example of a function for which a number of value estimates have been
made is waste assimilation. One study has estimated that an acre of estuary-
marsh is capable of doing $14,000 (1971 dollars) worth of waste treatment
work each year with a daily loading of 19.4 pounds of biochemical oxygen demand
(BOD). 35/ Another study states that a wetland treatment system designed to
receive the pollution for a community of up to 10,000 should cost less to con-
struct and operate than a conventional plant. 36/ An artificial marsh pond
system at Brookhaven National Laboratory effectively treats 20,000 gallons
of sewage per day from the town of Brookhaven. 37/
34/ Shabman, Leonard A. and Sandra S. Batie. Estimating the Economic
Value of Coastal Wetlands: Conceptual Issues and Research Needs.
VPI-SG-79-08. Blacksburg, Virginia Polytechnic Institute, Department of
Agricultural Economics, 1979. p. 13.
35/ Chapman, Freshwater Discharge, p. 635-636.
36/ Adapted from Illinois Institute of Natural Resources, Illinois Wetlands:
Their Value and Management. Doc. No. 81133. Prepared by Howard E. Ball, III.
Chicago, October 1981. p. 45.
37/ Horwitz, Elinor L. Our Nation's Wetlands: An Interagency Task Force
Report. Council on Environmental Quality. Washington, U.S. Govt. Print Off.,
1978. p. 230. This report cites a number of examples of waste assimilation.
CRS-54
One Federal regulatory tool that requires an ability to estimate the value
of wetland functions is mitigation. Under the mitigation concept, recently
implemented by the U.S. Fish and Wildlife Service, the Service may not oppose
a proposed action if the permit applicant agrees to enhance or restore other
wetland areas to a level that approximates wetland values lost as a result
of the proposed project. 38/ This approach, which requires detailed knowledge
about the functions common to different wetland types, has been tried in a
number of cases in the recent past, following guidelines developed by the
Service.
WETLAND ALTERATION
Wetlands are altered by human activities in a variety of ways. Wetlands
may be altered directly by filling, dredging, draining or creating impound-
ments. Indirectly, alteration of waterflow patterns at other locations, and
changes in adjacent land use can change the functions and values of wetland
areas. Appendix A, which contains a detailed listing of the physical and
biological impacts associated with transportation fills, illustrates the
growing understanding of wetlands functions and impacts. The table below
lists some common activities which impact wetlands.
TABLE 1. Common Activities Which Impact Wetlands
o Direct removal of vegetation
o Direct removal of topsoil
38/ U.S. Department of the Interior. Fish and Wildlife Service. U.S.
Fish and Wildlife Service Mitigation Policy, Notice of Final Policy. Federal
Register, v. 46, no. 15, January 23, 1981. p. 7644-7663.
CRS-55
TABLE 1. Common Activities Which Impact Wetlands — Continued
o Habitat destruction by dumping and surfacing
- Landfill from construction projects
- Hard-topping for roads, factories, etc.
Grading and concreting for drainage ditches
- Rip-rapping of banks
- Dumping of mine overburden, spoil, tailings
- Dumping of dredged material
- Levee construction
- Construction of primitive access, logging, and mining roads
(especially in steep or rough terrain)
o Habitat destruction by digging
- Ditching (main, as well as lateral ditches)
- Mining (especially placer mining and sand and gravel excavation)
o Habitat modification by water level manipulation
Permanent flooding
- Alternate flooding
Protection from flooding
- Drainage
- Lowering of soil water table
o Habitat modification by indirect methods
- Erosion and loss of nutrients
- Chemical modification by leaching of acids, metals, and sulfides
from soil; leaching of chemicals from pavement; addition of salts
(sodium and calcium chloride); motor vehicle wastes (petroleum pro-
ducts, heavy metals); other chemical wastes from factories; etc.
- Introduction of exotic vegetation
Source: U.S. Congress. Office of Technology Assessment. Wetlands Technology
Assessment Project Proposal. 1981. p. 7.
Filling
Filling of wetlands has been undertaken for a variety of purposes, ranging
from construction of parking lots or industrial plants to building of cause-
ways for transportation corridors. Filling of wetlands has also resulted from
disposal of dredged material. Wetlands adjacent to river channels have often
been the most cost-effective sites for disposing of dredge spoil. Fills are
CRS-56
usually the first step in a transition to other uses. If other uses are in-
tended, the fill may be stabilized using a variety of engineering techniques,
such as planting and sloping embankments to minimize erosion. However, when
no other use is anticipated — for instance, if the fill is excess material
from a dredge area — often little effort has been made to stablize the fill.
This was particularly true in the past.
Filling destroys the wetland by smothering the habitat and raising the
surface elevation. The fill is piled on top of wetlands and develops a dif-
ferent, and typically less productive, habitat which is not subject to the
periodic saturation or inundation of water. Fills can also alter the functions
of adjacent wetlands. If the edges of a fill are not stabilized, sediment may
wash into adjacent wetland areas and stream courses. Siting of the fill can
alter water flow or change the nature of water movement patterns. This, in
turn, can lead to either drier or wetter conditions on adjacent wetlands.
Dredging
Dredging may be undertaken in the wetlands themselves or in adjacent
strain channels. Dredging In wetlands is often undertaken as the first step in
building a firm base for a fill. The soft organic material, which typically
lies under a wetland area, is not stable enough to support most structures.
It is removed by dredging and the open area is surcharged, or refilled, usually
with rock. This process usually provides a satisfactory base for construction.
Dredging is associated with navigational improvements to stream channels
or harbors. Dredging a navigation channel can affect nearby wetlands in several
ways. First, the altered river channel changes river flow patterns (including
flow velocity and movement), disturbing the relationship between wetlands and
water courses. Second, when navigation is made possible, wakes from vessels
can erode adjacent streambank areas. This problem has been documented as
CRS-57
especially serious in coastal areas of Louisiana. 39/ Third, dredged material
disposal in or adjacent to wetlands can affect their environment. Moreover, if
the spoil comes from an established channel or a channel that is downstream
from industry or large-scale agriculture, it may contain a variety of contam-
inants that can further alter the quality of the wetlands as habitat.
In areas along the Gulf Coast, two of the most common reasons for dredging
are to lay oil and gas pipelines and to site drill rigs and production plat-
forms. Dredged channels provide the least expensive form of access. The
material removed to lay the pipe or create a channel is sidecast, creating
fills along both sides of the channel that protect it from the natural flow
and flood patterns in the adjacent wetlands. 40/
Draining
Wetlands are drained to convert them to other uses. Drainage is usually
undertaken by diking a wetland area to seal it from surrounding areas, then
pumping or draining the water out so the soil can dry. Large tracts in the
Lower Mississippi River drainage and along the North Carolina coast have been
39/ Wicker, Karen M. Habitat Degradation and Management Alternatives in
St. Bernard Parish, Louisiana. In Proceedings: Seventh Annual Coastal Society
Conference. Bethesda, Maryland, in press, p. 4.
40/ Two publications contain considerable information on the impacts of
dredging in wetlands: U.S. Environmental Protection Agency, Office of Research
and Development. Impacts of Construction Activities in Wetlands of the United
States. EPA/600/13-76-045. Prepared by Rezneat M. Darnell. Springfield,
National Technical Information Service, 1976. 392 p. and U.S Department of
the Interior, Fish and Wildlife Service, Office of Biological Services.
Impacts of Navigational Dredging of Fish and Wildlife: A Literature Review.
FWS/OBS-80/70. Prepared by Kenneth Allen and Joe Hardy. Washington, U.S. Govt.
Print. Off., 1980. 81 p.
CRS-58
converted to agricultural uses by draining wetlands. 41/ Drainage has also
been a common practice in the upper Great Plains where prairie potholes are
located.
Draining can have permanent effects on wetlands, and it may be diffi-
cult to return drained soil to a productive wet condition. After wetlands are
drained, soil becomes compacted. On the "super farms" of coastal North Caro-
lina, the experience has been that after being drained the soil's natural
productive capabilities deteriorate rapidly drained due to compaction and
oxidation. 42/ When this happens, their value for crops becomes limited. Con-
sidering the expense of diking and draining, this use may not offer a good
return on the investment. Other agricultural problems that accompany drainage
include poor plant-soil-molsture-air relationships, excess wetness, difficult
cultivation, lack of available nutrients for certain crops, land subsidence,
and acidity. 43/ At the 370,000 acre Old Colony Farm in coastal North Carolina,
100 pounds of nitrogen, 1,000 pounds of phosphorous and 6,000 pounds of lime
are added to each acre each year. 44/ These chemicals further alter these
soils from their wetland condition making even more difficult any effort to
return the area to productive wetlands. Diking or draining, like dredging,
41/ Pugh, Mary Joan M. Superfarms and the Coastal Environment: an
Indepth Look at a Large-Scale Problem. In Carolina Planning Journal, v. 2,
no. 2. Chapel Hill, University of North Carolina, Department of Regional
Planning, 1976. p. 9-16.
42/ Zinn, Jeffrey A. Agriculture and Coastal Fisheries: Future Trends.
In Coastal Zone 78, v. IV. New York, American Society of Civil Engineers,
1978. p. 2704.
43/ DIderiksen, R. I., A. R. Hidlebaugh, and K. 0. Schmude. Trends
in Agricultural Land Use. In Max Schnepf , ed. Farmland, Food and the Future.
Ankeny, Iowa, Soil Conservation Society of America, 1979. p. 16.
44/ Pugh, Superfarms and the Coastal Environment, p. 14.
CRS-59
can upset functions in adjacent wetland areas by altering flow velocities
and patterns of water elevation.
Impoundment
Enclosing an area in order to flood it is the opposite of draining, but
the effect on wetland functions and values is similar. Farm ponds may be the
most common type of impoundment. Also, low dams are often installed in wild-
life refuges. Large impoundments, such as those created by the nation's major
dams, drown wetland areas adjacent to former stream channels. In some cases
these have been replaced by new wetland areas along the banks of the resulting
reservoir, but the new wetlands are usually of little functional value because
reservoir water elevations may be seasonally altered, often substantially, to
meet other needs. The comparative magnitude of lost wetlands and created wet-
lands associated with reservoir development has not been measured.
Impoundments generally reduce the overall functions of wetlands. Some
impoundments, such as for the salt ponds in San Francisco Bay, destroy all the
natural functions of the area converted to the pond. Of the four classes of
activities directly affecting wetlands, impoundments may be both the least
common and the least understood at this time.
Indirect Alterations
Activities occurring at some distance from the wetlands can also affect
wetland functions. The key to most wetland functions is water, so any actions
that alter flow or quality characteristics are important. Common activities
altering water that have affected wetland areas range from damming and with-
drawal of water for other uses to polluted discharges. Some of these changes
CRS-60
alter wetland functions; declines in wetland function as a result of such
actions have been documented. 45/
Modification to adjacent lands also affects wetlands. Whether these
lands are modified for an extensive purpose, like agriculture, or a more
intensive but geographically limited use, such as residential or commercial
structures, the runoff from both types of areas typically reduces wetland
functions. Runoff may contain contaminants and sediments. For example, the
runoff from highway surfaces contains petroleum residues and various heavy
metals as well as road salts and other chemicals or contaminants that may
have been spilled or washed off passing vehicles. Indirect activities are
generally more difficult to control both because their impacts on wetlands
are often not anticipated, and because these activities have other economic
and social values that many believe should not be limited or altered due to
uncertain effects on wetlands.
Creating Wetlands
While the activities described above have reduced wetland acreage and
functions, the U.S. Army Corps of Engineers has initiated a program to create
new wetlands at six sites around the country in an effort to dispose of dredged
spoil in an environmentally positive manner. 46/ Alternative plant species
are being tried, and some wetland functions are being evaluated. Guidelines
45/ Darnell, Rezneat M. Impact of Human Modification on the Dynamics
of Wetland Systems. In Greeson, Clark and Clark, Wetlands Functions and
Values, p. 200-209. Many articles on aspects of this topic have been pub-
lished in popular literature. A good example is: Gary A. Soucie. We Can
Still Save Salt Marshes of Georgia, Carolina. In Smithsonian Magazine,
v. 5, no. 12. Washington, Smithsonian Associates, March 1975. p. 82-89.
46/ Environment Laboratory. Wetland Habitat Development with Dredged
Material: Engineering and Plant Propagation. Technical Report D5-78-16.
Vicksburg, U.S. Army Engineers Waterways Experiment Station, 1978. 107 p.
and Appendices .
CRS-61
have been developed that address project planning, engineering considerations,
development of the site as habitat, and costs. Little information is available
yet on what functional values are found in the created wetlands, how their
functional values compare to those in nearby "natural" wetlands, and how
quickly they develop the ecosystem characteristics of nearby wetlands. 47/
WETLAND CENSUS— MEASURING CHANGE
Large-scale conversions of wetlands to other uses started in the 19th
century, encouraged by the Swamp Lands Acts of 1849, 1850, and 1860. Quani-
tative knowledge of the changes derives from various surveys. The two most
recent national surveys were conducted by the U.S. F.ish and Wildlife Service.
The earlier one was completed in 1954. 48/ The survey found 75.2 million
acres of wetlands, under the definitions used. About 90 percent of the total
was classified as inland freshwater. 49/ The classification system used in
this survey, which contained 20 categories, became the basis for locating
47/ Some research has been completed on benthic fauna. For examples, see:
H. H. Allen, et al. Habitat Development Field Investigations: Bolivar Penin-
sula, Marsh and Upland Habitat Development Site, Galveston, Texas; Technical
Report D-778-15. Vicksburg, U.S. Army Engineers Waterways Experiment Station,
1978. 67 p. More recently, the Fish and Wildlife Service, Office of Biological
Services, published proceedings of a workshop entitled "Rehabilitation and
Creation of Selected Coastal Habitats" (FWS/OBS-80/27 ) which contains a number
of articles on creating marshes.
48/ U.S. Department of the Interior. Wetlands of the United States,
p. 5-7. The study estimated that a minimum of 45 million acres, more than
35 percent of the national total during the Colonial period, had been lost.
Some States have more recently updated figures on wetlands loss, but the inven-
tory now underway will provide the next national set of figures. In an unre-
lated activity, the U.S. Army Corps of Engineers has determined that approxi-
mately 148 million acres of wetlands are subject to their regulatory program,
including 67.2 million acres in Alaska.
49/ U.S. Army Corps of Engineers, Engineer Institute for Water Resour-
ces. Impact Analysis of the Corps Regulatory Program. Draft. Washington,
November 1981. p. 106. A recent assessment by the Corps of wetlands subject
to Federal regulatory programs estimated that 15 percent, or 11.5 million
acres of wetlands (excluding Alaska) were coastal.
CRS-62
and defining areas subject to Federal regulations which evolved later. Many
agencies continue to use this classification system although a new classi-
fication system has been adopted.
The new classification system was developed as part of the second inven-
tory, initiated in 1974. Whereas the 1954 inventory contained 20 classes,
the current inventory contains 5 systems, 10 subsystems and 55 classes. This
inventory was initiated under the broad responsibilities for resource protec-
tion and management contained in the Fish and Wildlife Coordination Act. The
general mandate of the inventory is to "develop and disseminate a technically
sound comprehensive data base concerning the characteristics and extent of
the Nation's wetlands. 50/ The inventory is primarily a scientific study,
but it has already been of value to the regulatory program in areas where
mapping has been completed.
When the new inventory was started, the earlier wetlands classification
system, developed during the 1950s, was determined to be inadequate because
of advances in wetland science and the expanding set of values considered in
the Federal wetland regulatory program. 51/ This new classification system
was designed to meet four objectives:
1. to describe areas that have similar natural attributes;
2. to arrange these areas in a system that will enable better resource
management decisions to be made;
50/ Wilen, William and Rudolf Nye. National Wetlands Inventory Project.
In Proceedings — Coastal Zone 80. Vol. III. New York, American Society of
Civil Engineers, 1980. p. 1847.
51/ U.S. Department of the Interior. Wetlands of the United States.
The Circular was first issued in 1956, then reissued, unchanged, in 1971 to
provide reference for implementing the Water Bank Act of 1970.
CRS-63
3. to convert these areas Into a format for inventory and mapping; and
4. to provide a uniform classification system and terminology. 52/
The Fish and Wildlife Service adopted the new classification system on Sep-
tember 15, 1980. The Service is encouraging other agencies to use this system
and promote government-wide consistency, but no legal authorities require
Federal agencies to adopt it. 53/ Other Federal agencies involved in wetland
management are participating in the inventory, and are becoming familiar with
the new classification system. 54/
The new classification system is the first to include special modifiers
for two types of wetlands, those that are man-made, and natural ones that
have been modified by man. The modifiers, used alone or in combination,
include "excavated," "impounded," "diked," "partly drained," "farmed," and
"artificial." 55/ These modifiers allow the inventory to distinguish wetland
areas where significant modification has occurred and where values have been
altered.
The inventory is being conducted using a complex remote sensing system
that transfers information from aerial photos onto map overlays. Products
include large-scale maps (1:24,000 or 1:62,500) and small-scale maps (1:100,000)
accompained by "notes to users." By January 1, 1980 the inventory had completed
206 small-scale maps, and an additional six were in production. In addition,
draft narratives had been completed for all 206 maps. At the same time, 189
52/ Wilen and Nye, National Wetlands Inventory Project, p. 1848.
53/ The Soil Conservation Service is using it on an interim basis for a
year.
54/ Federal agencies supplying staff to assist in the Inventory activity
include the U.S. Geological Survey, the Soil Conservation Service, and the U.S.
Army Corps of Engineers.
55/ U.S. Department of the Interior, Classification of Wetlands, p. 25-26.
CRS-64
large-scale maps were in final form, and an additional 215 maps were in draft
form. Areas have been selected for mapping based on a priority need, such as
sites of proposed major projects that might affect wetlands. Consequently,
maps completed are mainly along coastal areas and the lower Mississippi River.
Large areas of Arizona and New Mexico and some portions of the Wyoming-Montana
coal fields have also been completed. Maps are in preparation for portions of
the Great Lakes, the Northern Plains, and the lower Mississippi River drainage. 56/
In addition to this national inventory, laws in several States, including
Connecticut, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia
and Mississippi, require a Statewide inventory of all wetlands or of all of a
certain type of wetland. Inventories are part of State programs to regulate
wetlands' use or establish standards for their management. 57/ The major
reason for this interest in wetlands is concern that alterations are reducing
the resource.
The surveys identify a rapid rate of change. Until recently, almost all
changes have been identified as economic improvements to lands considered to
56/ Data sheets prepared by the National Wetlands Inventory which list
the status of mapping activities through December 25, 1981. Additional infor-
mation obtained in conversation with John Montanari, group leader of the
National Wetlands Inventory, February 2, 1982.
57/ U.S. Department of the Interior. Fish and Wildlife Service. Office
of Biological Services. Strengthening State Wetland Regulations. FWS/OBS-78/98 .
Washington, U.S. Govt. Print. Off., 1978. p. 74-78.
CRS-65
have little or no value in their natural condition. 58/ One Federal report
contained case studies of converting wetland areas to other uses including
agriculture, forestry, residences, transportation, industry, and, in recent
years, recreation. 59/ The rate of conversion has varied with private and
public incentives, but the capability to alter wetlands has accelerated with
technological and engineering advances. Waterfront property which is more
desirable for some uses, such as second homes, can now be more easily modified.
In some urbanized areas, including New York and Los Angeles, as the available
upland sites have been built up, wetland sites, the least expensive remaining
large tracts of undeveloped land, have become Increasingly desirable. The
Fish and Wildlife Service estimated that the coterminous United States had lost
45 million of an estimated original 127 million acres of wetlands by 1956. 60/
Other surveys of smaller areas show a more rapid loss rate during this cen-
tury, especially since World War II. An estimated 45 percent of Connecticut's
58/ The present U.S. Army Corps of Engineers regulations for permiting
actions in wetlands under Section 404 of the Clean Water Act recognize the
eight functions of wetlands listed in footnote 10. By contrast, 25 years ago,
about the only function ascribed to wetlands in national policy was habitat
for waterfowl. The only Federal agency concerned with protecting wetlands
25 years ago was the Fish and Wildlife Service. Its limited interests were
defined in: Wetlands of the United States, Circular 39, published in 1956.
More recently, the Fish and Wildlife Service has continued to recognize a
limited number of reasons to protect wetlands. As recently as a 1967 publi-
cation, entitled, Your Stake in Wetlands (Circular 140), the Service recog-
nized functional values to include only waterfowl, wetland big game, fur,
and fisheries.
59/ Horwitz, Our Nation's Wetlands, p. 22-46.
60/ U.S. Department of the Interior. Fish and Wildlife Service. Wet-
lands of the United States: Their Extent and Their Value to Waterfowl and
Other Wildlife, Circular 39. Prepared by Samuel P. Shaw and C. Gordon Fredine.
Washington, U.S. Govt, Print. Off., 1956. p. 7.
CRS-66
coastal marshes were lost between surveys in 1914 and 1959. 61/ Over 40 per-
cent of the potholes in western Minnesota were converted to other uses during
a 10 year period between 1964 and 1974, according to a U.S. Fish and Wildlife
Service survey. 62/ By 1954, only 450,000 acres of wetlands remained of Cali-
fornia's estimated 3.5 million acres when the State was first settled. 63/
In coastal areas of California, only 125,000 acres of an original 381,000 acres
remain, many of them greatly altered. 64/ The U.S. Army Corps of Engineers
has summarized national wetland loss data, noting that the loss rate between
1922 and 1954 was about 0.2 percent a year; between 1954 and the mid-1970s
it rose to 0.50 to 0.65 percent a year; and currently estimate it to be about
0.4 percent a year. 65/
Wetland loss is associated with other human and natural activities. For
example, the State of Louisiana is losing coastal wetlands to open water at
a rate of 47 square miles per year. Causes include levees that retain sedi-
ments upstream, canals for oil and gas that alter natural water channels, and
a rise in sea level. A 1980 U.S. Fish and Wildlife Service study noted that
61/ Rankin, John S. Salt Marshes as a Source of Food. In Connecticut
College Bulletin, No. 12. New London, Connecticut Arboretum, University of
Connecticut. 1961. p. 4.
62/ U.S. Department of the Interior, Fish and Wildlife Service. Western
Minnesota Wetlands Inventory. Unpublished, 1974. Mixed pagination.
63/ U.S. Department of the Interior, Wetlands of the United States, p. 7.
64/ Anonymous. California's Coastal Wetlands. La Jolla, University of
California, Sea Grant College Program, no date. p. 7.
65/ U.S. Army Corps of Engineers, Impact Analysis, Draft, p. 104.
CRS-67
fresh water marshes in the Mississippi Delta area declined by 55 percent, to
405,000 acres, between 1955 and 1978. 66/
Financial benefits associated with conversion to alternative uses continue
to increase. For example, the demand for agricultural lands to supply domestic
and international markets has been growing rapidly during the past decade.
Wetlands previously uneconomic to convert to cropland are increasingly being
developed as demand rises, the technological capability is available, and alter-
native sites become more difficult to locate. 67/
The potential for drainage and conversion to agriculture is a significant
matter. The Soil Conservation Service estimates that 32 million acres of po-
tential cropland, nationwide, are too wet in their present condition for agri-
cultural use. Wetness is second only to erosion as a factor limiting agricul-
tural activities in the country. 68/ Wet soils are more extensive than wet-
lands. Conversion to productive agricultural land is expensive in these areas.
One recent study noted that corn worth $18.8 billion is produced on wet soils.
The cost of preparing wet soils for production in one watershed in Iowa was
66/ This estimate comes from more detailed estimates of wetlands loss in
six deTtic parishes in southwestern Louisiana prepared by Karen Wicker, Coastal
Environments Inc., Baton Rouge, for the State of Louisiana.
67/ Demand for agricultural land varies from year to year, depending on
a number of crop demand and supply, and public policy variables. In 1981,
harvests were large and a surplus resulted. But in most recent years, the
trend has been to bring additional marginal land into production.
68/ U.S. Department of Agriculture. 1980 Appraisel Part I: Soil, Water,
and Related Resources in the United States: Status, Condition and Trends.
Washington, 1981. p. 111. This study noted that "nearly 105 million acres
of cropland soils have a wetness limitation."
96-073 0-82
CRS-68
about $55 per acre per year, making the return marginal when climatic or eco-
nomic conditions are unfavorable. 69/ A few conversion uses, such as for new
highway locations, are declining, but the overall pressure for conversion
to other uses, such as agriculture, appears to be strong.
Reaction to this pressure is different in various parts of the country.
Wetlands are a common feature in the Southeast, but rare in many parts of
the West. Coastal wetlands are found in an almost continuous band along the
Atlantic coast, but along the Pacific Coast, wetland areas are few and small.
This geographic variation is important because it influences perceptions of
the value of wetland areas. In the East, wetlands have generally been avoided
as areas of settlement, and only in recent years has large-scale alteration,
such as development of the "super farms" in coastal North Carolina, become
possible. In the arid West, by contrast, wet areas have generally attracted
nearby settlement. High water tables have usually meant shallow wells and
better agriculture and development potential.
SUMMARY
Only in the past 20 years have knowledge and awareness of wetlands grown
rapidly. Scientific findings have directly contributed to wetlands manage-
ment. But at least four general topics need additional attention from wetland
scientists is needed In at least four areas in order to improve the nation's
ability to consider wetland policy issues. These topics are:
69/ Diedrick, R. T. The Agricultural Value of Wet Soils in the Upper
Midwest. In Richardson, Brandt, Ed. Proceedings — Midwest Conference on Wet-
land Values and Management. Minneapolis, Minnesota Water Planning Board, 1981
p. 103.
CRS-69
1. better comparative knowledge of different types of wetlands;
2. better ability to measure and compare wetland values;
3. better knowledge of the value of wetlands in optimum and sub-
optimum natural conditions; and
4. improved understanding of the effect of wetland size on value.
Our knowledge of some types of wetlands, especially in coastal areas of
the Southeast, is extensive, fostered by a rich and diverse research tradition.
On the other hand, knowledge about most inland wetlands is limited, and almost
no research has been conducted on some of the rarer forms of wetlands in the
arid West. The result is an unclear picture of the actual value of many types
of wetlands. The wetlands which have been studied the most, coastal wetlands
in the Southeast, generally have higher overall values, as measured by either
rates of biological productivity or ability to serve more of the functions
described earlier in this chapter.
Very little research has been conducted which compares different types
of wetlands in terms of functions and values offered. Developing a national
wetlands policy is difficult when the resource is so diverse, and knowledge
of components is highly variable. Most wetlands do not perform all the
functions ascribed to wetlands, nor could they perform all of them simulta-
neously. For example, wetlands may be valuable for assimilating waste, but,
as a result of assimilating that waste, the soils or vegetation may become
contaminated. Better analyses of how functions interrelate are needed.
Most wetlands have been studied as natural systems. Research on the
impact of introduced stresses on an unmodified ecosystem have received limited
attention. After an ecosystem is stressed, its ability to perform functions
is altered. Usually, the overall value is reduced. However, certain functions
may not be affected, or may be enhanced by stress. A large percentage of the
CRS-70
Nation's wetlands are directly or indirectly stressed in a variety of ways.
Wetland stresses are difficult to forecast because they are part of larger
hydrologic systems. Actions that change hydrologic patterns in other parts
of the system can alter a wetland downstream. A common problem is the effects
of upstream activities that increase sediment loads on hydrology downstream.
Isolated inland wetlands, such as prairie potholes, seem more easily affected
by change, perhaps because of their small size and separation from a larger
hydrologic system.
Finally, the size of a wetland seems to be an important factor in deter-
mining value. A few functions, such as habitat and heritage value, may not
be influenced by size, but smaller wetlands are generally less complex eco-
systems and may be less productive then their larger counterparts. In some
areas, small but undisturbed wetlands are of high value, while, ironically,
man's ability to alter them indirectly or directly is much greater. For
example, some of these small wetlands have extremely high value for waterfowl
along the flyways, but other values are limited. Policy debate on wetlands
would be assisted if the effect of size and scarcity on value of wetland areas
could be expressed.
Growing knowledge about wetland functions has gradually been incorporated
into Federal wetlands programs. Incorporation takes many forms, but it usually
appears first as arguments in legal decisions, and then may appear in regula-
tion or law. A growing appreciation of wetlands, their threatened status and
unusual value has led to development of Federal regulatory programs, discussed
in Chapter III, which attempt to consider a broader set of wetland concerns.
The ability to manage wetlands resources in a rational manner should improve
if answers to the scientific questions introduced above are found.
CRS-71
CHAPTER III: FEDERAL WETLAND PROGRAMS
INTRODUCTION
Wetlands are not managed under a single law or program. The Federal
effort is a composite of provisions in numerous laws, as interpreted by regu-
lations and the courts. The most important of the provisions, section 404 of
the Federal Water Pollution Control Act (P.L. 92-500, as amended), does not
define or even mention wetlands. Rather this section, enacted in 1972 and
amended in 1977, established a dredge and fill permitting program, expanding
on a permit program that had been established earlier under section 10 of the
Rivers and Harbors Act of 1899.
While these two programs are generally viewed as key regulating activ-
ities in wetland areas, several others also affect wetlands use and alter-
ation. These programs include:
1. Activities of the Fish and Wildlife Service and the National Marine
Fisheries Service under provisions of the Fish and Wildlife Coordin-
ation Act ensure that wildlife resources are given equal consideration
in water resource project planning, including the section 404 program;
2. the Water Bank Program, which provides economic incentives to protect
wetlands through contracts with rural landowners;
3. the wetlands acquisition programs of the Fish and Wildlife Service;
4. Land and Water Conservation Fund, which provides funds to Federal agen-
cies for land acquisition for the purpose — among others-of protecting
endangered species habitat and protecting such important natural areas
as National Wildlife Refuges; and
CRS-72
5. Executive Order 11990, which requires all Federal agencies to develop
policies to enhance wetlands and to take actions to minimize damage to
them.
Still other programs of the Federal government can influence management
of wetland areas, but their influence is limited by geography or because wet-
lands are not a principal focus of the program. They include activities under
the Coastal Zone Management Act, 70/ the Endangered Species Act, the National
Flood Insurance Act, the Resource Conservation and Recovery Act, the Clean Air
Act, and several programs under other provisions of the Federal Water Pollution
Control Act. T\J While these programs are not discussed in this chapter, a more
comprehensive list of Federal programs affecting wetlands is presented in
Appendix B. This list includes 38 programs in six departments and four agen-
cies, illustrating the diversity of programs that can affect wetland resources.
HISTORY OF NATIONAL INTEREST IN WETLANDS
The present Federal policy for wetland protection is very different from
past policies. Before the middle of this century, the Federal government ex-
pressed little interest in wetlands, with the exception of migratory waterfowl
70/ The Federal Coastal Zone Management program is a good example of how
wetlands protection can vary from place to place. Under its provisions, State
coastal programs, based on broad criteria, are approved by the Federal Govern-
ment. Some States, such as Connecticut and Massachusetts, have extensive wet-
land programs which are central to Implementing their State coastal program
successfully, but others give minimal attention to wetlands in their coastal
programs. One of the most innovative programs, undertaken as a joint effort
between North Carolina and the U.S. Army Corps of Engineers, is discussed
later in this chapter.
71/ The Environmental Protection Agency administers a number of pro-
grams that can impact wetlands under the Federal Water Pollution Control Act.
These include section 208 planning grants, section 201 wastewater treatment
construction grants, the section 402 permit program (NPDES) for discharge of
industrial and municipal wastes; section 106 State water grants; and section
311, liability for oil and hazardous substance spills.
CRS-73
habitat protection. In the last century, a series of enactments encouraged
destruction of wetlands and conversion to uses of higher value. The Swamp
Lands Acts of 1849, 1850, and 1860 gave approximately 65 million acres of
wetlands to 15 States for reclamation. 72/ A century ago, the president of
the American Public Health Association made the following statement, which
reportedly expressed a common view of the day:
Wetlands and saturated soils are not only unremunerative,
but if the area is considerable, they prove a source of enervation
and disease to the section in which they exist. Although Individ-
uals may neglect swamp lands, or find their reclamation and drain-
age too expensive, the State cannot afford to be indifferent to
their continuance, because they check production, limit population,
and reduce the standard of vigor and health. Their value, too,
when reclaimed, in an economic view will be greatly enhanced. 73/
Increased awareness during the last decade about the functions and values
of wetlands is reflected in growing efforts to create programs that protect
wetlands and the retailoring of older programs that originally had little to do
with wetland protection. Efforts to protect remaining wetlands expanded greatly
after wider recognition of their role in larger ecosystems, In assimilating pol-
lutants, and in dampening floodwater. Belated recognition of these values is
captured in an introductory passage from a recent State report on wetlands.
In the beginning, wetlands were considered valueless. Only
when most of the native waterfowl vanished was it determined that
wetlands might ensure the survival of many endangered plants and
animals. Only after billions of dollars were spent on structural
flood control that resulted in further flooding were wetlands
recognized for reducing flood peaks. Only after additional billions
were spent to purify streams was it realized wetlands naturally
filter pollutants for free. 74/
72/ U.S. Department of the Interior, Wetlands of the United States, p. 5.
73/ Toner, Richard. A View of Some of the Leading Public Health Questions
in the United States. II Public Health Reports, v. 1, 1876. p. 22.
74/ Illinois Institute of Natural Resources, Illinois Wetlands, p. ix.
CRS-74
FEDERAL PROGRAMS REGULATING ACTIVITIES IN WETLANDS
Section 10
While visible concern for wetland protection did not develop until the
past 15 or 20 years, the Corps of Engineers has been required since 1899 to
issue permits for dredge and fill activities and modification of waterways
under Section 10 of the Rivers and Harbors Act, commonly referred to as the
Refuse Act. 75/ As one authority noted, "The jurisdiction of this act was
essentially based on the necessity of maintaining the navigability of the
Nation's waterways." 76/ The Corps' jurisdiction was limited to navigable
waters under this provision and its primary concern was to prevent alteration
or obstruction of these waters. The courts and the Corps defined navigable
waters to be waters below the ordinary or mean high water level, or in coastal
regions, to the mean high tide level, plus adjacent wetlands. 77/
Thus the Corps confined its regulatory authority solely to activities
taking place below the mean high water line and/or waters that are presently
used, were used in the past, or are susceptable to use to transport interstate
commerce. This was called the area of navigable capacity, or navigable servi-
tude. The concept of past, present, or future navigable capacity is frequently
referred to as the traditional definition of navigability. Under this defin-
ition the Corps limited its review to activities that might obstruct some form
75/ Section 10 requires a permit from the Corps of Engineers to build
any structure (dams, dikes, or bridges) in or over navigable waters, or the
excavating or filling of any lobe or channel in any navigable water. 33 USC
401 (1976).
76/ Schneider, William F. Commentaries — Federal Control Over Wetland
Areas: The Corps of Engineers Expands its Jurisdiction. University of
Florida Law Review, v. 28, Spring 1976. p. 789.
77/ 33 C.F.R. 209. 260(a)-(k) (1975).
CRS-75
of navigation. However, this approach provided no protection for many wetland
areas, including most fresh and saltwater wetlands, and most nonprimary tribu-
taries of navigable waters.
While not altering the geographic boundaries of the Corps' jurisdiction,
several legislative enactments and judicial decisions led to expansion of the
Corps' permitting review to factors other then navigability. Among these was
an amendment to the Fish and Wildlife Coordination Act in 1958. _78/ The 1958
amendments strengthened prior law by elevating fish and wildlife values to
equal consideration with other objectives, such as navigational and flood con-
trol improvements, whenever waterways are impounded, diverted, or modified.
The Act required that the U.S. Fish and Wildlife Service and appropriate State
wildlife agencies be consulted prior to such construction or modification.
Before 1967, when the Corps (the Department of the Army) signed a Memorandum
of Understanding with the Department of the Interior, the sole criterion for
reviewing permit applications was protecting navigability of waters actually
used for navigation. Under terms of the 1967 agreement, the Corps gave equal
consideration to environmental effects, along with the traditional interest in
navigability, and created a process for resolving disputes by negotiation
between higher levels of the Department of the Army and the Department of the
Interior. 79/ In 1968, the Corps published regulations in response to these
1958 amendments stating that its review would include evaluation of all
78/ Public Law 85-624, 16 U.S.C. sec. 661-668 (1970).
79/ Holmes, Beatrice H. Federal Participation in Land Use Decision
Making at the Water's Edge — Floodplains and Wetlands. Natural Resources
Lawyer, v. 13, no. 2, 1980. p. 386.
CRS-76
relevant factors, including "ef feet. . .on. .. fish and wildlife, conservation,
pollution, aesthetics, ecology, and the general public interest. 80/
Creation of the Section 404 Program
In 1972 Congress totally revised the Nation's water quality program and,
with it, triggered expanded protection of wetlands adjacent to the Nation's
streams and lakes. In the Federal Water Pollution Control Act Amendments of
1972, 81/ Congress established ambitious water cleanup goals and stated that
all pollutant discharges into waters of the United States are unlawful unless
authorized by a permit. Almost all the comprehensive permitting and implemen-
ting authorities of the Act were assigned to EPA. The single major exception
to this permitting authority is contained in Section 404 which authorized the
Corps to administer a separate permit program concerning dredge and fill
material. The new permitting program was similar to the Section 10 program of
the Rivers and Harbors Act, and allowed for the consolidated processing of
permits if both were required. The Corps was delegated this authority because
of its past experience administering the Section 10 program, although the basis
for the Section 404 program was support of water quality goals, while the Sec-
tion 10 program had been administered to protect navigability.
More significantly, the Section 404 program greatly expanded the juris-
dictional scope of the Corps' program, because the reach of the many programs
80/ 33 C.F.R. 209.120(f) (1975). Today the Corps' public interest
review includes additional factors: "conservation, economics, aesthetics,
general environmental concerns, historic values, fish and wildlife values,
flood damage prevention, land use, navigation, recreation, water supply,
water quality, energy needs, safety, food production, and, in general, the
needs and welfare of the people." 33 C.F.R. 320.4(a)(1) (1979).
81/ Public Law 92-500, 33 U.S.C. 1251 et seq. (1976).
CRS-77
established by the FWPCA extended to "navigable waters" which were defined broadly
in Section 502(7) as "the waters of the United States, including the territorial
seas." The effect of this broad definition was to transform Section 404
from a restatement of Corps authority to protect navigation with
the addition of EPA water quality oversight to a provision vesting
the Corps with responsibility for permitting all dredge and fill
activities occurring in "waters of the United States." 82/
From a water quality standpoint, the concern with dredged or fill material is to
prevent contaminated or noncontaminated material from diminishing water quality
or disrupting aquatic life, particularly in biologically sensitive areas such
as wetlands.
At the same time that the amendments of 1972 were being debated, Congress
was considering national land use legislation. Some viewed the wetland pro-
tection question as essentially one of land use, one in which wetlands were a
special type of land and should receive special treatment in any general ap-
proach to land use planning and management. If national land use planning
legislation had been enacted, wetland protection probably would have taken a
different form. Many analysts who might have wanted to see wetlands protected
under a land use approach were able to see that for the most part they were
protected under a water quality program, which provided a different set of
opportunities and limitations. One analyst observed that "Because of the pro-
gram's [section 404] close relationship with land use practices adversely
affecting water quality, critics contended that it represented an unprece-
dented Federal presence in land use matters." 83/
82/ Myrhum, Christopher B. Federal Protection of Wetlands through Legal Pro-
cess. Boston College Environmental Affairs Law Review, v. 7, no. 4, 1979. p. 595.
83/ Blumm, Michael C. The Clean Water Act's Section 404 Permit Program
Enters Its Adolescence: An Institutional and Programmatic Perspective. Ecology
Law Quarterly, v. 8, no. 3, 1980. p. 412.
CRS-78
Despite the geographic expansion afforded by Section 404 and the 1972
Amendments, some observers were concerned that the law lacked explicit incor-
poration of wetlands within the definition of "waters of the United States" in
order to provide similarly explicit protection for such areas. 84/ Moreover,
some persons expressed concern that the new water quality considerations
assigned to the Corps would clash with its traditional water resource develop-
ment and navigation responsibilities. 85/
Implementing Section 404
After passage of the 1972 FWPCA, the Corps continued to operate its regu-
latory program under the same geographical limits that had been defined by the
courts for Section 10, that is, utilizing the traditional definition of navi-
gable water rather than the expanded concept of "water of the United States." 86/
In final permit regulations issued in 1973, the Corps declared that its juris-
diction under both statutes was limited to waters lying within the traditional
test of navigability. 87/ The effect of this limitation was exclusion from
the Corps' regulatory program of such lands as marshes, swamps, bogs, salt mea-
dows, inland shallows, and many other coastal wetlands.
However, a series of court decisions in 1974 and 1975 rejected the navi-
gational limits adopted by the Corps in favor of regulation and abatement of
pollution at its source. Most of these cases were resolved with individual
84/ Myrhum, Federal Protection of Wetlands, p. 596.
85/ Ibid., p. 586.
86/ Frasca, Joanna M. Federal Control of Wetlands: The Effectiveness
of Corps' Regulations Under [Section] 404 of the FWPCA. Notre Dame Lawyer,
v. 51, February 1976. p. 509.
87/ 33 C.F.R. 209.260(c) (1974).
CRS-79
determinations concerning whether the area in dispute fell within the bound-
aries of waters that Congress intended to regulate. These decisions did not
yield general guidelines to delineate the scope of the Corps' enlarged juris-
diction. 88/
The most significant case in the series which tested the Corps' actions
was brought by the Natural Resources Defense Council and the National Wildlife
Federation. The court decision in this case, NRDC v. Callaway, 89/ required
the Corps to revoke its dredge and fill permitting regulations and issue new
rules conforming to the broader statutory mandate of the FWPCA. The effect of
this judicial order was to make the application of Section 404 consistent with
the remainder of the Federal Water Pollution Control Act, by bringing together
the definition of "waters of the United States" for water quality purposes with
the Corps' definition of waters for the purpose of regulating dredge and fill
activities. Environmentalists and others applauded the court's order and claimed
that it "transformed the 404 program from a convenient exemption from EPA's
[general] permit requirements into a vehicle for wetlands protection." 90/
Responses
Following the Callaway order, the Corps began the process of revising
its regulations by issuing four alternative regulatory proposals, which were
accompanied by a press release suggesting that the expanded jurisdiction of
Section 404 could result in permit requirements for ranchers' and farmers'
routine activities, such as enlarging stock ponds, plowing fields, or
88/ Frasca, Federal Control of Wetlands, p. 511.
89/ 392 F. Supp. 685 (D.D.C. 1975).
90/ Blumm, The Clean Water Act's Section 404 Permit Program, p. 417,
(footnote omitted from quotation).
CRS-80
deepening irrigation ditches. 91/ The press release became the center
of its own controversy, and many persons criticized it as misleading. 92/
The Corps noted later that many of the public comments that it received
"appeared to be responses to the widespread news coverage of the proposed
regulation." 93/ Yet the possibility of vastly expanded regulation alarmed
the public and legislators and led to the introduction of numerous bills
during the 94th Congress to reduce the scope of the Corps' jurisdiction.
Even before final rules were issued, Congressional hearings were held to
assess the possible scope and impact of an expanded Corps of Engineers regu-
latory program. 94/
The Corps issued revised regulations on July 25, 1975. 95/ Here, for-
the first time, the Corps attempted to define wetlands that, together with
"navigable waters," would be subject to Section 404 regulations. Coastal
wetlands were defined as "marshes and shallows and... those areas periodically
inundated by saline or brackish waters and that are normally characterized by
91/ The May 6, 1975, press release appears in U.S. Congress. Senate. Com-
mittee on Public Works. Section 404 of the Federal Water Pollution Control Act
Amendments of 1972. Hearings. 94th Cong., 2nd Sess., July 27 and 28, 1976.
Washington, U.S. Govt. Print. Off., 1976. p. 517-20.
92/ Ehrlich, Mitchell G. Jurisdictional Expansion of the Army Corps of
Engineers under the Federal Water Pollution Control Act Amendments of 1972.
Houston Law Review, v. 13, October 1975. p. 145.
93/ U.S. Department of Defense. Corps of Engineers. Permits for Activ-
ities in Navigable Waters or Ocean Waters. Federal Register, v. 40, no. 144,
pt. iv, July 25, 1975, p. 31320.
94/ U.S. Congress. House. Committee on Public Works and Transportation.
Subcommittee on Water Resources. Development of new regulations by the Corps
of Engineers, implementing Section 404 of the Federal Water Pollution Contol
Act concerning permits for disposal of dredge or fill material. Hearings, 94th
Cong., 1st sess. July 15, 16, 22, 1975. Washington, U.S. Govt. Print. Off.,
1975. p. 292. (Serial no. 94-18)
95/ U.S. Department of Defense, Permits for Activities in Navigable
Waters, Federal Register, p. 31320.
CRS-81
the prevalence of salt or brackish water vegetation capable of growth and
reproduction." 96/ Freshwater wetlands were defined as "areas that are peri-
odically Inundated and that are normally characterized by the prevalence of
vegetation that requires saturated soil conditions for growth and reproduc-
tion." 97/
The extent of Federal jurisdiction for Inland waters was also defined.
In addition, the Corps retained the discretion to require a permit In other
waters (such as areas less frequently inundated), if necessary for water
quality protection. The Corps also announced that in the future it would
utilize a vegetative Index, rather than reference to the ordinary or mean high
water mark, of inland waters, as one indicator of the characteristics of areas
within its jurisdiction.
The regulations enumerated several factors that would be considered in
evaluating dredge and fill permit applications because they are recognized
functions important to the public interest. They include the following:
(i) Wetlands which serve important natural biological func-
tions, Including food chain production, general habitat, and
rearing and nesting, spawning, resting sites for aquatic or land
species;
(ii) Wetlands set aside for study of the aquatic environment
or as sanctuaries or refuges;
(ill) Wetlands. . .the destruction or alteration of which would
affect detrimentally the natural drainage characteristics, sedimen-
tation patterns, salinity distribution, flushing characteristics,
current patterns, or other environmental characteristics;
(Iv) Wetlands which are significant in shielding other areas
from wave action, erosion, or storm damage. Such wetlands are
often Include with barrier beaches, islands, reefs and bars;
(v) Wetlands which serve as valuable storage areas for storm
and flood waters; and
96/ Ibid., p. 31324.
97/ Ibid., p. 31324-31325.
CRS-82
(vi) Wetlands which are prime natural recharge areas. Prime
recharge areas are locations where surface and ground water are
directly interconnected. 98/
The regulations also include this statement of policy: "As environmen-
tally vital areas, [wetlands] constitute a productive and valuable public
resource, the unnecessary alteration or destruction of which should be dis-
couraged as contrary to the public interest." 99/ Figure 1 compares juris-
diction of the Corps under section 10 and section 404.
The regulations proposed phased implementation of the expanded program
to ease the new administrative burden on the Corps. Regulation of Phase I
waters took effect immediately and covered areas that had been subject to the
program in the past. The Phase I program represented 85 percent of all waters,
but it covered only 15 percent of total wetland acreage under the Corps' regu-
latory jurisdiction. 100/ Phase II, to be implemented one year later, extended
regulation to primary tributaries of traditionally navigable waters, natural
lakes greater then five acres in surface areas, and adjacent wetlands. Phase
III, to be effective July 1977, extended coverage to all other waters falling
under the expanded jurisdiction of the Corps.
The total geographic jurisdiction of the Corps' regulatory program thus
includes the following: 25,000 miles of waterways, 3 million miles of river,
124,000 miles of tidal shoreline, 4.7 million miles of lakes shoreline, 30,000
miles of canal shoreline, and 148 million acres of wetlands. Of the national
totals, the State of Alaska accounts for about one-third of the river miles
38 percent of the tidal shorelines, 94 percent of the lake shoreline, and 45
98/ Ibid., p. 31328.
99/ Ibid.
100/ U.S. Army Corps of Engineers, Impact Analysis, Draft, p. 105.
CRS-83
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Source: U.S. Army Corps of Engineers Institute for Water Resources. Impact
Analyses of the Corps Regulatory Program (Draft). Washington, Nov.
198l5 p. 20. This figure was prepared by the Corp's District Office
in Portland, Oregon.
96-073 0
52-7
CRS-84
percent of wetland acreage. 101/ Table 2 summarizes the extent of the Corps'
jurisdiction under different definitions of navigable waters.
Reacting to the concern about activities covered by the rules, the Corps
proposed in the 1975 regulations to exempt certain routine or normal farming,
ranching, and forestry activities from regulation, including: plowing, culti-
vating, seeding, harvesting, and maintenance or emergency reconstruction of
structures in waterways.
As an additional effort to lessen administrative complexity, the regu-
lations authorized Issuance of general or categorical permits for certain
activities that would cause minimal adverse cumulative effect on the environ-
ment, such as beach erosion control projects. After issuance of a general
permit, no further permit would be needed for similar work.
Some observers noted approvingly that the absence of a detailed defini-
tion of dredge and fill materials In the legislative history of section 404
allowed the Corps to fashion a workable program, Including the exemptions for
normal farming, ranching, and forestry. 102/ Other persons in the agriculture,
forestry, and construction industries contended that the Corps' regulations
created major uncertainties about how the term "normal" would be interpreted.
Much of this concern stemmed from the decentralized nature of the Corps' reg-
ulatory activities, with each of the Corps' District Engineers traditionally
exercising considerable latitude in decision making. 103/
In 1977 the Corps issued final regulations concerning its regulatory pro-
gram under both the FWPCA and the Rivers and Harbors Act of 1899. These were
101/ Ibid., p. 28.
102/ Myrhum, Federal Protection of Wetlands, p. 604.
103/ Blumm, The Clean Water Act's Section 404 Permit Program, p. 438.
CRS-85
TABLE 2.
Authority as
Summary of Changes in Extent of Corps
Brought About by Changes in Definition
Jurisdictional
of Navigable Water
Centerline
River
(Milea)
Tidal
Shoreline
(Miles)
Lake
Shoreline
(Milea)
Manmade
Canals
(Miles)
Total Wetland
(Acres)
ior
to 1975:
1)
Navigable water exclusive of
those historically navigable
or susceptible to navigation
53,000
98,000
44,000
0
10,880,000
I)
Historically navigable or
susceptible to navigation
Total prior to 1975
518,000
0
37,000
0
3,840,000
571,000
98,000
81,000
0
14,720,000
75-
1977 Trcvious water plus
expansion Co adjacent
wetlands (Corps Reg. of
July 1977)
571,000
98,000
81,000
0
22,400,000
,1,
1977 Previous waters plus
3,500,000
125,000
4,700,000
31 ,000
148,090,240
expansion to all waters
of U.S. (Corps Reg. of
July 1977)
All waters of U.S. minus 2,100,000 65,000 3,290,000 unk. 22,400,000
those delegated to the
states (Clean Water Act
October 1977)*
Although the Clean Water Act provided for the possibility of transfer of certain 404 jurisdiction to the states, as y<
no state lias established a program to undertake Suction 404 permitting.
Source: U.S. Army Corps of Engineers Institute for Water Resources. Impact
Analysis of the Corps Regulatory Program (Draft). Washington,
November 1981. Appendix B.
CRS-86
revisions of the interim final rules of July 1975. Major elements of the new
rules included:
(1) rejection of the term "navigable waters," which had long
troubled the program, in favor of the term "waters of the United
States" that was defined to include all areas both traditionally
and newly within the scope of the FWPCA (the traditional definition
of navigable waters continued to apply to permits sought only under
the Rivers and Harbors Act, although in many cases a permit would
be required under both laws);
(2) expansion of the general permit concept by establishing
nationwide permits for specific types of discharges (such as minor
road crossing fills or some materials discharged for bank stabili-
zation) and discharges into certain waters (such as non-tidal rivers
and streams above the headwaters); and
(3) redefinition of wetlands by abandoning the distinction be-
tween coastal and inland areas and including the term "and adjacent
wetlands" to each category of "waters of the United States" in order
to emphasize protection and control of the total aquatic system. 104/
In the preamble to these regulations the Corps stated the view that the
wide expanse of the section A04 program stemmed from concepts of hydro-
logic cycles, demonstrating that, after its initial reluctance to broaden
its regulatory program, the Corps had accepted a wider view of Its respon-
sibilities.
The regulation of activities that cause water pollution can-
not rely on these artificial lines [such as mean tide line] , how-
ever, but must focus on all waters that together form the entire
aquatic system. Water moves in hydrologic cycles, and the pollu-
tion of this part of the aquatic system, regardless of whether it
is above or below an ordinary high water mark, or mean tide line,
will affect the water quality of the other waters within that
aquatic system. 105/
These final regulations also spelled out in greater detail the Corps'
general public interest review policies and coordination with other Federal
104/ U.S. Department of Defense. Department of the Army. Engineers
CorpsT Regulatory Program of the Corps of Engineers. Federal Register, v. 42,
no. 138, pt. ii, July 19, 1977. p. 37122.
105/ Ibid., p. 37128.
CRS-87
agencies and statutory authorities, noting, for example, that the Corps would
"give great weight" to the views of the U.S. Fish and Wildlife Service, Nat-
ional Marine Fisheries Service, and State fish and wildlife agencies "with a
view to the conservation of wildlife resources by prevention of their direct
and indirect loss and damage." 106/ Concerning wetlands in particular, the
regulations stated that each permit review would take into account the cumu-
lative impact of numerous piecemeal alterations and that
no permit will be granted. . .unless the District Engineer con-
cludes. .. that the benefits of the proposed alteration outweigh
the damage to the wetlands resource and the proposed alteration
is necessary to realize those benefits. 107/
The Chief of the Regulatory Functions Branch recently interpreted the evo-
lution of the Corps' public interest review process, a process intended to make
determinations in the face of competing and conflicting claims of what is
socially valued. He made the following comments about the evolution of consid-
erations in making a permit decision.
For the past few years, considerable weight has been
assigned to the loss of wetlands. On the other side of the
balance, energy development has been gaining weight at a
steady pace. Food and fiber production are also gaining
weight. On the deny side of the balance, we saw a rapid
gain in the attention given to cultural and historic
values, but this appears to have leveled off. Water sup-
ply and conservation are already major factors out West
and promise to be of great importance in the East as well.
This factor may find itself on the issue or deny side of
the balance depending on the nature of the proposal.
Water quality and fish and wildlife values continue to
be of great interest to the public and, consequently,
command respectable weights on the balance.
Not only do the weights given to the public interest
factors change in time but they vary considerably geo-
graphically. The regional fine tuning of the public
106/ 33 C.F.R. 320.4(c).
107/ 33 C.F.R. 320.4(b)(4).
CRS-88
interest balancing process is a very important aspect
of the Corps' regulatory program. 108/
Despite the apparent expansive scope of its regulatory jurisdiction,
the Corps has estimated that approximately 20 percent of total wetlands are
beyond the reach of its programs. Excluded areas are wetlands that are not
linked to a tributary system, those that are less than 10 acres in size, and
those that are in headwaters of tributary streams with average annual water-
flows less than 5 cubic feet per second (cfs) (essentially upland wetlands).
Included among the major areas outside of the regulatory program are bottom-
land hardwoods of the Lower Mississippi Valley and many prairie potholes in
the North Central United States. 109/
The Permitting Process
The permit process is complicated. Different types of activities and
scales of anticipated environmental impact follow different review processes.
While the Corps of Engineers takes the overall lead, the Environmental Pro-
tection Agency, the U.S. Fish and Wildlife Service, the National Marine Fish-
eries Service, and State agencies all play important roles, and other Federal
agencies may have a key voice in certain circumstances. Another reason for the
complicated nature of the program is that standards by which permits are issued
are broadly-stated, and interpretion of those standards in granting permits
or attaching conditions to permits has varied from district to district. 110/
The Corps has four general criteria for evaluating permit applications.
These are:
108/ Goode, Bernard N. The Public Interest Review Process. National Wet-
lands Newsletter, v. 3, no. 1, 1981. p. 7.
109/ U.S. Army Corps of Engineers, Impact Analysis, Draft, p. 107.
110/ Goode, The Public Interest Review Process, p. 7.
CRS-89
* the relative extent of the public and private need for
the proposed structure or work;
* the desirability of using appropriate alternative lo-
cations and methods to accomplish the objective of the pro-
posed structure or work;
* the extent and permanence of the beneficial and/or
detrimental effects which the proposed structure or work may
have on the public and private uses to which the area is
suited; and
* the probable impact of each proposal in relation to
the cumulative effect created by other existing and antici-
pated structures or work in the general area. 111/
Wetlands are given special attention in this evaluation process, which
also applies to non-wetland areas. 112/ Permits for activities in wetlands
are not given if the wetland performs one or more of the functions identi-
fied earlier. The two questions the District Engineer must answer are whether
the proposed activity is dependent on wetland resources and environments, and
whether feasible alternative sites are available. 113/ If the activity is not
water-dependent and alternative sites are available, a permit is only awarded
when strong public benefits can be demonstrated.
The recent history of this program is summarized In the following statis-
tics. In FY80, approximately 17,700 applications requiring individual permits
or letters of permission were received and 15,000 permits were issued. Both
111/ Hill, Jr., Lt. Col. John R. Corps of Engineers Efforts Related to
Wetland Protection. In Proceedings — National Wetlands Protection Symposium.
FWS/0BS—78/97. U.S. Fish and Wildlife Service. Washington, D.S. Govt.
Print. Off., 1978. p. 129.
112/ It is important to remember that a percentage of 404 permit requests
do not deal directly with wetland areas; the exact percentage, however, is
unknown .
113/ Hill, Corps of Engineers, p. 129.
CRS-90
figures increased by approximately 1,000 in FY81. 114/ These totals represent
all applications: those for section 404 and section 10 of the Rivers and Har-
bors Act, and those for section 10 permits only. The Corps has estimated that
approximately 45 percent of all applications are for section 10 permits only,
38 percent are for section 404 and section 10, and 17 percent are for section
404 only. 115/ Only 300 to 400 — about 2 percent of all applications processed
— are denied outright each year. Two explanations for the small number of deni-
als are that a large number are modified or have conditions attached before
the permit is issued, and an estimated 3,000 to 4,000 — about 16 percent of all
applications — are withdrawn or cancelled each year. Some applications are
probably withdrawn when it is clear that there is no chance of approval. 116/
The 38 District offices make the vast majority of the permit decisions.
The District Engineer has considerable discretion in these actions; seemingly
similar proposals have been treated in different ways in different districts in
the past. In FY81 , only 49 of the approximately 18,700 permit applications
were considered at a level higher than the District Engineer. 117/ Objections
from other Federal agencies, the governor's office of the State where the
application is pending, or the public can lead to a Division review of the Dis-
trict's permit decision. In rare cases of major interagency conflict or strong
political pressure, the permit application can be forwarded to headquarters
114/ Phone conversation with Mr. Jerry Chastein, staff member, Regulatory
Functions Branch, January 1982. Figures for FY81 are estimates made by the
Regulatory Functions Branch, Office of the Chief of Engineers, U.S. Army Corps
of Engineers. A more precise count is planned later this year.
115/ U.S. Army Corps of Engineers, Impact Analysis, Draft, p. 23.
116/ Ibid. Figures collected by the Regulatory Functions Branch, Corps of
Engineers Civil Works Division. These explanations are their interpretations.
117/ Ibid.
CRS-91
for a decision, under referral authority provided in section 404 and imple-
mented by interagency Memoranda of Agreement. In many cases when this happens,
as with the Hampton Roads, Virginia oil refinery proposal, the section 404
permit is used as leverage for debating othei. issues, ones that typically have
environment versus economic development overtones. 118/
The general permit program, available where only minimal adverse environ-
mental effects from single or cumulative actions are anticipated, has greatly
reduced administrative burdens. These permits, which can be issued at three
scales — nationwide, regional, and State — were initiated by the Corps in 1975 to
reduce regulatory delays, and were made part of the statute in the 1977 amend-
ments. 119/, 120/ As of late 1981, the Corps had issued 374 general permits, of
which 361 were regional and 13 were nationwide. A proposal to issue 30 addit-
ional nationwide permits is pending. According to estimates of the Corps that
are believed to be conservative, general permits have reduced annually the need
to process 60,000 individual permits annually. 121/ In proposed regulations
issued in 1980, the Corps specified 23 types of activities for which national
permits would be issued. Representative activities include placing navigational
aids, fish and wildlife harvesting devices, survey activities, Outer Continental
118/ U.S. Senate. Committee on Environment and Public Works. Energy
Development Project Delays: Six Case Studies. Prepared by the Congressional
Research Service. Library of Congress. Washington, U.S. Govt. Print Off.,
1979. Serial No. 96-7.
119/ U.S. Department of Defense. Department of the Army, Corps of
Engineers. Proposal to Amend Permit Regulations for Controlling Certain
Activities in Waters of the United States. Federal Register, v. 45, No. 184,
pt. vi, Sept. 19, 1980 p. 62734-62736 and 62775-62777.
120/ The 1977 Amendments to section 404 are discussed more fully in Chap-
ter V~
121/ U.S. Army Corps of Engineers. Impact Analysis, Draft, p. 21.
CRS-92
Shelf structures in Bureau of Land Management lease areas, certain bank stabil-
ization activities, minor road crossing fills, and fills and dredging of less
than five cubic yards. All national permits have eight special conditions
attached to protect water quality, living resources, and navigation. 122/ The
regulations include two additional safeguards, a review of all permits at
least once every five years, and an ability to cancel general permits for
specified waterbodies. 123/
Regional permits are issued by the Division or District Engineer for cer-
tain categories of activity. Examples of activities covered under this program
include: minor bridge fills, certain aids to navigation, portable water intake
facilities, and specified shore protection activities. 124/
An estimated 50-plus percent of permits involving wetlands include special
requirements or project modification to minimize anticipated impacts of the
proposed dredge or fill activity. 125/ One of the most common types of con-
dition designed to control runoff from a waste disposal area to protect water
quality in adjacent areas, requires a barrier to be placed around the disposal
122/ U.S. Department of Defense. Department of the Army. Corps of
Engineers. Proposal to Amend Permit Regulations for Controlling Certain Activ-
ities in Waters of the United States. Federal Register, V. 45, No. 184, pt. vi,
Sept. 19, 1980, p. 62777.
123/ Ibid.
124/ U.S. Army Corps of Engineers. Summary of Regional Permits Corps-
wide, [unpublished]. This summary reflects information available on April 27,
1981. The Regulatory Functions Branch plans an update, to be completed in late
1982.
125/ Phone conversation with Mr. Jerry Chastein, Regulatory Functions
Branch, January 1982.
CRS-93
site. Conditions and general permits have both been subject to controversy
and analysis about their environmental and regulatory effectiveness. 126/
Concerns about the permit process have caused the Presidential Task Force
on Regulatory Relief to request that the Corps, with OMB, review the section
404 program. The five topics addressed in the review were:
1. shorten permit processing time;
2. give states more opportunities to issue permits;
3. eliminate conflicting and overlapping policies;
4. expand regional and nationwide general permits to give blanket
approval to certain dredge and fill activities; and
5. more explicitly define the objectives and jurisdictional extent
extent of the permit program. 127/
The review was conducted using the Regulatory Impact Analysis process defined
in Executive Order 12291 on regulatory reform. A draft study has been com-
pleted which reviews the present program in terms of benefits and costs, and
suggests several alternatives. This report has been submitted to the Task
Force on Regulatory Relief 128/
The Role of EPA
EPA has substantial responsibilities under the section 404 program. These
diverse responsibilities, which presume active cooperation between the Corps
and EPA, include the following:
126/ For example, see Blumm, The Clean Water Act's Section 404 Permit Pro-
gram, p. 428-432; and Holmes, Federal Participation in Land Use Decision Making,
p. 394-396.
127/ National Wetlands Newsletter, Corps Reviews Section 404, v. 3,
no. 5, 1981. p. 6.
128/ U.S. Army Corps of Engineers, Impact Analysis, Draft.
CRS-94
1. Works with the Corps in developing 404(b)(1) guidelines; 129/
2. Under Section 404(c), EPA has the ultimate authority to veto permits
based on certain environmental criteria; this authority has been used
only once for a proposal in Florida.
3. EPA can designate geographic areas and ecosystems where EPA will make
final determinations on all permit proposals; the bottomland hardwoods
area in the lower Mississippi and a bay in California are the two areas
to be designated to date.
4. EPA is to assist States in developing supervisory responsibilites
where the responsibility for issuing permits in certain areas has been
delegated from the Federal level; there are no approved State programs
at this time.
5. Pursuant to a 1977 advisory opinion of the U.S. Attorney General, EPA
can locate where the boundary line of navigable waters, that is, deter-
mine where the 404 program comes into play, are located.
6. EPA has the authority is required to halt discharges, where a section
404 permit has not been obtained. This is a common violation of the
404 program requirements. 130/
EPA's multifaceted role in the 404 program has been the subject of consid-
erable debate. The environmental community has generally expressed increased
confidence in the program because of EPA's strong role. One analyst, however,
cites a lack of funding that inhibits EPA from carrying out this role. In
129/ Under section 404(b)(1) of the FWPCA, EPA has issued guidelines for
specification of acceptable disposal sites. Final rules were issued December
24, 1980 (40 C.F.R. 230).
130/ Summerized from Holmes, Federal Participation in Land Use Decision
Making, p. 393-398. The specific facts about implementation were obtained
during a August 1981 phone conversation with David Davis, Office of Federal
Activities, Environmental Protection Agency.
CRS-95
1979, EPA had funding sufficient only to review 10 percent of the permit appli-
cations. 131/ On the other hand, many critics of the program contend that EPA's
role is too strong. They feel that since EPA is charged with making environ-
mentally-oriented decisions, based on its primary mission to protect water
quality, EPA's influence tends to disrupt the primary missions of the Corps,
which are developing water resources and maintaining navigability of water
courses.
EPA has published a program strategy outlining its role in meeting its
responsibilities under section 404. 132/ The Strategy defines EPA's approach
to implementing its wetland authorities, including its legislative mandate and
institutional structure to address section 404 program goals and objectives,
and its agency policies and strategies. The Strategy places this program with-
in the context of EPA's broader organization and related programs which help
define the regulatory environment of the section 404 program. The Strategy
has been in effect for less than two years, and no evaluation of its accom-
plishments or shortcomings has been published.
Roles of the Fish and Wildlife Service and National Marine Fisheries Service
Both Services participate in the 404 permit process through their respon-
sibilities under the Fish and Wildlife Coordination Act. This Act requires
that wildlife receive "equal consideration" in Federal water resource develop-
ment activities. The Fish and Wildlife Service is generally involved in fresh-
water wetland areas, and both services are likely to be involved when actions
in coastal wetlands are contemplated.
131/ Blumm, The Clean Water Act's Section 404 Permit Program, p. 422.
132/ U.S. Environmental Protection Agency. Office of Water Regulations
and Standards. Criteria and Standards Division. Section 404 Program Strategy.
Washington, June 1980. 15 p.
CRS-96
The Corps and the Fish and Wildlife Service work through a memorandum of
understanding, signed in 1967, which requires consultation and consideration
of fish and wildlife resources in permit decisions. If the Corps' district
office and the Service's regional office cannot agree on a permit decision,
the disagreement can be referred to the national offices of both agencies.
The role of both Services is only advisory. 133/ In reviewing permits,
the Fish and Wildlife Service uses two concepts; whether alternative non-water
sites are feasible, and whether construction and operation can be accomplished
in the least environmentally destructive manner. Subsequent legislative enact-
ments such as the National Environmental Policy Act and administrative pro-
nouncements, such as the Executive Order on Protection of Wetlands (E.O. 11990),
have strengthened the coordination process and the role of these two advisory
agencies, as well as other Federal agencies and departments.
OTHER WETLAND PROGRAMS
Water Bank Program
The Water Bank Program, administered by the Agricultural Stabilization
and Conservation Service (ASCS) in the Department of Agriculture, makes payments
to landowners and farm operators under 10-year land-use agreements in important
migratory waterfowl nesting and breeding areas. Agreements include provisions
for renewal. During the life of the agreement, the property owner agrees not
to destroy the wetland qualities of the area by such activities as draining,
filling, or burning. The payment rate varies for each agreement, and the rate
133/ Hirsch, Allan. Wetland Protection Programs of the U.S. Fish and
Wildlife Protection Symposium. In Proceedings-National Wetlands Protection
Symposium, FWS/OBS-78/97 . U.S. Fish and Wildlife Service. Washington, U.S.
Govt. Print. Off., 1978. p. 112.
CRS-97
can be reviewed after 5 years and at the time of renewal, to bring it in line
with changing market conditions.
By 1979 the program, operating since 1972, had resulted in 5,205 agreements
that designated more than 585,000 acres for wetland protection. In FY 1981,
an additional 80 agreements and 11,000 acres were expected to come into the
the program. Participation is concentrated in the prairie pothole region of
the upper Great Plains. States with the largest areas participating in this
program are North Dakota, South Dakota, and Minnesota. 134/
Wetland Acquisition Programs of the Fish and Wildlife Service
In 1977, the Service managed approximately 12 million acres of wetlands. 135/
Most of these wetlands have been acquired under provisions of the migratory
bird land acquisition program. A representative of the Fish and Wildlife Ser-
vice stated that this program, funded mainly through the sale of "duck stamps,"
has been used to acquire over 2.2 million acres of waterfowl habitat in the
lower 48 States between 1935 and 1976. In 1977 alone, revenues from the sale
of duck stamps totaled $12 million. The goal of the program, in 1975, was to
preserve an additional 1.9 acres through fee acquisition and easements. 136/
This goal is also supported by funds from the Wetlands Loans Act of 1961, which
authorizes funds to accelerate wetland purchases (ultimately to be repaid from
future "duck stamp" revenues).
134/ U.S. Department of Agriculture. 1982 Budget Explanatory Notes, v. 2.
Washington, 1981. p. 306-311.
135/ Holmes, Federal Participation in Land Use Decision Making, p. 383. Ap-
proximately 8.8 million acres are in Alaska and the remainder are in the lower 48.
136/ Hirsch, Wetland Protection Programs, p. 110-111.
CRS-98
Additional areas, including wetlands, are acquired under the Land and
Water Conservation Fund Act to protect endangered species, to extend National
Wildlife Refuges, and to protect important natural resource areas. Through
FY77 , approximately 60,000 acres had been acquired for endangered species pro-
tection and an additional 40,000 acres for the other two purposes. 137/ Since
1981, appropriations have been proposed that would greatly reduce this fund,
but Secretary of the Interior James Watt has expressed a strong commitment to
wetland protection in the future. 138/ It is unclear how these two contrasting
policies (reduction of the fund versus increased wetland protection) will be
made compatable.
Executive Order 11990 — Protection of Wetlands
In May 1977, President Carter issued a series of Executive Orders concern-
ing protection and enhancement of the environment. Executive Order 11990 spe-
cifically established a broad national policy for conserving and protecting
wetlands. It requires all Federal agencies to refrain from supporting, assis-
ting, or financing new construction in wetlands unless there is no practicable
alternative and the activity will utilize all feasible means of minimizing
harm. 139/ It also provides opportunity for early public review of Federal
agency plans or proposals regarding new construction in wetland areas.
137/ Ibid., p. 110.
138/ Department of the Interior News Release. Nation's Wetland Acqui-
sition Program Must Continue, Watt Says. Washington, October 9, 1981.
p. 1-2.
139/ The President (Carter). Executive Order 11990 — Protection of Wet-
lands. Federal Register, v. 42, no. 101, May 25, 1977, p. 26961-26963.
CRS-99
In a statement accompanying this order, President Carter noted, "The prob-
lem of loss of wetlands arises mainly from unwise land use practices." 140/ The
Federal government can cause or influence such practices in several ways, in-
cluding actual construction, management of its own properties, and provision
of financial or technical assistance. The intention of the Order, he said,
was to insure that Federal agencies avoid actions having both short and long-
term adverse impacts on wetlands.
Another environmental protection Executive Order issued at the same time
was E.O. 11988 concerning floodplain management. This Order establishes a
step-by-step procedure to evaluate and minimize flood hazards by seeking prac-
tical alternatives. If none exists, the required analysis is extensive, and
provides for review and consultation by several agencies. Because most wet-
lands are situated in floodplains, implementation of both Executive Orders has
been virtually identical. According to the Water Resources Council, which was
required to evaluate the effectiveness of the Orders, by May 1981, all but a
few of the Federal agencies had issued joint regulations to implement both
Orders in interim or final form. Based on limited analysis, it appears that
the requirement in both Orders to consider all practicable alternatives prior
to a construction activity has proven cost-effective (by preventing activities
that would damage wetland areas). 141/
The actions of the Bureau of Land Management are perhaps typical of agency
responses. The Bureau developed and issued, in draft form in 1978 and in final
140/ U.S. President, 1977-1981 (Carter). Protection of Wetlands.
Statement by the President accompanying Executive Order 11990. Weekly Com-
pilation of Presidential Documents, v. 3, no. 22, May 30, 1977. p. 808.
141/ Thomas, Frank. Progress Report. Implementation of Executive Order
11988, Floodplain Management, June 1, 1981. Washington, U.S. Water Resources
Council. Unpublished report.
96-073 0-82
CRS-100
form in 1980, new guidelines for protection of wetlands and riparian areas on
public lands under its jurisdiction. The guidelines address several topics,
including methods to protect and enhance wetlands and wetland management
practices. Management practices include use of buffer strips, designations of
critical environmental areas, public land withdrawal, and managing such common
practices as grazing and timber harvesting. 142/
Adverse Effects of Other Federal Programs
At the same time that the Federal programs discussed above are operating
to protect wetlands, paradoxically, a number of other Federal programs are
contributing to degradation of wetlands and water quality, by encouraging
conversion of wetlands for alternative land use practices. These include
various agricultural subsidies, price supports, low interest loans, and flood
control projects for agricultural development in floodplain areas.
For example, the Farmers Home Administration makes grants and low interest
loans to promote agricultural development, much of which has led to losses of
bottomland hardwood forests in the Lower Mississippi Valley. The Department
of Agriculture provides crop subsidies which can influence conversion of nat-
ural bottomlands to farmland, as well as increase water pollution. Likewise,
flood protection programs of the Soil Conservation Service and of the Corps
itself have modified or eliminated many floodplains wetlands through alter-
ations to the hydraulic/hydrologic regime. Thus, the national programs that
142/ U.S. Department of the Interior. Bureau of Land Management. Wet-
lands— Riparian Area Protection and Management; Policy and Protection Pro-
cedures; Final Guidelines. Federal Register, v. 45, no. 25, Feb. 5, 1980.
p. 7889-7895.
CRS-101
exist to protect wetlands may be viewed as means to balance and mitigate the
degrading effects of other Federal programs such as these. 143/
SUMMARY
Section 404 is clearly the key program in Federal wetland management. It
has been the subject of numerous concerns and complaints, mostly by permit
applicants who have encountered what they see as unnecessary, unreasonable, or
unwise delays and decisions. These concerns, coupled with concern about the
expanded geographic coverage of the program, have brought pressure on Congress
to give the program an intensive review. Current issues include delay, uncer-
tainty, possible inconsistency of permit decisions, and the interagency review
process inherent in the section 404 program. These concerns are part of two
more general issues about the current set of programs that provide for wetland
management.
First, there is no national wetland law. Experts in the wetland field
have debated the need for such a law in many forums in the past. Many prefer
the present arrangement because it covers most wetland areas, has some regula-
tory flexibility by focusing attention on the more significant proposals, and
minimizes usurpation local land use planning prerogatives. Others would like
to see a wetlands law that sets clear policy for wetland areas, defines the
term wetland in Federal law, and directly confronts wetland value issues.
Second, the issue of whether wetlands use and modification should be regu-
lated through a water quality approach or through controls on land use contin-
ues to be troublesome. The water quality approach, as presently used, is a
very imprecise fit with wetland resources. It does not cover all activities
that affect wetlands, yet, it applies to virtually all water areas. As one
143/ U.S. Army Corps of Engineers. Impact Analysis, Draft, p. 76-77.
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member of EPA's staff who works with this program stated, "Section 404 is both
bigger and smaller than a comprehensive wetlands program." 144/ Alternative
approaches oriented to land use controls might have found some favorable
response in Congress five to ten years ago, when coastal zone and national land
use legislation proposals were being debated; but in the recent past, any leg-
islation that can be even tangentially tied to Federal land use planning has
died a quick death or been subject to such extended scrutiny and criticism that
final affirmative action has not been taken.
One result of disagrement as to the most appropriate approach at the Fed-
eral level has been growing efforts by States, and to a lesser degree, local
government, to create their own programs. These programs differ from the Fed-
eral effort in many ways, and vary greatly from State to State. The next
chapter briefly reviews these programs.
144/ Phone conversaion with David Davis, Office of Federal Activities,
Environmental Protection Agency, August 1981.
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CHAPTER IV: STATE AND LOCAL WETLAND MANAGEMENT PROGRAMS
INTRODUCTION
Programs for wetland management have been developed by a number of State
and local jurisdictions in recent years. As the number of programs grows,
they are becoming an increasingly significant force in wetland management.
These programs take many alternative approaches to wetland management. Their
recent evolution is an indication that Federal programs are not satisfying all
State and local needs. Many of these programs are efforts to implement wetland
goals that differ from Federal programs.
The number of State and local programs to regulate wetland area uses and
alteration is now substantial. A 1979 survey found
at least 15 states regulate or establish standards for
local regulation of coastal wetlands. Six states exer-
cise some control over inland wetlands. More than 1000
local communities have adopted wetland protection regu-
lations pursuant to these acts or other standards con-
tained in broader shoreland or coastal zone acts." 145/
Development of coastal zone management programs, greater awareness of wetland
values, and the expanded jurisdiction of the Clean Water Act's section 404
program have contributed to the growth of State programs. 146/
145/ Kusler, Jon. Regulating Sensitive Lands. Cambridge, Ballinger Pub-
lishing Co., 1979. p. 32.
146/ U.S. Department of the Interior. Fish and Wildlife Service. Office
of Biological Services. Strengthening State Wetland Regulations. FWS/0BS-78/98.
Prepared by Jon Kusler, Environmental Law Institute. Washington, U.S. Govt.
Print. Off., 1978. p. 7-9.
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STATE AND LOCAL PROGRAM CHARACTERISTICS
State programs vary widely, and all are different from the Federal pro-
gram. 147/ Important variations are found in definitions of wetlands, activi-
ties subject to regulations, and geographic extent of coverage.
State and local programs most commonly define wetlands in coastal areas
using vegetation and high water lines. Inland wetlands are more difficult
to define; they can vary much more widely in vegetative, hydrologic, and soil
characteristics over a small area. They can be defined by flooding patterns,
vegetation, or (only in Connecticut) soil types. As a result, not only may
State programs be inconsistent in the areas covered, but the State programs
often do not coincide with the Federal one. Where the U.S. Fish and Wildlife
Service national inventory defines wetlands under a different definition from
the State's definition, boundaries of designated areas do not coincide. With
different definitions and boundaries, Federal permit program does apply at
the same sites as do State or local programs.
Most State wetland programs have geographic limits. Most coastal wet-
land programs are tied to the State's coastal zone management program, and
wetlands covered under the program are located within coastal zone boundaries.
The Federal Coastal Zone Management program has only general guidelines on
defining a State coastal zone, so it varies in width inland from the shoreline,
from several hundred feet to several miles or more in different States. Most
State inland wetland programs only apply to wetlands larger than a minimum
size. For example, the New Hampshire act applies to lakes or ponds larger
than 10 acres, the New York act applies to areas greater than 12.4 acres,
147/ Local programs are even more diverse than State programs in their
procedures and requirements, and in the definition of protected wetland areas.
CRS-105
and the Rhode Island act definition includes swamps larger than three acres
and marshes larger than 10 acres. 148/
Almost all programs regulate dredge or material removal and fill in one
way or another. Other objectives of different State programs include pro-
tection of fish spawning and duck nesting areas, aquifer recharge areas,
hunting areas, rare plants and animals, scientific research areas, scenic
beauty, and certain ecological functions, and flood storage and pollution
control. 149/ Many State programs also exempt certain uses.
Legislation creating many of these programs touches on similar topics,
including
1. legislative finding of fact concerning wetland losses;
2. statement of statutory purposes and policy;
3. definition of wetlands;
4. authorization for a designated agency to map wetlands;
5. delegation of powers to regulate wetland uses directly or indirectly;
6. requirement that landowners seek permits for certain kinds of land
uses in wetland areas;
7. penalties for violating standards; and
8. appeal procedures. 150/
Table 3 summarizes several characteristics of State programs including
coverage, regulatory roles, and program features. Some States treat all wet-
lands equally, while others combine a general regulatory approach with a more
148/ U.S. Department of the Interior. Strengthening State Wetland Regu-
lations, p. 17.
149/ Kusler, Regulating Sensitive Lands, p. 34.
150/ Ibid., p. 11.
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protective program for certain highly threatened or particularly valuable
wetland areas.
I
TABLE 3. State Wetland Programs
State
Coverage
State/Local Role
Program
Alabama
coastal
State regulation
California coastal
Connecticut coastal
inland
Delaware coastal
Georgia
Maine
coastal
coastal
Maryland coastal
After a State plan has been
completed, permits are required
for activities in the coastal
zone (dredging, dumping, certain
structures) which alter tidal
movement or damage flora and fauna.
regional regulation Permit required for development up
to 1000 yards from mean high tide,
and for fills within 100 feet of
San Francisco Bay shoreline.
State regulation
local regulation
State regulation
State regulation
State and local
regulation
State regulation
Permit required for all regulated
activity; State inventory re-
quired.
State regulates if local units do
not; local regulation resumes upon
State approval of local program.
Permits required for activities in
coastal wetlands.
Permits required for activities
in coastal marshlands.
Local permits required for fill-
ing, dumping, dredging, or sewage
discharge into coastal wetlands;
State may disapprove permit.
State and local permits required
for activities in State wetlands;
State permits for many activities
include dredging, filling, and re-
moving on private wetlands; coastal
wetlands to be inventoried.
CRS-107
TABLE 3. State Wetland Programs (continued)
State
Coverage State/Local Role
Massachusetts coastal/
Inland
State and local
regulation
Michigan inland State regulation
Program
State permits required in some in-
stances for fill or alteration of
wetlands in coastal areas; local
permits also required. Local per-
mits required for alteration of
inland wetlands. State permits
may be required.
Permits required for dredging, fill-
ing or construction on bottomland,
and creating or interfering with
an inland lake, stream or artificial
channel.
Mississippi coastal
State regulation
Permits required for regulated ac-
tivities including dredging and
dumping; many exemptions.
New Hampshire coastal/
inland
State regulation
New Jersey coastal State regulation
New York
North
Carolina
coastal
(tidal)
coastal
Rhode Island coastal/
inland
State or local
regulation
State regulation
State regulation
State permit required to excavate,
dredge or fill lands in or ad-
jacent to tidal or inland waters;
notice to local governments and
abutting landowners required.
State permits required for dredging,
removing or filling a wetland; ag-
ricultural activities are exempted.
An inventory is required.
State permits required for wetlands
alteration; State inventory required.
State permits required for excavation;
may be denied on certain grounds.
Abutting landowners to be notified.
State designates coastal wetlands
by order, and limits use; permits
required for depositing materials
on intertldal salt marshes. State
permit required for altering inland
wetlands.
CRS-108
TABLE 3. State Wetland Programs (continued)
State
Coverage
State/Local Role
Program
Virginia
coastal
Washington
coastal
State and local
regulation
State regulation
and standards for
local regulation
State permits required for activi-
ties in tidal wetlands; local units
may adopt ordinance contained in
the statute; State board reviews
certain local conditions; prior
non-conforming uses exempted.
State adopts guidelines for local
programs for certain shorelines;
State may regulate if local unit
fails to do so in shorelines of
Statewide significance; State
directly regulates certain uses
of Statewide significance.
Source: Adapted from: Kusler, Regulating Sensitive Lands, Appendix B:
Profile of Selected State Sensitive Area Regulatory Programs,
p. 175-184.
Note: Kusler made judgments in deciding what programs to include. For
example, Minnesota and New York operate extensive freshwater wetland
programs which are not included. Other State programs may also affect
wetland management. Many States have programs to control uses in flood
plains. Because most wetland areas are in flood plains, these programs
influence State and local wetlands regulation. Several States have
critical area programs that may affect wetlands, depending on desig-
nation. These States include: Florida, Maine, Maryland, Minnesota,
Nevada, North Carolina, Virginia and Wyoming.
When States have a permit program, the applicant may be confused by incon-
sistent State and Federal requirements or duplicative review procedures. If
an applicant must apply for both a Federal and a State permit, most States
will have two reviews, one for the application submitted to the State and the
second as part of the Federal permit review process. The Corps of Engineers
has apparently followed an unofficial policy of denying permits when the State
has objected to the permit application. However, the reverse has not been
true State approval of a permit does not automatically mean Federal approval.
CRS-109
The Clean Water Act Amendments of 1977 allow EPA to delegate program
responsibility for dredge and fill permits in areas outside navigable waters
and adjacent wetlands, sometimes referred to as Phase II and Phase III waters,
to States that meet a variety of requirements. To date, States have been
deterred by these cumbersome requirements and regulations, issued in 1980. 154/
Some States have been dissuaded because the Act offers no direct financial
support for such a program. 152/ Others may object because they can only
assume management of certain waters within their jurisdiction. Further, EPA
can always override a State decision to award a permit. In summary, States
would assume a potentially large workload without a desirable level of control
over the program or a desirable geographic range of control. For these rea-
sons, no State has submitted a program proposal, although several have received
small grants to conduct feasibility and pilot studies. 153/ State interest
has been revived recently, according to an EPA representative, by a combination
of problems with Corps' inactivity in Phase II and Phase III waters, and an
expression of States' rights. 154/
151/ U.S. Environmental Protection Agency. Consolidated Permit Regu-
lations. Federal Register, v. 45, no. 98, May 19, 1980. p. 33290.
152/ Moreover, in view of current Federal budget cutting efforts which have
included reduced grant support for State environmental programs generally
(for FY 1983 the Administration proposed a 20 percent reduction in grants
for State water quality programs), many States may find it increasingly diffi-
cult to assume new responsibilities, such as section 404 permitting.
153/ Phone conversation with Lauri Williams, EPA Office of Federal Activi-
ties. She stated, during a conversation in January, 1982, that eight states
had received grants, averaging about $60,000 to conduct feasibility studies.
If these studies are successful, funding is then provided for pilot studies.
She believes one or two states may assume programs by the end of 1982. States
participating (and their status) are: Rhode Island (pilot), Pennsylvania
(feasibility), Michigan (pilot), Oklahoma (feasibility), Nebraska (feasibility),
Wyoming (feasibility), Washington (feasibility), and Alaska (feasibility).
154/ Ibid.
CRS-110
One State attempting to develop a stronger program, North Carolina, has
been granted a general permit from the Corps of Engineers for most activities
in coastal counties, the area under the jurisdiction of the State's approved
coastal zone management program. 155/ Under its agreement with the Corps, if
the State issues a permit, the section 404 permit is automatically awarded.
This program has a permit rescission provision if objections to the proposed
project are raised. Permit applications are sent to all Federal agencies for
review and comment, just as under the Corps program. This program provides
a single stop for the permit application in coastal areas.
A second State attempting to improve the permit process is Michigan.
This State has made a number of administrative and technical adjustments that
allow the program to process permit applications much more rapidly in non-con-
troversial projects. When a new centralized processing capability comes on
line in 1982, the average processing time for 75 percent of the applications
should be 10-15 days. The average processing time was 90-120 days in 1978. 156/
VIEWS FROM STATE PROGRAMS
Individuals with wetland management responsibilities in seven States were
contacted by CRS during preparation of this report. The seven States were
155/ Owens, David. North Carolina's Regulatory Program. In Coastal Zone
Management Information Exchange. Washington, National Oceanic and Atmospheric
Administration, February 1982. p. 10-11.
156/ Shafer, Chris. Michigan's Shoreline Construction Permit System. In
Coastal Zone Management Information Exchange. Washington, National Oceanic and
Atmospheric Administration, February 1982. p. 9-10.
CRS-111
Louisiana, California, Wyoming, Utah, Massachusetts, Minnesota, and Connec-
ticut. 157/ Only the last three have been recognized by analysts as having
a distinct wetland regulatory management program, but wetland managers from
each State saw their programs as having a key role. 158/ Four of the seven
(California, Massachusetts, Minnesota, and Connecticut) have State wetland
laws. The seven States were chosen to provide geographic variation, to include
a broad range of wetland situations (in terms of scarcity, degree and scale
of alteration, and natural values), and to include a range of programs from
those that have received national acclaim as leaders in the field to those
that are considered by analysts to be insignificant.
In phone interviews with managers of these State programs, several issues
were addressed, including: flexibility of the State program, problems and
variables in differentiating wetland types, concerns about regulatory processes
(Federal and State), and views on State and Federal responsibilities.
State wetland managers view their programs to be different from the Fed-
eral program in several ways. A basic premise of the Federal program appears
to be that all wetlands are equal, so the key in protection is to have an
area designated as a wetland. Most of the State wetland managers felt that
further distinctions should be made among wetlands. Managers from States
recognized to have stronger programs and stronger protection constituencies
157/ Individuals contacted included: Louisiana - Joel Lindsey, Coastal
Resources Program; California - Bob Randovich, Department of Fish and Game
and Eric Metz , California Coastal Commission; Wyoming - Paul Cleary, State
Planning Coordinator's Office; Utah - Casey McGirley, Division of Wetlands;
Minnesota - John Wells, Minnesota Water Planning Board; Connecticut - Allan
Williams, Natural Resource Center. The contacts were made by phone during
July and Auguest, 1981. A CRS intern, Julia Johnson, contacted most of these
individuals.
158/ Kusler's work is probably most-widely recognized among policy ana-
lysts. Another analyst who has worked extensibely on State wetlands programs
is Nelson Rosenbaum, formerly with the Urban Instltue.
CRS-112
seemed to want to strongly protect wetlands under their jurisdiction. 159/
The manager from Connecticut thought that wetlands should be judged on the
values of functions they perform today, not on either the causes of change
or former values. This basis for making a judgment Is evidently a problem
in deciding whether some permits should be issued. The California coastal
zone management program distinguishes degraded wetlands in coastal areas.
These wetlands, which have little or no remaining biological value, are not
as well protected, and instead, efforts are centered on the protection
and restoration of more viable wetland areas. 160/
Three of the surveyed States, Minnesota, Connecticut, and Massachusetts,
recognize size as an important variable. In the first two States, statutes
set a minimum size for wetlands to be included in the regulatory program.
There was a general sense expressed by all three managers that small wetlands
are more difficult to administer through their programs. Managers from three
of the States (Connecticut, Utah, and Wyoming) cited special problems in
reviewing permit proposals that would modify small created wetlands. Managers
from the two western States (Utah and Wyoming) were especially concerned that
these wetlands, which appear to have limited ecological value In many cases,
had become the center of some serious conflicts between Federal permlting
authorities and project proposers.
159/ Flexibility has been a contentious issue in wetlands management.
Some have argued that programs should be flexible, recognizing that many small
or modified wetlands have limited value for each wetland function. Others
call for protection of all remaining wetlands, citing both the large losses
in the past and increased knowledge about high values generally.
160/ Metz, Eric and Michael Delapa. California's Wetland Regulatory Pro-
gram: Developing an Interpretive Guideline for Protecting Significant Nat-
ural Resources. In Edge, Billy, ed. Coastal Zone 80. New York, American
Society of Civil Engineers, publication pending.
CRS-113
Several of the State managers were most concerned with the cumulative
loss of wetlands and the impact of those losses on larger ecological systems.
As a result, programs for mitigation and restoration seem to be rapidly gaining
in popularity. None of the State respondents discussed either the cumulative
loss or the incremental impact questions in detail, nor were any specific
suggestions given on how to consider these problems in future permit decisions.
Several managers also pointed to problems and concerns in differenti-
ating wetland types. The wetland manager from Massachusetts pointed out
that coastal wetlands are all treated similarly because, from the standpoint
of the State's requirements, they are similar natural units. Inland wet-
lands, on the other hand, present difficult problems because of the wide vari-
ety of natural systems, each with its own set of functions and values.
The State of Louisiana is developing a three-tiered system to deal with
its wetlands. The highest tier will include special management areas, where
protection will be strongest. These areas are being proposed by a team of
scientists using 12 factors including measures of biological productivity,
the condition of the wetland, and the species that inhabit it.
The Minnesota wetland manager pointed out another problem in differenti-
ating wetlands — seasonal variation. Many inland wetland types expand and con-
tract during wet and dry seasons. He reported that, in one recent case, a
permitting decision had been appealed to the district court. The case was
heard during the dry season. The judge visited the site, walked across it
without getting his feet wet and declared that it was not a wetland and could
be converted to another use. If he had visited the same site during the wet
season, he would have had trouble wading through the birds.
Concern was expressed about limited compatibility between Federal and State
programs. Several State program managers said that the Federal classification
CRS-114
and inventory systems are not specific enough to be of high value in State and
local programs. Part of this problem stems from variations in the legal def-
inition of wetlands. For example, in Connecticut the State defines coastal
wetlands and inland wetlands in two different ways, and neither conforms to
the definition used by the Corps of Engineers or the U.S. Fish and Wildlife
Service. 161/ The States need maps that accurately delineate boundaries to use
for making specific decisions. The Massachusetts respondent saw the Federal
maps from the current Fish and Wildlife Service inventory as a planning tool,
while State maps needed to make decisions are almost survey maps. A line on
Federal inventory map marking a wetland boundary would be 100 feet or more
wide and is of little value if transferred directly to the ground. For
example, in his State, maps at 1:600 are used in coastal areas and indicator
plant species are used to locate inland areas. Some States, such as Minnesota,
require their own inventory. The Utah respondent stated that the inventory
products would be far more useful if the State could participate in the des-
ignation process, along with the Federal agencies, so that future programs
would agree on the general location and boundaries of wetland areas -
The regulatory process was the subject of another set of comments. Some
managers felt that there were problems between the State and Federal programs.
Not surprisingly, these concerns were most strongly expressed by representa-
tives of States with the most sophisticated programs. The duplication of the
permit process was specifically mentioned by managers from Louisiana, Connecti-
cut, and Massachusetts. Duplicative programs translate into more work for the
applicant, often for no apparent reason. In all three States, the State is
161/ Connecticut defines coastal wetlands by high water elevation and
vegetation type. Inland wetlands are defined by soil types that are poorly
drained, alluvial, or in the floodplain.
CRS-115
attempting to work out cooperative arrangements with the key Federal agencies
to develop a simpler system that operates through the State, at least for cer-
tain types of permits. In Connecticut, under the present system, applicants
file two permits. But the State and Federal government define wetlands dif-
ferently, so in some cases, only one or the other permit is needed. This
State is trying to arrange with the Corps to review permits so that both appli-
cations could be processed in a single step.
It is not uncommon for Federal agencies and the State agency to disagree
on a permit. Most of these disagreements are evidently not on whether to
award the permit or not, but rather on conditions to be attached to the
permit. These conditions, which further define how or when the work is to
be done, may be inconsistent or even incompatible. This lack of coordination
can leave the applicant bewildered about what to do next and can further delay
his project. Several managers differentiated large, controversial proposals
which receive detailed attention from smaller proposals. State and Federal
wetland people tend to coordinate their review and analysis of large projects,
but work independently on smaller proposals, primarily because of time con-
straints.
Other sources of concern to individuals seeking a permit are the length
of time required to process it and actual Federal review. On the first point,
the Louisiana wetlands manager noted that the State processed 65 percent of
its applications In 55 days while the Corps processed 50 percent in 75 days.
According to the Massachusetts manager, his State requires action within 70
days, while the Corps can take up to six months. In terms of Federal review,
it should be noted that individual District offices of the Corps vary in the
average length of time required to process a permit application; this fact
may, in part, explain differences reported by the States. For example, the
96-073 0-82
CRS-116
General Accounting Office recently found differences among three District
offices. Average processing time ranged from 168 days for the Baltimore Dis-
trict offices to 203 days for the Philadelphia District office. 162/ Yet the
nationwide average for all District offices is 128 days, according to the
Corps. 163/
In addition, in Massachusetts, the Corps only reviews a very small per-
centage of all applications. The State reviews 3,000 applications a year
while the Corps District office averages 250 per year for the entire New Eng-
land region. Several managers thought the States could do a better permit
review job at a lower cost than the Federal program. The States, according
to these individuals, have fewer bureaucratic procedures and are more aware
of local situations and conditions.
But the States do not want the Federal presence to disappear. The Min-
nesota manager best stated this when he said that his State is sometimes
faced with an application that should be denied, but rejection is not polit-
ically feasible. The Federal agencies have been very cooperative in backing
the State by denying the permit, he said. The Massachusetts manager saw the
most useful role of the Corps as being able to step in and police the program.
Thus, In the ideal situation they would like to see the Corps participate
on a selective basis, with the State helping to determine how selections are
made .
162/ U.S. General Accounting Office. Managerial Changes Needed to Speed
Up Processing Permits for Dredging Projects. CED-80-71, June 9, 1980. Wash-
ington, 1980. p. 15.
163/ U.S. Army Corps of Engineers, Impact Analysis, Draft, p. 40.
CRS-117
SUMMARY
State and local programs to manage decisions about wetlands use are di-
verse. They range from strong regulatory programs to weak review and comment
programs. The interest in changing the balance between State and Federal pro-
gram roles in the seven States contacted seems high. State representatives
feel they can manage programs more effectively and be more responsive to local
considerations and needs than can the Federal government. They also implied,
through their responses, a frustration with the organization and operation of
the Federal program. Two of the representatives commented that they could do
the same job better than the array of Federal agencies at a fraction of the
cost. This contention may be important as reauthorization of the Clean Water
Act (including review of section 404) is debated in the Congress.
The diversity of State programs frequently conflicts with the uniform and
relatively inflexible qualities of the Federal program. This conflict is
largely a measure of the variation between national and more local goals for
managing the wetland resource and it has repeatedly surfaced in Congress. In
Chapter V, that conflict, as measured through the variety of wetland legisla-
tion lation introduced and debated since 1973 is examined.
CRS-118
CHAPTER V: CONGRESSIONAL INTEREST IN WETLANDS
INTRODUCTION
Congressional attention to wetland issues has been growing during the past
decade as conflicts have intensified between those who would modify these areas
for other uses and those who would leave them as naturally productive areas.
Growth In congressional interest is a result of both increasing knowledge and
awareness of the variety of values provided by wetlands, and the expanded juris-
diction of section 404 resulting from legal interpretations. Before the 1960s,
the only widely recognized wetland values were as habitat for waterfowl and for
certain fish species. Positive congressional action was limited to waterfowl
protection, yet that congressional interest took several forms: establishing
national wildlife refuges, enactment of the Wetlands Loan Act and subsequent
amendments, and continuing oversight hearings on wetland acquisition and on
appropriations for the Fish and Wildlife Service, which was responsible for
direct acquisitions. Few conflicts came to congressional attention because
wetland resources seemed extensive enough to meet recognized habitat needs
and still satisfy the demand of those who would convert them to other uses.
In addition, most refuges are in rural settings, where alternative demands
were minimal, with the exception of agriculture and timber harvests. As
awareness of habitat values has expanded and been reinforced by recognizing
other values, pressure to protect wetlands has increased. At the same
time, development pressures on wetlands have also intensified, as alter-
native sites have declined in number and increased in value. Combined,
CRS-119
these trends have stimulated consideration of a variety of wetland legislative
proposals.
Congressional interest has taken three general forms, addressed in the
policy issues in Chapter I. First, Federal legislation has treated wetlands
as a water pollution question; the goal of section 404, which requires permits
for all dredge and fill activities in navigable waters of the United States,
is to maintain or improve water quality. Wetlands are protected from the
two direct alterations, dredging and filling, that are associated with water
pollution under the Clean Water Act; but many questions have been raised
by this approach.
Second, the geographic coverage of the section 404 provision in wetland
areas has been of high concern. More than 45 bills have been introduced in
the past four sessions to change the definition of wetlands that are subject
to the 404 provision. Even now, after several years of congressional debate,
legislative reauthorization, and a number of judicial decisions, major inter-
agency battles are still being fought over the wetlands definition. For ex-
ample, the Corps of Engineers, EPA, and the Fish and Wildlife Service are still
debating which areas of bottomland hardwoods should be defined as wetlands
for purposes of the section 404 program. 164/
Third, Congress has addressed wetlands both as a generic issue and site-
specifically. In each session, legislation has been introduced to consider
a number of refuge and other site-protection proposals. At the same time, leg-
islative proposals that would look at all wetlands as single resource category
have been offered. Table 4 identifies topical categories of proposed legis-
lation under consideration over the past five Congresses (1973-1982).
164/ Clark, John and Jay Benforado, eds . Report on a Bottomland Hardwood
Wetlands Workshop. Washington, National Wetlands Technical Council, 1978. p. i-v.
96-073 0-82-10
CRS-120
TABLE 4. Numbers of Wetlands-Related Bills Introduced by Topical Category:
93rd through 97th Congresses
Topics
93rd
94th
95th
96th
97 th*
Total
Inventory and Study
2
1
1
1
1
6
Amend Section 404 Program
0
27
12
3
6
48
Wetlands Acquisition
3
2
4
2
1
12
Wetlands Establishment
0
2
2
0
0
4
Wetlands Protection
(includes Water Bank
Program)
0
3
3
2
0
8
Establish and Maintain
Refuges
8
3
4
9
3
27
Site-Specific Proposals
0
1
3
4
5
13
Other
1
1
1
0
0
3
Total
14
0
30
21
16
121
* To October 12, 1981.
Source: SCORPIO listing of legislative activity under the terms "wetlands,"
"wetland conservation," and "dredging." During the period 1973-1981, the index-
ing of legislative proposals has not always been consistent, and some bills
that deal with wetland issues may not be included because the bill, as intro-
duced, did not appear to specifically address wetland issues. This listing in-
corporates some judgments regarding placement because the categories do not
overlap and each bill is only listed in one category. Alaska Lands legislation,
appropriation bills, flood insurance reauthorization, and specific flood control
and public works projects are examples of bills which have not been included.
Congressional interest has centered on possible revisions to section 404,
especially Its geographic coverage. Constituent pressure, legal actions,
and publicity have all stimulated this interest. This debate did come to
acknowledge that protection and enhancement of water quality — the purpose
CRS-121
of the FWPCA — include controlling both direct pollutant discharges and activities
with the potential for altering the normal movement of water in hydrologic
cycles. The public debate has not focused the differing nature, function,
or relative value of any particular wetland area. While scientific researchers
have studied these differences and attempted to estimate values, results of
their efforts are not reflected in Federal law or regulations. In terms of
management or affording protection, existing legislation does not distinguish
among different types of wetland areas. Thus, under the current regulatory
program, uses in all wetlands — whether natural, manmade, or unintended — are
equally controlled by the dredge and fill permit program if they meet de-
finitional qualities that identify wetland areas. 165/ The following paragraphs
summarize congressional interest in wetlands during the past decade. Debate
about the section 404 program, especially the topic of geographic coverage,
is emphasized.
THE 93rd CONGRESS (1973-1974)
Following passage of the 1972 Amendments to the Federal Water Pollution
Control Act, there was little congressional interest or activity concerning
wetlands or the section 404 program that had been established in 1972. Contro-
versies that would later surround the Corps' implementation of the program as
a result of court interpretations and expanded regulation (see discussion in
chapter II) had not yet surfaced. Until the Corps was challenged in court
in 1974 (at the end of the 93rd Congress), it restricted its regulatory program
165/ Some wetlands areas are further protected through other programs at
the Federal level, such as Fish and Wildlife Service's National Wildlife Refuge
System, and at the State level, through special designations such as "critical
areas".
CRS-122
to those waters considered to fall within the traditional definition of navi-
gability. Thus, concern over the geographic scope of the Federal regulatory
program was not yet evident.
More than a dozen wetland-related bills were introduced during the 93rd
Congress. The majority of those bills, however, concerned establishing and
maintaining wildlife refuges. Several other bills concerned acquisition
of wetlands through the sale of Federal migratory bird hunting stamps, and
one bill would have established an Atlantic Wetlands Research Center in order
to maintain wetland resources for migratory birds in the Atlantic flyway.
None of these bills was enacted during the 93rd Congress.
THE 94th CONGRESS (1975-1976)
Questions about the Corps' 1975 regulations (see pages 79-84) were brought
to the attention of Congress, which held hearings in 1976. Issues raised at
that time included: (1) possible duplication of Federal and State activities,
because section 404 did not authorize delegation to the States, although 15
States were operating specific wetland programs under their own laws 166/; (2)
possible future legal action by citizens to expand the Corps' authority into the
routine activities that had been exempted by the regulations; (3) authority of
the Corps to issue general permits; and (4) the need for clarification in defining
those excluded activities.
In testimony before the Senate Public Works Committee, Senator Dole discussed
the lack of congressional directive in the FWPCA for wetland protection, saying,
"Congressional intent as reflected in the language of section 404 was admittedly
vague and unspeciflc with respect to the issues of Federal wetlands protection,
166/ U.S. Congress. Senate. Committee on Public Works. Section 404 of the
Federal Water Pollution Control Act Amendments of 1972. Hearings, 94th Congress;
2d session. July 27 and 28, 1976. Washington, U.S. Govt. Print. Off., 1976. p. 42.
(Serial no. 94-H49.)
CRS-123
tributary protection, and of defining dredging and filling activities." The
result had been "scattered judicial decisions [and] interpretive gyrations that
bear questionable relationship to congressional language." 167/ He said that an
important question for Congress to resolve was to what extent Federal regulation
of minor streams was desirable or necessary for achieving the purpose of the law.
EPA Administrator Russell Train responded that protection of water quality
must encompass protection of interior wetlands and smaller streams in order to
preserve the multiple services performed by the wetland resources and to prevent
degradation of other aquatic resources downstream from such areas. 168/
Many of the bills introduced in the 94th Congress in response to the Corps'
regulatory proposal contained several common elements, including endorsement
and clarification of exemptions for normal farming, ranching, forestry, and con-
struction activities; and redefinition of "navigable waters" to restrict the
territorial jurisdiction of the dredge and fill regulatory program.
During consideration of legislation to reauthorize the FWPCA, H.R. 9560,
the House Public Works and Transportation Committee adopted an amendment offered
by Representative Breaux to restrict the term "navigable waters" to include wa-
ters that presently are navigable for commercial transport or are capable of
being made navigable with reasonable improvement, i.e., the traditional legal
definition minus the concept of historic navigability. The Administration,
which opposed this proposal, estimated that the impact of its enactment would be
to leave up to 85 percent of the Nation's wetlands unregulated and unprotected. 169/
167/ Ibid., p. 34.
168/ Ibid., p. 42.
169/ U.S. Congress. House. Committee on Public Works and Transportation.
Federal Water Pollution Control Act Amendments of 1976; report to accompany H.R.
9560, including cost estimate of the Congressional Budget Office. (94th Cong.
2d sess. House. Report no. 94-1107). Washington, U.S. Govt. Print. Off., 1976.
p. 71.
CRS-124
Instead, the Administration supported a Cleveland-Harsha substitute that would
have retained the Corps' broad territorial jurisdiction, authorized certain
regulatory exemptions, and provided for issuance of general permits.
The proposal finally adopted by the House in 1976 was offered by Rep-
resentative Wright and was something of a compromise. It contained the reduced
scope of the Breaux amendment and provided for a number of permitting exemptions.
The Senate supported a slightly different proposal offered by Senators
Baker and Randolph. It would have retained broad jurisdiction but would have
transferred authority over waters in Phase II and III from the Corps to EPA.
However, Congress failed to enact any FWPCA legislation at that time, in
part due to the controversy over amending section 404. 170/ An unintended result
of the controversy, according to one author, may have been "to draw attention
to the need for a more specific and more comprehensive wetlands protection
act." 171/
In 1976, however, Congress did enact legislation (P.L. 94-215) that extended
until 1983 the period during which the Department of the Interior could acquire
wetlands for migratory waterfowl with appropriations authorized by the Wetlands
Loan Act. Enacted in 1961 (P.L. 87-383), the Wetlands Loan Act was one part
of an overall Federal program that envisioned acquiring 2.5 million acres of
wetlands. That Act authorized Federal Treasury advances on future receipts
from the sale of "duck stamps" (under the Migratory Bird Hunting and Conserva-
tion Stamp Act — then known as the 1934 Hunting Stamp Act) to increase the
amount of monies, along with those available under the Migratory Bird Con-
servation Fund, that could be used for direct wetland acquisition. However,
170/ Corps's Wetlands Control Survives Trip Through a Legislative Swamp.
National Journal, v. 8, Oct. 23, 1976. p. 1505-1512.
171/ Ibid., p. 1512.
CRS-125
in 1975, the Department of the Interior revised its wetland acquisition goal
and identified an additional 1.3 million acres of prime waterfowl habitat.
The Department stated that one-half of this revised goal, or 1.9 million acres,
would be acquired by June 1976, when authorizations under the 1961 Act were
due to expire. According to the Department, that acreage represented the
most vital habitat for continental waterfowl and areas that were the most
vulnerable to destruction or severe adverse modification. 172/
Therefore, the legislation enacted in 1976 increased authorizations under
the Act from $105 million to $200 million and provided a seven-year extension
to the wetlands acquisition provisions. In its report accompanying the legislation,
the Senate Committee on Commerce discussed the importance of continuing the
wetland acquisition program.
The need to prevent irreversible damage to (or loss of) wetlands
breeding areas and other habitat areas for waterfowl Is at least
as great as it was in 1961, when the Wetlands Loan Act of 1961 was
enacted. Wetlands are disappearing at an ever-increasing rate, and
the cost of acquisition of the remaining wetlands is increasing.
* * *
Wetlands are not wasteland. The draining, filling, diking, impound-
ing, and altering of wetlands as part of some "development" does
not result in eliminating wasteland, but in destroying land vital
to the ecosystem which supports mankind. 173/
Extension of the acquisition program was seen as perhaps the principal
means of enabling the Fish and Wildlife Service to protect migratory birds and
the lands needed for their nesting and wintering areas, including bottomland
hardwood habitat areas in the Mississippi River Delta and flood plains of
the Southeast from Kentucky to the Gulf Coast. 174/
172/ U.S. Congress. Senate. Committee on Commerce. Wetlands Loan Extension
Act of 1976. Report to Accompany H.R. 5608. Senate Report no. 594, 94th Cong.,
2d Sess. Washington, U.S. Govt. Print. Off., 1976. p. 2.
173/ Ibid., p. 4.
174/ Ibid., p. 15.
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THE 95th CONGRESS (1977-1978)
The section 404 and wetland Issues not resolved by the 94th Congress re-
surfaced in the 95th Congress, which did enact legislation amending the FWPCA.
Once again, a large number of bills were introduced, many of them calling for
a restricted definition of "navigable waters." Other bills proposed specific
permit exemptions and delegation of certain permitting functions to the States.
Working from more than a dozen legislative proposals, (including the Wright
and Baker-Randoph amendments from the 94th Congress) and the new Corps regula-
tions, the Congress fashioned a compromise that retained the broad territorial
jurisdiction of the existing regulatory program. Amendments to section 404
were contained in legislation to reauthorize and refine a number of provisions
of the FWPCA, H.R. 3199, enacted December 27, 1977. 175/
During debate on the 1977 amendments, as during the 94th Congress, there
were efforts to reduce the expanded jurisdiction of the Corps, limiting it to
regulation of coastlines, traditional navigable waters, and adjacent wetlands.
Senator Bentsen offered a proposal to restrict the program of the Corps, while
authorizing States to designate other waters and wetlands to be included in the
Corps' jurisdiction. He argued that his amendment would halt the program's
overregulation and prevent it from further disrupting and frustating activities
of ranchers, farmers, foresters, and average citizens. 176/ This floor amendment
was defeated, however, as other Senators responded that such an approach would
175/ P.L. 95-217, 33 U.S.C. 1251 et seq.
176/ Remarks of Honorable Lloyd Bentsen. Congressional Record, v. 23,
Pt. 21, Aug. 4, 1977. p. 26711-26712.
CRS-127
leave many vital wetlands unprotected and open to potentially destructive
discharges. 177/
As adopted, the amendments to section 404 endorsed the Corps' exemptions
for certain "normal activities" of farming, ranching, and forestry, and added
other exemptions for construction or maintenance associated with established
stock ponds, irrigation and drainage ditches, and forest roads. As a safeguard,
however, Congress said that a permit would be required if one of these activi-
ties should have the effect of altering or converting an area to a new farming,
forestry, or ranching use. 178/
The amendments also authorized EPA to delegate the regulatory program for
Phase II and III waters from the Corps to qualified States. This provision for
delegation recognized that a number of States and localities had previously
been attempting to protect wetland areas, while it ensured that a federally
coordinated program would provide consistency and assure that sensitive wetland
areas located adjacent to privately held lands would receive protection. Thus,
it conformed with the Act's policy to give primary implementation responsibility
to the States. 179/ However, EPA retains significant oversight: it may review
and may veto individual and general permits; it may take enforcement actions in
individual situations; and it may withdraw approval of the delegated program, if
it finds that the State is failing to meet requirements of the Act. If all
States were to accept this delegated authority, they would then be responsible
for permitting activities in wetlands adjacent to 85 percent of waters currently
177/ See, for example: Remarks of Honorable Gary Hart. Congressional
Record, v. 123, Part 21, August 4, 1977. p 26712-26713; and Remarks of Honorable
John Chafee. Congressional Record, v. 123, part 21, August 4, 1977. p. 26716-26717.
178/ P.L. 95-217, section 67(b).
179/ Federal Water Pollution Control Act, FWPCA, section 101(b).
CRS-128
under Federal regulatory jurisdiction. (As discussed in Chapter III, no State
has, as yet, been delegated program management authority.)
The 1977 amendments also allow States under some circumstances to exempt
certain categories of minor discharges by implementing statewide regulatory pro-
grams for so-called nonpoint sources of pollution under section 208 of the same
Act. (Nonpoint source pollution includes stormwater runoff from rural and urban
areas, forestry and construction activities, and abandoned mine drainage that
does not enter the waterway from a single point, usually a pipe.) Programs
established under section 208 would utilize "best management practices (BMPs),"
such as streambank protection or planting of vegetation that would be appropriate
for controlling farm roads or maintaining existing fills, and they would offer
States the opportunity to effect controls using less detailed procedures than
those required under section 404. However, the Act limits the types of activ-
ities that may be regulated under section 208 rather than under section 404,
to those having minor individual and cumulative impacts. 180/ Moreover, the
utility of the section 208 program for displacing the Federal process is at
least procedurally limited, since States must have an EPA-approved section
404 program as a prerequisite, and none is yet in place.
Some concern had been expressed that there was significant potential, if
not actual, delay resulting from the review of section 404 permits by various
Federal agencies. In response, Congress also added in 1977 two provisions to
ensure speedy processing of such applications. The first required the Fish
and Wildlife Service to submit any written comments on the permit application
within 90 days. The second required the Corps to enter into a Memorandum of
Agreement with other Federal agencies, including the Departments of Agriculture,
180/ FWPCA, section 208(b)(4).
CRS-129
Commerce, Interior, and Transportation, to assure that, if possible, permit
decisions can be reached within 90 days.
Following disposition of the section 404 issues in the 1977 Clean Water
Act Amendments, Congress passed two other wetland-related bills in the second
session of the 95th Congress. First, in October 1978, Congress enacted amend-
ments to 1934 Hunting Stamp Act (popularly known as the "Duck Stamp Act").
Now known as the Migratory Bird Hunting and Conservation Stamp Act, it re-
quires persons 16 years old or older who hunt migratory waterfowl to purchase
"duck stamps." Receipts from the program help support Federal acquisition
of migratory bird refuge lands and waterfowl production areas from private
landowners. The 1978 amendments, P.L. 95-552, included provisions to raise
the price of the stamp from $5 to $7.50 In order to raise additional monies
for new acquisitions. 181/
Seventy-five percent of the receipts from "duck stamps" are to be used for
wetland acquisition under the Wetlands Loan Act of 1961, as amended in 1976.
(Beginning October 1, 1983, the "duck stamp" receipts are to be returned to the
Federal Treasury to repay expenditures made under the Wetlands Loan Act since
1961. Wetland acquisition also is supported by purchases with appropriated
general revenues authorized by this same statute.) Thus, the "duck stamp" pro-
gram constitutes one of the two major, but closely related tools for obtaining
and protecting wetland areas which are prime migratory bird habitats.
As in several other enactments during the 1970s, Congress noted the decline
in annual acquisition of migratory bird habitat (from 159,000 acres in 1970 to
75,000 acres in 1977) and identified increased land costs as the prime reason
181/ The original price of a "duck stamp" in 1934 was $1.
CRS-130
for the decline. The House Committee on Merchant Marine and Fisheries reported
that between 1962 and 1977 the average price per acre of these lands doubled.
Thus, the 1978 amendments were needed, if the Federal Government's land acqui-
sition program was to be completed. 182/
One issue debated in connection with this legislation was the authority
under the existing program for a Governor to veto Federal wetland acquisition.
This had occurred in two States, Texas and North Carolina (in the latter case,
acquisition had been blocked by a State statute requiring an affirmative recom-
mendation from the appropriate County Board of Commissioners prior to the Gov-
ernor's final approval). 183/ The Administration recommended that Congress
eliminate this veto power. The House of Representatives, however, adopted a
modified approach, as recommended by the Merchant Marine and Fisheries Committee
in its bill. That approach would have waived the Governor's veto of Federal
wetland acquisition if the land transaction were being made voluntarily between
a willing seller and the Secretary of the Interior.
The Senate refused to endorse the House-approved change regarding State
approval. In remarks during floor debate, Senator Stevens stated his opposition.
This situation is simply unacceptable to Western States. We
cannot tell at this time what pressure might come to bear on a
private landowner who possesses lands that the Department of the
Interior wished to buy. It is not hard to imagine the Depart-
ment restricting a private landholder's use so greatly that he
would be forced to be a "willing seller." I do not foresee
the Department of the Interior going into my State and trying
to strong-arm the private landowners or native corporations who
have their land titles into selling their lands. But I do feel
we must preserve the checks and balances that now exist in the
law. The Governor of a State must continue to have the right
to coordinate migratory waterfowl protection with the Federal
182/ U.S. Congress. Committee on Merchant Marine and Fisheries. Duck
Stamp Act Amendments. Report to accompany H.R. 13372. House Report No. 95-
1518, 95th Cong., 2d Sess. Washington, U.S. Govt. Print. Off., 1978. p. 6-7.
183/ Ibid., p. 8.
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Government. By allowing the Governor to maintain his veto power
we insure that this will continue to take place. 184/
The legislation as finally enacted did not contain the House-approved change
to the State approval process. It did require the Secretary of the Interior
to consult with appropriate State and local agencies before entering into a
land acquisition. This requirement for consultation had not existed in the
Hunting Stamp Act previously.
The second enactment also occurred in October 1978 when Congress passed
related legislation, the Fish and Wildlife Improvement Act (P.L. 95-616), a
measure which amended several existing laws so as to improve administration
of the programs of the Fish and Wildlife Service. In particular, the law
contained amendments to broaden the Service's land acquisition authority
under the Fish and Wildlife Act of 1956 and the Migratory Bird Hunting and
Conservation Stamp Act. Previously under those laws, land acquisition had
been limited to the purchase of refuge lands, and other means of acquisition
(such as through accepting donations) had not been authorized.
This 1978 law provided additional means to acquire lands. It authorized
the Fish and Wildlife Service to obtain partial interest in lands and waters
and authorized the Secretary of the Interior to accept gifts, devises, or be-
quests of real or personal property for the benefit of programs administered by
the Fish and Wildlife Service. In making these changes, Congress intended to
respond to "rising land costs and increased public pressures to provide wildlife
habitat for current and future public enjoyment by providing alternative means to
acquire lands . " 185/
184/ Remarks of Hon. Ted. Stevens. Congressional Record [daily edition],
v. 124, Oct. 7, 1978. p. S17673.
185/ U.S. Congress. House. Committee on Merchant Marine and Fisheries.
Administration of Fish and Wildlife Programs. Report to accompany H.R. 2329.
House Report No. 95-29, 95th Cong., 1st sess. Washington, U.S. Govt. Print.
Off., 1977. p. 4.
CRS-132
Public Law 95-616 also contained a specific provision for enhancement of
critical waterfowl habitat in the grasslands areas of the Central Valley in
California. This area has been regarded as important both as a year-round
habitat area in the San Joaquin Valley and as a prime wetland area used by
wintering waterfowl in the Pacific flyway. The provision was intended to pro-
vide an economic incentive to Central Valley landowners to maintain their land
for waterfowl, rather than converting the land to other purposes offering
greater economic returns. The Act provided that water from the Central Valley
reclamation project would be made available to landowners at no cost for the
purpose of maintaining marshy habitat required by the migratory waterfowl.
The Senate added this provision as a floor amendment to the House-passed
version of the Fish and Wildlife Improvement Act of 1978 (H.R. 2329). The lan-
guage was identical to that in a bill passed by the Senate earlier in the 95th
Congress (S.691) and was similar to legislation that passed both the House and
Senate in the 94th Congress but which was not enacted at that time (H.R. 15007).
THE 96th CONGRESS (1979-1980)
Despite congressional efforts in 1977 to streamline and simplify the sec-
tion 404 program, by exempting certain categories of activities from permitting
requirements and by authorizing general and nationwide permits, criticism of
that program continued. Some of the criticism took the form of legislation
that would impose further restrictions on Federal authority respecting dredge
and fill activities. Several bills were Introduced during the 96th Congress
to restrict the definition of "navigable waters" in section 404 to the tradi-
tional concept of navigability, thus limiting the regulatory jurisdiction of
the Corps of Engineers. Other legislation sought to establish a maximum time
period for Issuance of section 404 permits, in view of concern about the costs
CRS-133
of delay resulting from procedural review requirements, such as that for con-
sultation among Federal and State agencies over permit applications. Congress
took no action on these bills.
A bill passed by the House but ultimately not enacted (H.R. 85), contained
an amendment to section 404 to "clarify" that the authority to determine "navi-
gable waters" — and the jurisdiction of the section 404 program — rests with the
Secretary of the Army for purposes of enforcement, permitting, and defining
regulatory exemptions. This provision, had it been enacted, would have re-
versed a 1979 advisory opinion of U.S. Attorney General Benjamin Civiletti
which held that EPA, not the Corps of Engineers acting for the Secretary of
the Army, has the final responsibility to determine what constitutes "navigable
waters" under section 404. The reasoning for the Civiletti ruling was said
to rely on the "structure of the [Clean Water] Act as a whole," rather than
explicit support either in the statute or the legislative history. 186/
In mid-1980 the Senate Environment and Public Works Subcommittee on Envi-
ronmental Pollution held two days of oversight hearings on implementation of
the section 404 program. The focus of these hearings was on difficulties
in defining wetland areas and resource values to be protected from industrial
development in Alaska. 187/ Witnesses criticized in their testimony poor admin-
istration of the program as manifested in delays in permit processing and per-
mit requirements for de minimus activities in marginal wetland areas. 186/
186/ Civiletti Rules EPA Has Final Say on What Constitutes "Navigable
Waters." Environment Reporter, v. 10, no. 23, Oct. 5, 1979. pp. 1278-1279.
187/ According to data compiled in 1975 by the Corps, Alaska contains
more than 67 million acres of wetlands, about 45 percent of the remaining
national total.
188/ U.S. Congress. Senate. Committee on Environment and Public Works.
Subcommittee on Environmental Pollution. Implementation of Certain Sections of
the Clean Water Act. Hearings, 96th Cong., 2d sess., June 23, 24, and July 1,
1980. Washington, U.S. Govt. Print. Off., 1980. (Serial No. 96-H55). p. 1-151,
257-376.
CRS-134
Besides demonstrating interest in section 404, the 96th Congress enacted
two bills affecting wetlands. The first measure, P.L. 96-182 (enacted January
2, 1980), was a series of amendments to the Water Bank Act (P.L. 91-559, enacted
in 1970). Principal provisions of this law broadened the definition of wetlands
under the Water Bank Act and authorized adjustment in rates of payments made
pursuant to it.
As the program existed prior to these amendments, certain types of wetlands
were eligible for inclusion in a water bank agreement. These agreements are in-
tended to compensate landowners for protecting and maintaining the public re-
source values of wetlands located on private lands. Prior to the 1980 amendments,
the eligible areas in inland freshwater regions and artificially developed
inland freshwater areas were so-called Types 1 through 5, as defined in Circular
39, Wetlands of the United States, issued by the Department of the Interior
in 1954. The areas are:
1. Seasonally flooded basins or flats,
2. Fresh meadows,
3. Shallow fresh marshes,
4. Deep fresh marshes, and
5. Open fresh water.
These areas primarily constitute breeding and nesting areas that are located
mainly in the prairie pothole regions of the North Central United States. The
eligibility list did not originally include wetland Types 6 and 7 identified
in Circular 39, which are:
6 . Shrub swamps , and
7. Wooded swamps.
However, the result of excluding these two types of areas was that certain
wintering areas for wood ducks and other migratory waterfowl, such as the Missi-
ssippi River bottomlands, were ineligible for the water bank program and were
CRS-135
unprotected. The 1980 amendments expanded the eligibility list under the pro-
gram to include Type 6 and 7 areas located in inland freshwater regions and to
include all artificially developed inland freshwater areas which meet the
descriptions of Type 1 through 7.
The second major provision in the 1980 amendments to the Water Bank Act
concerned rates of payment to participants in water bank, agreements. A 1970
General Accounting Office report stated that, according to one estimate, nearly
40 percent of water bank program agreements made in any one year would be ter-
minated before the end of the 10-year agreement period. 190/ The major reason
for terminations was said to be the rising cost of land and rental rates.
In many of these cases, landowners had greater economic incentive to terminate
the agreements, discontinue conservation of their wetland areas, and turn
them to more profitable uses, usually farming, thus destroying such potential
wetland benefits as flood water retention, ecological productivity,
and nutrient production.
The 1980 amendments to the Water Bank Act therefore authorized the Secre-
tary of Agriculture to reexamine the payment rates to landowners and operators
participating in conservation agreements at the end of each 5-year period. Based
on current land and crop values, the Secretary could make rate adjustments that
would reflect increased land values during the life of the agreements and would
provide incentive to the landowners to continue conserving wetland areas.
In commenting on these amendments to the Act, the Secretary of Agriculture
said that the legislation was premature. The Administration did not seek expan-
sion of the water bank program. The Department preferred to continue wetland
190/ U.S. General Accounting Office. Better Understanding of Wetland
Benefits Will Help Water Bank and Other Federal Programs Achieve Wetland Pre-
servation Objectives. PAD-79-10, Feb. 8, 1979. Washington, 1979. p. 11.
96-073 0-82-11
CRS-136
preservation through such other programs as restrictions on dredging, and
authorization of purchases and easements by the Department of the Interior
(under the Migratory Bird Hunting and Conservation Stamp Act and the Wetlands
Loan Act). 191/
Congress also enacted the Manassas Battlefield Park Amendments of 1980,
P.L. 96-442 (H.R. 5048), a measure principally setting forth expanded
boundaries of this park in Virginia. As enacted, the bill also contained
a provision directing the Secretary of the Interior to conduct a two-year
study of appropriate protective measures for natural wetlands and undeveloped
uplands of the DeKorte State Park in the Hackensack Meadowlands District in
New Jersey. This particular provision, drawn from H.R. 8200, was incorporated
in the Manassas Battlefield Park bill as a floor amendment during Senate debate
on H.R. 5048 on September 29, 1980.
THE 97th CONGRESS (1981-1982)
In the 97th Congress, critics of the section 404 program have again con-
tinued to question Federal authority and the definition of "navigable waters."
Legislation similar to earlier proposals to restrict the scope of the Federal
program has been introduced. Senator Tower, a sponsor of bills in both the 96th
and 97th Congresses, stated in March 1981 that the Intent of his current bill,
S. 777, is to diminish the regulatory burden associated with the Corps' jurisdic-
tion over waters that are not utilized for commerce and their adjacent wetlands.
The effect of his legislation, which would limit the Corps to regulating waters
that are navigable now or could be made navigable by reasonable improvement,
191/ U.S. Congress. Senate. Committee on Agriculture, Nutrition, and
Forestry. Water Bank Act Amendments. Report to accompany S. 837. Senate
Report No. 96-449, 96th Cong., 1st Sess. Washington, U.S. Govt. Print. Off.,
1979. p. 7.
CRS-137
would be to remove all wetlands from the Corps' jurisdiction, "since wetlands
are not navigable," he noted. 192/
As of the beginning of the second session of the 97th Congress, hearings
had not been held on the pending legislative proposals concerning the geogra-
phic scope of the section 404 program. Nor had hearings been held on legisla-
tion first introduced by Representative Chappell in the 93rd Congress and each
subsequent Congress, as well. Rep. Chappell's bill (H.R. 794 in the 97th
Congress) would authorize the Secretary of the Interior to classify and inven-
tory the Nation's wetlands and to evaluate the environmental contribution of
natural wetlands.
Wetland issues are likely to remain controversial. Some find that the con-
troversy has produced a "vague and unspecific" intent from Congress toward wet-
land protection and the administration of section 404 of the Clean Water Act. 193/
The opportunity to address these issues occurs in 1982 during reauthorization
of the Clean Water Act. With public views ranging across a spectrum — from
those who consider the expansive jurisdiction of section 404 to be the most
viable means of accomplishing wetland protection nationwide to others who
consider the program overly burdensome, particularly to small landowners and
developers, regardless of congressional intent to safeguard wetlands — any
upcoming debate will be lively.
192/ Remarks of Hon. John Tower. Congressional Record [daily edition],
Vol. 12, Mar. 24, 1981. S2583-2584.
193/ Section 404 hearings, p. 34. Senator Dole characterized the con-
troversy in these terms as early as 1975.
CRS-138
SUMMARY
Congress has expressed interest in wetlands through two principal ways.
The first has been the Federal Water Pollution Control Act — that is, the use
of a pollution control statute as the chief regulatory mechanism for protecting
existing wetlands from industrial, agricultural, and other activities that
would disrupt or destroy the fragile ecological systems located in these areas.
Congress has utilized this particular regulatory tool since 1972, when it
enacted section 404, even though the provision was not generally recognized
as a wetlands protection measure at that time.
Following expansion of the section 404 program by several court decisions
in the mid-1970s, Congress responded and more directly addressed use of the
pollution control provision. In 1977, Congress enacted amendments intended to
limit and to specify the scope of the regulatory program, by exempting certain
activities and areas from the permitting requirements of section 404. Never-
theless, controversy about section 404 continues and has led to proposals to
restrict the geographic coverage of the program still further.
The second way in which Congress has expressed interest in wetlands has
been more direct and has included enactment of several measures expanding
Federal authority to acquire wetlands for the purpose of safeguarding water-
fowl and migratory bird habitat areas. During the 1970s Congress passed
amendments to the Water Bank Act intended to keep pace with rising land costs
by increasing Federal payments to landowners who would conserve habitat areas,
rather than convert them to other uses, and to the "Duck Stamp Act" (now the
Migratory Bird Hunting Conservation Stamp Act) in order to raise additional
monies for new wetlands acquisition. These generic wetland measures tend
to focus on only one of the many functions of wetlands (namely, as habitat
areas) and their value to hunters and other supporters of migratory bird
CRS-139
populations. For the most part these programs have generated less controvery
than the section 404 issues. The two sets of issues — Federal wetland acquisi-
tion for waterfowl breeding and wintering, and dredge and fill permitting
under section 404 — have rarely, if ever, been joined for broad consideration
of national wetland policy.
During this period Congress also has acted on several measures to protect
specific sites (such as the DeKorte State Park in the New Jersey Meadowlands) .
CRS-140
SELECTED BIBLIOGRAPHY
Publication of wetland studies have been prolific during the past decade.
The sources cited below — only a small sample of that literature — are presented
in three categories reflecting the organization of this report: introduction
to wetlands, wetland science, and wetland management. Many wetland science
publications are proceedings of professional meetings that contain a large num-
ber of papers on specific wetland topics. For example, the volume edited by
Brandt Richardson contains 75 papers, and abstracts on eight topics.
Publications cited here are all national or general. Some excellent pub-
lications on the wetlands of particular States or regions, or on specific types
of wetlands, have also been published. The U.S. Fish and Wildlife Service has
prepared ecological characterizations of several regions where wetlands are
Important, including the Mississippi Delta and the Pacific Coast. Such stud-
ies, growing more numerous almost daily, are excluded from this bibliography.
An examination of Congressional Research Service citations and Library
of Congress card catalog files revealed the following: Between 1969 and the
present, 249 articles on wetlands have been cited by CRS, and the library card
catalog has 93 titles under the topic of wetlands. More publications are con-
cerned with wetlands conservation than with any other aspect of the subject.
Many of the publications listed below have lengthy bibliographies. These
bibliographies can lead the reader to the extensive resource of wetland publi-
cations available today.
CRS-141
INTRODUCTION TO WETLANDS
Horwitz, Elinor L. Our Nation's wetlands; an interagency task force report.
Council on Environmental Quality. Washington, U.S. Govt. Print. Off.,
1978. 70 p.
Shaw, Samuel P., and C. Gordon Fredine. Wetlands of the United States. U.S.
Department of the Interior, Fish and Wildlife Service. Washington, U.S.
Govt. Print. Off., 1956. 67 p. Circular 39
Teal, John, and Mildred Teal. Life and death of a salt marsh. New York City,
Audubon/Ballantine Book, 1969. 274 p.
WETLAND SCIENCE
Clark, John, and Judith Clark, eds . Scientists' report. Washington, Na-
tional Wetlands Technical Council, 1979. 129 p.
Cowardin, Lewis M. , and others. Classification of wetlands and deepwater hab-
itats of the United States. U.S. Department of the Interior, Fish and
Wildlife Service, Office of Biological Services. Washington, U.S. Govt.
Print. Off, 1979. 70 p. FWS/OBS-79/31 .
Darnell, Rezneat M. , and others. Impacts of construction activities in wet-
lands of the United States. Corvallis, Oregon, U.S. Environmental Pro-
tection Agency, Environmental Research Laboratory, Office of Research
and Development, 1976. 396 p. EPA-60013-76-045.
DeWitt, Calvin B., and Eddie Soloway, eds. Wetlands ecology, values and im-
pacts. Madison, University of Wisconsin, Institute for Environmental
Studies, 1977. 388 p.
Goodwin, Richard H., and William A. Niering. Inland wetlands of the United
States evaluated as potential registered natural landmarks. U.S. Depart-
ment of the Interior, National Park Service. Washington, U.S. Govt.
Print. Off., 1975. 550 p.
Greeson, Phillip E., John R. Clark, and Judith E. Clark, eds. Wetland func-
tions and values: the state of our understanding. Minneapolis, Minn.,
American Water Resources Association, St. Anthony Falls Hydraulic Lab-
oratory, 1978. 674 p. TPS 79-2.
Harris, Janie, Paul L. Knutson, and Dr. Robert F. Soots, eds. Wetlands.
Wilmington, N.C., The Soclty of Wetlands Scientists, 1981. 214 p.
Lefor, W. M. , H. H. Ridgeway, and T. B. Helfgott, eds. Proceedings: Second
wetlands conference. Storrs, University of Connecticut, 1975. 118 p.
Report no. 24.
Lewis, James C. , and Elaine W. Bunce. Rehabilitation and creation of selected
coastal habitats. U.S. Department of the Interior, Fish and Wildlife
Service, Office of Biological Services, Washington, U.S. Govt. Print.
Off., 1980. 160 p. FWS/OBS-80/27.
CRS-142
Richardson, Brandt, ed. Selected proceedings of the midwest conference on
wetland values and management. St. Paul, Minnesota Water Planning Board,
1981. 660 p.
Weller, Milton W. Freshwater marshes. Minneapolis, University of Minnesota
Press, 1981. 146 p.
WETLANDS MANAGEMENT
Blumm, Michael C. The Clean Water Act's section 404 permit program enters its
adolescence: an institutional and programmatic perspective. Ecology law
quarterly, v. 8, 1980: pp 409-72.
Kusler, Jon A. Strengthening State wetland regulations. U.S. Department of
the Interior. Fish and Wildlife Service, Office of Biological Services,
Washington, U.S. Govt. Print. Off., 1979. 147 p. FWS/OBS-78/98.
Lonard, Robert I., and others. Analysis of methodologies used for the assess-
ment of wetlands values. U.S. Water Resources Council. Environmental
Laboratory. Vicksburg, U.S. Army Engineer Waterways Experiment Station,
1971. n.p.
Montanari, John H., and Jon Kusler, eds. National wetland protection sympo-
sium. U.S. Department of the Interior. Fish and Wildlife Service, Office
of Biological Services. Washington, U.S. Govt. Print. Off, 1978. 225 p.
FWS/OBS-78/97.
Myrhum, Christopher B. Federal protection of wetlands through legal process.
Boston College environmental affairs law review, v. 7, no. 4, 1979: pp.
567-627.
Priscoll, Dr. Jerry D., and others. Impact analysis of the Corps regulatory
program (draft). Washington, Office of the Chief of Engineers, Regula-
tory Functions Branch, 1981. 235 p. and appendix.
Richardson, Brandt, ed. Selected proceedings of the midwest conference on
wetland values and management. St. Paul, Minnesota Water Planning Board.
1981. 660 p.
U.S. Environmental Protection Agency. Office of Water Regulations and Stan-
dards. Section 404 program strategy. Washington, D.C., June 1980. 15 p.
U.S. General Accounting Office. Managerial changes needed to speed up pro-
cessing permits for dredging projects. Washington, U.S. Govt. Print.
Off., 1980. 65 p. CED-80-71.
CRS-143
APPENDIX A: TRANSPORTATION FILLS— A CASE STUDY
Examining in more detail one type of activity that alters wetlands can
convey the complexity of studying effects of alterations on natural functions.
Fills for transportation purposes have been made all over the country in all
types of wetlands. Highways, railbeds, and airport runways have all been
constructed on wetland fills. Wetlands have been a preferred location for
these facilities in the past because of low land costs and ease of right-of-way
acquisition. Fills supporting causeways are generally the least expensive form
of construction across wetlands, so they have been the preferred engineering
technique when other values were not considered. Highway fills, In particular,
have been the subject of numerous studies during the past decade because of
conflicts between transportation development and wetland protection. A recent
study, prepared for the Federal Highway Administration, identified a number
of potential physical and biological impacts in wetland areas. The detailed
set of conclusions which follow below is representative of the growing under-
standing about wetland functions, and the range of potential effects associated
with wetland alterations.
Physical Impacts:
1. Change in mean water level — levels can be increased by the struc-
ture through damming effects or decreased through drainage, altering
wetland functions.
2. Change in periodicity — many wetland species require a predictably
varied water regime. The extent and timing of fluctuations are im-
portant .
3. Change in wetland circulatory patterns — wetland species have dif-
fering tolerances for nutrients and dissolved gases which are distri-
buted, in part, based on circulatory patterns.
CRS-144
4. Alteration of local water table levels — changes in water table
levels often occur simultaneously with surface water alteration;
most wetlands depend on high water table levels.
5. Drainage of surface water — resident and migratory species are
affected when surface water is removed; restoration may be slow and
difficult.
6. Elimination of periodic flooding and fertilization — stabilization
of water levels or elimination of periodic flooding will reduce pro-
ductivity.
7. Change in retention storage — increase or decrease of flow downstream —
wetlands regulate local hydrology by diminishing peak flows and sup-
porting minimum flows; effects of wetland alteration that affect this
quality may be observed at some distance from the site.
8. Damping of tidal variation — wetland plants are adapted to tidal
patterns, which influence water level periodicity and salinity
gradients.
9. Alteration of salinity patterns — distribution of species in
coastal wetlands is dependent on the salinity gradient; gradient
changes can cause major shifts in species composition and habitat,
and affect estuarine food chains.
10. Turbidity — excess suspended solid, inorganic and organic byproducts
of almost all phases of highway construction and use adversely affect
aquatic primary productivity, and feeding, reproductive, and migratory
success of higher organisms.
11 . Sedimentation — sediments deposited on bottom plants and animals can
greatly reduce their survival and productivity.
12. Chemical pollution — the potential for chemical pollution exists at
all phases of highway construction and use; the severity of the im-
pact may be moderated by the water regime, precipitation patterns,
topography, and the sensitivity of organisms to the pollutant.
13. Change in temperature patterns — impoundment can increase the sur-
face temperature of water; in summer, higher temperatures may ex-
ceed resident species' thermal tolerance; some fish and shellfish
species are affected by changes of less than 5 degrees.
Biological Impacts:
1. Change in wetland size — changes in mean levels and periodicity of
water will elevate or lower water levels, causing the wetland to
grow or shrink as measured by shifts that indicate the edge of the
wetland.
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2. Change in wetland species composition — almost any change in hydro-
logic or water quality conditions may alter the vegetative community;
biological effects include changes in wetland composition, changes in
wetland primary productivity, and changes in plant species diversity.
3. Change in wetland class composition — altered water levels may affect
the distribution and abundance of wetland classes, which are a major
determinant of wildlife values.
4. Change in wetland primary productivity — energy capture by green
plants, primary productivity, may be reduced by all phases of high-
way construction and use. Primary productivity is important because
of its effects on secondary productivity and the rate of plant suc-
cession.
5. Sudden mortality of wetland species — creation of temporary but
extreme environment conditions can substantially affect existing
biota.
6. Barrier to animal movement — barriers can inhibit the normal peri-
odic movement of animal populations, essential for their survival
and productivity.
7 . Rare and endangered species — all Federal agencies are required to
ensure that actions, authorized, funded, regulated or administered
by them do not jeopardize continued existence of a species identi-
fied as endangered, or destroy or alter critical habitat of the
species .
Source: National Research Council, Transportation Research Board. Ecological
Effects of Highway Fills on Wetlands. Report 218B. Prepared by P. W.
Schuldiner, D. F. Cope and R. B. Newton. Washington, 1979. p. 14-38.
CRS-146
APPENDIX B: GUIDE TO FEDERAL WETLANDS-RELATED PROGRAMS
Department of Agriculture
Department of Commerce
Rural Clean Water Program
Secretary authorized to enter into contracts lasting 5-10
years with rural landowners or operators, to share costs of
implementing Best Management Practices under an approved
§208 plan.
Authority: 33 U.S. C. §1288, as amended.
Contact: Denny Burns, Soil Conservation Service, USDA.
Washington, D.C. 20250; (202)447-2470.
Water Bank Act of 1970
Secretary authorized to enter into 10-year contracts with
landowners for preservation of wetlands determined to be
important for the nesting and breeding of migratory waterfowl.
Annual fee paid to landowners.
Authority: 16 U.S. C. §§1301-131 1.
Contact: Dr. Larry Libby, Coordinator for Land, Air,
Water, and Solid Waste, Office of Environmental Quality Ac-
tivities, USDA, Room 359A, Washington. DC. 20250; (202)
447-6827.
Small Watershed Management
Technical and cost sharing assistance provided to states and
localities for agricultural water management projects, which
may affect wetlands.
Authority: Small Watershed Project Act (Watershed Protec-
tion and Flood Prevention Act), 43 U.S.C. §§422a-422h.
Contact: Dr. Larry Libby (see above).
Rural Environmental Conservation Program
Designed, in part, to preserve habitat of migratory water-
fowl and other wildlife, increase fish and wildlife and
recreation resources, promote management and planning, and
improve game habitat, through contracts and easements with
landowners.
Authoritv: Agriculture and Consumer Protection Act, 16
U.S.C. §§1501-1510.
Contact: Dr. Larry Libby (see above).
Soil Conservation Service
SCS Conservation Planning Memorandum- 15
Statement of policy of preserving wetlands, and restoring or
improving wetlands where possible.
Authority: SCS Conservation Planning Memorandum- 1 5.
Contact: Dr. Larry Libby (see above).
Rural Development Act
SCS authorized to inventory, monitor, and classify wetlands.
Various inventories have been conducted.
Authority: 7 U.S.C. §l010a.
Contact: Mel Davis, Soil Conservation Service, USDA,
Washington. DC. 20250; (202) 447^»53 1 .
Forest Service
Renewable Resources Planning Act
Requires assessment of all renewable resources on all U.S.
forest and range lands, including wetlands.
Authority: 16U.S.C. §§1600-1614.
Contact: Max Peterson. Deputy Chief of Forest Service,
USDA. Washington, D.C. 20250; (202)447-6663.
Office of Coastal Zone Management
Coastal Zone Management Act
Provides federal grants for development of coastal manage-
ment and preservation programs, including the planning for the
impact of offshore energy development on coastal states
(Coastal Energy Impact Program).
Authority: 16U.S.C. §§1454, 1456a.
Contact: Brian Gorman, Public Affairs Officer, OCZM,
3300 Whitehaven St., N.W., Washington, D.C. 20235; (202)
634-4235.
Estuarine Sanctuary Program
Provides matching grants to states for acquisition of areas to
be maintained and operated as estuarine sanctuaries.
Authority: 16 U.S.C. §1461.
Contact: JoAnn Chandler. Sanctuary Programs Office.
OCZM. 3300 Whitehaven St.. N.W., Washington. D.C. 20235;
(202)634-1672.
Marine Sanctuary Program
Authorizes designation of marine areas as sanctuaries in
order to preserve, restore, or enhance conservation, recreation,
ecologic or aesthetic values of these water resources.
Authority: 16 U.S.C. §§1431-1434.
Contact: JoAnn Chandler (see above).
National Marine Fisheries Service
Fish and Wildlife Coordination Act
Review of activities, by the federal government or requiring
federal permits, in wetlands, with respect to impacts on fish re-
sources.
Authority: 16 U.S.C. §§661-661c.
Contact: Yates Barber. Environmental Assessment Division
(F-53). NMFS, 3300 Whitehaven St., N.W., Washington. D.C.
20235; (202)634-7490.
Council on Environmental Quality
National Environmental Policy
Responsible for receiving and reviewing Environmental Im-
pact Statements; sponsors research and advises the President.
Authority: NEPA. 42 U.S.C. §§4321 el seq.\ Environmental
Quality Improvement Act. 42 U.S.C. §§4371 etseq.
Contact: U.S. CEQ, 722 Jackson Place, N.W., Washington,
D.C. 20006; (202) 382-4967.
CRS-147
Department of Defense
Army Corps of Engineers
Clean Water Act §404
Provides jurisdiction over discharges of dredged and fill ma-
terial into the waters of the United Stales, which includes wet-
lands contiguous or adjacent to navigable waters and their tri-
butaries. If states adopt an EPA-approved program. Corps jur-
isdiction restricted to navigable waters and adjacent wetlands.
Coordination with EPA required (see below).
Authority: 33 U.S.C. §1344.
Contact: Lt. Colonel George Boone, Asst. Director of Civil
Works, Environmental Programs, U.S. Army Corps of Engi-
neers, Washington, DC. 20314, ATTN: DAEN-CWZ-P; (202)
693-7093; or Office of the Chief Counsel, U.S. Army Corps of
Engineers, Washington. D.C. 20314, ATTN: DAEN-CC-H;
(202)693-6169.
Rivers and Harbors Act ol 1899
Authorizes permits for structures and discharges in navigable
waters, considering navigation, flood control, fish and wildlife
management, and environmental impacts.
Authority: 33 U.S.C. §§401. 403. 404, 406, 407.
Contact: Lt. Colonel George Boone or Office of the Chief
Counsel (see above).
Dredged Material Research Program
Conducts research on the disposal and reuse of dredged ma-
terial in order to minimize adverse impacts on wetlands.
Authority: 33 U.S.C. §1 165a.
Contact: Lt. Colonel George Boone or Office of the Chief
Counsel (see above) or U.S. Army Engineer Waterways Experi-
ment Station, P.O. Box 631, Vicksburg, Miss. 39180.
Environmental Protection Agency
Clean Water Act §404
EPA and Corps must set §404(b)(l) guidelines regulating the
discharge of dredged and fill material in sensitive areas. EPA
also reviews federal projects claimed to be exempt under
§404(r). Under §404(c). EPA may prohibit use of a specific site
for the disposal of dredged material on the basis of environ-
mental impacts. EPA is also responsible for overseeing the
transition of authority to states which develop §404 permit pro-
grams that meet EPA's regulatory requirements.
Authority: 33 U.S.C. §1344.
Contact: John Crowder, Chief, Aquatic Protection Branch
(WH-585), EPA. 401 M St., S.W., Washington, D.C. 20460;
(202) 472-3400.
Clean Water Act §208
Plans may now regulate certain discharges of dredged and
fill material, where state has an approved §404 program, in ac-
cordance with Best Management Practices. Also governs water
quality of areas under areawide waste treatment plans. Grants
available. §§205, 208.
Authority: 33 U.S.C. §§1285, 1288.
Contact: Peter Smith, Office of Federal Activities, EPA, 401
M St., S. W„ Washington, D.C. 20460; (202) 755-0770.
Sale Drinking Water Act
EPA may designate an aquifer as a principal water supply
source, requiring review of any project affecting the aquifer; no
federal assistance to project if it would contaminate the water
source.
Authority: Safe Drinking Water Act §144c.
Contact: Paul Baltay, EPA. 401 M St., S.W., Washington,
D.C. 20460; (202)426-8290.
Research and Development
Conducts research on various aspects of wetlands pollution,
etc.
Contact: Hal Kibby. Wetlands Research Coordinator, EPA,
Corvallis Environmental Research Lab, 200 S.W. 35th St.,
Corvallis. OR 97330; (503) 757-4713.
Department of the Interior
Bureau of Land Management
Public Lands
Requires protection, maintenance, and enhancement of wild-
life habitats on the public lands; BLM must prepare Habitat
Management Plans.
Authority: Federal Land Policy and Management Act, 43
U.S.C. §§1701 eiseq.
Contact: Division of Wildlife, Room 5550. Bureau of Land
Management. U.S. Dcpt. of the Interior, Washington, D.C.
20240; (202) 343-6188.
Department of Housing and Urban Development
Interstate Land Sales Full Disclosure Act of 1973
Interstate Land Sales Office requires distribution to purchas-
ers of subdivision lots of a report stating, among other things,
whether or not dredge and fill permits needed.
Authority: 15 U.S.C. §§1701-1720.
Contact: Asst. Secretary for Regulatory Functions, U.S.
Dept. of HUD. 451 7th St., S.W., Washington, D.C. 20410;
(202)755-8182.
Community Planning and Development
Provides assistance grants for planning and management; re-
quires environmental assessment be done by grantee.
Authority: Community Planning and Development Act,
§701.
Contact: Office of Community Planning and Program Coor-
dination, U.S. Dept. of HUD, 451 7th St., S.W., Washington,
D.C. 20410; (202)755-6226.
Bureau of Reclamation
Reclamation Act
Constructs and operates irrigation, flood control, and power
projects in 17 western states; operates fish and wildlife sanctu-
aries on reclamation land.
Authority: Reclamation Act, 43 U.S.C. §§41 1 elseq.
Contact: Recreation and Lands Branch, Bureau of Reclama-
tion, U.S. Dept. of the Interior, Washington, D.C. 20240; (202)
343-5204.
Fish and Wildlife Service
NOTE: The Fish and Wildlife Service is currently undergoing
reorganization. Therefore, programs, contacts, and phone
numbers are likely to change.
Land and Water Resource Development Planning
Program
Consultation required on impacts on fish and wildlife of any
federal agency action which will modify waters of the U.S.
Authority: Fish and Wildlife Coordination Act, 16 U.S.C.
§§66l-666c.
Contact: James D. Brown, Division of Ecological Services,
Fish and Wildlife Service, U.S. Dept. of the Interior, Washing-
ton, D.C. 20240; (202) 376-81 15.
CRS-148
National Wetlands Inventory Project
Classifying, identifying, and mapping wetlands, in order to
create a data base to aid management, particularly by the
states.
Authority: Fish and Wildlife Act, 16 U.S.C. §§742a el seq.;
Fish and Wildlife Coordination Act, 16 U.S.C. §§661-666c.
Contact: John Monlanari, Project Leader, National Wet-
lands Inventory Project, Fish and Wildlife Service, U.S. Dept.
of the Interior,' Washington, D.C. 20240; (202) 634-4910.
Coastal Ecosystem Project
Studying special problems associated with coastal areas.
Contact: William Palmisano, Coastal Ecosystems Project,
Fish and Wildlife Service. U.S. Dept. of the Interior, Washing-
ton. D.C. 20240; (202)634-4913.
Stream Alterations Project
Studying effects of stream channelization on fish and wild-
life.
Contact: Stream Alterations Project, Fish and Wildlife Ser-
vice, U.S. Dept. of the Interior, Washington, D.C. 20240; (202)
634-4913.
Clean Water Act §§208, 404
Required to assist states in developing dredge and fill pro-
grams under §208; must review state §404 programs prior to
EPA approval.
Authority: 33 U.S.C. §§1288, 1344.
Contact: John Christian, Fish and Wildlife Service, U.S.
Dept. of the Interior, Washington, D.C. 20240; (202)634-4908.
Migratory Bird Program
Authorizes inventory of significant waterfowl habitats and
purchase in fee or easement of land necessary for refuges.
Waterfowl Production Areas purchased.
Authority: Migratory Bird Conservation Act, Wetland Ac-
quisition Act, 16 U.S.C. §§715a-715s; Migratory Bird Hunting
Stamp Act, 16 U.S.C. §718.
Contact: Office of Migratory Bird Management, Room
2245, Fish and Wildlife Service, U.S. Dept. of the Interior,
Washington, D.C. 20240; (202) 254-3207.
Endangered Species Act
Protects and restores threatened and endangered species and
their critical habitats; provides for permit program for im-
port/export of certain animals. Federal actions must avoid
harm to species and their habitats; if differences between Office
and project sponsor irreconcilable. Endangered Species Com-
mittee rules on whether or not project should be exempt from
Act.
Authority: 16 U.S.C. §§1531 etseq. as amended.
Pittman- Robinson and Dingell-Johnson Acts.
Grants-in-aid all available to the states for habitat and spe-
cies restoration.
Authority: Federal Aid to Wildlife Restoration Act, 16
U.S.C. §§669-669i; Federal Aid to Fish Restoration Act, 16
U.S.C. §§777-777k.
Contact: Division of Federal Aid, FWS (see above).
Heritage Conservation and Recreation Service
Land and Water Conservation Fund Act
The fund provides for the purchase of outdoor recreation
areas. At least 40% of the fund must be used for federal pur-
poses; the rest goes to the state as matching grants.
Authority: 16U.S.C. §§460/-4 to 460/-1 1.
Contact: Heritage Conservation and Recreation Service,
U.S. Dept. of the Interior. Washington. D.C. 20240.
Geological Survey
Surveys
Collects and analyzes land use data, and has mapped and
classified wetlands.
Authority: Varied.
Contact: Land Information and Analysis Division, USGS,
Mail Stop 710, Reston. Va. 22092; (703) 860-6341; or Water
Resources Division, USGS. Mail Stop 467, Reston, Va. 22092;
(703) 860-6071; or Topographic Division, USGS, Mail Stop
514, Reston, Va. 22092; (703) 860-6741 .
National Park Service
National Park System
The Service maintains the Park System, and studies areas for
nationally significant natural areas that may qualify as natural
landmarks or parks.
Authority: 16U.S.C. §§1-3.461.
Contact: Natural Landmarks and Theme Studies Unit, Na-
tional Park Service, Denver Service Center, P.O. Box 25287,
Denver, CO.
Contact: Office of Endangered Species, Fish and Wildlife
Service. U.S. Dept. of the Interior, Washington, D.C. 20240.
Land and Water Conservation Fund Act
Allows purchase of fee and easement interests in land for the
protection of fish and wildlife and endangered and threatened
species. Administered by Heritage Conservation and Recrea-
tion Service (see below).
Authority: 16U.S.C. §§460/-4 to460/-l I.
Contact: Division of Federal Aid, Fish and Wildlife Service,
U.S. Dept. of the Interior, Washington, D.C. 20240; (202) 343-
4172.
CRS-149
Office of Water Research and Technology
Water Resources Research Act
Grants and matching grants assist research on water -related
problems of interest to the states and regions.
Authority: 42 U.S.C. §§1961a-l961c.
Contact: Frank J. Carlson, Biological Sciences Division,
OWRT. Room 4219, U.S. Dept. of the Interior, Washington,
D.C. 20240; (202) 343-2 101.
Tennessee Valley Authority
TVA Projects
Manages reservoir system containing wetlands; involved in
fisheries and wildlife management in that context .
Authority: 16 U.S.C. §831.
Contact: Division of Forestry, Fisheries and Wildlife Devel-
opment. TVA. Norris, Tennessee 37828.
Department of Transportation
Preservation of the nation's wetlands
Policy to protect wetlands to fullest extent possible during
planning, construction, and operation of federal and federally-
financed projects. May assist in acquisition or mitigation where
destruction of wetlands inevitable.
Authority: DOT Order 5660.
Contact: Office of Environmental Affairs. Dept. of Trans-
portation, Washington, D.C; (202) 426-4361 .
Coast Guard
General Bridge Act
Issues permits for all bridge projects over navigable waters.
Authority: 33 U.S.C. §3525.
Contact: Office of Environmental Affairs (see above).
Water Resources Council
Executive Order 11990
Requires federal leadership in wetlands protection and pre-
servation, and mandates that federal agencies avoid destruction
of wetlands if feasible. Alienation of federal wetlands re-
stricted, requiring covenants in the deed or removal of the pro-
perty from the market.
Authority: E.O. 1 1990.
Contact: WRC, Suite 800, 2120 L St., N.W., Washington,
D.C. 20037; (202) 254-6303.
Adopted from Jon Kusler, Richard Newton, and Corbin Har-
wood. Our National Wetland Heritage: A Protection
Guidebook (Prepared by Environmental Law Institute for U.S.
Fish and Wildlife Service; forthcoming), Appendices E and F.
Source: National Wetlands Newsletter, v. 1, no. 2. Washington, Environmental
Law Institute, January, 1979. p. 9-11.
Note: Most of the contacts listed are not accurate today, but program
descriptions and authorities have changed little in the past three
years .
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