Wetlands Reform Legislation
6/07/96
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RELAYED TEXT STARTS HERE:
Written 7:00 PM Jun 14, 1996 by gain in igc:gain.ecosystem
"Wetlands Reform Legislation"
GAIN BACKGROUND: WETLANDS REFORM LEGISLATION
Proposals in Congress jeopardize our remaining wetlands
GLOBAL ACTION AND INFORMATION NETWORK
740 Front Street, Suite 355 Santa Cruz, CA 95060
phone: 408-457-0130 email: gain@gain.org
June 7, 1996
The need to reform federal wetlands regulatory procedures has brought
several proposals to the 104th Congress. The GOP has particularly
focused on the definition of wetlands as a means to limit federal
regulation. One bill raising concerns to many wetlands proponents is
the Wetlands Regulatory Reform Act of 1995, (S. 851). Introduced by
Senator J. Bennett Johnston, Jr. (D-LA) on May 25, 1995, the bill is
intended to amend the Federal Water Pollution Control Act in
reforming the wetlands regulatory program. A companion bill in the
House is the Comprehensive Wetlands Conservation and Management Act
of 1995 (H.R. 1330), introduced by Representative James A. Hayes (D-
LA).
Dropping from 215 million acres in colonial times to 99 million acres
today, only 46% of our nation's wetlands remain. In some states, the
figures are more dramatic. For example, in California only 9% of
wetlands still exist (450,000 acres remain out of 5 million). Over
the past two decades, section 404 of the Clean Water Act has
protected our nation's rapidly diminishing wetlands by governing the
deposit of dredged or fill materials into U.S. waters, including
shorelines and wetlands. Section 404 implements a permitting process,
enforced by the Army Corps of Engineers, allowing that any
development which might result in the filling of wetlands be subject
to the corp's review. The EPA holds a veto power over the corps, and
may revoke permits granted that severely affect wetlands. The reform
measures proposed by Johnston attack this process by redefining
wetlands in a way that would lessen the scope of federal protection,
imposing a classification system determined by a wetland's ecological
value, and removing both EPA and Fish and Wildlife Service review of
wetlands regulation.
Like so much of the anti-environmental legislation proposed in the
104th Congress, S. 851 pushes the GOP platform of deregulation.
According to Trout Unlimited, a conservation organization, "S. 851
would virtually repeal section 404 [of the Clean Water Act]." S.851
closely mirrors the wetlands provisions contained in the Clean Water
bill passed by the House last Spring. That bill was dubbed the
"Dirty Water Bill" by environmental and health advocates.
WHAT S. 851 WOULD DO
Perhaps the greatest threat of the bill is its definition of the
elements that compose a wetland. The bill would define a wetland
as an area that has water on the ground surface for 21 consecutive
days during the growing season, as well as containing plants that
only grow in wet soils. This strict definition fails to consider
"seasonal", "temporary" or "drier-end" wetlands. The Association of
State Wetlands Managers reports that this definition would remove
federal protection from 60 to 80% of existing regulated wetlands.
The bill would set up a classification system, grading wetlands by
their ecological value, and then protecting them accordingly. Class A
(high-value) wetlands would be given the fullest protection, allowing
permits to be issued only to projects that avoid adverse impacts to
the fullest extent possible. Protection given to the next type, class
B (medium-value) would weigh the value of the wetland against
economic, energy, mineral, and food production needs, as well as
considering the private property rights of the landowner. Class C
(low-value) would get no federal protection, with no requirements for
reporting their destruction.
A lengthy list of exemptions for parties with vested interests in
wetlands issues would be created by S. 851. Legislative exemptions
would apply to sand and gravel mines, linear utilities, log-
transfers, normal farming, siviculture, aqua culture, ranching
activity, upland soil and water conservation practices and prior
converted croplands. Provisions in the bill would exempt the state
of Alaska from most wetlands permitting requirements. Isolated
wetlands that are less than .5 acres in size would also be exempt
from regulation.
The current law allows the EPA to veto a permit issued by the Army
Corps of Engineers in the event that adverse impacts to an affected
wetland are too severe. S. 851 would remove EPA's role in the process
by eliminating this veto power from the law. This provision was
recently included as a rider in the FY'96 Budget bill despite many
objections, including the Army Corps itself. Strong public,
Democratic and Administrative opposition forced a midnight hour
deletion of this provision before the budget's final passage.
Under S. 851, the Fish and Wildlife Service, which invested years
and billions of dollars into wetland identification and mapping
programs -- including the National Wetlands Inventory -- would
also be relieved of it's section 404 duties.
Another issue brought by the bill is the creation of a "mitigation
banking" program. This process allows that a party who wishes to
destroy a particular wetland, may purchase credits from a "bank"
of wetlands which have been restored or newly created by another
party.
Currently, mitigation banking is seriously being considered by
Senator John Chafee (R-RI), as a potential cornerstone of any
wetlands bill that he introduces this session. At a recent hearing
held on March 14, 1996 by Chafee's Environment and Public Works
committee, proponents of the program insisted that mitigation banking
is a "win-win" option, benefitting both resource and regulated
community interests. However, environmentalists and academics who
testified on the panel felt that the mitigation banking system has
not been proven to work, and is a costly system. In response to
proposals of mitigation banking, Paul Schwartz of Clean Water Action
said, "We consider mitigation to be an unmitigated disaster. You just
can't re-create most wetlands." Chafee also remains skeptical of the
program.
S.851 also sets guidelines for enforcement of wetlands rules, creates
a system for landowners to appeal wetland designations, and makes
federal wetlands maps publicly available. It does not however contain
the controversial takings provision relating to wetlands that is in
H.R. 961 -- the "Dirty Water Bill."
S. 851 PROPONENTS AND OPPONENTS
Senator Lauch Faircloth (R-NC) who aided in the drafting of S.
851, asserts the goal of the bill is "to protect wetlands with a
program that is fair, balanced and environmentally sensitive."
Faircloth feels that wetlands reform should provide an uncomplicated,
clear definition of what constitutes a wetland. However, while a
simple, clear definition may have political advantages with certain
constituents, it often undermines the importance of scientific
evaluation in wetlands regulation. The BNA National Environmental
Daily_ captured Faircloth's wishes to simplify a very complex issue
when he said, "I am convinced that much of the controversy
surrounding this program would end only if, the Congress provided a
law as a reference for landowners and the government that regulates
them." He further points out that a National Research Council study
indicates that one needs an extensive scientific background to be
qualified as a wetlands delineator.
Bernard Goode, former chief of the Army Corp's national regulatory
program in the 80's, feels that S. 851 would help "reign in the run-
away (Clean Water Act) section 404 program." Goode, now an
environmental engineering consultant, asserts that the federal
government has broadened the definition of wetlands over the past
several years. James Burling, an attorney with the Pacific Legal
Foundation, notes that the bill would resolve some of the existing
problems with wetlands regulation by establishing a classification
system and a clear definition of wetlands. Other supporters include
members in the agricultural and mining industries.
As the Johnston bill advocates rally for Congressional support,
members of the Environmental Protection Agency (EPA) remain in
opposition to S. 851. Robert Perciasepe, the EPA assistant
administrator for water, notes that the wetlands regulatory program
needs reform, but "at this point we think that S. 851 is not a
workable way to get to that end point." Perciasepe criticizes the
bill for its narrow definition of a wetland, as well as the bill's
creation of "inappropriate and unfair" exemptions from wetlands
protection provided for selected special interests.
Both John Echeverria, general counsel to the National Audubon
Society and Steve Moyer, director of government relations for
Trout Unlimited, strongly oppose the provisions of S. 851.
National Audubon Society states that, "S.851 would impose this
[classification] scheme despite the fact that the National Academy
of Sciences found that three tiered classification schemes are
scientifically indefensible." Kenneth Bierly, the wetlands program
manager for the Oregon Division of Public Lands, said the bill
"promises to conserve wetlands, but (instead) creates a program
that will result in increased federal budget requirements, lead to
environmental deregulation, and result in legal and bureaucratic
quibbling."
Kathy Nemsick, coordinator of the Clean Water Network (CWN),
expressed opposition to S. 851, stating that the members of the
Clean Water Network initially opposed the bill for its unscientific
definition of wetlands. CWN feels that S. 851 is very similar to
wetlands provisions in H.R. 961, which they also oppose.
WHERE IS S.851 GOING?
While Senator Chafee was hoping to move a Clean Water Act bill
through his Environment and Public Works panel in 1995, the Johnston
bill was not an approach he favored. Chafee has taken an interest in
the mitigation banking measures of the Johnston bill, and may now
focus on this aspect in further wetlands proposals. However,
supporters of S. 851 in the Environment Committee, including seven of
the eight other Republicans, Majority Whip Trent Lott (R-MS) and
Majority Leader Bob Dole (R-KS), continue to put pressure on Chafee
to adopt the language of S. 851.
Currently, there are no committee schedules planned for S. 851.
The bill was referred to the Committee on Environment and Public
Works on March 25, 1995. The most recent action was the hearing
held by the Committee on March 14, 1996. As of March 26, 1996,
there are 20 cosponsors of the bill -- 18 Republicans, 2 Democrats
and 1 withdrawal.
Much of the legislative action relating to wetlands actually
involved provisions in other bills. A major battle was won with
the removal of the section 404 rider to the budget bill. The Farm
bill, now law, gives protection to 975,000 acres of wetlands to be
incorporated into the Wetlands Reserve Program, extending the WRP
through the year 2002. The existing 1985 and 1990 Farm Bill wetlands
conservation framework remains, with some modifications to allow
farmers more flexibility in meeting regulatory requirements.
Wetlands are valuable ecological havens for many species, as well
as a means for providing clean water. Public concern for wetlands
can sway Congress to create a stronger wetlands management program.
The success of S. 851 in this Congress and next depends on the
public. After the House passed its "Dirty Water Bill" last Spring
(which contained many of S. 851's wetlands provisions), there was a
huge public backlash against many of the Representatives who had
voted for it. This helped squelch some of the GOP momentum on it's
anti-environmental actions. Contact your Senators and urge them not
to support S. 851, but to instead press for stronger wetlands
protection reform.
OTHER WETLANDS PROPOSALS
The following bills were introduced in Congress, but have seen
little action since their introduction.
H.R. 67: This bill proposes the extension of the Conservation
Reserve Program for 10 years and the Wetlands Reserve program for
5 years, attempting to protect vulnerable soil and water resources.
The program would facilitate uses of environmentally sensitive
wetlands to conservation by requiring farmers to meet conservation
compliance requirements, allowing the Secretary of Agriculture to
play a role in negotiating these requirements, and would set up a
permitting process to allow limited uses on lands enrolled in the
conservation reserve. The bill was introduced by Representative
Douglas K. Bereuter (R-NE) on January 4, 1995.
H.R. 198: Representative Nick Smith (R-MI) introduced the "Down to
Earth Tiny Wetland Act of 1995" on January 4, 1995. This bill was
intended to amend Title XII of the Food Security Act of 1985 to
permit the conversion of wetlands that are 1 acre or less in size.
There are currently 7 cosponsors of this bill and there have been
no major actions on the bill since its introduction. This purpose
of this bill bears a similarity to one of the exemptions proposed
in S. 851.
H.R. 1268: This bill, introduced by Representative Phil English
(R-PA) on March 21, 1995, provides incentives for conservation,
restoration, or enhancement activities; asserts federal regulation
of activities that might result in the degradation of wetlands and
attempts to balance public and private interests in wetlands
activity. Important points of this bill would be the ban on the
discharge of dredged or fill material into wetlands and the ban of
the draining or flooding of wetlands. Like the Johnston bill, this
proposal would enact a three tiered classification system for
wetlands protection.
S. 352: Introduced by Senator Larry Pressler (R-SD) on February 3,
1995, the bill addresses the issue of wetlands and private property
rights in creating new guidelines for wetlands delineation. S. 352
also considers issues of compensation to private property owners and
penalties for altering wetlands on private property.