HR 961 limits federal wetland protection

House Resolution 961, otherwise known as the reauthorized Clean Water Act (CWA), represents a fundamental shift in federal policy with regard to the delineation and protection of wetland areas.

In 1987, the Environmental Protection Agency (EPA) called for a gathering of scientists, politicians and private industry leaders to meet and discuss the definition of a wetland. Though wetland areas have enjoyed some federal protection since the Federal Duck Stamp Program in 1934, different agencies had different definitions for what constitutes one, and the EPA felt a standard definition was warranted.

Dubbed the National Wetlands Policy Forum, the meeting produced three words which have become, H.R. 961 notwithstanding, the official federal policy on wetlands protection: “no net loss.”

Though interpreted in various ways, the no net loss policy was adopted by President George Bush and since by the Clinton Administration. However, if the wetlands provisions of H.R. 961 are signed into law, some experts estimate from 50 percent to 80 percent of wetlands currently under federal protection would lose that protection, a considerable net loss.

When considering the CWA, congressional Republicans asked the National Research Council (NRC) to prepare a report detailing what constitutes a wetland and what kinds of protection the government should give those areas. The report, Wetlands: Characteristics and Boundaries, prepared by the Water Science and Technology Board of the NRC, called for the protection of more, rather than fewer, areas.

“I think Rep. Don Young (R-Alaska) said it best, ‘It’s time for the politicians to declare what a wetland is, not scientists,'” says Paul Schwartz, public policy advocate for Clean Water Action, Washington. “The Contract With America, looking at risk assessments, says that public policy is to be guided by sound science but, when it came time to employ the scientific information available, they jettisoned that approach.”

According to Congressional Quarterly, H.R. 961 would make certain revisions with regard to wetlands. It would:

* establish a statutory program for regulation;

* require the Army Corps of Engineers and the Department of Agriculture to classify wetlands as Type A, B or C. Land-use regulations would be restrictive for Type A, permissive for Type C;

* require that no more than 20 percent of land in a given county be classified Type A; and

* require the federal government to compensate a landowner whose property values fell by 20 percent or more due to wetlands protection policy. The government would be required to purchase the property outright if its value fell more than 50 percent.

Even local government officials, the most ardent supporters of the reauthorized CWA, are shying away from certain wetlands provisions.

“We are generally supportive of the CWA, but there are portions on which we are silent,” says Randy Arndt of the National League of Cities in Washington.

South Florida is one area that could be affected. Already suffering saltwater intrusion because of low aquifer recharge, the area would stand to lose portions of the Everglades from federal protection if H.R. 961 becomes law.

“If you relax the wetlands statutes too much, you’re going to encourage development closer and closer to the Everglades, and you’ll lose recharge areas,” says Fred Bloetscher, deputy utilities director for Hollywood, Fla.

The National Conference on State Legislatures (NCSL) sent a letter to the bill’s author, Rep. Bud Shuster (RPa.), while it was in markup, urging revision of certain portions. When the bill was sent to the floor, NCSL wrote to members of the House, urging them to vote it down.

“Title VIII (of H.R. 961) would fundamentally weaken the wetlands protection program…through its approach to delineation, classification and compensation,” says the NCSL letter to Shuster. “We were extremely concerned to see (the bill contains) the ‘takings’ legislation already passed by the House, which NCSL opposes as unworkable and costly. The federal government should not be required to pay landowners not to engage in environmentally damaging activities that place their neighbors at risk.”