Legislation to clarify and restore protection to millions of acres of wetlands was introduced recently in Congress, according to the Wildlife Management Institute. The bill, the Clean Water Restoration Act (CWRA), introduced by Barbara Boxer (CA), Benjamin Cardin (MD) and Russ Feingold (WI), has 23 co-sponsors. The Administration supports congressional action on the measure, but has not taken a specific position on the bill.

Beginning in 1972, with the passage of the Clean Water Act (CWA), the nation's wetlands received substantial federal oversight and protection from the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps). Then, in 2001, the U.S. Supreme Court ruled in Solid Waste Agency of Cook County v. U.S. Army Corps of Engineers that "geographically isolated" wetlands should not be protected under the CWA. Further, in 2006, the Supreme Court made additional rulings in Rapanos v. United States and Carabell v. United States Army Corps of Engineers that wetlands must have a "significant nexus" to navigable waters to receive protection under the CWA. ?

EPA and the Corps were left to interpret what "significant nexus" means relative to wetland eligibility for protection under the CWA. In addition, EPA and the Corps needed to identify what constitutes navigable waters. These two determinations clearly are open to wide variability of interpretation.

In December 2008, EPA and the Corps attempted to clarify the issues by releasing a guidance memorandum to assist their staffs with enforcement of wetland protection under the CWA and in the context of the Supreme Court rulings. The guidance document was immediately blasted by both the conservation community, which felt that substantial numbers of wetlands would not qualify for protection under the "significant nexus" test, and by developers and others who felt that the navigable waters language was too broad and protected more wetlands and small streams than the Supreme Court intended.

However, conservationists and developers alike agreed that the new guidance was confusing, would add to delays in permitting and to costs. Many from both perspective felt that the only real solution was for Congress to wade in. Hence, the CWRA was introduced. It is estimated that the fate of more than 20 million wetland acres, including most of the wetland basins in the country's prairie pothole region, is at stake. (pmr)