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With the Senates passage of the long awaited 2014 Farm bill, and President Obama's promise to sign, its worth a look at the details as both the Wetland Reserve Program (WRP) and Conservation Reserve Program (CRP). Both programs are funded through the Farm Bill, with it's almost $1 Trillion budget, and have a direct impact on wetland conservation.

Overall, there has been a $6 billion decrease in funding from the 2008 Farm Bill.  Acreage under management for the Conservation Reserve Program (CRP) was capped at 24 million acres, down from a cap of 32 million acres, but with enrollment currently only at 17 million acres, its a paper loss. The modified provisions also allows up to 2 million acres to be used for grazing under certain circumstances.

Two other existing conservation programs, the Farm and Ranch Lands Protection Program (FRPP) and Grassland Reserve Program (GRP) are to be combined and share $1 billion in funding under the new Agricultural Lands Easement (ALE) program.

Due to conservation organizations efforts, a major victory is the reinstatement of the "Swampbuster" provision, tying or  "re-coupling" conservation compliance, which had been missing in the Farm Bill since 1996, directly to agricultural subsidies. Farmers may still convert, or drain wetlands, but they will forgo subsidized federal crop insurance if they do. Ducks Unlimited estimates there was as many as 3.3 million acres of wetlands at risk due to the lack of penalties tht the Swampbuster provisionsprovided in the interim years between 1996 and today.

 

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Alaska contains approximately 63% of the nation's wetlands, measuring 130 million acres or roughly 1/3 of the entire state. Due to the size and unique nature of many of the wetlands found only in Alaska, the state is considering assuming the Federal jurisdiction over Section 404 of the Clean Water Act, overseeing dredge and fill. The transition is estimated to create 20 jobs. Virginia also began considering a similar program in 2012.
Currently only 2 of the 50 states, New Jersey and Michigan have been granted this authority to regulate wetlands under the Clean Water Act with mixed results, due to the complexity and scope of the projects and law. In fact, in 2008 the Federal government deemed that Michigan's program did not meet the standards required of the Clean Water Act and needed to correct its program. As a result, Michigan had investigated the return of permitting back to the federal Government  in an attempt to save approximately 20 million dollars per year, but was tabled when Govenor Rick Snyder took office.

Despite the transition, the permitting requirements will remain unchanged, but permitting times would likely be shorter due to efficiencies when dealing with only one permitting party.
Edited 12/10/13  - MI state program audit

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Not entirely unexpected, the US Supreme Court sided with the Sacketts in a unanimous 9-0 decision, allowing the landowners to appeal the EPA's compliance order, which they risked risk fines up to $75,000 per day if they did not restore the property pursuant to an EPA work plan. Importantly, this decision does not affect the wetland delineation, nexus or discovery process, but only if the Sacketts can appeal the fines and have their case heard by an impartial federal judge. During the Supreme Court case, they were represented by the Pacific Legal Foundation and backed by the National Association of Home Builders, the U.S. Chamber of Commerce, General Electric amongst others.

“The Sacketts may bring a civil action [under the Administrative Procedure Act] to challenge the issuance of the EPA’s order,” Justice Antonin Scalia said in a statement announcing the court’s decision. “The APA provides for judicial review of final agency action for which there is no other adequate remedy in court,” he said.

Despite the Sackett’s victory, and eventual administrative review, this case was only tangentially about wetlands from the beginning, and it is now clear that the threat of fines in order to keep individuals or corporations from violating the Clean Water Act has been weakened substantially. Deep pocketed violators can tie up enforcement in an endless cycle of appeals, reviews and delays. Recall GE’s 30 years of stalling the cleanup of PCB’s from the Hudson River under the Clean Water Act.

In a previous post, a quick search of the USGS Wetland Mapping site revealed that there is a strong possibility that wetlands are present on the Sackett’s land. Despite their victory, it seems likely that the appeals judge will determine that wetlands are on their land, but It does not seem likely that the EPA has a strong desire to vigorously enforce restoration or mitigation.

In Justice Samuel A. Alito Jr’s opinion, he broached the perennial problem of defining a wetland, stating "Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands, .... but only clarification of the reach of the Clean Water Act can rectify the underlying problem."

A problem for another day, hopefully one with a better outcome for wetlands.

 

A round up of the best articles and sources below:


Supreme Court sides with Idaho landowners against EPA

EPA Enforcement Tool Blunted by High Court in Wetlands Case

SACKETT v. ENVIRONMENTAL PROTECTION AGENCY

EPA wetlands order can be challenged by land owners, Supreme Court rules

GE Clean Water Act Timeline

Wetlands in the News

26 October 2026