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WETLAND PROTECTION


INTRODUCTION

FEDERAL WETLAND REGULATION

Section 404 of the Clean Water Act
General Permits
Individual Permits
Mitigation
Section 404 Exemptions
Recapture of Exempt Discharges
Section 401 of the Clean Water Act

FEDERAL NON-REGULATORY WETLAND PROTECTION

Sections 101 and 303 of the Clean Water Act
Section 319 of the Clean Water Act
Section 402 of the Clean Water Act
Swampbuster Provision of the 1985 and 1990 Farm Bills
Exemptions to the Swampbuster Provision
Conservation Reserve and Wetlands Reserve Programs (1985 and 1990 Farm Bills)
Water Bank Act
Migratory Bird Hunting and Conservation Stamp Act / Small Wetland Acquisition Program (SWAP)
FEDERAL WETLAND POLICY INITIATIVES
Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990
(CZARA)
No Net Loss
Ramsar Convention
Chronology of Key Federal Legislation and Regulations Affecting Wetlands
WETLAND PROTECTION AT THE STATE AND LOCAL LEVELS
State Wetland Protection
Local Wetland Protection
Public-Private Sector Partnerships
Advance Identification of Disposal Areas (ADID)
North American Waterfowl Management Plan


INTRODUCTION

Perhaps the most notable feature of federal wetland protection policy today is that there is no specific, comprehensive national wetland law. Rather, federal statutes regulating or otherwise protecting wetlands have evolved piecemeal over the years, and often utilize laws originally intended for other purposes (Mitsch and Gosselink, 1993; GAO, 1991). As a result, jurisdiction for wetland protection is spread over several agencies and federal wetland protection is not as effective or cohesive as it could be.

Federal, state, and local government regulatory, or permitting, programs are essential tools in the nationwide effort to protect wetlands. While essential, current programs do not, in most cases, provide sufficient protection. Regulatory programs typically include thresholds of applicability, allowing destruction of small wetlands or small portions of larger wetlands. They often contain loopholes, such as allowing direct drainage or excavation of wetlands provided none of the spoil material is placed in the wetland. Programs almost universally fail to address activities in surrounding areas which can lead to wetland degradation, such as diversion of surface or ground water inputs (see Wetland Loss and Degradation section ). Almost all regulatory programs contain exemption categories for many agricultural, silvicultural, and sometimes mining activities. Regulatory programs are typically vulnerable to economic arguments for allowing development of wetlands, and often rely on the safety net of mitigation to offset wetland losses or degradation. Yet the technology and reliability of wetland mitigation lags well behind the expectations placed on it (see Wetland Mitigation section). In a larger perspective, regulatory programs are the reactive, compulsory arm of wetland protection, and can only provide partial protection in the long run.

Despite the efforts of regulatory programs and private conservation organizations, degradation and destruction of wetlands will continue unless offset by additional protection approaches. Approaches needed to achieve comprehensive wetland protection must be proactive, far-sighted, planned strategies that utilize positive motivation to succeed long-term. These can be grouped by type of approach: incentive/disincentive; acquisition/legal restriction; restoration; and others, including policy statements, educational efforts, and inventories. Each has its advantages and disadvantages, and all are needed to effectively protect wetlands. For example, regulatory programs are essential for basic wetland protection and for recourse when detrimental impacts occur. Incentive/disincentive programs provide wetland property owners with a reason to protect wetlands without requiring an enforcement presence. But incentive programs tend to apply only to certain land use activities, and incentive mechanisms can become less compelling over time as economic forces change. Acquisition greatly increases the likelihood of minimizing detrimental impacts to wetlands, as do legal restrictions short of acquisition, depending on their design. But acquisition and some legal restrictions provide limited coverage because of funding constraints, and some legal restrictions require active enforcement. Restoration is important for correcting historical damages, but should be coupled with legal protections and, again, is invariably limited by funding. Policy support and educational efforts are essential in the long run, but are inadequate without favorable economics or enforceable authority. Thus, a combination of these approaches is essential for the effective short- and long-term protection of wetlands.

Many opportunities exist for private citizens and corporations to assist federal, state and local government agencies in slowing the rate of wetland loss and improving the quality of the nation's remaining wetlands. Individual landowners and corporations own the majority (75%) of the nation's wetlands: they are in a key position to determine the fate of wetlands on their properties (USEPA 1995).

The following is a synopsis of federal, state, and local wetland regulatory efforts, along with discussion of existing and potential non-regulatory programs that can also support wetland protection in the United States.

FEDERAL WETLAND REGULATION

Section 404 of the Clean Water Act

Significant protection of wetlands as integral and essential parts of the nation's waters began with the 1972 Federal Water Pollution Control Act, now commonly referred to as the Clean Water Act (CWA), and continued through amendments to the Act passed in 1977. Section 404 of the 1972 Act establishes the major federal program regulating activities in wetlands, and the 1977 Amendments significantly expand on the design of the Section 404 program, including exemption categories, the option of delegation of the 404 program to states, and enforcement powers.

Section 404, jointly administered by the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA), regulates the discharge of dredged or fill material into "waters of the United States," which include wetlands. Discharge of dredged or fill material requires a permit from the Corps based on regulatory guidelines developed in conjunction with EPA (pursuant to Section 404(b)(1)). Failure to obtain a permit or comply with the terms of a permit can result in civil and/or criminal penalties. Under Section 404(c), the Administrator of the EPA may prohibit or restrict the use of any defined area as a disposal site if it is determined that the discharge may cause unacceptable adverse effects on municipal water supplies, wildlife, shellfish beds and fishery areas, or recreational areas. This section is referred to as EPA's "veto authority." Parties intending to discharge material into waters of the U.S. must obtain an individual permit or be covered under a general permit issued by the Corps. Effective 9/93, not only the discharge is regulated under 404 (see examples below).

General Permits

Under Section 404(e), the Corps may issue general permits on a nationwide, regional, or statewide basis for particular categories of activities that, when conducted in waters of the U.S., are presumed to cause only minimal adverse environmental impacts. Landowners undertaking these activities are not required to obtain an individual permit. The Corps has identified and periodically updates a list of categories (40 to date that apply nationwide) of activity that merit such blanket approval. General permits that apply nationwide, or "nationwide permits," are issued by Corps headquarters and apply throughout the country. Some of these categories require simply notifying the Corps prior to commencement of the activity in a wetland, and some do not. Information about regional or state-level general permits may be obtained from Corps division or district offices.

Of the forty nationwide permits issued by the Corps as of March 1993, seven always require notification of the Corps prior to project activity: outfall structures, hydropower projects, surface mining, temporary construction, cranberry production, emergency watershed protection, and cleanup of hazardous wastes. Eight nationwide permits require notification of the Corps in certain circumstances: scientific measurement devices, temporary recreation structures, bank stabilization, road crossing, minor discharges, removal of vessels, isolated wetlands, and hazardous waste cleanup. The remaining 25 permits do not require that the landowner notify the Corps prior to project initiation if the landowner complies with the conditions of the permit. All activities allowed by nationwide permits must include the use of appropriate erosion and siltation controls. Activities may not disrupt the movement of indigenous aquatic species, and heavy equipment must be placed on mats.

Individual Permits

An individual 404 permit is required for activities with more significant wetland impact potential. Individual permit applications are evaluated on a case-by-case basis using the Section 404(b)(1) Guidelines. The Guidelines spell out a sequential review process whereby the applicant must first show that all available alternatives to the impact (the "discharge of dredged or fill material") have been considered, and that no practicable alternative exists which would have less adverse impact on the aquatic ecosystem. Non-water-dependent activities face a more rigorous evaluation from the Corps. Next, no discharge can be permitted if it would violate other applicable laws, including state water quality standards, toxic effluent standards, the Endangered Species Act, and marine sanctuary protections. Further, the discharge "cannot cause or contribute to significant degradation of wetlands by adversely impacting wildlife, ecosystem integrity, recreation, aesthetics, and economic values." If these conditions are met, then the applicant must show that all appropriate and practicable steps will be taken to minimize adverse impacts of the discharge on wetlands. Only after avoidance and minimization criteria are satisfied can the Corps consider compensation, which is commonly known as "mitigation" (USEPA 1991a). In establishing mitigation requirements, the Corps must strive to achieve a goal of no overall net loss of wetland values and functions, meaning a minimum of one-for-one functional replacement with an adequate margin of safety to reflect scientific uncertainty. An environmental assessment or Environmental Impact Statement (EIS) must be prepared for each individual permit application.

Mitigation

Under the Section 404(b)(1) guidelines (codified at 40 CFR 230) and Corps regulations (codified at 33 CFR 320.4(r)), the Corps (or EPA) has the right to require the developer to mitigate any unavoidable impacts on a wetland as a condition of an individual 404 permit. The developer can be required to enhance, restore, or create wetlands on or near the development site. Mitigation projects are meant to replace the loss of natural wetland functions due to the permitted activity. Mitigation is discussed in a separate section of this document (Sucessful Mitigation or Mitigation Banking>).

Section 404 Exemptions

Section 404(f) exempts discharges of dredged or fill material associated with normal ongoing farming, ranching, and forestry activities, such as plowing, seeding, cultivating, or harvesting food, fiber, or forest products; minor drainage; maintenance (not construction) of drainage ditches; construction and maintenance of irrigation ditches; construction and maintenance of farm or stock ponds; construction and maintenance of farm or forest roads, in accordance with best management practices; and maintenance of dams, dikes, and levees. These discharges are exempt from the 404 permitting requirements if they do not convert a wetland to an upland area through the discharge of dredged or fill material.

Minor drainage activities covered by this exemption are those involving the discharge of dredged or fill material incidental to:

Minor drainage activities do not include enlarging or extending the affected drainage area beyond the dimensions that existed prior to development of the blockage that necessitated maintenance (USEPA 1991a).

Recapture of Exempt Discharges

Exempted discharges may be regulated or "recaptured" by Section 404 if they 1) involve an impairment of the reach or flow and circulation of the water or wetland, e.g., converting a wetland to upland and 2) represent a new use of the water or wetl and (USEPA 1991a). The term "new use" includes:

Want (1994); USEPA (1991a); USEPA (1995)

Section 404 is the backbone of wetland protection in the United States today. Yet, the vague language of the regulation, multiple exemptions, loopholes, and activities not covered allow many wetlands to be legally degraded or destroyed. For example, Section 404 has no control over ground water pumping that can completely de-water a wetland (USEPA 1989). As a result of the above caveats, by most estimates, only about 20 percent of the activities that destroy wetlands are regulated under the Section 404 program (GAO, 1991). It should be noted that a large part of the remaining activities involve agriculture, which has been a major cause of past wetland losses. As discussed below, the 1985 and 1990 Farm Bills have attempted to fill this gap in coverage.

A recent change in wetland regulation closed a major loophole that had enabled unregulated wetland conversion by nondischarge activities. The scope of the 404 program was clarified in August 1993 as a result of the lawsuit North Carolina Wildlife Federation, et al. v. Tulloch (58 Federal Register 45008, August 25, 1993), and is now reflected in federal regulations at 33 CFR 332223.2(d). The COE revised the definition of "discharge of dredged material" in its guidance to include "any addition, including redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation" when such activities destroy or degrade waters of the United States, including wetlands. This revision is "of great national significance to the Section 404 program" (58 Federal Register 45008, August 25, 1993), taking a clear position in favor of regulating excavation in wetlands, an area with a mixed history of enforcement (Want, 1994). This change will also help to narrow the exemption for drainage of wetlands, since most draining involves some degree of dredging (Want, 1994). As a caveat, this provision does not affect, in any manner, the existing statutory exemptions for normal farming, ranching, and silviculture activities in Section 404(f)(1)(58 Federal Register 45008, August 25, 1993).

Want, (1994)

Section 401 of the Clean Water Act

Section 401, the state water quality certification process, gives states authority to grant, deny, or condition issuance of federal permits or licenses that may result in a discharge to waters of the United States, including the discharge of dredged or fill material. Through the 401 certification process, states can prevent noncompliance with water quality standards through permit denials (such as Section 404 individual permits discussed above) or conditions of permit issuance (for example, mitigation requirements). States are encouraged by EPA to use 401 certification as a means of protecting wetlands and of offsetting unavoidable impacts by obtaining mitigation proposals before granting 401 certification. EPA offers guidance to the states on this process (USEPA 1989), and some states have implemented it, resulting in essentially de facto Section 404 dredge and fill regulation at the state level. Of course, this approach to wetland protection is only as effective as the associated 404 protections.

FEDERAL NON-REGULATORY WETLAND PROTECTION

As mentioned above, wetland protection efforts in federal legislation have occurred piecemeal over the years. No other federal programs have the direct, interventionary control of the 404/401 regulatory process. However, other sections of the CWA and other federal laws do lend varying degrees of support to federal wetland protection efforts. Non-regulatory acts and orders can also be grouped by the protection approach taken: acquisition/legal restriction; restoration; incentive/disincentive; other programs, such as policy statements, educational efforts, and inventories; or combinations of these approaches. Some of the more important of these non-regulatory approaches are discussed below.

Sections 101 and 303 of the Clean Water Act

Section 101 of the CWA established national goals for the attainment of good water quality (fishable and swimmable waters). Section 101(a)(2) identifies a key goal: to protect and enhance propagation of fish, shellfish, wildlife, and recreation in and on waters of the United States. Under Section 303, states are required to develop and implement water quality standards for all waters of the United States, including wetlands. In the absence of specific wetland standards, water quality standards established for other surface waters can apply to wetlands as well. Thus, wetlands are theoretically protected from water quality degradation. However, in 1989, about half of the states did not explicitly recognize wetlands in their water quality standards and most had no standards tailored to wetlands (USEPA 1990). This prompted EPA in 1990 to set requirements for states to establish standards for wetlands by the end of FY1993. EPA also provided national Agency Operating Guidance to facilitate state action (USEPA 1990). However, by the deadline, state compliance with the Guidance was low. In any case, while water quality standards can help to protect preserved wetlands, such standards provide no direct means to avert or discourage the elimination of wetlands. Water quality standards tailored to wetlands can, however, facilitate the implementation of Section 401 Water Quality Certifications to protect wetlands (see section on Section 401 above).

Section 319 of the Clean Water Act

Section 319 establishes a national program for the control of nonpoint source pollution. The section requires states to assess nonpoint source impacts to state waters, including wetlands, and to prepare management programs to control impacts. Under Sect ion 319, EPA funds activities to protect or restore wetlands for nonpoint source water quality improvement, and EPA encourages such dual-purpose, wetland/water quality improvement activities (USEPA 1990b). Section 319 uses financial incentives to encourage voluntary state prioritization and protection of wetlands, but provides no regulatory wetlands protection.

Section 402 of Clean Water Act

Section 402(p), which establishes the National Pollutant Discharge Elimination System (NPDES) program, requires stormwater permits for four major classes of stormwater discharges. Section 402 advocates the use of best management practices (BMPs) to minimize or eliminate the introduction of stormwater pollutants into waters of the United States. While the NPDES program does not regulate activities conducted in wetlands nor destruction of wetlands in any direct way, its goal is to reduce pollutant discharges that may otherwise degrade wetlands from a water quality standpoint.

Source: USEPA 1995

Swampbuster Provision of the 1985 and 1990 Farm Bills

As mentioned above, agriculture has historically played a significant role in the alteration and loss of wetlands in the United States, and much agricultural activity is exempted from the Section 404 program. To address this gap, the Food Security Act (Farm Bill) of 1985 included two major wetlands provisions, "Swampbuster" and the Conservation Reserve Program (CRP). The Swampbuster provision of the 1985 Farm Bill, and amendments in the Food, Agriculture, Conservation, and Trade Act (Farm Bill) of 1990, were designed to discourage the further conversion of wetlands for agricultural commodity production and can be categorized as disincentives. The Swampbuster provision requires the withholding of all USDA program benefits from any person who 1) plants an agricultural commodity on a wetland that was converted after December 23, 1985, or 2) converts a wetland for agricultural commodity production after November 28, 1990, even if the crop is not planted (USEPA 1991a). Benefits that can be lost under the Swampbuster provision include commodity supports, crop insurance, and disaster payments. These can be substantial losses for commodity crop producers. Benefits are withheld for the year in question and all subsequent years, until the wetland is either restored or replaced (mitigated). An agricultural commodity is defined as any annual crop planted by the tilling of the soil, including crops such as corn, tomatoes, potatoes, oats, peas, wheat, and broccoli.

Exemptions to the Swampbuster Provision

Perennial crops (e.g., hay, berries, apples, pulpwood, ornamental shrubs,Christmas trees, etc.) are not classified as agricultural commodities and are therefore exempt from the Swampbuster provision.

Wetlands converted to cropland prior to passage of the 1985 Farm Bill (prior converted croplands) are exempt from the Swampbuster provision. These are former wetlands that were cleared of woody vegetation before the cut-off date of December 23, 1985, and hydrologically modified for agricultural production. As defined in the Swampbuster provision, prior converted croplands no longer have the characteristic hydrology of a wetland (currently, inundation for at least 15 consecutive days during the growing season); must have had an agricultural commodity planted or produced at least once before December 23, 1985; and must not have been out of production for more than 5 consecutive years. If these conditions are not met, the land in question is subject to Swampbuster and Section 404 regulations.

Herbaceous wetlands that do not require any hydrologic alteration for crop production may be farmed without the loss of USDA program subsidies, and are thus also exempt from the Swampbuster provision.

From these criteria, it is apparent that Swampbuster provides a significant disincentive for new conversions of wetland to cropland. In fact, a recent survey of cornbelt farmers showed that about half of those surveyed with unfarmed wetlands would put them to agricultural use in the absence of Swampbuster (Lant et al, 1995). However, it is also clear that Swampbuster is by no means comprehensive. Most significantly, it does not protect wetlands converted for non-commodity crops, and there is relatively little overlap nationwide of farms relying on commodity programs and wetlands (Wiebe et al, 1995). Also, commodity programs themselves are affected by federal budget considerations; thus loss of program benefits cannot always be counted on as a reliable deterrent. In fact, on March 29, 1996, President Clinton signed the most recent quintennial Farm Bill, phasing out 60 years of commodity support programs entirely within 7 years. These factors, combined with the fact that Swampbuster does nothing to ad dress ongoing, pre-existing farming operations in wetlands, make this disincentive approach weak. Partly for these reasons, positive incentive programs, such as the Wetlands Reserve and Conservation Reserve Programs, were developed along with the Swampbuster program.

Source: USEPA (1991a).

Conservation Reserve and Wetlands Reserve Programs (1985 and 1990 Farm Bills)

Two important incentive approaches for protection and restoration of wetlands were parts of the 1985 and 1990 Farm Bills. Both the Conservation Reserve Program and the Wetlands Reserve Program pay farmers to take land out of production or set land aside for a designated time period.

The focus of the Conservation Reserve Program (CRP), which was created in the 1985 Farm Bill, was to encourage farmers to take highly erodible lands out of production for ten years. While most CRP monies went to protection of highly erodible upland areas, the CRP also provided funds to restore previously cropped wetlands, floodplains, and riparian areas adjacent to streams (WMI 1994; NGPC 1995a). The CRP originally was funded for 36.5 million acres (and the 1996 reauthorization continues this enrollment level). Of that total, 410,000 acres of wetlands were enrolled, with 60% in the Dakotas (Lant et al., 1995). Over 114,000 individual wetlands in North Dakota alone are part of the CRP, further highlighting the major role CRP plays in efforts to restore prairie potholes in the Midwest. (NGPC 1995a). The CRP has been extremely successful and has prevented the erosion of almost 700 million tons of topsoil annually since its inception (WMI 1994). As a result, the CRP improved water quality through reduced sedimentation as well as reduced pesticide and fertilizer in runoff. Over the 10 years that the CRP has been in effect, the program has provided billions of dollars in environmental benefits to the nation, saving it up to $2 billion per year that would have been expended through agricultural subsidies, disaster relief, and crop loans (WMI 1994). USDA economists estimated that the CRP would provide between $3.4 and $11.2 billion in environmental benefits over the life of the original program (NGPC 1995a). The CRP has also provided more than $13 billion through overall recreation-based economic activity (WMI 1994). CRP contracts began expiring in 1995, and 80% of contracts expire in 1996 and 1997. However, the Farm Bill passed by Congress March 28, 1996 and signed by the President on March 29, 1996 included CRP reauthorization at the same level of 36.4 million acres.

The Wetlands Reserve Program (WRP) is a voluntary incentive program, created in the 1990 Farm Bill, to encourage wetland restoration and protection in agricultural areas. The WRP authorizes purchases of easements containing wetlands from participating landowners and cost-share payments for wetland restoration. Landowners retain control of access to these areas; may utilize the land for hay, grazing, and recreation if activities do not impact the wetlands; and may sell the land. Areas that may be enrolled include lands with restorable wetlands, lands adjacent to wetlands that contribute to wetland values, wetlands restored by other federal and state programs, riparian areas that link WRP wetlands, and non-forested CRP land that is likely to be returned to production. Unlike the CRP, WRP wetland easements are permanent in nature, a high ante price that both provides for long-term protection and has deterred many farmers from signing up (Despain, 1995). The WRP authorized enrollment of 1,000,000 acres of prior converted or farmed wetlands by the year 2000. Pilot enrollments of 50,000 and 75,000 acres took place in 1992 and 1994, and the first nationwide enrollment occurred in June 1995 for another 118,000 acres.

The greatest benefits of the WRP so far have been to the lower Mississippi River states; the majority of acres accepted in the first sign-up were in Louisiana and Mississippi, and almost half of the 1994 enrollment was in those two states and Arkansas (Heimlich et al 1994).

In terms of the value of WRP, Lant et al. (1995) observed that "even if only a small percentage of eligible farmed wetlands were to be enrolled, the WRP would constitute the largest wetland restoration program in the history of the U.S. Moreover, even at the higher end of our (possible rental rate) price range, the per acre costs are low compared to mitigation projects currently conducted under the Clean Water Act Section 404 program." Besides economics, primary reasons identified by cornbelt farmers for not enrolling in the WRP included potential negative effects on farming beyond the wetland site due to a loss of drainage capability, or obligations to drainage districts (Lant et al. 1995). The authors concluded that it would be worth making the effort to overcome these problems with WRP implementation. An indication of the Program's perceived value is found in the 1996 Farm Bill reauthorization, which extended the WRP through 2002 with the same acreage cap and broadened eligibility criteria.

Water Bank Act

The Water Bank Program is another federally operated incentive approach geared largely to agricultural wetland protection, similar to the CRP, but initiated long before it, with the 1970 passage of the Water Bank Act (16 U.S.C. 1301). The Water Bank is targeted to the Prairie Pothole region, and offers 10-year easements on wetlands and adjacent areas. Landowners agree not to drain, fill, level, burn, or otherwise destroy wetlands and to maintain ground cover essential for the resting, breeding, or feeding of migratory waterfowl in exchange for annual payments. The Program had enrolled 543, 208 acres as of July, 1991 (GAO, 1991). Thus, the Program, which has been in place for 26 years, has amassed more than twice the wetland acreage of the WRP, and almost a third more than the CRP, making a significant contribution to wetland protection.

Migratory Bird Hunting and Conservation Stamp Act / Small Wetland Acquisition Program (SWAP)

The SWAP, established under the Migratory Bird Hunting and Conservation Stamp Act, is an old federal acquisition program rooted in bird hunting interests. Since 1934, waterfowl hunters have been required to purchase "duck stamps," the proceeds of which a re used to acquire habitat, in the form of wetlands and surrounding nesting cover, for water fowl. Under this program, which is similar to the Water Bank Program, landowners give up their rights to drain, fill, burn, or level wetlands Through FY1989, easements had been obtained on more than 1.2 million acres of wetlands, and another 564,000 acres in the Prairie Pothole region had been purchased under the SWAP, making this easily the oldest and largest of the federal wetland protection programs (GAO 1991 ).

FEDERAL WETLAND POLICY INITIATIVES

Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA)

The Coastal Zone Act, as reauthorized in 1990, included a new Section 6217 that requires states to develop and implement coastal nonpoint pollution control programs. Section 6217 broke new ground for federal nonpoint source management by requiring the use of "enforceable policies and mechanisms" by the states to address nonpoint source problems. Protection and restoration of wetlands and use of vegetated treatment systems for nonpoint source control are practices encouraged in guidance adopted pursuant to this legislation (USEPA 1993a). However, wetland protection is not a main focus of the law, and no regulatory or other mechanisms are established to forward this goal, so the real value for wetlands lies only in the practical guidance given on wetland restoration and protection strategies and technical approaches.

No Net Loss

In 1987, the National Wetlands Policy Forum was sponsored by the U.S. Environmental Protection Agency to advance protection of wetlands in the United States and to address major policy concerns relative to wetlands protection and management. The end result was a series of recommendations for improving wetlands protection that were agreed upon by the lawmakers, farmers, environmentalists, business leaders, and academics who participated in the forum. The major goal articulated by this group was "to achieve no net loss of the nation's overall wetlands base" and "to increase the quantity and quality of the nation's wetlands resource base" through voluntary and regulatory efforts in the long term. The federal government and many states have since adopted this goal. Former President Bush raised the profile of this philosophy when he made it a theme of his 1988 presidential campaign. The goal has been supported by the Clinton administration, and it is now an accepted guiding principle of EPA philosophy.

Ramsar Convention

On the international level, the United States is party to a treaty adopted at the 1971 Ramsar Convention on Wetlands of International Importance Especially to Waterfowl Habitat. The treaty was established to protect wetlands as ecosystems of international importance. The Ramsar Treaty was developed specifically to protect migratory waterfowl species that are dependent on certain wetlands and that do not observe international borders (Mitsch and Gosselink 1993). The objective of the treaty is to reduce wetlands loss and to encourage the recognition of the ecological functions and social and scientific values of wetlands. The Treaty represents an early, global act of recognition of the importance of wetlands and essentially serves to forward a "wise use " philosophy.

Chronology of Key Federal Legislation and Regulations Affecting Wetlands

The above discussion of federal government regulatory and non-regulatory wetland protection and restoration programs is by no means comprehensive, although it does cover the major, and perhaps most compelling, efforts made to date. The following is a more inclusive list of federal initiatives, and the reader is also referred to other sources, such as Wiebe and Heimlich (1995), Heimlich et al. (1994), Mitsch and Gosselink (1993), and GAO (1991).

Sources: Want 1993; Mitsch and Gosselink 1993; GAO, 1991.

WETLAND PROTECTION AT THE STATE AND LOCAL LEVELS

As described early in this section, regulatory programs have distinct limitations for overall wetland protection. We have also outlined the federal non-regulatory programs that add to wetland protection in some way. Overall, however, a number of problems exist with these wetland protection efforts. In addition to the problems with regulatory programs outlined above, permitting tends to be inconsistently executed and can be duplicative and frustrating. Moreover, it is typically handicapped by limited budgets, staff, and expertise. One result is often inadequate compliance monitoring and enforcement (see Wetlands Mitigation section). At the same time, although most regulatory programs are limited in scope, there is a tendency toward overreliance on them as the protection solution. Further, the vast majority of both regulatory and non-regulatory programs are simply not structured to consider the setting that wetlands occupy in their protection approaches. Unregulated forces operating on wetlands include man's activities in the form of surrounding land uses, and natural forces, such as hydrology, fire, species movement, and others, which are interfered with by man's activities. In addition, there are often inadequate wetland maps and other data, such as information on high quality systems in need of protection or degraded candidates for restoration, on which to prioritize protection and management efforts. Clearly, successful wetland protection must utilize a comprehensive approach. State and local governments are the entities that must address these issues.

State Wetland Protection

States occupy perhaps the best position to take the lead on wetlands protection because they are more aware of and responsive to local needs than federal agencies, and at the same time they are sufficiently removed from the influences of local politics to play a key guiding role. Like federal protections, state efforts can be grouped by type of approach: regulation; incentive/disincentive; acquisition/legal restriction; restoration; and others, including policy statements, educational efforts, inventories, and other efforts. However, in addition to the tools used at the federal level, states and local governments have the ability to use measures traditionally reserved for them, such as land use and zoning authority, to assist in the protection of wetlands.

Most states have enacted laws that offer some manner of protection specifically for wetlands. In terms of regulatory protection, many states have promulgated wetland regulations, most by including wetlands in the definition of state waters (Salvesen 1990 ). Regulatory programs include direct regulation of activities in wetlands or disturbance to the water table (Salvesen 1990) and indirect regulations, such as floodplain protection laws and enforcement of state water quality standards. Some states have developed wetlands-specific water quality standards to support indirect regulation through CWA Section 401 Water Quality Certification. Coastal wetlands have received the most attention. Most coastal states now have laws to protect coastal wetlands as a result of the federal Coastal Zone Management Act of 1972; the laws have significantly reduced losses of these wetland types. However, by 1990 only 14 of the 30 coastal states had freshwater wetland regulations in place, and only one non-coastal state, North Dakota, had enacted wetland regulatory powers (Salvesen 1990).

The 1988 National Wetlands Policy Forum agreed that comprehensive statewide wetland strategies were the best way to implement the no net loss policy (Conservation Foundation 1988). States have experience in managing environmental programs; they can identify local economic and geographic factors that lead to wetlands loss; they can work with local governments to integrate wetland protection into comprehensive land use plans; and they can promote private stewardship through a variety of nonregulatory measures (World Wildlife Fund 1992). States have the opportunity to obtain funding from EPA to develop comprehensive wetland protection strategies under the EPA's State Wetlands Protection Grants Program. Under this program, states develop State Wetland Conservation Plans that outline strategies to achieve no net loss and other goals using both regulatory and non-regulatory protection approaches.

State Wetland Conservation Plans can address:

Specific measures available to states to fill gaps left by permitting programs include methods of legally restricting wetland activities, such as acquisition, scenic area programs, and transfer of development rights. Acquisition can include fee-simple purchase or purchase of easements on wetlands and establishment of wildlife refuges, sanctuaries, conservation areas, or multiple recreational use areas (USEPA 1995). States can collaborate with private conservation organizations and local land trusts to complement each other's programs. Conservation easement programs, land banks, and property tax incentives are protection approaches based on tax deductions or other economic incentives. States may also offer direct payment to landowners to protect, restore, and create wetlands; citizen educational programs; and voluntary private/public stewardship programs (USEPA 1995).

Local Wetland Protection

Local governments are key players in comprehensive wetland protection. Wetland strategic plans adopted on the local government level offer advantages such as:

While some local governments have adopted wetland protection ordinances, others have developed buffer, riparian, and other land protection ordinances, zoning overlay districts, master planning efforts which include wetlands protection and development permits.

The limitations to wetland protection at the local level are that wetlands often cross local government boundaries,; activities in one jurisdiction may impact wetlands in another jurisdiction in the same watershed, economic resources are generally limited at the local level, and local politics can interfere with larger protection goals. Thus, states may wish to retain a role and work together with local governments to effectively repair the historical legacy of wetland loss and degradation.

Public-Private Sector Partnerships

In recent years, EPA; state, tribal, and local governments; private landowners; industry representatives; nonprofit organizations; and the general public have formed partnerships in order to manage whole watersheds. One goal of these partnerships has been the implementation of a comprehensive, integrated approach to wetland protection and pollution control. The watershed approach to protection of wetlands is based on the recognition that water, land, and wetland resources are intimately inter-connected within each watershed.

A task force or working group may identify the most significant threats to water quality in a watershed based on a comparative risk analysis of human health and ecological and economic impacts, and target specific problems. Once well-defined goals and objectives for chemical, physical, and biotic water quality have been established, a management plan to meet those objectives can be implemented (USEPA 1991b).

Advance Identification of Disposal Areas (ADID)

One example of a public-private sector partnership is the Advance Identification of Disposal areas (ADID) planning process (Salvesen 1990; USEPA 1995). In this program, EPA cooperates with the Corps, state and local governments, and the public to determine in advance the suitability or unsuitability of all wetlands for the discharge of dredged and fill material (i.e., development activities). The ADID process involves identification of wetlands in selected watershed(s), followed by determination of wetland functions and values which could be lost due to development activities. Often ADID goals are simply to map wetland resources as a contribution to improved local planning efforts or water quality management. The development of ADID plans is resource intensive, but the information generated can play an extremely valuable and important part in wetlands protection (Salvesen 1990; USEPA 1995)

North American Waterfowl Management Plan

In 1986, the United States and Canada continued collaboration initiated through the Ramsar Convention by developing the North American Waterfowl Management Plan. The goal of the Plan is to conserve and restore, in both countries, 2.4 million hectares of wetland habitat used by waterfowl (Mitsch and Gosselink 1993). The support and financial involvement of private conservation organizations, such as Ducks Unlimited, has been critical to the success of the Plan. Public and private partnerships in both countries will be required for successful implementation of the Plan, as there are no federal funds provided by either the United States or Canada.

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