USGS Water Resources
Information
National Water Summary on Wetland Resources
United States Geological Survey Water Supply Paper 2425


Wetland Management and Research
Wetland Protection Legislation

By Todd H. Votteler, University of Texas
Thomas A. Muir, National Biological Service

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The people of the United States have begun to recognize that wetlands have numerous and widespread benefits. However, many of the goods and services wetlands provide have little or no market value. Because of this, the benefits produced by wetlands accrue primarily to the general public. Therefore, the Government provides incentives and regulates and manages wetland resources to protect the resources from degradation and destruction. Other mechanisms for wetland protection include acquisition, planning, mitigation, disincentives for conversion of wetlands to other land uses, technical assistance, education, and research.

Although many States have their own wetland regulations, the Federal Government bears a major responsibility for regulating wetlands. The five Federal agencies that share the primary responsibility for protecting wetlands include the Department of Defense, U.S. Army Corps of Engineers (Corps); the U.S. Environmental Protection Agency (EPA); the Department of the Interior, U.S. Fish and Wildlife Service (FWS); the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA); and the Department of Agriculture, Natural Resources Conservation Service (NRCS) (formerly the Soil Conservation Service). Each of these agencies has a different mission that is reflected in the implementation of the agency's authority for wetland protection. The Corps' duties are related to navigation and water supply. The EPA's authorities are related to protecting wetlands primarily for their contributions to the chemical, physical, and biological integrity of the Nation's waters. The FWS's authorities are related to managing fish and wildlife-game species and threatened and endangered species. Wetland authority of NOAA lies in its charge to manage the Nation's coastal resources. The NRCS focuses on wetlands affected by agricultural activities.

States are becoming more active in wetland protection. As of 1993, 29 States had some type of wetland law (Want, 1993). Many of these States have adopted programs to protect wetlands beyond those programs enacted by the Federal Government. As more responsibility is delegated from the Federal Government to the States, State wetland programs are gaining in importance. Thus far, States have devoted more attention to regulating coastal wetlands than inland wetlands. The most comprehensive State programs include those of Connecticut, Rhode Island, New York, Massachusetts, Florida, New Jersey, and Minnesota (Mitsch and Gosselink, 1993). Many of these States regulate those activities affecting wetlands that are exempt from the Clean Water Act, Section 404 program. (For more information on specific State wetland protection programs, see the State Summary section of this volume.)

Despite the current recognition of wetland benefits, many potentially conflicting interests still exist, such as that between the interests of landowners and the general public and between developers and conservationists. Belated recognition of wetland benefits and disagreement on how to protect them has led to discrepancies in local, State, and Federal guidelines. Discrepancies in Federal programs are apparent in table 6, which shows programs that encourage conversion of wetlands and those that discourage conversion of wetlands. Conflicting interests are the source of much tension and controversy in current wetland protection policy. Although attempts are being made to reconcile some of these differences, many policies will have to be modified to achieve consistency.

Despite all the government legislation, policies, and programs, wetlands will not be protected if the regulations are not enforced. Perhaps the best way to protect wetlands is to educate the public of their benefits. If the public does not recognize the benefits of wetland preservation, wetlands will not be preserved. Protection can be accomplished only through the cooperative efforts of citizens.


If the public does not recognize the benefits of wetland preservation, wetlands will not be preserved
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FEDERAL WETLAND PROTECTION PROGRAMS AND POLICIES

The Federal Government protects wetlands directly and indirectly through regulation, by acquisition, or through incentives and disincentives as described in table 6. Section 404 of the Clean Water Act is the primary vehicle for Federal regulation of some of the activities that occur in wetlands. Other programs, such as the "Swampbuster" program and the Coastal Management and Coastal Barriers Resources Acts, provide additional protection. Coastal wetlands generally benefit most from the current network of statutes and regulations. Inland wetlands are more vulnerable than coastal wetlands to degradation or loss because current statutes and policies provide them less comprehensive protection. Several of the major Federal policies and programs affecting wetlands are discussed in the following few pages. Also discussed are some of the States' roles in Federal wetland policies.

The Clean Water Act

The Federal Government regulates, through Section 404 of the Clean Water Act, some of the activities that occur in wetlands. The Section 404 program originated in 1972, when Congress substantially amended the Federal Water Pollution Control Act and created a Federal regulatory plan to control the discharge of dredged or fill materials into wetlands and other waters of the United States. Discharges are commonly associated with projects such as channel construction and maintenance, port development, fills to create dry land for development sites near the water, and water-control projects such as dams and levees. Other kinds of activities, such as the straightening of river channels to speed the flow of water downstream and clearing land, are regulated as Section 404 discharges if they involve discharges of more than incidental amounts of soil or other materials into wetlands or other waters.
The Corps and the EPA share the responsibility for implementing the permitting program under Section 404 of the Clean Water Act. However, Section 404(c) of the Clean Water Act gives the EPA authority to veto the permit if discharge materials at the selected sites would adversely affect such things as municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational resources. By 1991, the EPA had vetoed 11 of several hundred thousand permits since the Act was passed (Schley and Winter, 1992).

The review process for a Section 404 permit is shown in figure 39. After notice and opportunity for a public hearing, the Corps' District Engineer may issue or deny the permit. The District Engineer must comply with the EPA's Section 404(b)(1) Guidelines and must consider the public interest when evaluating a proposed permit. Four questions related to the guidelines are considered during a review of an application:

  1. Is the proposed discharge the least damaging practical alternative?
  2. Does the proposed discharge comply with other environmental standards or regulations?
  3. Will the proposed discharge significantly degrade wetlands?
  4. Have all the appropriate and practical steps been taken to minimize potential harm to the wetlands?
Wetland mitigation is often required, and if required, the permit applicant will need to develop a specific, detailed plan.

Figure 39

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Figure 39. Overview of a typical U.S. Army Corps of Engineers review process for Section 404 dredge-and-fill permit request. (Source: Modified from J.A. Kusler, Our National Wetland Heritage: A Protection Guidebook. Copyright (c) 1983 by the Environmental Law Institute. Reprinted with permission.)


The Clean Water Act regulates dredge and fill activities that would adversely affect wetlands.
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Table 6. Federal programs that have significant effects on wetlands in the United States. A, Regulations encouraging wetland conversion. B, Regulations discouraging or preventing wetland conversion. C, Acquisitions discouraging or preventing wetland conversion. D ,Other policies and programs preventing or discouraging wetland conversion.
[Abbreviations: AFA, All Federal Agencies; ASCS, Agricultural Stabilization and Conservation Service; BLM, Bureau of Land Management; Corps, U.S. Army Corps of Engineers; CWS, Canadian Wildlife Service; DOD, Department of Defense; DOE, Department of Energy; DOI, Department of the Interior; DOT, Department of Transportation; EPA, U.S. Environmental Protection Agency; FEMA, Federal Emergency Management Agency; FERC, Federal Energy Regulatory Commission; FmHA, Farmer's Home Administration; FWS, U.S. Fish and Wildlife Service; GSA, General Services Administration; IRS, Internal Revenue Service; USCG, U.S. Coast Guard; USDA, U.S. Department of Agriculture; USFS, U.S. Forest Service]
A, ENCOURAGING WETLAND CONVERSION
Program or Act Implementing agency Effect of program
Executive Order 12630, Constitutional Takings AFA Provides a review process for agencies to protect against unintentional "takings" of private property.
Federal-Highway Act of 1968 DOT Highway construction can affect wetlands at every stage. Wetlands are often prime sites for highways.
Federal Crop Insurance USDA Indirectly encourages farmers to place frequently inundated areas, including wetlands, into production.
Federal Livestock Grazing USFS, BLM Overgrazing promotes the loss of riparian habitat.
Flood Control Act of 1944 (P.L. 78-534) Corps Authorized various flood-control projects resulting in wetland destruction.
National Flood Insurance Program FEMA Encourages development in flood plains, which contain wetlands, by providing low-cost Federal Insurance.
Payment-in-Kind (PIK) Program USDA Indirectly encourages farmers to place previously unfarmed areas, including wetlands, into production.
Small Reclamation Projects Acts of 1956 (70 Stat. 1044) DOI Encourages State and local participation in small western reclamation projects, which can destroy riparian habitat.
Surface Mining Control and Reclamation Act (P.L. 95-87), (1977) DOI Establishes a program for regulating surface mining and reclaiming coal-mined lands, including wetlands, under the Office of Surface Mining, Reclamation, and Enforcement
Surface Transportation Revenue Act of 1991(P.L. 102-240) DOT Transportation projects directly and indirectly destroy wetlands.
U.S. Tax Code IRS Encourages farmers to drain and clear wetlands through tax deductions and credits for development activities.
Water Resources Development Act of 1976, 1986, 1988, 1990 (P.L.'s 94-587, 99-662, 100-676, 101-640) Corps Water development projects directly and indirectly destroy wetlands.

B, DISCOURAGING OR PREVENTING WETLAND CONVERSION--Regulations
Program or Act Implementing agency Effect of program
Comprehensive Environmental Response Compensation and Liability Act (Superfund) (P.L. 96-510) (1980) AFA Establishes liability of the U.S. Government for damages to natural resources over which the U.S. has sovereign rights. Requires the President to designate Federal officials to act as trustees for natural resources, and to conduct natural resource damage assessments.
*Coastal Barriers REsources Act (P.L. 96-348) (1982) NOAA Designates various undeveloped coastal barrier islands for inclusion in the Coastal Barrier Resources System. Designated areas are ineligible for Federal financial assistance that may aid development.
*Coastal Zone Management Act (P.L. 92-583) (1972) NOAA Provides Federal funding for wetlands programs in most coastal States, including the preparation of coastal zone management plans.
Estuary Protection Act DOI Authorized the study and inventory of estuaries, and the Great Lakes, and provided for management of designated estuaries between DOI and the States.
*Federal Water Pollution Control (P.L. 92-500) (Clean Water Act) Section 404 (1972) Corps, EPA, FWS, NMFS Regulates many activities that involve the disposal of dredged and fill materials in waters of the United States, including many wetlands.
National Flood Insurance Program FEMA Encourages development in flood plains, which contain wetlands, by providing low-cost Federal Insurance.
Federal Water Project Recreation Act (P.L. 89-72) (1965) DOI, Corps Recreation and fish and wildlife enhancement must be considered by Federal water projects. Authorizes Federal funds for acquiring land for waterfowl refuges.
Fish and Wildlife Coordination Act of 1956 DOI Authorizes the development and distribution of fish and wildlife information and the development of policies and procedures relating to fish and wildlife.
Migratory Bird Conservation Act (45 Stat. 1222) (1929) FWS Established a commission to approve the acquisition of migratory bird habitat.
National Wildlife Refuge Acts (numerous acts) FWS Numerous statutes establish refuges, many of which contain significant wetland acreage.
National Environmental Policy Act of 1969 (P.L. 91-190) AFA Requires the preparation of an environmental impact statement of all major Federal actions significantly affecting the environment.
Ramsar Convention (Treaty), adopted 1973, enforced from 1975 FWS Convention maintains a list of wetlands of international importance and encourages the wise use of wetlands.
Rivers and Harbors Act of 1938 (52 Stat. 802) Corps Provides that "due regard" be given to wildlife conservation in planning Federal water projects.
Rivers and Harbors Appropriation Act of 1938 (30 Stat. 1151) Corps Prohibits the unauthorized obstruction or alteration of navigable waters.
Watershed Protection and Flood Prevention Act (68 Stat. 666) (1954) FWS, NRCS Authorizes the FWS to investigate wildlife conservation on NRCS small watershed projects.
Wild and Scenic Rivers Act, (P.L. 90-542) (1968) DOI, USDA Protects designated river segments from damming and other alterations without a permit.
Wilderness Act of 1964 (78 Stat. 890) DOI, USDA Requires a review of Federal lands for inclusion in the National Wilderness Preservation System.
* Discussed in text.

C, DISCOURAGING OR PREVENTING WETLAND CONVERSION-- Acquisitions
Program or Act Implementing agency Effect of program
Coastal Wetland Planning, Protection and Restoration Act (P.L. 101-646) (1990) Corps, FWS, EPA, NMFS Provides for interagency wetlands restoration and conservation planning and acquisition in Louisiana, other coastal States, and the Trust Territories.
Emergency Wetlands Resourcers Act of 1986 (P.L. 99-645) FWS Pays debts incurred by FWS for wetlands acquisition, and provides additional revenue sources.

Federal Aid in Wildlife Restoration Act (1937) (Ch. 899, 50 Stat. 917)

Fish and Wildlife Conservation Act (P.L. 96-366) (1980)

>

FWS

FWS

Provides grants to States for acquiring, restoring, and maintaining wildlife areas

Identifies land and water in the Western Hemisphere critical for migratory nongame birds.

Land and Water Consevation Fund Act (1964) (P.L. 88-578) FWS, NPS Acquires wildlife areas.
Lea Act (62 Stat. 238) (1948) FWS Authorizes the acquiring and developing of various waterfowl management areas in California.
Migratory Bird Hunting and Conservation Stamps (1934) (Ch. 71, 48 Stat. 452) FWS Acquires wetland easements using revenues form fees paid by hunters for duck stamps.
North American Waterfowl Management Plan (1986) FWS, CWS Establishes a plan for managing waterfowl resources by various methods, such as acquiring wetlands.
North American Wetlands Conservation Act (1989) (P.L. 101-233) DOT Authorizes funding for wetland mitigation banks for State departments of transportation.
Transfer of Certain Real Property for Wildlife Conservation Purposes Act (62 Stat. 240) (1948) GSA, DOI Allows the GSA to transfer property to DOI, or States, for wildlife conservation.
U.S. Tax Code Tax Reform Act of 1986 (P.L. 99-514) IRS Provides deductions for donors of wetlands and to some nonprofit organizations.
Water Bank Act (1970) (P.L. 91-559) ASCS Leases wetlands and adjacent uplands from farmers for waterfowl habitat for 10-year periods.
Wetlands Loan Act (1961) (P.L. 87-383) FWS Provides interest-free loans for wetland acquisition and easements.


D, DISCOURAGING OR PREVENTING WETLAND CONVERSION-- Other Policies and Programs
Program or Act Implementing agency Effect of program
Endangered Species Act of 1973 (P.L. 93-205) FWS Provides for the designation and protection of wildlife, fish, and plant species that are in danger of extinction.
*Executive Order 11990, Protection of Wetlands (1977) AFA Requires Federal agencies to minimize impacts of Federal activities on wetlands.
*Executive Order 11988, Protection of Floodplains (1977)

FWS

AFA

Requires Federal agencies to minimize impacts of Federal activities on flood plains.
Executive Order 12580, Superfund Implementation (1987) DOI Directs DOI to develop rules for assessing damages under CERCLA (Comprehensive Environmental Response Compensation and Liabilities Act) as a natural resources trustee.
Federal Noxious Weed Act (P.L. 93-629) (1975) DOI, USDA, DOE, DOD Authorizes controlling the spread of noxious weeds on Federal lands.
Federal Power Act (41 Stat. 1063) (1920) FERC FERC will cooperate with other Federal agencies in assessing proposed power projects, such as dams. FERC must consider protection of fish and wildlife resources.
Fish and Wildlife Coordination Act (1965) (P.L. 89-72) FWS Requires Federal agencies to consult with FWS before issuing permits for most water-resource projects.
Food, Agriculture, Conservation, and Trade Act of 1990 (P.L. 101-624) NRCS Wetland Reserve Program purchases perpetual nondevelopment easements on farmed wetlands. Subsidizes restoration of croplands to wetlands.
*Food Security Act of 1985 (Swampbuster) (P.L. 99-198)

ASCS, FWS


FmHA

"Swampbuster" program suspends agricultural subsidies for farmers who convert wetlands to agriculture.

Conservation Easements program allows FmHA to eliminate some farm debts in exchange for long-term easements that protect wetlands and other areas.

National Wildlife Refuge System Administration Act of 1966 (P.L. 89-669) DOI Provides the guidelines for managing National Wildlife Refuges.
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (P.L. 101-646). FWS, USCG, EPA, Corps, NOAA Created a Federal program to prevent and control the spread of species that are aquatic nuisances.
Oil Pollution Act of 1990 (P.L. 101-380) DOE, DOI, NOAA Enhanced the response to oil spills and required natural resource damage assessments.
Tax Deductions for Conservation Easements (Section 6 of P.L. 96-541) IRS Allows taxpayers to take a deduction for a qualified real property interest contributed to a conservation organization for conservation purposes.
U.S. Tax Code Reform Act of 1986 (P.L. 99-514) IRS Eliminates incentives for clearing land. Deductible conservation expenditures must be consistent with wetlands protection. Capital gains on converted wetlands treated as income.
Water Resources Development Act of 1976, 1986, 1988, 1990, (P.L.'s 94-587, 99-662, 100-676, 101-640) Corps States that future mitigation plans for Federal water projects should include "in kind" mitigation for bottom-land hardwood forests.

Through a public interest review, the Corps tries to balance the benefits an activity may provide against the costs it may incur. The criteria applied in this process are the relative extent of the public and private need for the proposed structure or work and the extent and permanence of the beneficial or detrimental effects on the public and private uses to which the area is suited. Some of the factors considered in the public interest review are listed in figure 39. Cumulative effects of numerous piecemeal changes are considered in addition to the individual effects of the projects.

The FWS, NOAA, and State fish and wildlife agencies, as the organizations in possession of most of the country's biological data, have important advisory roles in the Section 404 program. The FWS and NOAA (if a coastal area is involved) provide the Corps and the EPA with comments about the potential environmental effects of pending Section 404 permits. Other government agencies, industry, and the public are invited to participate through public notices of permit applications, hearings, or other information-collecting activities. However, the public interest review usually does not involve public comment unless the permit is likely to generate significant public interest or if the potential consequences of the permit are expected to be significant. All recommendations must be given full consideration by the Corps, but there is no requirement that they must be acted upon. If the FWS or NOAA disagree with a permit approved by a District Engineer, they can request that the permit be reviewed at a higher level within the Corps. However, the Assistant Secretary of the Army has the unilateral right to refuse all requests for higher level reviews. The Assistant Secretary accepted the additional review of 16 of the 18 requested out of the total 105,000 individual permits issued between 1985 and 1992 (Schley and Winter, 1992).

Because many activities may cause the discharge of dredged and fill materials, and the potential effects of these activities differ, the Corps has issued general regulations to deal with a wide range of activities that could require a Section 404 permit. The Corps can forgo individual permit review by issuing general permits on a State, regional, or nationwide basis. General permits cover specific categories of activities that the Corps determines will have minimal effects on the aquatic environment, including wetlands. General permits are designed to allow activities with minimal effects to begin with little, if any, delay or paperwork. General permits authorize approximately 75,000 activities annually that might otherwise require a permit (U.S. Environmental Protection Agency, 1991); however, most activities in wetlands are not covered by general permits (Morris, 1991).

Not all dredge and fill activities require a Section 404 permit. Many activities that cause the discharge of dredged and fill materials are exempt from Section 404. The areas specifically exempted from Section 404 include: normal farming, forestry, and ranching activities; dike, dam, levee, and other navigation and transportation structure maintenance; construction of temporary sedimentation basins on construction sites; and construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment (Morris, 1991). In addition, the Corps' flood- control and drainage projects and other Federal projects authorized by Congress and planned, financed, and constructed by a Federal agency also are exempt from the Section 404 permitting requirements if an adequate environmental impact statement is prepared.

Not all methods of altering wetlands are regulated by Section 404. Common methods of altering wetlands are listed in table 7. Unregulated methods include: wetland drainage, the lowering of ground-water levels in areas adjacent to wetlands, permanent flooding of existing wetlands, deposition of material that is not specifically defined as dredged and fill material by the Clean Water Act, and wetland vegetation removal (Office of Technology Assessment, 1984).

State authority over the Federal Section 404 program is a goal of the Clean Water Act. Assumption of authority from the EPA has been completed only by Michigan and New Jersey. Under this arrangement, the EPA is responsible for approving State assumptions and retains oversight of the State Section 404 program, and the Corps retains the navigable waters permit program (Mitsch and Gosselink, 1993). States cannot issue permits over EPA's objection, but EPA has the authority to waive its review for selected categories of permit applications. Few States have chosen to assume the program, in part because few Federal resources are available to assist States and assumption does not include navigable waters (World Wildlife Fund, 1992).


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Table 7. Methods of altering wetlands
[Source: The Conservation Foundation, 1988, p. 15]
PHYSICAL
Filling adding any material to raise the bottom level of a wetland or to replace the wetland with dry land
Draining removing the water from a wetland by ditching, tiling, pumping, and so forth
Excavating dredging and removing soil and vegetation from a wetland
Diverting water away preventing the flow of water into a wetland by removing water upstream, lowering lake levels, or lowering ground-water tables
Clearing removing vegetation by burning, digging, application of herbicide, scraping, mowing, or otherwise cutting
Flooding raising water levels, either behind dams, by pumping, or otherwise channeling water into a wetland
Diverting or withholding sediment trapping sediment by constructing dams, channels, or other types of projects, thereby inhibiting wetland regeneration in natural deposition areas such as deltas
Shading placing pile-supported platforms or bridges over wetlands, causing vegetation to die because of a lack of adequate sunlight
Conducting activities in adjacent areas disrupting the interactions between wetlands and adjacent land areas, or incidentally affecting wetlands through activities at adjoining sites
CHEMICAL
Changing nutrient levels increasing or decreasing nutrient levels within the local water and or soil system, forcing wetland plant community changes
Introducing toxics adding toxic compounds to a wetland either intentionally (for example, herbicide treatment to reduce vegetation) or unintentionally, adversely affecting wetland plants and animals
BIOLOGICAL
Grazing consumption and compaction of vegetation by domestic or wild animals
Disrupting natural populations reducing populations of existing species, introducing exotic species, or otherwise disturbing resident organisms
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"Swampbuster"

The program that seeks to remove Federal incentives for the agricultural conversion of wetlands is part of the Food Security Act of 1985 and 1990, and is known as "Swampbuster." Swampbuster renders farmers who drained or otherwise converted wetlands for the purpose of planting crops after December 23, 1985, ineligible for most Federal farm subsidies. Through Swampbuster, Congress directed the U.S. Department of Agriculture (USDA) to slow wetland conversion by agricultural activities (U.S. Fish and Wildlife Service, 1992). The government programs that Swampbuster specifically affects are listed in Section 1221 of the Food Security Act. If a farmer loses eligibility for USDA programs under Swampbuster, he or she may regain eligibility during the next year simply by not using wetlands for growing crops. Swampbuster is administered by USDA's Consolidated Farm Service Agency. The NRCS and the FWS serve as technical consultants (World Wildlife Fund, 1992). The Swampbuster was amended by the Food, Agriculture, Conservation, and Trade Act of 1990 to create the Wetland Reserve Program. The Wetland Reserve Program provides financial incentives to farmers to restore and protect wetlands through the use of long-term easements (usually 30-year or permanent). The program provides farmers the opportunity to offer a property easement for purchase by the USDA and to recieve cost-share assistance (from 50 to 75 percent) to restore converted wetlands. Landowners make bids to participate in the program. The bids represent the payment they are willing to accept for granting an easement to the Federal Government. The Consolidated Farm Service Agency ranks the bids according to the environmental benefit per dollar. Easements require that farmers implement conservation plans approved by the NRCS and the FWS. Enrollment in the pilot program was authorized for nine States. The program's goal is to enroll 1 million acres by 1995 (U.S. Fish and Wildlife Service, 1992). Funding for this program is appropriated annually by Congress (U.S. Army Corps of Engineers, 1994). Because 74 percent of United States' wetlands are on private land, programs that provide incentives for private landowners to preserve their wetlands, such as the Wetland Reserve Program, are critical for protecting wetlands (Council of Environmental Quality, 1989).
"Swampbuster" removes Federal incentives for the agricultural conversion of wetlands.
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Coastal Wetlands Protection Programs

The 1972 Coastal Zone Management Act and the 1982 Coastal Barriers Resources Act protect coastal wetlands. The Coastal Zone Management Act encourages States (35 States and territories are eligible, including the Great Lakes States) to establish voluntary coastal zone management plans under NOAA's Coastal Zone Management Program and provides funds for developing and implementing the plans. The NOAA also provides technical assistance to States for developing and implementing these programs. For Federal approval, the plans must demonstrate enforceable standards that provide for the conservation and environmentally sound development of coastal resources. The program provides States with some control over wetland resources by requiring that Federal activities be consistent with State coastal zone management plans, which can be more stringent than Federal standards (World Wildlife Fund, 1992, p. 87). A State also can require that design changes or mitigation requirements be added to Section 404 permits to be consistent with the State coastal zone management plan. The Coastal Zone Management Act has provided as much as 80 percent of the matching-funds grants to States to develop plans for coastal management that emphasize wetland protection (Mitsch and Gosselink, 1993). Some States pass part of the grants on to local governments. The Act's authorities are limited to wetlands within a State's coastal zone boundary, the definition of which differs among States. As of 1990, 23 States had federally approved plans.

The 1982 Coastal Barriers Resources Act denies Federal subsidies for development within undeveloped, unprotected coastal barrier areas, including wetlands, designated as part of the Coastal Barrier Resources System. Congress designates areas for inclusion in the Coastal Barriers Resource System on the basis of some of the following criteria (Watzin, 1990):

  • Size
  • Development status
  • Composition
  • Wind, wave, and tidal energies
  • Associated aquatic habitat, including adjacent wetlands
In addition, States, local governments, and conservation organizations owning lands that were "otherwise protected" could have their lands added to this system until May 1992. ("Otherwise protected" lands are areas within undeveloped coastal barriers that were already under some form of protection.) Once in the Coastal Barriers Resources System, these areas are rendered ineligible for almost all Federal financial subsidies for programs that might encourage development. In particular, these lands no longer qualify for Federal flood insurance, which discourages development because coastal lands are frequently subject to flooding and damage from hurricanes and other storms. The FWS is responsible for mapping these areas and approves lands to be included in the system. The purposes of the Coastal Barrier Resources Act are to minimize the loss of human life, to reduce damage to fish and wildlife habitats and other valuable resources, and to reduce wasteful expenditure of Federal revenues (Watzin, 1990). In the future, eligible surplus government land will be included if approved by the FWS. About 95 percent of the 788,000 acres added to the system in 1990 along the Atlantic and Gulf coasts consists of coastal wetlands and near-shore waters (World Wildlife Fund, 1992).

Flood-Plain and Wetland Protection Orders

Executive Orders 11988, Floodplain Management, and 11990, Protection of Wetlands, were signed by President Carter in 1977. The purpose of these Executive Orders was to ensure protection and proper management of flood plains and wetlands by Federal agencies. The Executive Orders require Federal agencies to consider the direct and indirect adverse effects of their activities on flood plains and wetlands. This requirement extends to any Federal action within a flood plain or a wetland except for routine maintenance of existing Federal facilities and structures. The Clinton administration has proposed revising Executive Order 11990 to direct Federal agencies to consider wetland protection and restoration planning in the larger scale watershed/ecosystem context.

The Coastal Zone Management Program provides States with some control over wetland resources.
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WETLAND DELINEATION STANDARDS

The Corps published, in 1987, the Corps of Engineers Wetland Delineation Manual, a technical manual that provides guidance to Federal agencies about how to use wetland field indicators to identify and delineate wetland boundaries (U.S. Army Corps of Engineers, 1987). In January of 1989, the EPA, Corps, SCS, and FWS adopted a single manual for delineating wetlands under the Section 404 and Swampbuster programs-The Federal Manual for Identifying and Delineating Jurisdictional Wetlands (commonly referred to as the "1989 Manual"). The "1989 Manual" establishes a national standard for identifying and delineating wetlands by specifying the technical criteria used to determine the presence of the three wetland characteristics: wetland hydrology, water-dependent vegetation, and soils that have developed under anaerobic conditions (U.S. Environmental Protection Agency, 1991). In 1991, the President's Council on Competitiveness proposed revisions to the 1989 Manual because of some concern that nonwetland areas were regularly being classified as wetlands (Environmental Law Reporter, 1992a). The proposed 1991 Manual was characterized by many wetland scientists as politically based rather than scientifically based. In September of 1992, Congress authorized the National Academy of Science to conduct a $400,000 study of the methods used to identify and delineate wetlands (Environmental Law Reporter, 1992b). On August 25, 1993, the Clinton administration's wetland policy, proclaimed that, "Federal wetlands policy should be based upon the best science available" (White House Office of Environmental Policy, 1993) and the 1987 Corps Manual is the sole delineation manual for the Federal Government until the National Academy of Sciences completes its study (White House Office of Environmental Policy, 1993).
"Federal wetlands policy should be based upon the best science available."
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MITIGATION

Mitigation is the attempt to alleviate some or all of the detrimental effects arising from a given action. Wetland mitigation replaces an existing wetland or its functions by creating a new wetland, restoring a former wetland, or enhancing or preserving an existing wetland. This is done to compensate for the authorized destruction of the existing wetland. Mitigation commonly is required as a condition for receiving a permit to develop a wetland.

Wetland mitigation can be conducted directly on a case-by-case onsite basis, or through a banking system. Onsite mitigation requires that a developer create a wetland as close as possible to the site where a wetland is to be destroyed. This usually involves a one-to-one replacement.

A mitigation bank is a designated wetland that is created, restored, or enhanced to compensate for future wetland loss through development. It may be and usually is located somewhere other than near the site to be destroyed and built by someone other than the developer. The currency of a mitigation bank is the mitigation credit. "Mitigation banks require systems for valuing the compensation credits produced and for determining the type and number of credits needed as compensation for any particular project. ***Mitigation bank credit definitions are an attempt to identify those features [of wetland] which allow reasonable approximations of replacement" (U.S. Army Corps of Engineers, 1994, p. 63). Wetland evaluation methods have been developed or are being developed to address the problem of evaluating two different wetlands so that the degradation of one can be offset by the restoration, enhancement, or creation of the other and to assign either a qualitative or quantitative value to each wetland. When buying the credits, developers pay a proportionate cost toward acquiring, restoring, maintaining, enhancing, and monitoring the mitigation bank wetland. Banks cover their costs by selling credits to those who develop wetlands, or by receiving a taxpayer subsidy.

Several problems are associated with wetland mitigation. The concept of wetland compensation may actually encourage destruction of natural wetlands if people believe that wetlands can be easily replaced. A 1990 Florida Department of Environmental Regulation study examined the success of wetland creation projects and found that the success rate of created tidal wetlands was 45 percent, whereas the success rate for created freshwater wetlands was only 12 percent. (Redmond, 1992). Figure 40 shows the relative success of wetland mitigation projects overall in south Florida. The apparent factor controlling the lower success rate for freshwater wetlands was the difficulty in duplicating wetland hydrology, that is, water-table fluctuations, frequency and seasonality of flooding, and ground-water/surface-water interactions.

A study of wetland mitigation practices in eight States revealed that in most of the States, more wetland acreage was destroyed than was required to be created or restored, resulting in a net loss of acreage when mitigation was included in a wetlands permit (Kentula and others, 1992). Less than 55 percent of the permits included monitoring of the project by site visit. A limited amount of information exists about the number of acres of wetlands affected by mitigation or the effectiveness of particular mitigation techniques because of the lack of followup. Several studies in Florida reported that as many as 60 percent of the required mitigation projects were never even started (Lewis, 1992). In addition, the mitigation wetland commonly was not the same type of wetland that was destroyed, which resulted in a net loss of some wetland types. (See article "Wetland Restoration and Creation" in this volume.)

Figure 40

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Figure 40. Status of 40 wetland mitigation projects in south Florida. The average age of the projects was less than 3 years. (Source: Modified from Mitsch and Gosselink, 1993.)


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RECENT PRESIDENTIAL WETLAND PROTECTION INITIATIVES

In his 1988 Presidential address and in his 1990 budget address to Congress, President Bush echoed the recommendations of the National Wetland Policy Forum. The Forum was convened in 1987 by the Conservation Foundation at the request of EPA. The short-term recommendation of the forum was to decrease wetland losses and increase wetland restoration and creation-the concept of "no net loss"-as a national goal. This implied that when wetland loss was unavoidable, creation and restoration should replace destroyed wetlands (Mitsch and Gosselink, 1993).

On August 25, 1993, President Clinton unveiled his new policy for managing America's wetland resources. The program was developed by the Interagency Working Group on Federal Wetlands Policy, a group chaired by the White House Office on Environmental Policy with participants from the EPA, the Corps, the Office of Management and Budget, and the Departments of Agriculture, Commerce, Energy, Interior, Justice, and Transportation. The Administration's proposals mix measures that tighten restrictions on activities affecting wetlands in some cases and relax restrictions in other areas. The Clinton policy endorses the goal of "no net loss" of wetlands; however, it clearly refers to "no net loss" of wetland acreage rather than "no net loss" of wetland functions.

The President's wetland proposal would expand Federal authority under the Section 404 program to regulate the draining of wetlands in addition to regulating dredging and filling of wetlands. Other proposed changes to the Federal permitting program include the requirement that most Section 404 permit applications be approved or disapproved within 90 days, and the addition of an appeal process for applicants whose permits are denied. The EPA and the Corps are directed to relax regulatory restrictions that cause only minor adverse effects to wetlands such as activities affecting very small areas.

The Clinton policy calls for avoiding future wetland losses by incorporating wetland protection into State and local government watershed-management planning. This new policy also significantly expands the use of mitigation banks to compensate for federally approved wetland development or loss.

Clinton's proposals relaxed some of the current restrictions on agricultural effects on wetlands and increased funding for incentives to preserve and restore wetlands on agricultural lands. The administration policy excluded 53 million acres of "prior converted croplands" from regulation as wetlands. Also, authority over wetland programs affecting agriculture was shifted from the FWS to the NRCS and proposed increased funding for the Wetlands Reserve Program, which pays farmers to preserve and restore wetlands on their property.


"No net loss" of wetlands is a national goal.
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References Cited

Conservation Foundation, 1988,
Protecting America's wetlands-An action agenda: Washington, D.C., The Conservation Foundation, p. 15.

Council of Environmental Quality, 1989,
Environmental trends: Washington, D.C., Office of the President, Council of Environmental Quality, p. 152.

Environmental Law Reporter, 1992a,
Agencies working to resolve controversy, official says: Washington, D.C., Bureau of National Affairs, v. 23, no. 13, p. 924.

______1992b,
Reilly favors return to 1987 manual, cites emerging consensus on delineation: Washington, D.C., Bureau of National Affairs, v. 23, no. 17, p. 1,260.

Kentula, Mary, Sifneos, Jean, Brooks, Robert, Gwin, Stephanie, Holland, Cindy, and Sherman, Arthur, 1992,
An approach to decisionmaking in wetland restoration and creation: U.S. Environmental Protection Agency, EPA/600/R-92/150, 151 p.

Kusler, J.A., 1983,
Our national wetland heritage-A protection guidebook: Washington, D.C., Environmental Law Institute, p. 62.

Lewis, Roy, 1992
, Why Florida needs mitigation banking: National Wetlands Newsletter, v. 14, no. 1, p. 7.

Mitsch, W.J., and Gosselink, J.G., 1993,
Wetlands: New York, Van Nostrand Reinhold Company, 722 p.

Morris, Marya, 1991,
Wetland protection-A local government handbook: Chicago, Ill., American Planning Association, 31 p.

Office of Technology Assessment, 1984,
Wetlands-Their use and regulation: Washington, D.C., OTA-0-206, p. 168-169.

Redmond, Ann, 1992,
How successful is mitigation?: Washington, D.C., National Wetlands Newsletter, v. 14, no. 1, p. 5-6.

Schley, Terry, and Winter, Linda, 1992,
New 404(q) MOA-diluting EPA's role: Washington, D.C., National Wetlands Newsletter, Environmental Law Institute, v. 14, no. 6, p. 8.
U.S. Army Corps of Engineers, 1987,
Corps of Engineers wetlands delineation manual: Vicksburg, Miss., U.S. Army Corps of Engineers Technical Report Y-87-1, p. 1.

______1994,
National wetland mitigation banking study-Wetland mitigation banking: Washington, D.C., Environmental Law Institute, IWR Report 94-WMB-6, 178 p.

U.S. Environmental Protection Agency, 1991,
Proposed revisions to the Federal manual for delineating wetlands: Washington, D.C., Office of Wetlands, Oceans, and Watersheds, p. 1-4.

U.S. Fish and Wildlife Service, 1992,
Digest of Federal resource laws of interest to the U.S. Fish and Wildlife Service: Washington, D.C., U.S. Fish and Wildlife Service, Office of Legislative Services, p. 26.

Want, William, 1993,
Law of wetlands regulation: Deerfield, Ill., Clark Boardman Callaghan, p. 13-2.

Watzin, M.C., 1990,
Coastal Barrier Resources System mapping process, in Federal coastal wetland mapping program: Washington, D.C., U.S. Fish and Wildlife Service Biological Report 90 (18), p. 21-26.

White House Office of Environmental Policy, 1993,
Protecting America's wetlands-A fair, flexible, and effective approach: the White House, Office of Environmental Policy, p. 15.

World Wildlife Fund, 1992,
Statewide wetlands strategies-A guide to protecting and managing the resource: Washington, D.C., Island Press, 268 p.

For Additional Information:

Todd H. Votteler,
4312 Larchmont Avenue,
Dallas, TX 75205

Thomas A. Muir,
U.S. Geological Survey,
413 National Center,
Reston, VA 22092



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