EPA 903-R-97-008 CBP/TRS-168/97
April 1997
U.S.
legion III Informattea
(3PM52)
1 Gfiesuiu: I'frsrt
hiladelphig, PA 19107
EPA Report Collection
Information Resource Center
US EPA Region 3
Philadelphia, PA 19107
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U.S. Environmental Protection Agency
Chesapeake Bay Program Office
410 Severn Avenue
Annapolis, MD 21403
1-800-YOUR BAY
http://www.epa.gov/chesapeake/
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Protecting Wetlands:
Tools for Local Governments
in the Chesapeake Bay Region
April 1997
Chesapeake Bay Program
Printed by the U.S. Environmental Protection Agency for the Chesapeake Bay Program
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Acknowledgments
This handbook was prepared by the Environmental Law Institute® (ELI) with funding
from the Chesapeake Bay Program, U.S. Environmental Protection Agency (U.S. EPA)
under Assistance Agreement No. CB993349.
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Table of Contents
Chapter One: Wetlands and the Role of Local Government
Why Should Local Governments Be Concerned with Wetlands? 1
The Importance of Local Governments in Wetlands Protection
in the Chesapeake Bay Watershed 3
Local Authority to Conserve Wetlands 5
Federal Regulation 5
State Regulation 8
Maryland 8
Virginia 10
Pennsylvania 12
Conclusion 12
References 13
Chapter Two: Planning
Local Planning for Wetlands Protection 15
Authority to Plan for Wetlands 16
Maryland 16
Virginia 17
Pennsylvania 17
Comprehensive Local Land-Use Plans 17
Critical Area Plans 19
Floodplain, Watershed, Riparian Zone, Wetlands, and Greenway Plans 20
Special Area Management Plans (SAMPs) 22
Public Infrastructure Plans 23
Tools That May Assist Local Government Planning 24
Environmental Guidelines for Development 24
Environmental Advisory Councils 25
Advance Identification (ADID) 26
Conclusion 27
Related Case Studies 27
References 27
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Chapter Three: Regulation
Zoning Tools to Protect Wetlands 30
Cluster Zoning and Planned Unit Development 31
Resource Protection Zones 32
Performance-Based Zoning 32
Overlay Zones 33
Transferable Development Rights (TDRs) 34
Bonus/Incentive Zoning 35
Large Lot Zoning 35
Agricultural Protection Zoning 36
Urban Growth Boundaries 37
Subdivision Regulations and Related Permits 37
Environmental Guidelines for Development 38
Exactions and Proffers 38
Wetland, Floodplain and Stormwater Management Ordinances 40
Infrastructure Regulatory Tools 40
Conclusion 41
Related Case Studies 41
References 42
Chapter Four: Incentives
Real Estate Tax Incentives 43
Maryland Environmental Trust 44
Maryland's Local Tax Credit Program 44
Maryland: Agricultural Tax Incentives 45
Pennsylvania: Clean and Green Tax Incentives 46
Pennsylvania: Act 515 47
Virginia: Land Use Assessment Law 47
Capital Improvements Programming 48
Conclusion 48
Related Case Studies 49
References 49
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Chapter Five: Acquisition
What Can Be Acquired? 52
Conservation Easement 52
Agricultural Conservation Easement 55
Deed Restrictions, Covenants & Reverters 55
Options & Rights of First Refusal 56
Purchase of Development Rights 57
Fee-Simple Ownership 58
How Can Wetlands Be Acquired? 58
State and Local Government Acquisitions: Park, Open-space,
and Greenway Programs 58
Land Trusts 60
Virginia 60
Maryland 61
Pennsylvania 61
Financing Mechanisms 62
Donations or Bargain Sales 62
Dedicated Funding Through Bonds 63
Real Estate Transfer Taxes 63
Tax Return Check-Off & License Plates 64
Installment Sales 65
Conclusion 66
Related Case Studies 66
References 67
Chapter Six: Technical Assistance, Education, and Outreach
Education & Outreach 69
Technical Assistance 71
Chesapeake Bay Region 71
Maryland 72
Pennsylvania 73
Virginia 74
Conclusion 75
References 76
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Case Studies: Tools Used in the Chesapeake Bay Watershed
to Protect Wetlands
Comprehensive Plan: Lycoming County, PA CS-1
Environmental Advisory Commission: East Hanover Township,
Dauphin County, PA CS-2
Environmental Land Preservation Commission: Harford County, MD CS-3
Environmental Guidelines: Montgomery County, MD CS-4
Environmental Quality Corridors: Fairfax County, VA CS-5
Watershed Planning: Middle Peninsula Planning District, VA CS-6
Watershed Information and Planning: Elizabeth River, VA CS-7
Heritage Greenway Planning: Lower Susquehanna River, MD CS-8
Special Area Management Plan: Baltimore County, MD CS-9
Special Area Management Plan: Northampton County, VA CS-10
Wetland Protection Regulations: Calvert County, MD CS-11
Wetland Protection Regulations: Baltimore County, MD CS-12
Subdivision Ordinance: East Hanover Township,
Dauphin County, PA CS-13
Subdivision Ordinance: West Lampeter Township,
Lancaster County, PA CS-14
Subdivision Regulations: Prince George's County, MD CS-15
Mandatory Cluster Development: Calvert County, MD CS-16
Authorized Cluster Development: Kent County, MD CS-17
Authorized Cluster Development: Monaghan Township,
York County, PA CS-18
Cluster Development with Transferable Development Rights:
Talbot County, MD CS-19
Cluster Development Combinations — TDRs and Overlays:
Howard County, MD CS-20
Transferable Development Rights: Shrewsbury Township,
York County, PA CS-21
TDRs with Purchase of Development Rights: Calvert County, MD CS-22
Installment Purchase Program: Howard County, MD CS-23
Installment Purchase of Development Rights: Virginia Beach, VA CS-24
Resource Protection Zone: Charles County, MD CS-25
Overlays and Buffer Zones: Harford County, MD CS-26
Performance Based Zoning: Queen Anne's County, MD CS-27
Floodplain and Wetland Protection Regulations:
Howard County, MD CS-28
Wetland Mitigation Guidelines: Baltimore County, MD CS-29
Utility Siting and Construction: Baltimore County, MD CS-30
Land Acquisition: American Chestnut Land Trust,
Calvert County, MD CS-31
Appendix I. General References
Appendix II: Contacts
Appendix III: List of Wetlands Workgroup Members
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Chapter One:
Wetlands and the Role of Local Government
Why Should Local Governments Be Concerned
with Wetlands9
The Importance of Local Governments in Wetlands
Protection in the Chesapeake Bay Watershed
Local Authority to Conserve Wetlands
Federal Regulation
State Regulation
Maryland
Virginia 10
Pennsylvania 12
Conclusion
References
Wetlands are an important part of the local and regional landscape. Although
wetlands are sometimes seen as primarily a federal or state responsibility, they perform
many functions that contribute to local economic performance, environmental protection,
and quality of life. Local governments have a variety of tools available to them to protect,
conserve, and restore wetlands This handbook is designed to assist local governmental
officials, landowners, community activists, and others in identifying and using these tools,
both to advance local interests and to contribute to the protection of the Chesapeake Bay
watershed.
This handbook provides straightforward descriptions of tools available to local
governments, identifies particularly valuable reference materials related to these tools that
can be obtained by readers, and illustrates how local governments within the Chesapeake
Bay watershed have used these tools in practice. Contacts and other information are
provided to assist local governments in adapting these tools to local needs and priorities
WHY SHOULD LOCAL GOVERNMENTS BE CONCERNED WITH
WETLANDS?
Wetlands are the transitional zone between uplands and water bodies. Because of
their unique position in the landscape, many types of wetlands are among the most
productive ecosystems on Earth. They provide value to the land and prevent harm to
communities and the environment.
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Wetlands perform many different functions. They sustain plant and animal habitats
and ecosystems, and they provide numerous economic benefits to communities, including
flood control and mitigation, storm abatement, recharge of groundwater supplies, water
quality improvement, fisheries, habitat for game and nongame animals, and open space and
recreation. Wetlands are valued in some areas for their positive effect on property values.
The following are just a few of the functions performed by wetlands in the Chesapeake
Bay region.
Flood Control. Wetlands lessen the impact of floods by intercepting stormwater,
storing the water, and slowly releasing it, thereby decreasing peak flood levels. These
flood control functions are extremely important in the overall landscape and can help to
avert the devastating costs of flooding to downstream urban, suburban, and agricultural
lands and structures. The flood control functions of wetlands are extremely important to
the maintenance of property values and thriving communities.
Erosion Control and Groundwater Protection. Wetlands buffer shoreland against
erosion caused by storms in coastal environments and along rivers. Wetlands are also
thought to be areas where groundwater aquifers are recharged. In areas dependent upon
underground water for drinking water, or where wells and springs are vital to the
community, the protection of wetlands can be particularly important.
Pollution Control. Perhaps the most valuable function of wetlands rests in their
capacity to maintain and improve water quality in rivers, streams, and other water bodies.
They accomplish this task by filtering organic and inorganic nutrients and toxic materials
as water passes through them, thereby preserving water quality. For example, when
wetlands intercept water running off uplands, the suspended sediments in the water fall to
the bottom of the wetlands. The associated nutrients are then available for uptake by
wetlands plants and are not discharged to surrounding waters.
Community Values. Wetlands can serve as a valuable amenity to communities.
They provide wildlife habitat, open space, and opportunities for recreation. For example,
Huntley Meadows Park, a sizable publicly owned wetland area in Alexandria and Fairfax
County, Virginia, contributes substantially to local quality of life and to maintaining and
increasing local property values. Privately owned wetlands can also help increase the
value of the adjacent upland areas of a parcel of land.
Plant and Wildlife Habitat. Wetlands perform many functions related to plant
and wildlife habitat. According to Dr. William Mitsch, a leading authority on wetlands
and Professor of Natural Resources and Environmental Science at Ohio State University,
80% of America's total breeding bird population, and more than half of the nation's 800
species of protected migratory birds, rely on wetlands for habitat, cover, and reproduction.
As a result, the hunting and birding communities have a vested interest in protecting and
restoring the wetlands that provide habitat and breeding grounds for the birds and animals
with which they are concerned. Because hunters, sport fishermen, and bird watchers
directly purchase equipment and spend a significant amount of money on travel-related
expenses, including food and lodging, wetlands can provide a significant source of income
for local economies. According to a U.S. Environmental Protection Agency report (U.S.
2 Protecting Wetlands: Tools for Local Governments
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EPA 1988), waterfowl hunters spend over $300 million annually on activities related to
harvesting of wetland-dependent birds. Approximately 50 million people spend nearly $10
billion annually on recreational activities relating to the observation and photography of
wetland-dependent birds. Wetlands also harbor many unique and rare species of plants.
Fisheries. Wetlands are important habitat for healthy communities offish and
shellfish. As wetlands remove, process, and discharge organic and inorganic material in
the waters they hold, these areas serve as valuable sinks, sources, and transformers of
compounds that are utilized by plants and animals. Wetlands are used by many fish for
breeding and spawning, and many species spend their entire life in these areas. In fact,
almost all species of freshwater fish are dependent on wetlands to some degree. Over
95% of the commercially harvested fish and shellfish species in the United States are at
least partially wetland-dependent. The fishing industry is important to the local culture of
many areas, and it contributes a large amount of money to the regional and national
economy.
The Chesapeake Bay is the largest estuary in the United States and has been one of
the most biologically productive estuarine systems in the world. The Bay is the drainage
catchment for a 64,000 square mile watershed that crosses state boundaries and includes
Maryland, Virginia, Pennsylvania, the District of Columbia, and small areas of West
Virginia, Delaware, and New York. In recent years, the Chesapeake has provided 20% of
the oysters and over 50% of the blue crabs caught in the entire United States. More than
$100 million worth of seafood is removed from its waters annually. Wetlands are critical
to the health of the Bay because they remove pollutants, nutrients, and sediments in the
watershed. They are incubators of its abundant living resources including fish, shellfish,
other aquatic organisms, waterfowl, and other birds and wildlife.
THE IMPORTANCE OF LOCAL GOVERNMENTS IN WETLANDS
PROTECTION IN THE CHESAPEAKE BAY WATERSHED
In an effort to stem the tide of degradation in the Bay, the 1987 Chesapeake Bay
Agreement was signed by Virginia, Maryland, Pennsylvania, the District of Columbia, the
Chesapeake Bay Commission, and the U.S. Environmental Protection Agency
representing the federal government. This historic agreement was designed to develop
comprehensive solutions to conflicting demands on the Bay's resources. The Agreement
includes a directive to develop a regional policy for the protection of tidal and nontidal
wetlands, and it calls for a 40 percent reduction of nutrients entering the Bay by the year
2000. The 1988 Chesapeake Bay Wetland Policy established an immediate goal of no net
loss of wetlands with a long-term goal of net gain.
When the 1987 Chesapeake Bay Agreement was signed, the Chesapeake
Executive Council (comprised of the three state governors, the mayor of the District of
Columbia, the administrator of U.S. EPA, and the chairperson of the Chesapeake Bay
Commission) recognized the importance of local governments in achieving the bold goals
Chapter One: Wetlands and the Role of Local Governments
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of restoring the Bay. As a result, the
Agreement called for the establishment of
a local government advisory committee
to the Executive Council. The
Chesapeake Bay Local Government
Advisory Committee (LGAC) was
formed in March 1988. It is comprised
of 20 local government officials
representing the 1,653 local governments
within the Bay watershed in Virginia,
Maryland, Pennsylvania, and the District
of Columbia.
The 1992 Amendments to the
Chesapeake Bay Agreement reaffirmed
the 40 percent nutrient reduction goal
beyond the year 2000 and were aimed at
controlling nutrients at their source ~
upstream in the Bay's main tributaries.
Wetlands are critically important for
improving and maintaining the water
quality of these tributaries. As the target
of Bay restoration moves upstream into
communities along the Bay's tributaries,
the role of local governments in the restoration effort has become even more important.
Several directives and objectives also identify key areas of local concern. The 1994
Chesapeake Bay Basinwide Toxics Reduction and Prevention Strategy, the 1994 Riparian
Forest Buffer Directive., and the population growth and development commitments of the
original 1987 Agreement all explicitly acknowledge that local government participation is
essential if the goals of the Bay Agreement are to be met.
In 1995, a. Local Government Partnership Initiative was developed to more
actively engage local governments in the efforts to protect and restore the Chesapeake
Bay. The Local Government Partnership Initiative has two main objectives: 1) to
establish a stronger working relationship and improve coordination with local
governments to broaden the Bay Program's understanding of local perspectives concerning
the watershed's protection and restoration; and 2) to identify local government needs and
the technical, programmatic, and financial resources available to them. In October 1996,
the Local Government Participation Action Plan was adopted by the Chesapeake
Executive Council. The plan establishes a strategy to broaden the role of local
governments in the Chesapeake Bay Program, provide local governments with additional
assistance, and help coordinate local groups in achieving their water quality and wildlife
goals.
THE ECONOMIC VALUE OF WETLANDS IN
STATES WITHIN THE CHESAPEAKE BAY
WATERSHED
Recreation: Sport fishing expenditures in Maryland
totaled $275 million and supported 8,300 jobs in the
State. Retail sales from wetland-dependent migratory
bird hunting totaled nearly $20 million. Hunting
expenditures in Pennsylvania totaled about $541
million, and $267 million in Virginia. Of these totals,
migratory bird hunting accounted for $16 million in
Virginia and $26 million in Pennsylvania. (1991
totals).
Commercial Fishing: The commercial fish harvest in
Maryland contributed 7.7 million pounds of fish
worth $5.2 million in 1993. In addition, 57 million
pounds of crabs were harvested, with a commercial
value of $35 million. (1993 totals).
Source: U.S. Environmental Protection Agency.
Wetlands FAQ's (Frequently Asked Questions) for
Maryland; for Virginia; and for Pennsylvania. U.S.
EPA, Office of Water: Washington, D.C.
Protecting Wetlands: Tools for Local Governments
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Local Authority to Conserve Wetlands
Local governments have substantial opportunities to promote wetlands
conservation. Indeed, although certain regulatory tools are vested in the federal and state
governments, there are many non-regulatory tools and legal mechanisms available to local
governments. In the future, these tools will become even more important as communities
take responsibility for their own local environments, and as citizens seek alternatives to
regulatory mechanisms.
Before taking on the task locally, it is important to understand the federal and state
regulatory overlay. The following descriptions briefly summarize the major federal and
state regulatory laws and programs that protect the Chesapeake Bay's wetlands. These
descriptions provide context but should not be relied upon as a full statement of all legal
requirements that may be relevant to local government decision-making. Further
references and guides to these laws and programs are identified at the end of this chapter.
Federal Regulation
The central piece of federal legislation that regulates activities affecting wetlands is
the Clean Water Act (33 U.S.C. §§ 1251 et seq.). Section 404 of the Act (33 U.S.C. §
1344) requires any person or entity to obtain a permit from the federal government before
discharging dredged or fill material into any waters of the United States, including
wetlands.
The section 404 program is jointly administered by the U.S. Army Corps of
Engineers (Corps) and the U.S. Environmental Protection Agency (EPA). The Corps
reviews permit applications, decides when to issue or deny permits, and carries out most
of the enforcement responsibilities under the law. EPA's responsibilities include
development of the environmental standards for issuing permits and the power to veto
permit decisions of the Corps. EPA also has enforcement authority. The U.S. Fish and
Wildlife Service, the Natural Resources Conservation Service (NRCS) in the Department
of Agriculture, and the National Marine Fisheries Service have advisory roles in the
program and provide some technical assistance. The NRCS is also involved in delineating
agricultural wetlands and in the enforcement of the "Swampbuster" program, which
prohibits participants in federal agricultural benefit programs from destroying wetlands on
their lands.
Approximately 50,000 individuals and corporations apply to the Corps each year
for permits to dredge or fill wetlands. According to a statistical report published by the
Corps (U.S. Army Corps of Engineers 1995), over 80% of these applications are granted
using a general permit mechanism. This approach provides for a speedy approval, on
average within 16 days. The remaining permit seekers require more detailed individual
permit applications, usually because of the nature of the activities or the significance of the
wetland resources. Fewer than 1% of wetlands permit applications are denied, although
Chapter One: Wetlands and the Role of Local Governments
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7 - 8% are withdrawn by applicants for various reasons. Actions may also be modified in
connection with the permit review process to reduce their adverse impacts on wetlands.
The Corps estimates that up to 50,000 other activities affecting wetlands are
authorized each year under the terms of general permits that do not require notice to the
Corps.
Although the section 404 program is administered by the federal government, the
Clean Water Act includes provisions (33 U.S.C §§ 1251, 1344, and 1362) by which states
can assume responsibility for implementing the federal permit program in place of the
Corps. As of 1996, only New Jersey and Michigan have fully assumed administration of
the program.
The federal government can also defer to states' jurisdiction over certain activities
within the section 404 program by issuing them "programmatic general permits." These
permits identify specific activities or classes of activities that, when authorized by state
regulatory programs, will be recognized as satisfying the federal regulatory program
requirements with little (or limited) review by the Corps. Programs recognized under
programmatic general permits include substantial portions of Maryland's and
Pennsylvania's wetlands programs.
The Clean Water Act also specifically allows states and localities to implement
laws that are more stringent than section 404 without federal oversight or approval.
Moreover, whether or not states have their own regulatory programs for wetlands, states
can significantly affect Corps permitting decisions through a water quality review process
under the Clean Water Act. Section 401 of the Clean Water Act authorizes states to
review federal permitting decisions for their effects on the waters of the state, including
wetlands. If states deny section 401 certification for any Corps permit decision, whether it
is a one-time only individual permit or a Nationwide Permit (or any other federal permit
decision), they can block issuance of the permit. Alternatively, a state can place
conditions on its certification and thereby impose safeguards beyond those contemplated
in the proposed federal permit. A section 401 certification can be used to protect
wetlands, rivers, lakes, estuaries, floodplains, and other water resources.
Another federal law relevant to state and local protection of wetlands is the federal
Coastal Zone Management Act (CZMA)(16 U.S.C. §§1451 et seq.). The CZMA
encourages state planning activities in the coastal zone and commits the federal
government to refrain from conducting or permitting activities in the coastal zone that are
inconsistent with state plans. Thus, states can use the CZMA to limit wetlands activities
or other activities that require federal approvals.
Protecting Wetlands: Tools for Local Governments
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WETLANDS LOSSES
When European settlers arrived in North America, there were approximately 221
million acres of wetlands in the contiguous U.S. By the mid-1980s, only 103.3 million
acres of wetlands remained. Wetlands losses in the Chesapeake Bay region have been
equally dramatic. Since settlement, Maryland has lost 73 percent, Pennsylvania has lost 56
percent, and Virginia has lost 42 percent of their original wetlands acreage.
These estimates reflect the acreage of wetlands converted to agricultural land use,
land development, and other clearing and draining activities. They do not take into account
the vast amount of wetland acreage that is severely degraded so that it no longer provides
the same functions as fully functional wetlands. Degradation is often caused by the
discharge of pollutants, habitat disturbance, introduction of exotic species of plants and
animals that out-compete native species, and urban encroachment.
As wetlands are lost and degraded, the species that are dependent on wetlands for
all or some of their habitat and life-cycle requirements are imperiled. An indication of how
much valuable wetland acreage has been lost in the United States is reflected by estimates
of the number of threatened and endangered species that are found in wetlands. Although
wetlands comprise only 3.5 percent of the land area of the United States, it is estimated that
about 50 percent of animals and 33 percent of plant species listed under the Endangered
Species Act are dependent on wetlands.
The area draining into the Chesapeake has experienced rapid population growth in
recent decades which has led to a decline in the basin's valuable wetlands. Wetlands
account for approximately 1.2 million acres of the Chesapeake Bay watershed, over 80
percent of which are inland; the remainder are coastal and estuarine. According to a 1988
report by the Chesapeake Executive Council, between the mid-1950s and late 1970s, the
Chesapeake Bay watershed's wetlands lost an average of over 2,800 acres annually. A
1994 technical report prepared for the U.S. Fish and Wildlife Service (Tiner et al. 1994)
indicates that the watershed lost about 2.5 percent more of its wetlands between 1982 and
1989, at a rate of about eight acres per day. Forested wetlands sustained the greatest losses
during this period. As the acreage of wetlands and their associated functions continue to
decline, so has the overall health of the Bay.
• Chesapeake Executive Council. 1988. Chesapeake Bay Wetlands Policy. Chesapeake Bay Program: Annapolis,
MD.
• Dahl, T.E. and C.E. Johnson. 1991. Status and Trends of Wetlands in the Conterminous United States, Mid-
1970's to Mid-1980's. U.S. Department of the Interior, Fish and Wildlife Service: Washington, B.C. p. 1-3.
•Dahl, T.E. 1990. Wetlands Losses in the United States J 780's to 1980's. U.S. Department of Interior, Fish and
Wildlife Service: Washington, D.C. pi, 6.
• Mitsch, William J. and James G. Gosselink. 1993. Wetlands. 2nd Edition. Van Nostrand Reinhold: New York. p.
517-518.
•Noss, ReedF. and Allen Y. Cooperrider. 1995. Saving Nature's Legacy: Protecting and Restoring Biodiversity.
Island Press: Washington, D.C. p65.
• Tiner, Ralph W., Irene Kenenski, Todd Nuerminger, John Eaton, David B. Foulis, Glenn S. Smith, and W. Edward
• Prayer. May 1994. Recent Wetland Status and Trends in the Chesapeake Watershed (1982 to 1989): Technical
Report. U.S. Fish and Wildlife Service, Prepared for the Chesapeake Bay Program, U.S. EPA, Annapolis, MD.
• Tipple, Virginia K. 1984. "An Environmental Characterization of Chesapeake Bay and a Framework for Action."
The Estuary as a Filter. Ed., Victor S. Kennedy.
Chapter One: Wetlands and the Role of Local Governments
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State Regulation
Most states, including all those in the Chesapeake Bay watershed, have enacted at
least some regulatory legislation to protect wetlands. Local government roles in these
state programs vary. In some instances state laws directly enlist local governments in
wetlands protection. In others, local governments have opportunities to affect state
permitting and regulatory decisions.
Maryland
In 1933, Maryland enacted legislation to address programs affecting water
resources. The legislation created a program to evaluate construction activities in any
waterway or its floodplain for their potential to create flooding on upstream or
downstream property, their potential effect on fish habitat and migration, and their effect
on the control of erosion. This law provided the basis for some protection of wetlands in
the state.
In 1970, Maryland enacted the state's Wetlands Act (Md. Code Ann. § 9-101 to §
9-603) to protect Maryland's tidal wetlands. The Act establishes a regulatory program to
control proposed activities in tidal wetlands. Permits are required for activities in
privately-owned tidal wetlands and are issued by the Maryland Department of the
Environment's Water Management Administration. Licenses are required for projects in
state-owned wetlands and are issued by the Board of Public Works (comprised of the
governor, the comptroller of the treasury, and the state treasury) based upon
recommendations from the Water Management Administration. A permit or license must
be obtained before a person fills, dredges, or otherwise alters a tidal wetland.
In 1989, Maryland enacted the Nontidal Wetlands Protection Act (Md. Code Ann.
§ 8-1201 et seq.). The Act's goals are to attain no net overall loss in nontidal wetland
acreage and function and to strive for a net resource gain in nontidal wetlands over present
conditions. From its inception, this Act was designed to parallel many aspects of the
federal regulatory program. However, the Maryland Act specifically differs from federal
regulation in at least two respects: its prescription of specified buffer zones for wetlands
and its regulation of the alteration of wetland vegetation and hydrology (an issue that has
been somewhat complex under the federal law, which has focused on "discharges" of
dredged or fill material into wetlands). The Maryland Nontidal Wetland Protection Act
requires protection of a 25-foot buffer around all nontidal wetlands; the buffer increases to
100 feet around wetlands of special state concern and those adjacent to steep slopes or
highly credible soil. The Act's coverage of vegetation and hydrology recognizes that
adverse effects on wetland functions come from many sources.
Protecting Wetlands: Tools for Local Governments
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The regulatory program seeks to achieve no net loss, in part, through two types of
compensatory mitigation efforts: permittee mitigation and programmatic mitigation.
Permittee mitigation ~ the replacement of destroyed wetlands with restored or created
wetlands of equal or greater value — is required for unavoidable impacts to nontidal
wetlands over 5,000 square feet. Programmatic mitigation is performed by the State for
nontidal wetland losses generally less than 5,000 square feet, using funds paid by
permittees to the State Nontidal Wetlands Compensation Fund. The Fund is dedicated to
the creation, restoration, and enhancement of nontidal wetlands.
The Nontidal Wetlands Protection law allows county governments to assume
delegation of the program by developing qualifying nontidal wetlands protection
programs, although as of 1996 no counties were exercising delegated jurisdiction. The
law also provides that watershed plans prepared by counties and local governments can, if
adopted by the Maryland Department of the Environment, be used to guide local
permitting and decision-making.
The Army Corps of Engineers has issued a state programmatic general permit
(SPGP) recognizing Maryland's wetlands permitting process for many types of activities in
tidal and nontidal wetlands. Under the Maryland SPGP, the Department of the
Environment may issue many permits that are considered sufficient to satisfy § 404 of the
Clean Water Act without further action by the Corps.
Several other state laws are important for Maryland's wetlands. The Chesapeake
Bay Critical Areas Law (Md. Code Ann. § 8-1801 et seq.) was enacted in 1984 to
minimize adverse water quality impacts and protect the Chesapeake Bay. The law seeks
to protect water quality, conserve valuable habitat, and accommodate future growth in the
least polluting manner by regulating activities and land use planning in what are defined as
Critical Areas: the waters of the Bay, the Bay's tidal wetlands and tributaries, and the area
that lies within 1,000 feet of the landward boundary of state and private waters and
wetlands. The act established a 100-foot vegetated buffer within the 1,000-foot critical
area, within which specific activities are prohibited. For example, commercial forest
harvesting is prohibited within the first 50 feet of the 100-foot buffer, and a 25-foot
vegetated buffer strip is required for agricultural operations. The Critical Areas fall into
three categories: intensely developed areas, limited development areas, and resource
conservation areas. Each has a density limit and incorporated performance criteria that are
directed at protecting water quality. The Chesapeake Bay Critical Areas Commission was
charged with developing the criteria to guide planning and actions in designated Critical
Areas. Local governments are responsible for developing and implementing their own
Critical Area resource protection programs, based on the requirements developed by the
Critical Area Commission.
Maryland's Shore Erosion Control Program (Md. Nat. Resources Article: Title 8-
1001) is administered by the Maryland Department of Natural Resources' (DNR's) Forest
Service. Among other activities, the law enables DNR to provide technical assistance to
property owners and local governments having specific shoreline and bank erosion
problems. The program, which has used some structural shoreline stabilization
Chapter One: Wetlands and the Role of Local Governments
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techniques, now uses many nonstructural shoreline stabilization techniques including
marsh grass plantings.
The DNR's Chesapeake Bay and Coastal Watershed Service has the authority to
implement the State's responsibilities under the federal Coastal Zone Management Act
(CZMA). CZMA provides authority to recognize and protect wetlands in the coastal zone
in 16 coastal counties and Baltimore City. Federal permits in the coastal zone must be
consistent with the State's Coastal Zone Management Program. The State's program is
"networked," meaning that it is based on an array of existing State laws against which the
federal activity must be reviewed for consistency.
Virginia
The primary state law affecting wetlands within Virginia's Chesapeake Bay
watershed is the Chesapeake Bay Preservation Act (Bay Act). Enacted in 1988, the Bay
Act was passed as a critical component of Virginia's response to the Chesapeake Bay
Agreement. Two other state statutes affect Virginia wetlands throughout the state: the
Virginia Wetlands Act and the Submerged Lands Act.
Virginia's Bay Act (Va. Code 10.1-2100 et seq.) is designed to improve water
quality in the Chesapeake Bay and its tributaries by requiring wise resource management
practices in the use and development of environmentally sensitive land features. The Bay
Act established a nine-member citizen board called the Chesapeake Bay Local Assistance
Board to promulgate regulations to help meet this goal. Board members represent
different geographic areas within "Tidewater Virginia" and various interests, including
business, agriculture, land development, local government, and environmental
management. Tidewater Virginia includes 46 cities and counties that border on tidal
waters and the 43 town governments in Tidewater counties.
The Chesapeake Bay Preservation Area Designation and Management Regulations
(VR 173-02-01) were first adopted by the Board in 1989 and amended in 1991. The
Regulations recognize local government responsibility for land use decisions and establish
a framework for compliance without dictating precisely how local programs must be
implemented. The Act and accompanying regulations require local governments in the
Tidewater area to develop Local Bay Act programs to incorporate water quality
protection into their comprehensive plans, zoning ordinances, and subdivision ordinances.
Recognizing the magnitude of this task, the Local Assistance Board staged
program compliance into three separate phases. Phase I involves a determination of the
extent of environmentally sensitive lands within local boundaries, the mapping of sensitive
lands, and the designation of Chesapeake Bay Preservation Areas. These are areas that
have the potential to impact water quality most directly. Chesapeake Bay Preservation
Areas include both Resource Protection Areas (RP As) and Resource Management Areas
(RMAs). RPAs are sensitive lands at or near the shoreline and include a buffer zone
limiting activities landward; they include both tidal and nontidal wetlands. RMAs are
10 Protecting Wetlands: Tools for Local Governments
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contiguous lands that are landward of the RPAs. Once these areas have been identified
and mapped, Phase II involves the adoption of a comprehensive plan (or plan amendment).
Phase III then requires the adoption (or revision) of a zoning ordinance to incorporate
water quality protection measures consistent with the Bay Act's objectives.
The Virginia Wetlands Act (Va. Code § 28.3-1300) was enacted in 1972 to
protect tidal wetlands. The Act is jointly administered by the Virginia Marine Resources
Commission (VMRC) and local Wetlands Boards. The Virginia Institute of Marine
Sciences (VIMS) provides technical assistance. To administer the permitting program,
localities must adopt an ordinance which follows the outline of a model tidal wetlands
zoning ordinance developed by the Virginia General Assembly (HB 861; Va. Code Ann. §
15.1-489, § 62.1-13.5). Permits are issued by a local wetlands board of five to seven
members. Of the 46 eligible jurisdictions in the state, approximately 35 have assumed
responsibility for administering this program. In localities that have not adopted the state
ordinance, VMRC serves as the primary permitting authority. The VMRC requires
compensatory mitigation on a limited basis to replace unavoidable wetlands losses. The
VMRC has coordinated its permitting process under the Virginia Wetlands Act with
federal permitting under section 404 of the Clean Water Act.
Although Virginia has no free-standing, comprehensive, nontidal wetlands
program, two laws affect activities in the Commonwealth's nontidal wetlands. In 1989,
the Commonwealth enacted a law (Va. Code §62.1-44.15:5) to strengthen the section 401
certification program under the Clean Water Act through the issuance of a Virginia Water
Protection Permit (VWPP). Under the law, the Virginia Department of Environmental
Quality (DEQ) reviews permits for dredge, fill, or discharge activities or an alteration of
interstate waters, for which an Army Corps individual permit is required or for which
Virginia has conditioned the use of an Army Corps Nationwide Permit. Such activities
require the applicant to obtain a VWPP from the DEQ.
The second law affecting nontidal wetlands is the Virginia Submerged Lands Act
(Va. Code Ann. § 28.2-1200-1213, § 1300 et seq.). The Submerged Lands Act,
administered by VMRC, regulates activities impacting the state-owned bottoms of bays,
rivers, creeks, and shores, thus giving the Commonwealth some jurisdiction over riparian
wetlands.
In Virginia, State responsibilities under the federal Coastal Zone Management Act
are carried out by the VMRC.
Chapter One: Wetlands and the Role of Local Governments 11
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Pennsylvania
The Pennsylvania Department of Environmental Protection has jurisdiction for the
protection of wetlands under Chapter 105 of the Dam Safety and Encroachment Act of
1978. The program requires the Pennsylvania Department of Environmental Protection
(DEP) to issue permits for activities and structures in watercourses, floodways, and bodies
of water, including wetlands; the law is not limited to regulation of dredging and filling
activities.
Responsibility for the program is divided between the central office, which
provides guidance and oversight to assure uniform application of permit requirements and
regulations, and six regional offices which conduct permit review, permit issuance, and
permit compliance monitoring. A DEP Wetlands Protection Advisory Committee has
been created to assist the DEP in developing wetland policy and regulations and to
increase public participation in the policymaking process. In addition to submitting permit
applications to the appropriate regional office, applicants must provide counties and
municipalities with information concerning permit applications to enable them to comment
or otherwise participate in DEP's consideration of a permit. The DEP has also developed
partnerships with 43 of the Commonwealth's 67 county conservation districts to provide
information on the program at the local level, to register general permits (maintaining
records of activities authorized under general permits), and to perform on-site
investigations to attempt to gain voluntary compliance (or to refer an investigation to a
DEP regional office). Local municipalities can notify DEP if they have any concerns
relating to a specific permit application and can request on-site inspections.
Compensatory mitigation is part of the Pennsylvania program. Pennsylvania has
also created a wetland replacement fund to assist in providing compensatory mitigation for
activities where a wetland impact for a given project is less than 0.5 acres; permittees
contribute to the fund in lieu of constructing or restoring replacement wetlands on their
own. The fund can also be used to receive and disburse contributions for voluntary
wetland creation or restoration projects.
The Corps of Engineers has issued a state programmatic general permit (SPGP)
recognizing Pennsylvania's permitting process for many types of activities in wetlands.
Under the Pennsylvania SPGP, the Department of Environmental Protection may issue
many permits that are considered to be sufficient to satisfy the requirements of § 404 of
the Clean Water Act without further action by the Corps.
CONCLUSION
Federal and state laws are only a part of the wetlands conservation picture.
Protection of wetlands and recognition of their local benefits are functions ideally suited to
local governments. Local governments have substantial authority to conserve and protect
wetlands, using at least five kinds of tools. These can be integrated into a larger
12 Protecting Wetlands: Tools for Local Governments
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community strategy aimed at quality of life, economic development, and conservation of a
community's heritage and resources. Many of the tools described here can also be used by
local governments to protect valuable elements of the landscape other than wetlands, such
as riparian forest buffers or open space. The following chapters examine each of the tools
and variations of these tools in turn:
• Planning for wetlands conservation
• Regulation for wetlands conservation
• Incentives for wetlands conservation
• Acquisition for wetlands conservation
• Technical assistance, education, and outreach for wetlands conservation
Strategies for use of these tools are presented together with examples of their
strengths and weakness, benefits and drawbacks. Real examples of their use by local
jurisdictions in the Chesapeake Bay watershed are presented in order to provide a basis for
comparison and sources of expertise. The last half of this guide consists of case studies
designed to show how these tools have been used locally.
If a local governmental jurisdiction has any wetlands within its boundaries — and
virtually all do — this guide will clearly illuminate at least a dozen different things that the
local government can do to take these lands into account and to foster their conservation.
The array of options is broad enough to encompass divergent geographies and political
approaches. Wetlands conservation is truly a local issue — too important to be left solely
to state and federal regulators. An examination of the tools available to local governments
shows just how much can be accomplished.
REFERENCES
Chesapeake Bay Foundation. Oct. 1994. Wetlands Permitting Programs in the Chesapeake Bay
Area. Chesapeake Bay Foundation: Annapolis, MD.
Chesapeake Bay Local Assistance Department. 1995. A Guide to the Bay Act: Virginia's
Chesapeake Bay Preservation Act Program. Chesapeake Bay Local Assistance Department:
Richmond, VA.
Chesapeake Bay Program. 1995. The State of the Chesapeake Bay: 1995. U.S. Environmental
Protection Agency: Annapolis, MD.
Chesapeake Executive Council. Dec. 1987. Chesapeake Bay Agreement. Chesapeake Bay
Program: Annapolis, MD.
Chesapeake Executive Council. Dec. 1988. Chesapeake Bay Wetlands Policy: Agreement
Commitment Report. Chesapeake Bay Program: Annapolis, MD.
Chapter One: Wetlands and the Role of Local Governments 13
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Chesapeake Executive Council. Aug. 1992. Chesapeake Bay Agreement 1992 Amendments.
Chesapeake Bay Program: Annapolis, MD.
Chesapeake Executive Council. Oct. 1994. Chesapeake Bay Basinwide Toxics Reduction and
Prevention Strategy. Chesapeake Bay Program: Annapolis, MD.
Chesapeake Executive Council. Oct. 1994. Chesapeake Executive Council Directive 94-1.
Riparian Forest Buffers. Chesapeake Bay Program: Annapolis, MD.
Chesapeake Executive Council. 1995. Directive No. 95-1: Local Government Partnership
Initiative. Chesapeake Bay Program: Annapolis, MD.
Crane, Saundra, Jan Goldman-Carter, et al. 1995. Wetlands Conservation: Tools for State and
Local Action. World Wildlife Fund: Washington, D.C.
Dahl, I.E. 1990. Wetlands Losses in the United States 1780s to 1980s. U.S. Department of
Interior, Fish and Wildlife Service: Washington, D.C.
Dahl, I.E. and C.E. Johnson. 1991. Status and Trends of Wetlands in the Conterminous United
States, Mid-1970s to Mid-1980s. U.S. Department of the Interior, Fish and Wildlife Service:
Washington, D.C.
Mitsch, William J. and James G. Gosselink. 1993. Wetlands. 2nd Ed. Van Nostrand Reinhold:
New York.
National Audubon Society. 1993. Saving Wetlands: A Citizen's Guide for Action in the Mid-
Atlantic Region. National Audubon Society: Camp Hill, PA.
Pennsylvania Department of Environmental Resources. 1990. Wetlands Protection: A Handbook
for Local Officials. Environmental Planning Information Series. Report #7. Commonwealth of
Pennsylvania.
Strand, Margaret N. 1996. Wetlands Deskbook (2d ed.). The Environmental Law Reporter,
Environmental Law Institute: Washington, D.C.
Tiner, Ralph W., Irene Kenenski, et al. May 1994. Recent Wetland Status and Trends in the
Chesapeake Watershed (1982 to 1989): Technical Report. Chesapeake Bay Program, U.S. EPA,
Annapolis, MD.
Tippie, Virginia K. 1984. The Estuary as a Filter. Victor S. Kennedy, ed.
U.S. Army Corps of Engineers. July 1995. Section 404 of the Clean Water Act and Wetland:
Special Statistical Report.
U.S. Environmental Protection Agency. 1988. America's Wetlands: Our Vital Link Between Land
and Water. U.S. EPA: Washington, D.C. OPA-87-016.
U.S. Environmental Protection Agency. April 1989. Wetlands and 401 Certification:
Opportunities and Guidelines for States and Eligible Indian Tribes. U.S. EPA: Washington, D.C.
White, Christopher P. 1989. Chesapeake Bay: A Field Guide. Tidewater Publishers: Centerville,
MD.
14 Protecting Wetlands: Tools for Local Governments
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Chapter Two:
#
Planning
Local Planning for Wetlands Protection 15
Authority to Plan for Wetlands 16
Maryland 16
Virginia 17
Pennsylvania 17
Comprehensive Local Land-use Plans 17
Critical Area Plans 19
Floodplain, Watershed, Riparian Zone, Wetlands, and Greenways Plans 20
Special Area Management Plans (SAMPs) 22
Public Infrastructure Plans 23
Tools That May Assist Local Government Planning 24
Environmental Guidelines for Development 24
Environmental Advisory Councils 25
Advance Identification (ADID) 26
Conclusion 27
Related Case Studies 27
References 27
The Chesapeake Bay Agreement, which establishes the overall goal of restoring
the Bay, acknowledges that the planning efforts of local governments are vitally important
to achieving these ambitious goals. The health of the Chesapeake Bay is dependent on the
quality of water draining into the Bay, which in turn is dependent on appropriate land use
patterns along the Bay's tributaries and the surrounding lands that drain into them. Thus,
the Agreement relies on environmentally sensitive land use planning by local government
to stem the tide of degradation in the Bay and eventually to promote its health.
LOCAL PLANNING FOR WETLANDS PROTECTION
Planning tools are available to all governments in the Chesapeake Bay watershed
and provide an excellent opportunity to identify and conserve wetlands. Planning enables
local governments to assure that economic development, placement of infrastructure, and
community values all contribute to the decision-making processes that provide protection
for important natural resources.
Planning provides significant advantages as a conservation tool. First, it enables
communities to identify those resources that are most important to the community or
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those that are most in danger of loss or degradation. Second, planning does not require
the use of particular implementation approaches — it can support a mixture of incentives,
voluntary actions, acquisitions, regulation, and other approaches designed with community
values in mind. Third, planning can be the basis for bringing diverse interests together to
devise mutually acceptable solutions. Fourth, planning can serve as the basis for drawing
on outside resources ~ such as federal or state funds or technical support ~ to accomplish
locally desired objectives.
Planning that is intended to protect valuable natural resources falls short only
where there is no attempt to implement a developed plan, or where the planning process
loses sight of the objectives of conserving wetlands while also accomplishing desired
economic goals.
Authority to Plan for Wetlands
Local government planning depends upon the authority granted by the State to the
local jurisdiction to prepare plans or participate in cooperative planning. Each of the
states in the Chesapeake Bay region has authorized local governments to plan for wetlands
protection.
Maryland
The authority for local land use planning in Maryland rests primarily with the
counties. Local authority to engage in planning is established by three articles of the
Annotated Code of Maryland: Article 66B empowers noncharter counties and most
municipalities; Article 28 empowers Montgomery and Prince George's Counties and
applies to most of the towns within them; and Article 25 A empowers charter counties.
Charter counties are those counties whose authorities are prescribed in individual charters
that set the terms for county government. Some other counties, called code-home rule
counties, use a combination of authority found under 66B and 25 A. The authority to plan
is broad.
Maryland also has enacted additional planning authorities. In 1992, Maryland
passed the Economic Growth, Resource Protection, and Planning Act, which amended
Article 66B, but extended the changes to all counties and towns exercising planning and
zoning authority. The Act instructs local governments to adapt their plans to include a set
of established policies that include concentration of development, protection of sensitive
areas, and stewardship of the Chesapeake Bay. The "Sensitive Areas Element," which is
required for all plans, must describe how the jurisdiction will protect streams and stream
buffers, 100-year floodplains, endangered species habitats, steep slopes, and other areas a
jurisdiction wants to protect from the adverse impacts of development. Such planning
must also conform to the Chesapeake Bay Critical Areas law, enacted in 1984. The
16 Protecting Wetlands: Tools for Local Governments
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Critical Areas law requires local governments to develop programs to protect Critical
Areas (a 1,000-foot area landward of state and private waters and wetlands), according to
standards developed by the state's Critical Areas Commission (See Chapter 1).
Maryland's Nontidal Wetlands Protection Act also provides for the preparation of
comprehensive watershed plans by counties and local governments that may be adopted by
the Maryland Department of the Environment and used in regulatory decisionmaking at
the State level.
Virginia
Virginia gives primary planning and zoning powers to the Commonwealth's
counties and cities. In 1990, Virginia passed legislation that broadened the authority of
these local governments to develop zoning ordinances to protect lands "of significance"
for the natural environment (Va Code 15.1-489). These lands may include wetlands. This
law, along with Virginia's Chesapeake Bay Preservation Act, acknowledges the critical
relationship between local governmental land use controls through comprehensive
planning and zoning and the protection of surface and groundwater resources, including
wetlands.
Pennsylvania
Pennsylvania's Municipalities Planning Code (MPC) delegates the primary
responsibility for regulating land use and development to local municipalities ~ townships,
boroughs, and cities. As a result, there are over 2,500 local government entities in
Pennsylvania that each make decisions on guiding growth and development within their
boundaries. Amendments to the MPC in 1988 expressly gave local governments the
authority to plan and zone for the protection of wetlands. The Code states that zoning
ordinances must be designed to "promote, protect and facilitate...preservation of the
natural, scenic, and historic values in the environment and preservation of forests,
wetlands, aquifers, and floodplains." (MPC Article VI, § 603).
This chapter explains the kinds of planning tools available to governments in the
Chesapeake Bay region, and the ways in which these tools can be used to protect
wetlands.
Comprehensive Local Land-Use Plans
Comprehensive plans are nonregulatory plans developed by local governments to
determine the siting and conditions for fixture economic growth while providing for the
general health, safety, and welfare of the community. Comprehensive plans are developed
Chapter Two: Planning 17
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by local planning commissions with public input through comments and public hearings.
They are formally approved or adopted by the local government's governing body (e.g.,
board of supervisors, council).
Comprehensive plans specify how local governments will reach community goals.
They guide decisions on adoption and amendment of zoning and subdivision regulations,
and expenditure of public funds on roads, schools, utilities, parks and other infrastructure.
They influence state and federal siting of facilities such as highways. They identify and
target conservation and acquisition areas, guide government spending and borrowing
choices, and influence private land use decisions.
Comprehensive plans do not themselves regulate activities, but instead establish
the framework within which both regulatory and non-regulatory decisions will be made.
They do not act as a regulatory trump card. Thus, if a local government approves a
zoning ordinance, issues a specific permit, or takes some other governmental action that
seems at odds with an existing comprehensive plan, the authorized activity cannot be
halted by another party merely on the grounds that it does not conform to the adopted
plan.
Development of comprehensive land use plans is an excellent opportunity for local
governments, developers, conservationists, and planners to coordinate their visions of how
conservation and development should be balanced to shape the social, economic, and
environmental future of their municipality. Comprehensive plans can explicitly incorporate
wetlands protection in their recommendations, or can simply include wetlands in an overall
strategy that includes conservation provisions.
Each of the states in the Chesapeake Bay watershed has authorized its local
governments to prepare comprehensive plans. For example, Pennsylvania's Municipalities
Planning Code delegates the primary responsibility for land use planning to local
municipalities. Counties are required to develop such plans, while cities, boroughs, and
townships are merely authorized to do so. A comprehensive plan must include a
statement of the municipality's objectives for its future development, as well as a land use
plan. The plans must include a survey of natural features affecting development, including
wetlands, and may include specific provisions for development and conservation of parks
and recreation, public land, prime agricultural lands, flood plains "and other areas of
special hazards."
Comprehensive planning in Maryland is carried out by counties and towns under
several different articles under the state code, as explained above. Somerset County,
Maryland, among others, has had success in planning for wetlands using the
comprehensive planning process. The County's comprehensive plan states the explicit
goal of respecting sensitive environmental areas, such as wetlands and the Critical Area
Zone adjacent to streams, rivers and the Chesapeake Bay. The plan encourages
regulations and other measures that will preserve environmentally sensitive areas and
development standards to retain natural on-site features such as wetlands. The County has
also developed the Big Annemessex River Nontidal Wetlands Watershed Management
Plan. This watershed management plan is designed to protect habitat for threatened and
18 Protecting Wetlands: Tools for Local Governments
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endangered species, to direct mitigation to suitable sites, to address issues of flood
management and water supply, and to protect the water quality of the watershed. The
Plan is also meant to protect valuable nontidal wetlands by identifying the nontidal
wetlands resources and developing appropriate protection strategies based on a functional
assessment. The Maryland Nontidal Wetlands Protection Act provides for using approved
watershed plans for permitting and decision-making. The Somerset County plan was
developed, in part, so it could be approved by the Maryland Department of the
Environment and used to facilitate state decisions.
The Virginia Code requires that counties and cities prepare comprehensive plans
and update them at least every five years. Plans are implemented through zoning
ordinances and other measures and may include specific designations for categories of
public and private use and development, including transportation systems, community
service facilities, historic districts, and groundwater protection measures. The plans may
also include capital improvements programs, subdivision ordinances, zoning ordinances,
and zoning district maps. Comprehensive plans can be an important planning tool in
Virginia because local planning commissions must certify that projected public projects are
in accordance with any preexisting comprehensive plan. However, notwithstanding
conflict with a preexisting comprehensive plan, local governments have the power to
overrule a planning commission's decision.
Comprehensive plans that provide for the protection of wetlands through zoning,
siting of capital improvements to avoid wetlands, coordination of procedures with state
and federal programs, and other means can play a significant role in focusing development
away from sensitive areas and targeting appropriate wetland areas for acquisition or
special protection. Although comprehensive plans are not regulatory tools — as local
governments can adopt ordinances that are counter to a plan's goals -- they provide an
opportunity for local governments to analyze their natural resources holistically before
making decisions about the direction of development.
Critical Area Plans
Critical area plans are a specialized type of comprehensive planning specifically
authorized under Maryland's Chesapeake Bay Critical Areas Law (Md. Code Ann. § 1801
et seq.). These plans are designed to meet the goals of the law and specifically work to
minimize adverse water quality impacts, conserve valuable habitat, and accommodate
future growth in the least polluting manner. Critical Areas fall into three planning
categories: intensely developed areas, limited development areas, and resource
conservation areas. Each has a density limit and incorporated performance criteria that are
directed to protecting water quality. The Chesapeake Bay Critical Areas Commission was
charged with developing the criteria to guide plans and actions in designated Critical
Areas. Critical Areas Plans have been adopted by jurisdictions throughout Maryland,
except for a few that received exemptions under the law and commission procedures.
Chapter Two: Planning 19
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Virginia's Chesapeake Bay Preservation Act also requires Virginia jurisdictions in
"Tidewater Virginia" to protect water quality by complying with the Act and designating
Chesapeake Bay Preservation Areas. The Act provides for the preparation of special
plans by local governments to protect water quality. Governmental jurisdictions outside
the region may adopt similar measures but are not required to do so (See Chapter 1).
The local plan adopted by Isle of Wight County, Virginia under this law includes
performance criteria for land use and development within the Chesapeake Bay
Preservation Area. The program includes a comprehensive plan that addresses protection
of the Chesapeake Bay Preservation Areas and the state's water quality, a zoning
ordinance that incorporates measures to protect the Preservation Areas and requires
compliance with all land use and development performance criteria, a subdivision
ordinance that incorporates measures to protect the water quality in the Preservation
Areas and assures that all subdivisions in the Areas comply with land use and development
performance criteria, and an erosion and sediment control ordinance.
Floodplain, Watershed, Riparian Zone, Wetlands, and Greenway Plans
Many planning tools are specifically focused on floodplain and watershed areas.
Floodplains have long been an issue in local planning because of the potential for hazard
and loss of property and life. Each of the states in the region provides authority for
floodplain planning and regulation. Wetlands are often found in association with
floodplains.
River and watershed planning has gained in importance recently because of
increased understanding of the impacts of land use and land clearing activities on water
quality, including wetlands and groundwater. Increasingly, river corridors in the region
are viewed as environmental amenities that communities value highly. Planning related to
these corridors can be a valuable contribution to the conservation of wetlands.
In Virginia, for example, the Middle Peninsula Planning District Commission
(MPPDC), supported the 1987 establishment of the Dragon Run Conservation District
and assists planning efforts in the District. The MPPDC is developing a watershed
management plan. The Conservation District, which includes lands in four different
counties, was established to protect and conserve fragile resource areas that perform
valuable functions in their natural state and that are unsuitable for development and intense
use. Areas designated as the Conservation District include wetlands and swamps and
areas important for floodplain management, aquifer recharge, water storage, and critical
wildlife habitat.
Plans can take a variety of forms. For example, Fredericksburg, Virginia, adopted
a "City Watershed Property Management Policy" in 1991, which provides both for public
20 Protecting Wetlands: Tools for Local Governments
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recreational use of city owned lands and for restrictions on land uses that threaten water
quality functions. In 1992, the Rappahannock River Watershed Committee was formed to
provide a foundation for effective and mutually beneficial water resources management.
The Rappahannock River Watershed Plan was completed in October 1994.
Watershed planning is also used by Maryland counties, and is specifically
encouraged by Maryland's Nontidal Wetlands Protection Act. The Act provides that the
Department of the Environment may approve local watershed plans and use them to guide
nontidal wetland permitting decisions. Such plans are also useful to local governments in
establishing patterns for projected future land uses. The Parkers Creek Watershed in
Calvert County, for example, contains nontidal wetlands, the only pristine
saltwater/freshwater marsh on Maryland's Western Shore, and one of the largest
contiguous tracts of forest in Calvert County. To protect this resource, Calvert County
created the Parkers Creek Watershed Task Force. The Task Force conducted a functional
analysis of the wetlands and drafted a Watershed Management Plan. One of the goals of
the Plan is to address wetlands loss and mitigation on a watershed basis.
Planning for greenways, which are often adjacent to rivers or streams, lakes, or
coasts, can have important economic benefits for communities. Greenways are natural
corridors that are set aside to connect larger areas of open space, to provide for the
conservation of natural resources, protection of habitat, and movement of plants and
animals, and to offer opportunities for linear recreation, alternative transportation, and
nature study. These linear protected areas also serve as buffers for waterways, helping to
steer growth to more suitable areas. The World Wildlife Fund has noted that greenway
efforts offer the potential to protect not only individual wetlands in a river or stream
corridor, but also the wetlands' water supplies, buffer areas, and linkages with other areas.
Greenways can make substantial economic contributions to communities as well. By
enhancing the character and recreational opportunities in an area, greenways add to the
quality of life for business and residents and can attract tourists and tourism-related
business.
Greenway planning efforts are underway in Virginia, Maryland, and Pennsylvania.
Although Virginia does not have a formal statewide effort, there are several counties
working on greenway projects. Pennsylvania launched a statewide effort in 1996.
Maryland's effort, which has been underway since 1990, is working to establish a
statewide network of greenways. The Maryland Greenways Commission has published an
atlas showing protected lands in each county along with existing and potential greenway
corridors. Approximately 900 linear miles of greenway corridors are currently protected
in Maryland.
Chapter Two: Planning 21
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Special Area Management Plans (SAMPs)
The federal Coastal Zone Management Act seeks to promote natural resource
management in our nation's coastal areas. The purpose of the Act is to preserve, protect,
develop, and restore the natural resources of the coastal zone, including wetlands, while
balancing the need for "reasonable" growth.
The Act encourages states, local governments, and private groups to develop
Special Area Management Plans (SAMPs) to protect specific resources. SAMPs contain a
detailed and comprehensive statement of policies, standards, and criteria to guide public
and private uses of lands and waters, as well as mechanisms for implementation. Federal
funding is available to support SAMP efforts.
SAMPs have been used within the Chesapeake Bay watershed to deal with a
variety of issues that affect wetlands, waters, and local land development. The Baltimore
County Department of Environmental Protection and Resource Management has
significant experience with SAMPs. The county has two major peninsulas in which sewers
are being extended to resolve health and sanitation problems. The provision of these
services in sensitive environments can be both beneficial and detrimental because of their
potential to encourage more growth in areas already under ecological threat. As part of
the permitting process, the county decided to undertake SAMPs to address questions
about the potential secondary and cumulative impacts from additional development caused
by extending the sewers. SAMPs have also been used in Virginia to assist in
comprehensive planning in coastal jurisdictions.
Outside the Chesapeake Bay watershed, the Hackensack Meadowlands SAMP was
undertaken to produce a comprehensive plan that would balance environmental protection
and the economic development of the highly impacted area New Jersey area 10 miles
outside of New York City. The Meadowlands were historically a freshwater white cedar
marsh, but unplanned development, wetland conversions, and the siting of over 20 landfills
in the 34-mile region, created an ecological regime vastly different and biologically
impoverished compared to the freshwater-influenced system that existed prior to the
1920s. The Hackensack Meadowlands SAMP contains specific policies to guide
remediation, enhancement, and protection of the region's natural resources, while
simultaneously allowing development in less sensitive areas. The SAMP's Environmental
Improvement Program addresses such issues as solid waste management and landfill
closures; water resources protection and monitoring; flood control and stormwater
management; contaminated land reclamation; wetlands protection, enhancement and
management, including mitigation banking; remnant habitats; parks and recreation; air
quality; historic and cultural resources; and environmental enforcement. The SAMP has
proven to be a model for integrating area-wide master planning with federal environmental
regulations.
22 Protecting Wetlands: Tools for Local Governments
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SAMPs are useful because they are site-specific comprehensive plans designed to
protect natural resources while allowing for reasonable economic growth. Because
development of a SAMP requires a significant investment in gathering data, the process
often leads to a better understanding of coastal resources and some of the conflicts
between conservation and development a community may be experiencing. Investment in
a SAMP can also lead to increased public awareness and appreciation of wetlands. One of
the strengths of SAMPs is that they can be designed to address an extremely wide variety
of coastal resource management problems, from the protection of wetland resources to
infrastructure planning. In addition, because of their proactive nature, SAMPs can
alleviate the often hostile and seemingly incompatible goals of wetlands protection and
economic growth. SAMPs can be incorporated into broader planning processes and
acquisition strategies in an area and can lead to a more comprehensive approach to
wetlands protection. Perhaps most importantly, SAMPs can help to identify and protect
the most environmentally sensitive and threatened wetlands in an area. Costs associated
with the preparation and implementation of a SAMP are eligible for 100% funding
through Coastal Zone Enhancement Grants through the Ocean and Coastal Research
Management Office of the Department of Commerce.
Public Infrastructure Plans
Local governments can impact and direct growth in their municipalities through
public infrastructure plans. For example, by restricting sewage hookups for residential and
commercial residents in certain environmentally sensitive areas, development can be
controlled.
In each of the states in the Chesapeake Bay watershed, capital improvement
planning and other forms of planning are available options to local governments. These
types of advance consideration can significantly impact the number of conserved wetlands.
In Pennsylvania, the Sewage Facilities Act (Act 537) is particularly important in
the planning context. Indeed, in many local government jurisdictions - particularly in rural
areas - it is the only planning device that is implemented. The Act requires municipalities
to develop a ten-year plan for sewage facilities, subject to review and approval by the
Department of Environmental Protection (DEP). The plans are updated every five years,
and landowners may request that the plan be amended to authorize a proposed sewage
system. When there is a new development, plan revisions must be initiated and approved
by the local government and the DEP. In localities with comprehensive plans, the sewage
facilities plan should be consistent with the comprehensive plan. In many Pennsylvania
localities lacking comprehensive plans as well as zoning and subdivision controls, the
sewage facilities plan often becomes the only avenue to influence growth and development
and to take into account the effects of development upon wetlands and watersheds.
Chapter Two: Planning 23
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Infrastructure planning can be an important determinant of growth. As a result, it
can either protect or impair wetlands. Careful targeting of public improvements and
public approval of private utilities can play a significant role in wetlands conservation.
TOOLS THAT MAY ASSIST LOCAL GOVERNMENT PLANNING
The previous section identified the primary tools that are available to local
governments to plan for the identification and conservation of wetland areas. This section
identifies tools that can assist local governments in carrying out the planning processes
identified above or in implementing plan objectives.
Environmental Guidelines for Development
In the context of comprehensive planning, many jurisdictions have adopted
environmental guidelines for development. These guidelines are intended to facilitate and
simplify the review of proposals for development and to assure that natural resources,
such as wetlands, are fully taken into account in the planning process.
These guidelines first identify areas or land types of particular concern, value,
hazard, or vulnerability. Once these lands are identified, the guidelines then specify what
actions must be taken by developers and by the local planning commission to assure that
the development is not inconsistent with the natural capacity of the land and its
environmentally significant functions. Montgomery County, Maryland has used
environmental guidelines to define the process for preparing a natural resources inventory
for development sites and for protecting natural resources during the development
process. The guidelines also provide detailed support for elements of the county's general
comprehensive plan (and local area master plans) that deal with sensitive areas as required
under Maryland state law. The guidelines direct the Planning Department to evaluate
proposed wetland impacts with the following sequence in order of preference: avoid the
impact, minimize the impact, rectify the impact by repair or restoration, reduce or
eliminate the impact by preservation and maintenance activities, and compensate for the
impact by replacing or providing substitute resources or environments.
Environmental guidelines may be adopted as separate portions of a comprehensive
plan, a Critical Areas plan, or a capital improvements plan, issued as advisory guidelines
by a planning commission, or independently adopted by ordinance. They are particularly
useful in providing certainty for development interests so that environmental requirements
can be taken into account before any project is planned or pursued. In addition, they can
help a local government provide a consistent level of protection to a critical resource such
as a wetland or riparian area.
24 Protecting Wetlands: Tools for Local Governments
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Environmental Advisory Councils
Planning is not simply the development and approval of a document or even a set
of maps identifying land use objectives. Rather, it is a process that must be flexible
enough to deal with new issues and rising concerns. Neither the pattern of economic
development nor the significance of ecological features is always well understood at the
outset of the planning process. Accordingly, it is useful to develop a method for
integrating environmental concerns into ongoing planning and decision-making.
Pennsylvania's General Assembly passed an act in 1978 that authorizes
municipalities, or groups of municipalities, to establish environmental advisory councils
(EACs). EACs are established by ordinance, and they are responsible for advising the
local planning commission, park and recreation board, and elected officials on issues that
affect the protection, conservation, management, promotion and use of natural resources
in the area. Council members are appointed by local governing bodies, and it is
recommended that one member also serve on the municipal planning board.
EACs can promote municipal wetlands protection by participating in updating the
comprehensive plan or designing natural resource ordinances that specifically protect
wetlands. The EAC in East Hanover Township, Pennsylvania, for example, developed a
Natural Resource Inventory to assist the township in updating its Comprehensive Plan.
The Inventory included a mapping project that identified the area's wetlands to aid in local
decision-making. The EAC also developed and wrote a free-standing wetlands ordinance
which was adopted by the Board of Supervisors in 1992. The Pennsylvania
Environmental Council, a statewide conservation organization, has created The EAC
Network to encourage the establishment of new EACs by Pennsylvania local governments
and to promote the effectiveness of existing councils, strengthen their role in
environmental decision-making, and encourage the Commonwealth to provide them with
assistance.
Although EACs are formally recognized under Pennsylvania law, planning
commissions in other states have made use of collaborative citizen groups to help identify
and work on significant areas of environmental concern. In Virginia, several regional
planning district commissions have organized councils to assist them in long-range
planning involving environmental and other issues. For example, the Dragon Run Steering
Committee plays a key role in identifying and addressing environmental impacts to the
wetlands and other resources of a 40 mile long tributary to the Chesapeake Bay on
Virginia's Middle Peninsula. Maryland counties have also created environmental planning
organizations for advisory purposes. For example, Harford County's Environmental Land
Preservation Commission, established in 1990, carries out key planning for the protection
of stream buffers and open space.
Creation of an advisory body can elevate the importance of wetlands and other
environmental resources as a community makes decisions about its development and
infrastructure. Environmental advisory councils can serve an important role in identifying
Chapter Two: Planning 25
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opportunities for conservation and in developing responsive strategies that are consistent
with community values.
Advance Identification (ADID)
The guidelines for the federal Clean Water Act (40 C.F.R. § 230.80) provide for a
planning process to identify, in advance of permit applications, whether areas are suitable
for discharges into waters of the United States, including wetlands. The advance
identification process (ADID) is carried out jointly by the U.S. Environmental Protection
Agency and the Army Corps of Engineers, in cooperation with local governments who are
attempting to determine where wetland areas are and how they might be affected by
development activities. Advance identification studies are typically conducted in areas
that have important wetlands resources and either an identified or anticipated increase in
development activity. States in which ADIDs are conducted have a consultation role that
often includes local governments.
The advance identification process usually involves an assessment of wetlands
functions and values in the area. This information is evaluated by the agencies to
determine which wetlands in the study area have ecologically significant values and should
be protected from future fill activities and to determine, in some cases, which wetlands are
of lower value and could serve as fill sites. Results of the ADID study are informational
and advisory, not regulatory. However, the results of an ADID study may be used to
support a range of actions. For example, the Corps may issue general permits for certain
activities in areas designated as suitable for disposal.
ADID studies can be designed to aid local and statewide zoning and planning
efforts and preservation of wetland resources. Several advance identification efforts have
been coordinated with efforts to adopt Special Area Management Plans (SAMPs, see
above), and several have included mitigation banking components. For example, in West
Eugene, Oregon, the ADID process led to the adoption of a § 404 general permit allowing
local control over wetlands development. Because the ADID was incorporated into the
City of Eugene's general comprehensive plan and land use law, the ADID effort also
streamlined the regulatory process. Another ADID wetland mapping project was
conducted in a 500-acre area of Quakertown Swamp in Bucks County, Pennsylvania
because of concern for cumulative and water quality impacts on the land. The region had
been recognized as significant by the Pennsylvania National Diversity Inventory and was
under increased threat of urbanization. The mapping, predominantly carried out by the
Bucks County Conservancy, enabled all parties to determine which wetlands are generally
unsuitable for filling and provided technical information on the Swamp's wetlands values
and functions to the local community.
ADID has not been extensively used in the Chesapeake Bay watershed but may
provide a tool that can assist in the development of local plans and strategies.
26 Protecting Wetlands: Tools for Local Governments
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CONCLUSION
Planning tools can be critical components of a wetlands strategy. Planning enables
a community to evaluate its natural assets and to accommodate plans for future growth or
development while protecting and enhancing these assets. Although planning alone is
never sufficient to accomplish all of the wetlands protection that is needed, it provides an
important foundation for the use of the other tools discussed in the succeeding chapters of
this handbook: regulatory approaches, incentives, acquisition, and technical assistance.
Planning can also be an important boost to voluntary conservation efforts and to the
encouragement of an environmental ethic within the community. People and organizations
work to protect what they care about, and they care about what they know. If planning
can increase knowledge of the importance of wetlands and associated resources, that
knowledge can itself produce action and responsibility.
RELATED CASE STUDIES
For more examples of how planning tools have been used in the Chesapeake Bay
watershed, refer to the following case studies at the end of this handbook:
Comprehensive Plan: Lycoming County, PA CS-1
Environmental Advisory Commission: East Hanover Twp., Dauphin County, PA . . CS-2
Environmental Land Preservation Commission: Harford County, MD CS-3
Environmental Guidelines: Montgomery County, MD CS-4
Environmental Quality Corridors: Fairfax County, VA CS-5
Watershed Planning: Middle Peninsula Planning District, VA CS-6
Watershed Information and Planning: Elizabeth River, VA CS-7
Heritage Greenway Planning: Lower Susquehanna River, MD CS-8
Special Area Management Plan: Baltimore County, MD CS-9
Special Area Management Plan: Northampton County, VA CS-10
Utility Siting and Construction: Baltimore County, MD CS-30
REFERENCES
Allegheny Land Trust. 1995. Pennsylvania Land Conservation Handbook: A Guide for
Conservation Organizations, Municipalities, and Private Landowners. Andrew Loza, ed.
Pittsburgh, PA.
Big Annemessex River Nontidal Wetlands Watershed Management Plan. Dec. 1993. Prepared for
Somerset County, Department of Technical and Community Services by Geenhorne & O'Mara, Inc.
Chapter Two: Planning 27
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Ceberio, Robert and Deborah Alaimo Lawlor. My/Aug. 1995. "A Plan for the Beleaguered
Meadowlands." National Wetlands Newsletter. 17(4): 10-13.
Chesapeake Bay Program. Dec. 1995. Chesapeake Bay Communities: Making the Connection.
U.S. Environmental Protection Agency: Annapolis, MD.
Coughlin, Robert E., Joanne R. Denworth, et al. 1993. Guiding Growth: Building Better
Communities and Protecting our Countryside, 3rd ed. Pennsylvania Environmental Council:
Philadelphia, PA.
Environmental Law Institute. 1995. Building on the Blueprint: How Virginia's Communities are
Implementing Sustainable Development. Environmental Law Institute: Washington, D.C.
Lower Susquehanna Heritage Greenway Coordinating Committee. May 1993. Lower Susquehanna
Heritage Greenway: Overview. Lower Susquehanna Heritage Greenway Coordinating Committee:
Annapolis, MD.
Maryland Office of Planning. Managing Maryland's Growth: What You Need to Know About the
Planning Act of 1992. Maryland Office of Planning: Baltimore, MD.
Meyers, Erik, R. Fischman, and A. Marsh. 1995. "Maryland Chesapeake Bay Critical Areas
Program: Wetlands Protection and Future Growth," in Porter, D. and D. Salvesen (eds.)
Collaborative Planning for Wetlands and Wildlife. Island Press: Washington, D.C.
Pennsylvania Department of Environmental Resources. Feb. 1990. Wetlands Protection: A
Handbook for Local Officials. Environmental Planning Information Series Report #7. Prepared by
the Environmental Law Institute. Harrisburg, PA.
The EAC Network. Environmental Advisory Councils: A Brief Overview. Pennsylvania
Environmental Council: Philadelphia, PA.
U.S. Environmental Protection Agency. April 1994. ADID Project Summary: Hackensack
Meadowlands. Fact Sheet. U.S. EPA: Washington, D.C.
World Wildlife Fund. 1992. Statewide Wetlands Strategies: A Guide to Protecting and Managing
the Resource. Island Press: Washington, D.C.
28 Protecting Wetlands: Tools for Local Governments
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Chapter Three:
#
Regulation
Zoning Tools to Protect Wetlands 30
Cluster Zoning and Planned Unit Development 31
Resource Protection Zones 32
Performance-based Zoning 32
Overlay Zones 33
Transferable Development Rights (TDRs) 34
Bonus/incentive Zoning 35
Large Lot Zoning 35
Agricultural Protection Zoning 36
Urban Growth Boundaries 37
Subdivision Regulations and Related Permits 37
Environmental Guidelines for Development 38
Exactions and Proffers 38
Wetland, Floodplain and Stormwater Management Ordinances
Infrastructure Regulatory Tools
Conclusion
Related Case Studies
References
40
40
41
41
42
Local governments have the authority to protect wetlands using a variety of forms
of local regulation authorized by state laws. When coupled with wetlands planning, local
government regulation can be a particularly valuable tool for wetlands conservation.
Regulation by local governments can take a variety of forms, from zoning tools, to
subdivision regulations, to direct wetland and floodplain controls.
Regulation in support of wetlands conservation is an important tool for local
governments. Regulation has the advantages of enforceability and predictability. It allows
landowners to know in advance what is lawful and what protective obligations apply. It
also offers significant flexibility to local governments because of the wide variety of
approaches that can be adopted ~ particularly in the zoning context.
On the other hand, regulation is not always politically feasible or effective in
protecting important wetland areas, particularly where existing development pressures are
intense. Regulation works best when it is coupled with other tools, such as
comprehensive planning or watershed planning and incentive mechanisms that encourage
compliance. Incentive mechanisms can also be built into regulatory approaches such as
performance-based zoning, transferable development rights, or bonus/incentive zoning.
-------
ZONING TOOLS TO PROTECT WETLANDS
Zoning is the most common form of local land use regulation in the United States.
It is used, among other things, to identify and protect resources important to the
community and to coordinate the timing and character of the community's economic
development. Zoning helps to minimize the conflicts between incompatible land uses and
provides for the location of public services and infrastructure. Zoning's prevalence, public
acceptance, and inherent flexibility make it a useful tool for local governments interested
in conserving a community's wetlands.
Zoning is carried out by local governments under the powers given to them by
state law. Local governments typically use zoning to divide their local area into zones
(often called "districts"). In these zoning districts, the zoning ordinance prescribes which
specific uses are authorized, which are conditionally authorized, and which are prohibited.
For example, if an area is zoned as residential, a landowner may construct a house as a
matter of right; whereas, certain kinds of commercial establishments may be authorized in
the zone case-by-case only if they meet certain conditions (e.g., day-care centers,
convenience stores). Industrial and most commercial uses may be entirely prohibited. The
same kind of zoning may be used to establish building lot sizes or resource protection
areas. Zoning ordinances in the Chesapeake Bay region can provide a basis for wise
conservation of wetlands on private and public lands consistent with the economic and
social goals of the community.
Before adopting a zoning ordinance, the local government prepares a
comprehensive plan identifying land uses and objectives (See Chapter 2). But it is the
zoning ordinance that actually regulates land use practices ~ not the underlying
comprehensive plan. Although the procedures for zoning vary state-by-state, and also
within states based on the law governing the type of governmental unit doing the zoning
(e.g., a county, city, township, borough, town), zoning is carried out in a similar fashion in
most jurisdictions. In general, the zoning ordinance is developed by the locally appointed
planning board and is enacted into law by vote of the elected local government after public
hearings. Zoning ordinances are amended in the same fashion. Amendments to zoning
ordinances are particularly important because localities whose existing zoning does not
address wetland protection can amend their ordinances to take wetlands into account.
This chapter discusses several basic zoning tools that can be used to protect
wetlands. There are many others available. Note that regulatory tools are useful not only
for protecting wetlands themselves, but also for protecting the surrounding upland areas
that contribute to the health of the wetlands. A wetland area surrounded by impervious
surfaces ~ such as roofs and parking lots -- is unlikely to maintain valuable wetlands
functions. Rapid runoff from the impervious areas will bring sediment and pollutants into
the wetland, degrading it and killing its living resources. The increased speed of the runoff
30 Protecting Wetlands: Tools for Local Governments
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from impervious surfaces will dislodge wetland soils and vegetation, reducing the
structural integrity of the wetland. Zoning can help protect both wetlands and the lands
which drain into them, while still accommodating and encouraging appropriate community
development.
Zoning tools that may be useful for wetland protection include cluster zoning,
planned unit development, performance-based zoning, resource protection zones, overlay
zones, transferable development rights, bonus/incentive zoning, large lot zoning,
agricultural protection zoning, and urban growth boundaries. Each of these zoning tools
is further illustrated by examples in the Case Study portion of this guide.
Cluster Zoning and Planned Unit Development
Because of concern with the adverse effects of sprawl ~ both on the environment
and on the costs of infrastructure, such as sewers, roads, schools -- many zoning
ordinances provide for cluster development (sometimes called open space zoning) or for
planned unit development. These techniques provide ways in which developers can set
aside larger areas of open space to protect sensitive features such as wetlands, steep
slopes, or recreational areas while concentrating the construction on a smaller area of the
tract.
If a 50-acre parcel would, under typical residential zoning, support 90 houses on
half-acre lots ~ not counting roads and other infrastructure ~ use of the cluster zoning
approach might concentrate the 90 units on half the parcel, while dedicating the rest for
open space, including wetlands. Even higher development densities are sometimes
awarded for clusters to encourage open space preservation. For example, 110 units might
be approved for the developed half of the parcel in exchange for the protection of the
remainder of the parcel.
Planned unit development rules operate in a similar fashion, except that the
developer is encouraged to propose a clustered development rather than required to do so.
Cluster zoning and planned unit development can reduce the costs of new roads, utilities,
and other infrastructure, while preserving sensitive areas such as wetlands and their
surrounding uplands. The resulting open space can even become an amenity, often
resulting in higher values for the clustered units.
These cluster approaches are particularly useful in areas where the remaining open
land can be part of a larger assemblage of private and public lands that provide ecological
and recreational values. Not only is this helpful from a practical perspective by preserving
the biological and hydrologic functions of wetlands and their surrounding uplands, but also
it increases the value of the developed area, making the economics of the development
work. Moreover, experience has shown that the purchasers of units are likely to become
Chapter Three: Regulation 31
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advocates for the continued protection, maintenance, and ecological functioning of the
open space over the longer term, as it affects both their quality of life and their investment.
Resource Protection Zones
Some local governments use zoning to create resource protection zones. The
zoning ordinances directly limit or prohibit incompatible development within these zones.
Resource protection zones may, for example, protect wetlands that are essential to the
water quality of a community's drinking water supply. Typically, the uses authorized
within these zones are low intensity practices such as harvesting of wild crops, hunting and
fishing, conservation activities, and temporary uses. Certain uses, such as construction of
permanent structures or siting of waste disposal areas, are prohibited outright; whereas,
other medium intensity uses may be allowed only under a conditional use permit.
Typical resource protection zones for wetlands established by local governments in
the Chesapeake Bay region include stream buffer zones. These protect the fragile areas
around streams from activities that may cause erosion, instability of the streambank, or the
entry of pollutants into the waterway. Zoning ordinances use two general approaches to
establish resource protection zones for stream buffers — fixed buffers and floating buffers.
A fixed buffer zone may, for example, prohibit any development within 200 feet from the
mean high-water line of a perennial stream or within 50 feet of the margin of a wetland.
Alternatively, a fixed buffer can be supplemented with a floating buffer zone based on site-
specific characteristics, including soil and runoff characteristics (such as steep slopes) or
the occurrence of wetlands within the limits of the fixed-buffer.
Resource protection zones are best used when the resource is well understood and
its connection to the well-being of the public health, safety, and welfare can be readily
demonstrated. Because activities are significantly restricted within the zone, particular
care must be taken to assure that the limitations on the use of private property are
proportional to the governmental concern to be addressed.
Performance-Based Zoning
Standard zoning ordinances identify specific geographic areas on the zoning map
where certain uses are authorized, conditionally authorized, or prohibited as well as the
terms and conditions for such uses in each zone (such as development densities or kinds of
facilities). The standard approach thus dictates the form of development that is permitted
to occur in an effort to achieve predictable results.
32 Protecting Wetlands: Tools for Local Governments
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In contrast, performance-based zoning ordinances identify the performance criteria
that must be met by any development in the zone, but allow broad variation in the forms of
the development activities themselves. Performance-based zoning gives the developer
flexibility in planning and designing the development as long as the local government's
public objectives (performance standards) are fully met.
For example, a performance-based zone may set a standard for natural resource
protection, such as preserving wetlands, and a standard for nonimpervious surfaces but be
silent on such traditional matters as minimum lot size or building type. Depending upon
how the developer decides to meet the standards, the developer in such a zone may build
more or fewer structures, cluster them, disperse them, or mix different building types. The
zoning requires only that the developer satisfy the protective requirements. Thus,
performance-based zoning allows substantial creativity on the part of the developer in
meeting the public's needs identified in the zoning ordinance. Performance-based zoning
offers an exchange: the development community achieves greater flexibility (and hence
ability to innovate for increased financial return). In exchange, the local community
assures that its land use or resource concerns are addressed.
Performance-based zoning offers many advantages over standard zoning, but
ordinances must be carefully tailored in order to assure that the objectives of the
community's comprehensive plan are incorporated in the zoning requirements. In addition,
the local government's professional staff dedicated to reviewing development proposals
and site plans must be well-qualified since the determination of whether a given proposal
will meet the performance criteria is more difficult than simply determining that the
development meets standard zoning requirements.
Overlay Zones
Overlay zones are a type of resource protection zoning that is superimposed on
traditional zoning to protect specially recognized values, while still allowing the underlying
use in suitable forms. For example, an area may be zoned for commercial use, but part of
the area may also be subject to an overlay zone to protect a sensitive watershed or
wetland. Commercial uses in this overlay area would need to meet additional
requirements ~ such as reduction of impermeable area, greater control of runoff, or
vegetation requirements — in order to operate within the zone. Overlay zones may also
include requirements which specify, for example, the percentage of land that must be set
aside before calculating the subdividable and developable remainder.
Overlay zones are useful where there is a particular resource issue that cuts across
a number of different development areas. They are particularly helpful for protecting
wetlands in areas where wetlands lie within several different zoning districts. An overlay
Chapter Three: Regulation 33
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zone may establish the basis for a buffer around a wetland area or special vegetation
protection requirements. Overlay zones can also be used to designate areas where
transferable development rights may be created and where they may be used. (See
discussion below).
Transferable Development Rights (TDRs)
Transferable development rights (TDRs) are a variation on traditional zoning.
They are used when it is desirable to limit development in a particular area to protect
resources, such as wetlands, open space, or farm land, and to concentrate development in
another area. Specifically, instead of simply imposing limits in sensitive areas, this
approach recognizes development rights in the areas where development is limited but
allows the rights to be used in other areas.
TDRs are based on the concept that the development rights associated with land
can be severed from the land and used in another location. With TDRs, landowners in
sensitive areas where development is limited (or even prohibited) by a zoning ordinance
may sell their development rights to those wishing to develop in other areas of the
community where development is desired. The purchase of these TDRs allows a
developer in the receiving zone to exceed normal zoning or subdivision limitations on
density, height, or other requirements. Thus, with TDRs, the wetland owner whose
development opportunities have been limited by a zoning ordinance not only remains in
possession of the undeveloped property, but can also derive an economic return on the
development potential of the land. At the same time, developers in areas where
development is desired or can be better tolerated can engage in even more intensive uses
of their property.
TDRs can be used to protect wetlands and surrounding uplands but are best used
when there is a substantial area to be protected and a practical limit on the developable
land otherwise available within the local jurisdiction. Unless there is some demand for the
use of the TDRs, there will be no purchasers; conversely, unless a significant number of
TDRs are available, purchases will not be economically worthwhile for the developer.
Thus, TDRs are most likely to be useful in the wetlands context where there is a fairly
large area that is to be set aside from intensive development (probably containing both
wetland and sensitive uplands, and perhaps lands in agricultural use), and at the same time
there is a development demand that can be focused on specific areas where TDRs can be
used. If a significant amount of unrestricted developable land is widely available in the
jurisdiction, a TDR approach may not work well because there will be no advantage to a
developer buying them. To date, TDRs have worked most successfully in areas where
34 Protecting Wetlands: Tools for Local Governments
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they have been used to protect farmland and where suburban development pressures have
been significant.
Bonus/Incentive Zoning
Bonus or incentive zoning shares some of the characteristics of transferable
development rights, except that the additional development rights are generated and used
by the developer itself rather than purchased from another landowner. Incentive zoning
also resembles performance-based zoning, except that instead of setting a performance
standard that all development must meet, incentive zoning sets both a standard set of
conditions and an optional set of incentives that the developer may choose to meet in
exchange for more flexibility. For example, an incentive zoning ordinance may allow a
developer in a particular zone to build at a higher density than is normally allowed in that
zone //the developer sets aside additional open space or adopts certain energy saving or
transportation measures.
Incentive zoning can be effectively used to protect wetlands. For example, in an
area where there is concern about rapid runoff of rainwater, incentive zoning may allow a
developer to exceed height limitations or construct larger multiple unit dwellings than are
normally allowed if the developer reduces impervious surface by providing underground
parking, creates artificial wetlands, or establishes native vegetation on a sizable portion of
the parcel. The developer is not required to do any of these things, but there is an
incentive to propose one or more of them as part of the development plan.
Incentive zoning cannot be relied upon to accomplish all desired protection of
wetlands in an area because its effectiveness ultimately depends upon numerous private
decisionmakers deciding that the bonus is economically significant to them and compatible
with their other project objectives. It is best used as a way of encouraging a trend toward
desired behavior that already has other elements working in its favor. For example, in
areas where stormwater or zoning requirements already favor maintenance of vegetated
open space, incentive zoning may provide a bonus treatment where wetlands are restored
as part of that open space.
Large Lot Zoning
Because zoning has traditionally concerned itself with community density and
minimum lot sizes, one of the earliest land and wetland conservation approaches to arise
was large lot zoning. For example, large lot zoning might require each house constructed
within a zone occupy a building lot of at least 5 acres, or even 30 acres. The theory is that
Chapter Three: Regulation 35
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spreading occupancy thinly across the landscape will conserve open space and reduce
impacts to groundwater, wetlands, habitat, and other resources.
However, large lot zoning may also produce undesirable effects in some areas,
including the promotion of exurban sprawl, the fragmentation of habitats and
hydrologically sensitive areas (with roads, power lines, etc.), increased pressure on public
services like roads, schools, and sewerage, and the exclusion of lower income residents
who cannot afford such large parcels of land. Indeed, some forms of large lot zoning have
been rejected by the courts where they are not closely tied to a proper public purpose. For
example, local governments must demonstrate a purpose other than exclusion of lower
income residents. Large lot zoning is still used in many jurisdictions, and some
jurisdictions have maintained large lot zones over time in sensitive areas, but the tool has
been justly criticized on conservation grounds as less protective than other tools discussed
in this section.
Agricultural Protection Zoning
Development pressures often lead to the conversion of agricultural land to
developed uses; this can have an adverse impact on agricultural wetlands. Agricultural
zoning is used to keep productive or sensitive lands in agricultural use in designated zones.
There are several types of agricultural protection zoning used in the Chesapeake Bay
watershed.
One approach simply establishes large minimum lot sizes at a level that makes non-
agricultural use unattractive. This approach can be effective, but it does not assure the
continuation of farming. Clarke County, Virginia uses a variation on the large-lot zoning
approach in agricultural areas. Subdivisions of agricultural land must produce parcels
greater than 100 acres, or less than or equal to 1 acre. This requirement discourages 5-20
acre "farmettes" while concentrating development.
A second approach uses an area-based allowance to specify how many dwelling
units may be built on the parcel, but ~ like cluster zoning — requires that the dwellings be
built on small lots, leaving the rest of the parcel dedicated to agricultural uses. The area-
based approach may also include requirements that the dwelling units be built on poor
soils or areas where they will not impair farming activities. Area-based agricultural
protection zoning may determine how many units can be built either by establishing a fixed
density such as one housing unit for every 30 acres in the tract, or by using a sliding scale
that allows proportionally fewer units as the size of the tract increases. The sliding scale
provides proportionally more restrictions on larger tracts on the grounds that these are the
most likely to remain economically viable for farming, while not prohibiting subdivision
and development outright.
36 Protecting Wetlands: Tools for Local Governments
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Several Maryland counties have adopted mandatory cluster zoning in agricultural
areas. Several Virginia jurisdictions use the large-lot approach. Pennsylvania local
jurisdictions have used several different forms of area-based agricultural protection
zoning, as well as large lot zoning for the same purposes.
Urban Growth Boundaries
A local government may use its zoning authorities to define an urban growth
boundary within which urban infrastructure and development are authorized and
encouraged, and outside of which they are discouraged. The boundary line is used to
accommodate foreseeable development needs in a relatively compact area within which
municipal services can be provided. Outside the boundary, development is restricted or
encouraged at a much lower density. This technique is used to control exurban sprawl and
to encourage infill (development of vacant lots and rehabilitation or replacement of
obsolete buildings) and compact development of urban centers. Frequently, this approach
also streamlines development approval processes within the boundary to provide a further
incentive for development to occur in this area.
The urban growth boundary has incidental benefits for wetlands, since certain
wetland areas slated for protection may be outside the boundary and thus spared some of
the development pressures they would otherwise experience. However, by concentrating
development inside the growth boundary, particular care must be given to wetlands in the
development area which may be adversely affected.
SUBDIVISION REGULATIONS AND RELATED PERMITS
Whether or not zoning ordinances are in place, most jurisdictions have enacted
subdivision controls. Typically these ordinances regulate the size of new lots that can be
subdivided from larger parcels of undeveloped land, specify the dedication of lands for
utilities, roads, and sidewalks, prescribe requirements for stormwater management and
other concerns, and indicate how buildings may be placed on buildable lots (setback
requirements, minimum design requirements, etc). Subdivision ordinances can be used to
require avoidance of wetlands by excluding wetlands and other sensitive areas from
buildable lot areas. They can also be used to impose controls on larger developments so
that disturbance of wetlands is minimized.
Related to subdivision regulations is the process local governments use to oversee
particular development proposals, such as site plan approval and the issuance of grading
permits and building permits. Ordinarily, any significant development will trigger a
Chapter Three: Regulation 37
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requirement for local government approval of the site plan to be sure that all zoning and
subdivision requirements have been met. These requirements include such factors as the
provision of utilities, sewerage or on-lot disposal, traffic plans, erosion controls, open
space, and safety. In addition to site-plan approval, many jurisdictions also require an
application for issuance of a grading permit before any land clearing activities begin. This
ensures that all necessary erosion and water quality controls are in place. Building permits
are required by most jurisdictions before construction activities or substantial
modifications of existing structures can be undertaken and are required even for activities
by individual landowners. Each of these approval processes provides an opportunity to
assure that the development activity is in compliance with required standards, including
standards that may affect wetlands.
Wetland conservation and mitigation for wetlands impacts can be integrated into
the standard approval processes if the proper ordinances are in place. There are also
additional tools that can make subdivision regulation more effective, including the
development of environmental guidelines and the use of proffers or exactions. (See
below.)
Environmental Guidelines for Development
The effectiveness of subdivision regulations in protecting wetlands can be
enhanced if the local government or planning board adopts environmental guidelines for
development (See Chapter 2). These guidelines can set out the standard terms and
conditions that must be taken into account for approving any development or subdivision.
Typically, guidelines will cover the identification and long-term protection of
environmentally sensitive features such as wetlands, as well as the techniques to be used
during construction or other development activities, to prevent damage to these features.
Often, the comprehensive plan and zoning ordinance will identify and articulate
broad goals and objectives. Environmental guidelines provide the next level of detail and
specificity ~ translating the broader goals and objectives into concrete actions that are
applied as subdivision and development activities are approved. Montgomery County,
Maryland, for example, has adopted environmental guidelines that, in the words of the
guidelines themselves, "provide the detailed criteria and methods for implementation of
these [plan] goals at the regulatory review level."
Exactions and Proffers
Subdivisions and development require approval by local governments. Because
the development of subdivisions can produce additional costs for the host municipality ~
by increasing the need for roads, public services, schools, park land, and open space ~
many municipalities will grant subdivision plan approval only where some provision has
38 Protecting Wetlands: Tools for Local Governments
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been made to provide for these services. Two basic approaches are used. In states that
allow "exactions," the local government imposes conditions upon approvals that require
the dedication of land, provision of certain amenities, or payment of money ("impact
fees"). In states using the "proffer" system, the local government may not impose these
conditions, but instead negotiates with the developer over what the developer may be
willing to contribute. In practice, proffers often resemble exactions because developers
desiring expeditious approval of their subdivision plans will agree to mitigate anticipated
adverse impacts in order to satisfy local planning boards.
Exactions and proffers can be used to protect open space and features of common
usefulness that may be adversely affected by increased development -- such as wetlands
and riparian areas.
In Pennsylvania, a municipality may condition a subdivision approval upon the
dedication of land for park or recreation purposes. To do so, the governing body must
have a formally adopted recreation plan, and the dedicated facilities must be in accordance
with the land development ordinance. Impact fees are also authorized in Pennsylvania
under a 1990 amendment to the Municipalities Planning Code; however, the use of these
fees is limited to off-site transportation road improvements.
Maryland provides for exactions. The use of impact fees is implied, though not
explicitly stated, in Maryland's planning and zoning code under Article 66B. Specifically,
eight counties in Maryland (Anne Arundel, Baltimore, Calvert, Carroll, Charles,
Montgomery, Queen Anne's, and St. Mary's County) have the power to impose these
types of fees. Typically, impact fees are used for infrastructure improvements, but they
may be dedicated in some areas to parks and open space. Similarly, the use of exactions
for the dedication of land varies in Maryland from county to county. In most counties the
dedication of specific lands as a condition for subdivision approval is limited to public
infrastructure, such as roads, sewers, and schools, but it may be available in some counties
for the provision of parkland or recreational space.
Virginia uses the proffer system, which relies on negotiation between developers
and local planning commissions. The use of proffers is only applicable for rezoning
actions. Proffers are limited to counties in Northern Virginia and the Eastern Shore and to
cities and counties that experienced more than a 10% increase in population between 1980
and 1990.
Exactions and proffers provide a direct means of land use regulation to provide for
wetland conservation in the context of development of a particular site. However, these
are generally not sufficient to provide comprehensive protection of a wetland resource
because they depend upon the approval of specific development proposals, the timing and
focus of which are not within the control of local governments. Exactions and proffers
are, at best, a worthwhile supplement to a more comprehensive set of zoning tools aimed
at the conservation of wetland areas.
Chapter Three: Regulation 39
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WETLAND, FLOODPLAIN AND STORMWATER MANAGEMENT
ORDINANCES
Local governments can also exercise direct regulatory power, apart from their
zoning ordinances, to protect wetlands. Some ordinances directly regulate activities in
and around wetlands and other water bodies. For example, Baltimore County, Maryland,
adopted regulations to protect water quality, streams, wetlands and floodplains. The
regulations provide for the delineation and reservation of areas along streams and their
associated floodplains, wetlands, and steep or erodible slopes. Riparian areas must be left
undisturbed to promote vegetation growth.
Many jurisdictions limit development activities in floodplains ~ both to protect the
integrity of the floodplain and any associated wetlands and to protect structures and
development from flood damage. The use of these authorities at the local level, as
authorized by state law, can seriously improve the protection of wetlands and the
prevention of damage to property both on and off the site.
Ordinances can also require the preparation and implementation of stormwater
management plans. These can be an important conservation tool because an effective plan
will protect streams and wetland areas from excess runoff and nonpoint source pollution.
An effective storm management ordinance will prohibit development in the 100-year
floodplain and in defined buffer zones along stream corridors and drainage areas identified
for protection. Many of these areas contain wetlands. In addition, under some
circumstances wetlands can be an effective stormwater management structure. Some
jurisdictions have encouraged the construction of wetlands in connection with
development in order to control stormwater and provide other incidental wetlands values.
All three of the Chesapeake Bay states authorize local governments to manage
stormwater. Pennsylvania requires stormwater management plans of all counties under
the Stormwater Management Act. These plans must be reviewed and revised at least
every five years. Within six months of adoption of a new plan, each municipality within
the county must implement zoning and other ordinances consistent with the management
plan. Maryland's law requires counties and municipalities to adopt ordinances to
implement a stormwater management program and requires developers to submit
stormwater management plans for approval. Virginia's law also authorizes local
governments to adopt stormwater management programs.
INFRASTRUCTURE REGULATORY TOOLS
Local governments can protect wetlands through the regulation of public and
private infrastructure. For example, local approval of sewage facilities can be conditioned
on wetland protection activities. Because the provision of sewer service can promote
development, it must be considered for both its direct and indirect impacts. Each state in
the region has a role for local governments in the planning and approval of such facilities.
40 Protecting Wetlands: Tools for Local Governments
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In Pennsylvania, for example, the Sewage Facilities Act's planning requirements authorize
local governments to exercise authority over the approval of sewage facilities for private
developments.
A related tool is a policy of consistency in public infrastructure. For example,
under Maryland law, the state may not fund public works or capital improvement projects
unless the project is consistent with the state's Economic Growth, Resource Protection,
and Planning Policy or the plan of the local jurisdiction where the project is to be located.
The use of regulatory tools to affect infrastructure development can result in
avoidance of wetlands loss, mitigation of unavoidable losses, and affirmative protection of
wetlands.
CONCLUSION
Regulatory tools can be a powerful means of protecting wetlands while providing
for development. Such tools are most useful where a planning process has identified a
jurisdiction's natural assets and its development goals. There are many ways to structure
zoning and subdivision regulation so that they achieve desired results while providing
predictability and certainty to landowners. In addition, regulation of floodplains,
stormwater, and location of public infrastructure can have a profoundly positive effect on
wetlands conservation.
RELATED CASE STUDIES
For more examples of how regulatory tools have been used in the Chesapeake Bay
watershed, refer to the following case studies at the end of this handbook:
Comprehensive Plan: Lycoming County, PA CS-1
Environmental Advisory Commission: East Hanover Township,
Dauphin County, PA CS-2
Watershed Planning: Middle Peninsula Planning District, VA CS-6
Wetland Protection Regulations: Calvert County, MD CS-11
Wetland Protection Regulations: Baltimore County, MD CS-12
Subdivision Ordinance: East Hanover Township, Dauphin County, PA CS-13
Subdivision Ordinance: West Lampeter Township, Lancaster County, PA CS-14
Subdivision Regulations: Prince George's County, MD CS-15
Mandatory Cluster Development: Calvert County, MD CS-16
Authorized Cluster Development: Kent County, MD CS-17
Authorized Cluster Development: Monaghan Township, York County, PA CS-18
Cluster Development with Transferable Development Rights: Talbot County, MD . CS-19
Cluster Development Combinations — TDRs and Overlays: Howard County, MD . CS-20
Chapter Three: Regulation 41
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Transferable Development Rights: Shrewsbury Township, York County, PA CS-21
TDRs with Purchase of Development Rights: Calvert County, MD CS-22
Installment Purchase Program: Howard County, MD CS-23
Resource Protection Zone: Charles County, MD CS-25
Overlays and Buffer Zones: Harford County, MD CS-26
Performance Based Zoning: Queen Anne's County, MD CS-27
Floodplain and Wetland Protection Regulations: Howard County, MD CS-28
Wetland Mitigation Guidelines: Baltimore County, MD CS-29
Utility Siting and Construction: Baltimore County, MD CS-30
REFERENCES
Center for Rural Pennsylvania. Sep. 1995. Zoning for Farming: A Guidebookfor Pennsylvania
Municipalities on How to Protect Valuable Agricultural Lands. Harrisburg, PA.
Coughlin, Robert E., Joanne R. Denworth, et al. 1993. Guiding Growth: Building Better
Communities and Protecting Our Countryside, 3d ed. Pennsylvania Environmental Council:
Philadelphia, PA.
Pennsylvania Department of Environmental Resources. Feb. 1990. Wetlands Protection: A
Handbook for Local Officials. Environmental Planning Information Series Report #7. Prepared by
the Environmental Law Institute. Harrisburg, PA.
Platt, Rutherford H. 1996. Land Use and Society: Geography, Law, and Public Policy, 2nd ed.
Island Press: Washington, D.C.
U.S. Environmental Protection Agency. Oct. 1992. Protecting Coastal and Wetlands Resources: A
Guide for Local Governments. U.S. EPA, Office of Water: Washington, D.C. EPA 842-R-92-002.
World Wildlife Fund. 1992. Statewide Wetlands Strategies: A Guide to Protecting and Managing
the Resource. Island Press: Washington, D.C.
42 Protecting Wetlands: Tools for Local Governments
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Chapter Four:
#
Incentives
Real Estate Tax Incentives 43
Maryland Environmental Trust 44
Maryland's Local Tax Credit Program 44
Maryland: Agricultural Tax Incentives 45
Pennsylvania: Clean and Green Tax Incentives 46
Pennsylvania: Act 515 47
Virginia: Land Use Assessment Law 47
Capital Improvements Programming 48
Conclusion 48
Related Case Studies 49
References 49
Local governments can use incentive mechanisms to encourage landowners to
conserve and maintain wetlands. Incentives include provisions in taxation of real estate
that encourage conservation as well as approaches to capital improvement expenditures
that have similar effects.
Incentive mechanisms are often desirable because they operate to encourage
voluntary behavior that is consistent with a community's goals. Moreover, incentives can
help increase acceptance of regulatory or planning objectives. Incentive mechanisms by
themselves, however, cannot always accomplish the full task of protecting functioning
wetlands in appropriate places. Incentive mechanisms tend to work best as supplements
to other tools that can be targeted to particular parcels of land and particular water bodies.
In addition, local governments may be limited in the types and quantities of incentives that
can be offered by provisions in State laws. All of the states in the Chesapeake Bay region
offer at least some opportunities for local governments to provide incentives for wetlands
conservation.
REAL ESTATE TAX INCENTIVES
Local and state governments can influence land use and the conversion of wetlands
or the maintenance of desirable land uses through provisions affecting taxes on real estate.
Taxing wetlands differently from other lands provides incentive mechanisms
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that can be used in combination with other conservation tools to encourage wetlands
conservation.
Tax incentives come in two general forms: differential assessment and differential
tax rates or tax relief. Each form of tax incentive must be authorized by State law in order
to be implemented at the local level. All of the Chesapeake Bay watershed States have
some provisions for tax incentives.
Differential assessment works by a local government reducing a landowner's tax
bill by assessing the land at its value for farming, wildlife habitat, or open space instead of
assessing it at its market value (for example, what it might sell for if developed to its
maximum potential economic value ~ such as what a developer might pay who wanted to
build a mall on the property). The lower assessed value results in lower taxes on the
property.
Local and state governments can also encourage landowners to keep their property
in specific uses, such as wetlands or open space, by providing tax credits or relief from
property taxes under certain circumstances. For example, these differential rates or tax
credits are available under some circumstances when an owner enrolls property in a
program with local or State land trusts.
This section examines a number of the programs available in Maryland,
Pennsylvania, and Virginia that can be used to protect wetlands.
Maryland Environmental Trust
Since 1986, Maryland has offered a property tax credit for landowners who donate
conservation easements to the Maryland Environmental Trust (MET) or a cooperating
local land trust (See Chapter 5). Maryland Environmental Trust's program offers 100
percent 15-year property tax credits for "unimproved" land subject to a conservation
easement. The unimproved portion of land enrolled in the easement is exempt from all
state and local property taxes for fifteen years; thereafter, it is taxed only at its value
subject to the easement and not at its highest use value. This property tax credit
complements the income and estate tax deductions that also usually result from donations
of conservation easements.
Because of the administrative costs associated with managing the easements,
MET's program is available only to easements greater than 25 acres.
Maryland's Local Tax Credit Program
To encourage protection of open space parcels under 25 acres, the Maryland State
Legislature passed State House Bill 6 in 1991, entitled "Property Tax - Credit -
Conservation Land." The bill enables local governments to adopt an ordinance that grants
up to 100 percent local property tax credits on land placed in a conservation easement
44 Protecting Wetlands: Tools for Local Governments
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donated to a land trust, or land that has been acquired by the trust for resale to a
government agency. Several Maryland counties, including Montgomery, Anne Arundel,
and Harford Counties, have adopted such ordinances, although the ordinances differ from
county to county.
For example, Montgomery County adopted a measure to offer a property-tax
credit for qualified individuals and corporate land donors who place property in
conservation easements. Under the tax credit program in Montgomery County, a
landowner who conveys a perpetual conservation easement on a parcel of land would
receive a 100 percent tax abatement on the parcel subject to the easement.
Anne Arundel County also adopted a tax credit from county real property taxes
levied on conservation land that is used to assist in the preservation of a natural area, for
environmental education, to promote conservation, or for the maintenance of a natural
area or wildlife sanctuary. The tax credit is granted annually for as long as the property
meets the definition of "conservation land." If the perpetual conservation easement on the
real property is terminated, or if the land trust sells the real property to a person other than
a government agency, the property owner is then responsible for all property taxes that he
or she should have been responsible for if the property tax credit had not been granted.
Harford County's tax credit program is administered by its Environmental Lands
Preservation Commission. The Commission establishes the criteria for eligibility and
approves the tax credit for conservation lands subject to a conservation easement donated
to a qualified conservation organization. It is not required that an applicable conservation
easement allow for public access. The tax credit on qualified conservation land is granted
for a period equal to the duration of the conservation easement and is subject to an annual
cap of $500.
Maryland: Agricultural Tax Incentives
Several counties in Maryland (Harford, Anne Arundel, Howard, Montgomery, and
Washington Counties) have enacted local ordinances to provide property tax relief to
landowners who enter their land in agricultural preservation districts or who sell
agricultural preservation easements to the Maryland Agricultural Land Preservation
Foundation. The main purpose of the state program is protection of the land and its
surrounding environment as agricultural land and woodland. To be eligible for the state
preservation program, a property must have at least 100 contiguous acres and must meet
specific soil classifications. A property that is less than 100 acres may constitute a
preservation district if it is characterized by special capabilities or production as a result of
soil or hydrologic features.
Land enrolled in an agriculture preservation district is restricted by a recorded
agreement between the landowner and the Maryland Agricultural Land Preservation
Foundation, an agency of the state housed at the Maryland Department of Agriculture.
The land may not be subdivided or developed and must be maintained in agricultural use
Chapter Four: Incentives 45
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for a minimum of five years.
Once an agricultural land preservation district is established, the landowner is
eligible to sell the development rights to the Foundation. (See Chapter 5). Apart from
ensuring the preservation of his or her land through conveyance of an easement,
landowners may also choose to participate in the program to receive tax credits from
county real estate taxes. For example, Anne Arundel County grants a 10-year tax credit
from county real estate property taxes on agricultural land and woodland if the property is
enrolled in an agricultural preservation district as defined by state law (Agriculture Article
of the State Code §2-509; Article 24, Title 2 of the County Code). Similarly, Calvert
County, Maryland grants a tax credit against county and municipal corporation property
taxes imposed on agricultural land that is located in an agricultural preservation district.
In Harford County, landowners can enroll their land in an agricultural preservation
district approved through either the state program or the Harford County Agricultural
Land Preservation Program. In order to establish an agricultural preservation district,
landowners must make a minimum of a five year commitment not to develop their land.
Harford County then offers up to a minimum of a 50 percent discount for seven years
from county property taxes for landowners who register their land as an agricultural
preservation district, and up to a 100 percent discount for landowners who sell the
development rights of their property. The minimum size for a Harford County agricultural
preservation easement is 50 acres.
Pennsylvania: Clean and Green Tax Incentives
In 1994, Pennsylvania enacted the Clean & Green Act (Act 319, 72 P.S. §§ 5490.1
- 5490.13). Clean & Green allows county assessors to assess land used for agriculture,
agricultural reserve land, and forest reserve land at values based on that use value, and not
on their often much higher market value. Landowners apply for use value assessment
through the county board of assessment.
Property must meet certain criteria to qualify for agricultural use, agricultural
reserve land, or forest reserve land under the program. To qualify for agricultural use, a
property must have produced an agricultural commodity for three years prior to being
enrolled and must be at least 10 acres or must produce $2,000 per year in income from
agricultural commodities. Agricultural reserve land must be at least 10 acres in area and
may not be used for any commercial purposes. Forest reserve land must be at least 10
acres in area and stocked with trees capable of producing 25 cubic feet of growth per acre
annually.
Although the Pennsylvania Department of Agriculture provides a method for
determining use value, assessment is up to the discretion of the county assessor and the
county commissioner. Landowners can often save up to 70 or 80 percent on their
46 Protecting Wetlands: Tools for Local Governments
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property taxes through Clean & Green, and in some counties landowners can save as
much as 98 percent on taxes.
The tax assessments under Clean & Green remain in effect as long as landowners
meet the eligibility requirements of the program. If land is altered so that it no longer
qualifies as agricultural use land, agricultural reserve land, or forest reserve land, the
owner must pay roll-back taxes (the taxes saved under the differential assessment scheme)
for the seven most recent years and interest on the roll-back taxes at 6 percent. Taxing
bodies may forgive the roll-back taxes if the land is donated to a school district,
municipality, volunteer fire or ambulance service, or cemetery. As of 1995, over 66,720
landowners in 44 counties (out of 66 eligible counties) have participated in Clean &
Green. Over 5 million acres of Pennsylvania farm and forestland are assessed at lower
rates under the program.
Some counties have not had much, if any, land enrolled in the Clean & Green
program because the assessed land values in the area are too low. For example, in
Schuylkill County, the ordinary method used to assess land utilizes 1960 market values;
thus, Clean & Green land would not be assessed much below its market value for the
purposes of differential taxation. The county is going through a county-wide reassessment
for the year 1997.
Pennsylvania: Act 515
Pennsylvania has an additional mechanism for providing landowners with an
incentive to protect natural resources. Act 515 (16 P.S. § 11941 et seq.) allows counties
to enter into a covenant with landowners whose property is designated as farm, forest,
water supply, or open space for the purpose of preserving the land as undeveloped. Water
supply land is defined as land used for the protection of watersheds and water supplies,
including land used for the prevention of floods and soil erosion, for the protection of
water quality, and for replenishing surface and ground water supplies ~ all of which are
functions provided by wetlands.
Under the program the landowner agrees to retain the land in open space for a
period of 10 years in exchange for a property assessment that reflects the value of the land
as open space, and not at its market value. Approximately five counties participate in the
program, including Bucks, Chester, Lehigh, Montgomery, and Northampton.
Virginia: Land Use Assessment Law
In 1971, the Virginia State Legislature passed the Land Use Assessment Law
which allows local governments to adopt a program of special assessments for
agricultural, horticultural forest and open space lands (Va. Code 58.1-3229 through 58.1-
3244). The law was designed to encourage the preservation and proper use of property,
Chapter Four: Incentives 47
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to assure that open spaces remain accessible to large populations of people, to conserve
natural resources, to prevent erosion, to protect water supplies, to promote proper land
use planning, and to promote a balanced economy.
Property must meet specific requirements to qualify as open space use. First, the
open space use must be consistent with the goals and objectives of the officially adopted
local land use plan. The open space land must also be a minimum of five acres but may be
as small as two acres if other criteria are met. Finally, the open space must be within an
officially designated agricultural or forested district, and the property must be enrolled in a
perpetual easement with an appropriate organization.
Wetlands may qualify for open space if they are included in one of the following
types of land uses: forest or nature preserves, bird or wildlife sanctuaries, watershed
preserves, marshes, swamps and similar natural areas, floodways, including lands
preserved for flood plains, coastal lowlands, tidal and nontidal wetlands, historic or scenic
areas, and lands that are officially included in local land use plans to be maintained as open
space, including greenways, stream valleys, forests and farmland.
Applications for differential assessment are submitted to the local assessment
officer. Landowners must make a written commitment to preserve and protect the open
space uses of the property in order for the property to be taxed on the basis of a use
assessment. The assessment agreement must be for a minimum of four years and a
maximum often years, after which time the agreement may be renegotiated.
CAPITAL IMPROVEMENTS PROGRAMMING
Capital improvements programming can create strong disincentives for
development of land and wetlands. Local governments generally coordinate their long-
range plans for extending or expanding public utilities or services such as roads, sewers,
and drinking water. When these amenities are available to an area, growth is easily
encouraged. When these services are not provided, development of open space and
wetlands can be prohibitively expensive, thereby limiting growth.
Local governments can conduct long-range capital improvements planning that
takes into consideration areas that have a high concentration of valuable wetlands or other
sensitive environmental resources. If governments decide to restrict sewage and water
services to a specific area, growth can be effectively limited or slowed.
CONCLUSION
Tax incentives and targeting of infrastructure can provide important assistance to
wetlands protection efforts. Although these techniques are often insufficient by
48 Protecting Wetlands: Tools for Local Governments
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themselves to prevent wetland losses, they can provide significant encouragement to
landowners to maintain wetlands and surrounding upland areas.
Agricultural, open space, and woodland programs are generally not targeted
directly toward wetlands conservation, but jurisdictions can encourage the use of these
incentives in areas where wetlands are an important part of the landscape. Programs that
are not directly targeted to protect wetlands can provide significant assistance to wetland
conservation efforts.
RELATED CASE STUDIES
For more examples of how incentive tools have been used in the Chesapeake Bay
watershed, refer to the following case studies at the end of this handbook:
Environmental Land Preservation Commission: Harford County, MD CS-3
Installment Purchase Program: Howard County, MD CS-23
Land Acquisition: American Chestnut Land Trust, Calvert County, MD CS-31
REFERENCES
Commission on Environmental Land Preservation. Jan. 1993. Report to the Harford County
Executive and Harford County Council. Bel Air, MD.
Coughlin, Robert E., Joanne R. Denworth, et al. 1993. Guiding Growth: Building Better
Communities and Protecting Our Countryside, 3d ed. Pennsylvania Environmental Council:
Philadelphia, PA.
Maryland Agricultural Land Preservation Foundation. 1995. Annual Report for Fiscal Year 1995.
Maryland Department of Agriculture. MDA 121-95. Annapolis, MD.
World Wildlife Fund. 1992. State Wetlands Strategies: A Guide to Protecting and Managing the
Resource. Island Press: Washington, D.C.
Chapter Four: Incentives 49
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50 Protecting Wetlands: Tools for Local Governments
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Chapter Five:
Acquisition
What Can Be Acquired? 52
Conservation Easement 52
Agricultural Conservation Easement 55
Deed Restrictions, Covenants & Reverters 55
Options & Rights of First Refusal 56
Purchase of Development Rights 57
Fee-simple Ownership 58
How Can Wetlands Be Acquired? 58
State and Local Government Acquisitions:
Park, Open- space, and Greenway Programs 58
Land Trusts 60
Virginia 60
Maryland 61
Pennsylvania 61
Financing Mechanisms 62
Donations or Bargain Sales 62
Dedicated Funding Through Bonds 63
Real Estate Transfer Taxes 63
Tax Return Check-off & License Plates 64
Installment Sales 65
Conclusion 66
Related Case Studies 66
References 67
One way to conserve and protect wetlands is to acquire title to them. In this way
they can be protected from development and degradation and can be managed and
maintained to ensure their functioning. Acquisition of property interests in wetlands and
their adjacent uplands by public and private entities, such as local governments and land
trusts, offers the most comprehensive control over their future use. Although wetlands
may be owned outright by obtaining full title to the property, partial acquisition strategies
are often more desirable. The use of conservation easements, covenants, and deed
restrictions can provide significant control over the management of wetlands without
removing them from private ownership.
Acquisition is a very powerful conservation tool that is best used in combination
with the conservation tools discussed in other chapters of this handbook. Acquisition is
most powerful and cost-effective when it occurs within the framework of a local or
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regional strategy ~ specifically, when the most environmentally sensitive wetlands and
related natural resources have been identified within the watershed of concern, and
acquisition is prioritized to focus on those most vulnerable or valuable parcels of land.
This chapter addresses the different acquisition strategies available to local
governments and communities, innovative ways to finance acquisition, and the various
entities that can acquire wetlands or help to facilitate acquisition. Wetland conservation
projects involving acquisition are often undertaken through partnerships among
landowners, land trusts, local and state governmental entities, and local communities.
WHAT CAN BE ACQUIRED?
Although outright purchase or donation of full legal title to land ("fee-simple
ownership") provides the most comprehensive protection for wetlands on those lands, this
approach is not always appropriate, or even available, for many wetland areas of concern.
Acquisition can be expensive, thus limiting the practicality and feasibility of an acquisition
strategy. It can also sometimes be controversial, even when it is based only on
transactions involving willing sellers of wetlands. There are legitimate public concerns
over the best uses of limited public funds, as well as preferences in many communities for
leaving lands in private ownership wherever possible. Moreover, lands that are not
acquired by governments or tax-exempt land trusts remain part of the tax base and do not
require direct government expenditures for management. Thus, it is important to consider
what part acquisition should play in a wetlands conservation strategy and, where
acquisition is desirable, what kinds of interests in land would best serve the conservation
objectives.
Real property can be thought of as a bundle of different legal rights or interests.
The "fee-simple" owner of land typically holds all of these rights -- the right to exclude
others, the right to develop the land for economic return, and the right to will or deed the
property to others, among other rights. A landowner can transfer some (or all) of these
rights to others.
Thus, a local government's wetland conservation strategy should compare the
acquisition of fee-simple ownership with acquisition of conservation easements or
development rights from landowners who retain most of the other rights to their property.
Other acquisition tools that may be important in a governmental wetlands conservation
strategy include options, rights of first refusal, covenants, and reverters.
Conservation Easement
Conservation easements are the most common and affordable acquisition tool to
protect sensitive lands such as wetlands. A conservation easement is a legal conveyance
of a property interest between a landowner and a qualified conservation organization,
52 Protecting Wetlands: Tools for Local Governments
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typically a land trust or government agency. The easement may be either perpetual or for
a specific term of years (often 25 or 30). The landowner retains title to the property,
including the right to carry on any uses not covered by the easement, while the holder of
the easement has the power to enforce the terms of the easement to prevent any
incompatible uses.
In the wetlands context, a conservation easement may require the landowner to
maintain wetlands as open space and protect them from impairment or adjacent
development activity. Conservation easements can be tailored to take into consideration
the particular property and the needs of the landowner. Thus, some conservation
easements will allow the landowner to continue timber harvests or other activities, while
others may limit or prohibit these activities.
Like other property interests, conservation easements are recorded in the
permanent deed records maintained by the local government. The easement continues to
apply to the land even if the land changes ownership. The organization that holds the
easement is responsible for monitoring and enforcing the terms of the agreement.
Conservation easements can be created either by a landowner granting an easement
by deed while retaining the underlying property, or by a landowner deeding away the
property while retaining the conservation easement. The latter approach has sometimes
been used where lands have been acquired outright by a government for a purpose that no
longer requires them to be retained — such as redevelopment or acquisition for public
improvements that are no longer planned. In such a case, the local government may sell
the land to recoup some of its investment, but retain a conservation easement to protect
important natural features of the land, such as wetlands.
A number of states have established quasi-public organizations to accept, hold, and
manage conservation easements. For example, the Virginia Outdoors Foundation has
conservation easements on about 100,000 acres, and the Maryland Environmental Trust
has conservation easements on about 50,000 acres. Voluntary conservation organizations
can also hold conservation easements. Local Maryland land trusts hold over 22,000 acres
of easements, and Pennsylvania conservancies hold easements on about 88,000 acres.
A private landowner who conveys a conservation easement to a governmental
agency or conservation organization can often reap real estate and income tax benefits and
reduce estate taxes. This is because the assessment of a parcel of land for real estate tax
purposes is based on the fair market value of the land. That fair market value is often
based on the land's potential for commercial, industrial, or residential development.
Therefore, if a conservation easement is placed on a parcel, removing the potential for it to
be developed ~ or limiting development in particular ways ~ its assessment value is
lowered and the real estate taxes may be significantly reduced. In the same way, the value
in the land is lowered for estate tax purposes. Indeed, conservation easements can be an
important estate planning tool that also helps the environment. When the landowner or
the second of two spousal owners dies, the federal and state taxes are lowered because of
the effect of the easement in lowering the development value of the land. This strategy
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often allows the heirs to retain the land rather than, as is sometimes the case, forcing the
sale of the land to pay taxes on the estate.
In addition, if a conservation easement is donated, the value of the donation may
support a charitable contribution deduction from federal and state income taxes. In
Virginia, for example, if a landowner donates a conservation easement to the Virginia
Outdoors Foundation, that gift is considered a charitable deduction for both federal and
state income tax purposes. The value of the gift, for purposes of the tax deduction, is
equal to the difference in the appraised fair market value of the land before and after the
easement donation.
Acquisition strategies using conservation easements can also be encouraged by
specific provisions in property tax laws. For example, since 1980, the state of Maryland
has encouraged the donation of conservation easements through a property-tax credit.
Through the program, if landowners grant a conservation easement to the Maryland
Environmental Trust, or a cooperating local land trust, the land subject to the easement is
exempt from all state and local property taxes for fifteen years; thereafter, it is taxed only
at its value subject to the easement (that is, taxed as unimproved property).
Since the Maryland Environmental Trust does not accept donations of land that are
under 25 acres, in 1992 the Maryland legislature authorized counties to adopt property-tax
credits -- without an acreage minimum ~ as a way to encourage the conservation of
smaller parcels of land. Counties can adopt the program through enacting an ordinance,
and three Maryland counties have adopted the tax credit. Montgomery County adopted a
program that offers a 100 percent property-tax credit for landowners who donate
perpetual easements to a qualified land trust. Harford County and Anne Arundel County
have also adopted the property-tax credit, although their ordinances differ slightly from
Montgomery County's. (See Incentives Chapter).
Conservation easement acquisition can most effectively help to achieve larger
conservation goals if the land trust follows a plan that includes a prioritized acquisition
strategy. For example, the Virginia Outdoors Foundation uses three documents to identify
potential easement projects. The Critical Environmental Areas Survey identifies areas
where conservation and preservation values require high levels of protection, the Virginia
Outdoors Plan identifies areas with high recreation value, and each county's
Comprehensive Land Use plan identifies areas with a high conservation value.
Flowage easements are another form of easement important for the conservation
of wetlands. These provide for the unimpaired flow of water across another's land and can
be helpful in restoring or creating wetlands. The U.S. Fish and Wildlife Service obtains
flowage easements from adjacent landowners when restoring wetlands on public lands for
waterfowl production or other purposes. By purchasing a flowage easement from an
adjacent landowner, the wetlands restorer can ensure that the wetland will be able to
expand to its maximum size and saturation levels on either a seasonal or sporadic basis
even if such expansion exceeds the boundaries of the public land.
In the period from the mid-1960s through 1980, the Fish and Wildlife Service
obtained 21,000 flowage easements, protecting 1.2 million acres of wetlands. Flowage
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easements are a tool that can be utilized by municipalities and land trusts to ensure that
private land adjacent to a protected wetland will contribute to the restoration or health of
a wetland in particularly wet cycles when the wetland exceeds its average boundary.
Agricultural Conservation Easement
Under Maryland law, lands enrolled in an agricultural preservation district may
offer their development rights for sale to the Maryland Agricultural Land Preservation
Foundation. If the Foundation chooses to accept the offer, the Foundation will pay up to
the full easement value of the land, that is, the difference between the appraised fair
market value of the land and its agricultural value. Once the easement has been sold, the
property is perpetually protected from further development with certain rights available
only to the landowner who originally sold the easement. The Foundation requires a soil
conservation and water quality plan for each property that is submitted for easement sale.
The purpose of the plan is to protect the land from erosion, increase potential yield
production, and reduce or eliminate the flow of sediment entering neighboring streams,
rivers, and ultimately the Chesapeake Bay.
Under a similar program enacted in 1988, Pennsylvania law also provides that
agricultural land included in Agricultural Security Areas may sell easements on their lands
to the state or counties. Applicants must demonstrate that they have used conservation
practices and best management practices for nutrient management and control of soil
erosion. Through 1996, easements on 674 farms (83,911 acres) in 34 Pennsylvania
counties have been acquired or approved for acquisition under this program.
While neither of these programs expressly targets wetlands, and indeed their
purpose is to preserve viable agriculture, they may be useful in conjunction with other
tools to protect important wetlands, buffer zones, or riparian areas in communities where
development is beginning to threaten both agricultural activity and wetlands.
Deed Restrictions, Covenants & Reverters
A deed restriction is a general term for a legal mechanism that allows a private
landowner to place limits on the things that can be done with a piece of land by entering
into agreements in the course of a conveyance of land or an interest in land. To create a
deed restriction, a property owner inserts clauses in the property deed in the course of a
conveyance that restrict the uses of that land ~ such as restricting wetlands from being
filled. Deed restrictions can include conservation easements as well as covenants and
future interests.
These restrictions may be considered part of an acquisition strategy because they
are agreements between landowners. They do not depend on regulatory powers. If a
local government or land trust becomes a landowner, it may be the beneficiary of deed
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restrictions on adjacent or nearby property; or it may create such restrictions in the course
of conveying property to others.
A covenant is a binding agreement two or more landowners enter into concerning
use of their land. The agreement attaches to the land, so that even if the land is sold or
subdivided, the covenant binds the new owners. For example, a developer subdividing a
large parcel can require all of the buyers to agree to a covenant requiring them to protect a
stream flowing through the property. The covenant would be mutually enforceable by all
of the holders of the subdivided property ~ or by the neighborhood association if one is
established (as is often the case in condominium developments). Or, two neighbors could
agree to a covenant requiring them to preserve a wetland running across their common
boundary. A covenant may have a specific time limit written into it. Otherwise, it can
only be ended by mutual consent of all the owners bound by it or by a court ruling that the
covenant is no longer relevant or lawful.
A reverter clause may also be attached to a property deed when a landowner
conveys or donates land. A reverter clause stipulates that if the land is not managed and
used as specified in the deed, the property reverts back to the original owner or his heirs
or to a designated third party such as a conservation group. The deed may specify
restrictions on development, public access, or other uses. For example, when a landowner
donates wetlands for a public park and duck breeding area, the landowner may wish to
stipulate that if the new owners ever try to use the property for other purposes, the land
will revert back to the original owner. Conversely, governmental landowners may attach
reverters to lands that are conveyed into private hands. Such reverters can be used to
assure that certain actions are carried out — such as protection of wetlands by the new
owners of a parcel slated for redevelopment.
Deed restrictions and covenants must be recorded in the land records to be
enforceable against subsequent purchasers of land without actual notice of the restrictions.
Recording the agreement ensures that any subsequent purchasers will be subject to the
agreement. Responsibility for enforcing a covenant lies with the owners or successors in
interest to those who were party to it.
Deed restrictions and covenants can be useful in situations where a landowner is
subdividing land, or where a local government or conservation organization owns land
adjacent to privately owned land where some mutual guarantees are desirable. They can
provide an additional approach to wetlands conservation beyond the regulatory and
incentive approaches and without requiring acquisition of additional property.
Options & Rights of First Refusal
Sometimes wetlands can be effectively protected by acquisition tools that are
several steps short of the outright purchase of land. One useful tool is a right of first
refusal ~ a right which may be acquired by donation or purchase. A landowner creates
the right by entering into an agreement with another party (such as a land trust or
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conservation agency) that if he or she elects to sell the property, the landowner will first
notify the party with the right and allow that party to match the offer within a limited
period. This tool allows conservation organizations to prevent undeveloped agricultural
land and other wetlands from passing into the hands of developers without an opportunity
to preserve the lands. The right is often used where the landowner is inclined to hold onto
the property for some period of time, but contemplates an eventual sale ~ perhaps upon
retirement from farming, or upon death and settlement of the estate. The right of first
refusal is intended to assure that the landowner receives a full economic return upon sale
of the property but allows for the possibility of a conservation use.
Options are another tool that provide an enforceable contract right to acquire
property at a future time. Options are a contractual device whereby a landowner grants
another party the exclusive right to purchase a property at a specified price within a
specified period of time. The party acquiring the option is not obligated to purchase the
land; however, the landowner is prevented from accepting offers from other potential
purchasers during the term of the option. The World Wildlife Fund notes that options
may either be donated by the landowner or they may be acquired at a fraction of the
ultimate purchase price. The deadline imposed by an option may also be useful to gather
the funds necessary to purchase a parcel or to find a suitable private purchaser. Options
can be an important intermediate tool where outright acquisition is desired but is not
immediately feasible.
Purchase of Development Rights
In states or counties with enabling legislation, transferable development rights
(TDRs) can also be used to protect wetlands. As discussed in Chapter 3, landowners in
areas subject to stringent development restrictions may be granted rights that can be sold
for use elsewhere in the jurisdiction, specifically on other properties in less sensitive areas.
Often TDK systems work by assigning rights to property owners in an area of ecological
significance or a conservation area experiencing strong development pressure. These
rights can then be transferred to — and used in ~ designated growth areas. Developers in
designated growth areas can purchase these rights from the owners in the conservation
area and build to a higher density.
In order to provide a guaranteed market, or assure the value of TDRs, some
programs provide for repurchase of TDRs (or of a limited number of TDRs) by
government agencies or conservancies where a viable commercial buyer is not available.
This guaranteed purchase aspect can help foster the development of a market in TDRs.
Moreover, purchase and retirement of TDRs can help support a regulatory-type wetlands
protection program by providing value to the owners of wetland areas. For example,
Calvert County, Maryland, has a transferable development rights program which allows
farmers or land trusts to sell their development rights either in the market for use in
designated receiving areas or to the county through its Purchase and Retirement program.
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Through this program, the county obtains the development rights, the farmers or other
landowners obtain a financial benefit, and the potential development authorized by the
TDRs is not built because the rights are retired unused. Other programs designed to
protect wetlands through use of TDRs may provide for some governmental purchase of
the rights in order to assure that the programs operate as intended.
Fee-Simple Ownership
By acquiring fee-simple ownership, the purchaser — or recipient of donated
property -- gains full title to the land and all rights associated with the land. This strategy
allows for permanent protection, maximum flexibility in management, and full control over
public access.
Acquisition of fee-simple title is often more costly than other strategies. It is best
used when the parcel of wetlands or uplands is uniquely valuable and is particularly
threatened by development. Acquisition of a fee-simple title to a parcel of wetlands may
also be used to protect a core area — for example, a specialized habitat, or a vulnerable
area along a river ~ while adjacent areas may be protected by other methods ~ for
example, through acquisition of conservation easements or by zoning limitations.
If a local government or private conservation organization acquires fee title to a
wetland area, it also accepts many responsibilities that accompany land ownership.
Among these include liability for injuries that occur on the property, the monitoring,
management and maintenance of the land, and the payment of property taxes if the
acquiring organization is not tax exempt.
HOW CAN WETLANDS BE ACQUIRED?
State and Local Government Acquisitions: Park, Open-space, and Greenway
Programs
Most states have established general state or local government funds to acquire
land for conservation. These funds may be used to protect natural resources, recreational
opportunities, or historic resources. In addition to receiving earmarked appropriations for
acquisition programs, state agencies may also receive revenues through hunting and
fishing licenses, federal revenue sharing programs, the federal Land and Water
Conservation Fund, tax check-offs, the sale of license plates, real estate transfer taxes,
bonds, or lottery revenues. Often, local governments can influence the use of these funds
or draw upon them by providing local matching funds for conservation and acquisition.
Most states give local governments the power to acquire conservation land by
donation or voluntary sale. Even in states where local governments have very limited
powers, such authority exists. For example, Virginia's Open Space Land Act authorizes
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public bodies to acquire by voluntary sale (including conservation easements) or to
designate property for use as open space land in urban or urbanized areas, although it does
not allow the use of eminent domain (condemnation of land) for this purpose. The Act
provides that the use of the property for open space land shall conform to the official
comprehensive plan for the area in which the property is located.
Pennsylvania allows its counties to acquire land for open space purposes, but does
not grant the same power to local governments; the 1996 term of the Pennsylvania
legislature is considering a proposal to allow local governments to acquire land for open
space. Pennsylvania does, however, have a significant land acquisition program for
natural areas and open space in which counties and local governments may seek state
participation. The Keystone Recreation, Park, and Conservation Fund, created in 1993, is
administered by the Department of Conservation and Natural Resources (DCNR). It
assists local communities in acquiring wetlands and other areas for recreation, parks, and
open space.
It is important to understand the limitations and powers of local governments in
any particular acquisition proposal. It may be the case that even where a local government
is limited in the purposes for which it may acquire and hold land or interests in land,
wetlands may fit into more than one category — such as protection of floodplains, water
quality, farmland, or other bases. Thus, for example, Pennsylvania's program providing
for the voluntary acquisition of conservation easements on agricultural lands within
Agricultural Security Areas may provide local governments sufficient authority to protect
a given wetland parcel within such an area. The easement program for farmland was
added in 1988 to a pre-existing law that allows farmers to petition townships for the
creation of Agriculture Security Areas.
Maryland's Program Open Space, outlined in more detail below, is a significant
source of money for land acquisition. The state of Maryland has also passed a bill that
provides for the establishment of a Maryland System of Heritage Areas. Effective
October 1, 1998, the Maryland Heritage Area Authority may certify two Heritage Areas
per year after considering proposals submitted by local jurisdictions. A Heritage Area is a
developed area of public and private uses that is distinguished by physical and cultural
resources which have played a vital role in the historic life and development of the
community. Those resources must also contribute to the public through interpretive,
educational, and recreational use. The Maryland Heritage Areas Authority may acquire
property and provide loans, grants, and other financial assistance for projects in certified
heritage areas. In addition to meeting minimum requirements for development and
tourism opportunities, the Heritage Area Authority may not designate a heritage area
unless it contains at least one or more natural or recreational resources of statewide
significance. Thus, while a wetland is not likely to qualify independently as a heritage
area, it is foreseeable that a wetland preservation project that provides significant
educational and recreational opportunities, and that is part of a larger Heritage Area
Management Plan, could be funded through the Act.
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Land Trusts
Land trusts are local, state, or regional nonprofit organizations that are directly
involved in conserving land. Land trusts can be private or quasi-governmental and
generally focus their efforts on protecting specific natural, historic, scenic, productive, or
recreational features. They usually concentrate on a specific state or geographic region,
such as a watershed. Land trusts, broadly defined, can participate in numerous activities,
including purchasing and accepting donations of land or conservation easements and
monitoring the enforcement of such agreements. Landowners donating conservation
easements to qualified land trusts can receive income and real estate tax deductions for
their donations. Land trusts also can manage land owned by others, provide landowners
with technical assistance on how to manage their land, serve as intermediaries to help
others negotiate conservation transactions, research acquisition needs and priorities, and
educate the public about land conservation benefits and opportunities.
Public or private organizations can make grants, matching grants, and low or no
interest loans to localities or nonprofit organizations for land acquisition. In Maryland,
Program Open Space provides funds to the Maryland Environmental Trust (MET), which
then offers loans to local land trusts at no interest. These loans allow MET to accept
permanent conservation easements from landowners. In Maryland, Calvert County
recently established a $1 million land trust revolving fund that offers loans to local land
trusts for acquisition projects.
Land trusts also engage in pre-acquisition strategies — acquiring wetlands and
sensitive lands with the intent of reselling them to a governmental agency who will then
manage the land. These arrangements are often structured to facilitate a local
government's acquisition strategy because a private land trust often has the ability to
negotiate an acquisition faster than does a public agency. Purchasing land from a
conservation group may also save a government agency considerable money.
Land trusts in the Chesapeake Bay watershed are numerous and diverse in their
focus, but all share a commitment to the conservation of dwindling available land and a
desire to preserve natural resources, cultural heritage, valuable farmland, and a way of life
prized by those living in the watershed. Virginia has fewer than 10 land trusts, Maryland
has about 40, and Pennsylvania has about 50.
Virginia
The Virginia Outdoors Foundation is a quasi-governmental land trust
("independent instrumentality of the state") established by the General Assembly in 1966.
The Foundation assists landowners in their efforts to protect private property and
encourages the preservation of open space. As of 1996, the Foundation held easements
on 96,100 acres of land in 39 counties and owned approximately 4,000 acres outright. It
provides some limited assistance to local land trusts.
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There are relatively few land trusts in Virginia because of the terms of the Virginia
Conservation Easement Act. Although the Act authorizes nonprofit organizations to
acquire easements on real property for the purpose of retaining or protecting scenic,
natural or open-space values, it also contains some impediments to the establishment of a
land trust. A land trust must be in existence for five years, or national land trusts must
have a principal office in the state for five years, before they are permitted to hold
conservation easements in the Commonwealth.
Maryland
The Maryland Environmental Trust (MET) is a statewide land trust established by
the Maryland General Assembly in 1967. Its mission is to protect Maryland's natural
environment ~ farmland and forest land, wildlife habitat, waterfront, significant natural
areas, and historic sites. MET receives money from the state legislature and from
Program Open Space, the State Highway Administration, private foundations, and other
sources to work with landowners to solicit donated conservation easements. MET is
subject to the budgetary process of the state. MET also purchases easements when
funding is provided by Program Open Space, The Nature Conservancy, private donors, or
the Federal Highway Administration. For state administrative purposes, MET falls within
the Department of Natural Resources, Public Lands and Forestry Division.
MET has three main programs: a local land trust assistance program, a
conservation easement program, and a program to maintain the integrity of rural historic
villages through rural conservation. The local land trust assistance program channels aid
to local organizations, such as watershed groups, to help them acquire and manage land.
The umbrella organization works with citizen groups to help them establish and operate
local land trusts. Conservation easement programs offer potential income and estate tax
deductions and a property tax credit to donors of easements. MET provides technical
assistance, training, and grants for land protection, acquisition, and administrative
expenses. MET will also hold conservation easements jointly with local land trusts and
has enrolled over 50,000 acres in conservation easements since 1972.
Pennsylvania
The Pennsylvania Land Trust Association is an alliance of approximately 50
Pennsylvania land trusts. The Association is a private organization that serves as a
clearinghouse for information and a unified voice for the state's land trusts. It provides
some technical assistance to landowners and matches them with local land trusts.
The Keystone Recreation, Park, and Conservation Fund Act provides land trusts
with grants for the acquisition of natural areas and open space. The Act was passed in
1993 as a fifty million dollar bond issue passed by referendum. As of July 1995, the
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Keystone Fund is also supported by 15 percent of the State Realty Transfer Tax revenues.
Under the Keystone program, the Department of Conservation and Natural Resources
(DCNR) provides land trusts with grants to pay up to 50 percent of eligible project costs
for the planning and acquisition of natural areas and open space. The Department also
administers the Fund's Keystone Community Grant Program, under which a municipality
can apply for assistance with projects including land acquisition.
The DCNR receives 25 percent of the Keystone Fund Realty Transfer Tax
revenues for general purposes and another 10 percent of those revenues for work with
land trusts. The bond revenues provide $13 million for grant programs and an additional
$3 million in bond revenues for land trusts.
The Keystone Fund also established the Pennsylvania Rivers Conservation
Program to foster grassroot efforts to protect streams and stream corridors. The Program
is designed to conserve the state's rivers through the creation and implementation of local
river conservation plans. It provides technical and financial assistance to river support
groups and municipalities for the conservation of Pennsylvania rivers.
FINANCING MECHANISMS
Donations or Bargain Sales
Land can be acquired by land trusts or state agencies through an outright donation
by the landowner of either the land itself or the development rights on it (through
conservation easements). In this ideal situation, land receives permanent protection
without any public expenditure. Landowners who donate land outright receive tax
benefits, because the property's fair market value is considered a charitable contribution.
With bequest donations, landowners retain ownership of their land until their death, when
the land is turned over to the designated land trust or organization. Nonprofit groups can
also acquire land through bargain sales, whereby a private landowner sells the land at less-
than-fair-market value. Landowners can often receive a tax deduction for the difference
between the full value and the sale price, which can be considered a charitable contribution
(See Chapter 5 - Conservation Easements).
In areas where development is scheduled to occur, local governments can
sometimes acquire title to lands or conservation easements during the site plan approval
process discussed in Chapter 3. To mitigate the impact of the development, the developer
may proffer certain amenities, including protection of these lands through transfer of title.
Or, certain exactions may be required as a condition of approval, provided that they are
rationally related to the impact of the development and roughly proportional to its impact.
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Virginia uses the proffer system, while Pennsylvania and Maryland recognize the validity
of exactions. For more information on exactions and proffers, refer to Chapter 3.
Dedicated Funding Through Bonds
In addition to providing funding through appropriations, states and local
governments can raise funds for acquisition programs through bond issues, which are
usually approved through local or statewide referenda.
Bonds can be used to initiate enduring statewide programs, or they can be used
locally for specifically targeted acquisition projects. Maryland's Program Open Space
(POS) was initiated in 1969 through a statewide bond bill known as the Outdoor
Recreation Land Loan. Since then POS has been funded primarily by the state's real estate
transfer tax. However, in the period 1991-1993, when the full amount of real estate
transfer taxes were not available to the program, bonds were used to recapture some of
the lost funds. Pennsylvania's Keystone Recreation, Park, and Conservation Fund Act
("Key 93"), passed in 1993, was also initially funded by a bond referendum.
Real Estate Transfer Taxes
Many states have established acquisition and conservation funds that are funded
through real estate transfer taxes. This strategy is another way for governments to raise
revenue for the acquisition of open space and wetlands. This mechanism is unique
because funding for these programs is tied to development and growth. When land
changes hands in states with these programs, a specified percentage of the purchase price
of the property goes into a fund, or "land bank." The local government that manages the
land bank can then use the money raised to buy land or conservation easements, or to
support other preservation or restoration measures.
A land bank must be created through a state or local government passing enabling
legislation. Land banks have a strong appeal to communities facing rapid development
because they can tax incoming landowners whose arrival strains community resources and
services and causes crowding. In general, communities with a high rate of real estate
turn-over, such as resort communities or areas tied to a cyclical economy, make good
candidates for land banks because the activity of the real estate market can generate
revenues quickly enough to acquire easements on remaining open space.
Pennsylvania's "Key "93" receives money through a real estate transfer tax
supplemented by a $50 million bond issuance. The trust's Land Trust Grant Program
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grants approximately $3 million annually to land trusts to inventory and acquire natural
resource lands.
Maryland's Program Open Space was established by bond in 1969 to deal with the
rapid growth and land development the state was experiencing. The Program is funded by
a one-half of one percent tax on the purchase price of residential or commercial property.
State and local governments currently protect 483,000 acres, or 7.9 percent of all state
land. Program Open Space provides over $50 million annually for state and local
acquisition and conservation programs and also awards grants to land trusts to acquire
property that complements the state's acquisition strategy. Program Open Space also
provides funds to the Maryland Agricultural Land Preservation Foundation (MALPF),
which funds agricultural protection efforts through the purchase of development rights.
The MALPF also raises funds through a transfer tax on agricultural land.
Tax Return Check-Off & License Plates
Many states have an option available for residents through which they may
designate a specified amount of their state income tax refund toward natural land
acquisition.
Virginia's Natural Area Acquisition Fund was established in 1988 to provide
money to an acquisition program cooperatively run by the Department of Conservation
and Recreation and The Nature Conservancy, a private national land trust. The Fund
receives money through a taxpayer check-off box on each year's state tax forms. The
Fund has financed the acquisition of Virginia's Natural Areas Preserves System, which
consists of nine properties. Taxpayers have the ability to designate that all or part of their
state tax refunds should go to benefit Virginia's natural and recreational resources. The
purpose of the program is to create a system of Natural Area Preserves by acquiring
natural areas identified as being of great biological significance. The Department
developed an inventory of the Commonwealth's natural heritage resources to guide its
acquisition strategy.
Pennsylvania has established a Wild Resource Conservation Fund, which is funded
by voluntary tax refunds and conservation license plates. The two programs together raise
a total of $300,000 to $600,000 annually. The funds are available for research and other
projects related to the conservation of threatened and endangered plants and animals.
Land may be purchased with fund moneys, but to date no land has been purchased
through the program. Private organizations and municipalities can access the funds
through a competitive application process.
Funds raised by Maryland's tax return check-off are equally split between the
state's Division of Wildlife and Heritage and the Chesapeake Bay Trust. The Division of
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Wildlife and Heritage, which is within the Department of Natural Resources, manages the
state's nongame and endangered species. The Chesapeake Bay Trust is a nonprofit
organization that funds other nonprofit and community organizations, schools, and public
agencies through its small grants program. The Trust, which also receives funds from
sales of the commemorative Chesapeake Bay license plate, awards grants to organizations
for water quality enhancement, production of educational materials on the Bay, education
and training, and the promotion of Bay conservation programs.
Pennsylvania's Friends of the Chesapeake Bay license plate program donates $15
from the sale of each plate to the Chesapeake Bay Restoration Fund. Managed by the
Department of Accounts, the Fund uses the money raised on environmental education and
restoration projects related to the Chesapeake Bay initiative and its contributors.
Installment Sales
There are several options that can be used by a local government when a decision
has been made to purchase property but funds are not presently available. Where the use
of bonds is not a viable option because it violates constitutional limitations on borrowing
or affects a local government's debt ceiling, other creative solutions may be available.
Private land trusts can often provide an interim funding mechanism for local governments.
For example, a local land trust may use a lease-purchase arrangement to allow
government to pay for land incrementally over a specified time period. Under a lease-
purchase arrangement, a contract is established that grants possession or use for an
indeterminate period while acquisition is paid for in periodic payments. These payment
installations include principal, interest, and associated costs. A lease-purchase agreement
does not necessarily bind a government to purchase but usually does involve a conditional
agreement relying on the payment of interest and principal subject to annual appropriation.
Insurance may be needed to secure a feasible interest rate.
The Trust for Public Land, a national land trust, has been successful in offering
certificates of participation (COPs) as a variation on the lease-purchase agreement. COP
arrangements typically involve a state or municipal agency, investors, and a nonprofit land
trust or other intermediary. The intermediary organization works with a trustee bank to
obtain funds to acquire a property and then leases it to government. Lease payments
collected from the government are structured to include principal, interest, and related
costs. The intermediary organization also sells COPs in the lease to investors. The
government payments, which are tax-exempt because they serve a governmental purpose,
are then disbursed to the investors. The cost of issuing COPs is generally higher than
revenue bonds because investors do not have the same governmental assurances to retire
the debt.
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Another financing technique for land acquisition involves securitized installment
sales in which the government borrows from the landowner and unconditionally promises
to pay for the property over time. Under this scheme, the county or local government can
purchase the development rights to a piece of property with a promissory note rather than
cash. Payment for most of the principal is deferred until the end of the contract period,
and in the meantime, the landowner receives semi-annual, tax-exempt, market rate interest
payments. Financing for the final balloon payment can be secured by zero-coupon
Treasury obligation bonds that are scheduled to mature at the expiration of the contract
period. These bonds are available at steeply discounted rates.
This technique has been successfully implemented on a case-by-case basis using
nonprofit organizations as intermediaries. If the arrangement is seller-financed, the seller
can realize significant tax savings for a number of years. Howard County, Maryland has
had success with this arrangement in the purchase of agricultural lands.
CONCLUSION
Acquisition strategies can take many forms. Outright purchase of wetlands may be
desirable under some circumstances, but often some combination of partial acquisition
techniques, incentives, and regulatory approaches can meet a local government's planning
goals. Substantial creativity may be required to structure and fund an acquisition in a way
that best protects the resource while also assuring that private ownership and other
objectives can be met.
RELATED CASE STUDIES
For more examples of how acquisition tools have been used in the Chesapeake Bay
watershed, refer to the following case studies at the end of this handbook:
Environmental Land Preservation Commission: Harford County, MD CS-3
Watershed Planning: Middle Peninsula Planning District, VA CS-6
TDRs with Purchase of Development Rights: Calvert County, MD CS-22
Installment Purchase Program: Howard County, MD CS-23
Installment Purchase of Development Rights: Virginia Beach, VA CS-24
Land Acquisition: American Chestnut Land Trust, Calvert County, MD CS-31
66 Protecting Wetlands: Tools for Local Governments
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REFERENCES
Allegheny Land Trust. 1995. Land Conservation Handbook: A Guide for Conservation
Organizations, Municipalities and Private Landowners. Land Trust Alliance: Washington, D.C.
Diehl, Janet and Thomas J. Barrett. 1988. The Conservation Easement Handbook. Land Trust
Alliance: Washington, D.C.
Lincoln Institute of Land Policy. 1993. Land Conservation through Public/Private Partnerships.
Eve Endicott, ed. Island Press: Washington, D.C.
Osborne, Debi. Nov. 30,1995. "Creative Public-Private Partnerships in Land Conservation".
Speech. Washington, D.C.
"Tax Credits for Voluntary Conservation: Back to the Future." GreenSense: Financing Parks and
Conservation. The Trust for Public Land: Washington, D.C. Autumn 1995. 1(3).
U.S. Environmental Protection Agency. 1992. Protecting Coastal and Wetlands Resources: A
Guide for Local Governments. U.S. EPA, Office of Water: Washington, D.C. EPA 842-R-92-002.
Virginia Outdoors Foundation. Encouraging the Preservation of Open Space. Richmond, VA.
World Wildlife Fund. 1992. Statewide Wetlands Strategies: A Guide to Protecting and Managing
the Resource. Island Press: Washington, D.C.
Chapter Five: Acquisition 67
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68 Protecting Wetlands: Tools for Local Governments
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Chapter Six:
#
Technical Assistance, Education, and Outreach
Education & Outreach 69
Technical Assistance 71
Chesapeake Bay Region 71
Maryland 72
Pennsylvania 73
Virginia 74
Conclusion 75
References 76
Encouraging citizens to protect wetlands begins with improving citizens'
understanding of the value of wetlands. Public education and outreach are of vital
importance as components of any strategy to protect wetlands.
Local governmental outreach can include not only educating school children, but
also-educating educators, private landowners, developers, and others about wetlands
values. When people better understand these unique systems and all of their functions,
they often become avid supporters of wetlands protection and restoration efforts.
Although individuals and organizations ~ private landowners, conservation
groups, local land trusts, and local governments — may understand the need to protect
wetlands, they often do not have the resources or technical understanding necessary to
achieve their conservation goals. Technical assistance can help overcome this difficulty.
Such assistance is often made available to local governments and private landowners from
state, federal and local agencies, and can be made available by local governments to their
citizens.
Education, outreach, and technical assistance are all important components of any
local government wetlands protection strategy.
EDUCATION & OUTREACH
Education and outreach can be accomplished by making available educational
materials, such as reading materials, television commercials, radio announcements, videos,
traveling exhibits, lectures, guided tours and field trips, and annual events. All of these
outreach tools can be used to inform local communities about the values of wetlands in a
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broad sense, and about particular issues in their areas, such as a particular wetland that is
threatened by poorly planned development.
Education can be accomplished at many different levels. For example, school
systems can establish training curricula to give teachers the tools to educate their students
about the functions and values of wetlands; local governments can sponsor outdoor
education programs at municipal and county parks; planning commissions can hold
workshops and informational meetings; and community colleges can offer classes on
specific natural resource management issues that are of particular interest in the area.
Although education and outreach materials are available to the public through
federal and state agency programs, nonprofit environmental and conservation groups and
consulting firms can also be an excellent source of information on wetlands. For example,
Environmental Concern in St. Michaels, MD, publishes a curriculum guide for teachers of
grades K through 12 called Wow! The Wonders of Wetlands. The curriculum includes 40
classroom and field lessons for students. The program is aimed at teaching children to
make environmentally responsible decisions about wetlands, water quality, and land use.
The U.S. Environmental Protection Agency has a toll-free hotline that provides
answers to questions about wetlands policy, science, and legislation and provides
educational materials from many different federal agencies free of charge. The U.S.
Environmental Protection Agency's Wetlands Information Hotline can be reached at (800)
832-7828.
Several counties throughout the Chesapeake Bay watershed have initiated storm
drain stenciling programs to enhance awareness about citizens' connectedness to the Bay.
For example, Prince George's and Anne Arundel Counties in Maryland stencil storm drains
with messages reading "Do Not Litter, Chesapeake Bay Drainage." The Department of
Public Works in Prince George's County installs and maintains the stickers; in Anne
Arundel county, the program is financed by the county, but the labor is provided by
citizens.
Conservation Districts in Blair and Bradford Counties in Pennsylvania have
prepared traveling exhibits and displays designed to encourage participation of local
governments in Bay Program initiatives. The Bradford County Conservation District built
a display in an enclosed trailer that can travel to fairs, schools and other events. The
trailer includes a map of the Bay watershed and highlights solutions to environmental
problems in the areas. The Blair County Conservation District developed an exhibit to
educate farmers about the impacts of soil erosion and nonpoint source pollution on the
Bay.
The Centre County Conservation District in Bellefonte, Pennsylvania runs
educational workshops on soil erosion control and other environmental issues for loggers,
developers, and others. Their training courses for teachers are held in cooperation with
the Pennsylvania Bureau of State Parks.
70 Protecting Wetlands: Tools for Local Governments
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Several agencies in Harford County, Maryland work together to provide technical
courses at the County's Community College. The Harford County Department of
Planning and Zoning, the College's Environmental Technology Institute, the County's
Department of Public Works' Bureau of Environmental Affairs, and state and federal
officials have designed courses on stormwater management, water and sewer planning,
erosion and sediment control, recycling, watershed protection, and buffer protection. The
courses are geared toward contractors, developers, engineers, designers, realtors,
inspectors, and homeowner development associations.
TECHNICAL ASSISTANCE
Technical assistance is available from federal or state agencies. Many of these
programs are designed to assist state and local government agencies, private landowners,
local land trusts, conservation groups, and others. Technical assistance to local
governments from state agencies can include supply of data, maps, and other material, as
well as direct technical help to solve specific problems. Technical assistance to local
governments can help those agencies with limited staff and budget, by providing them with
training, educational information, and other tools to aid them in implementation of laws
and development of regulations to protect wetlands at the local level.
Technical assistance to private landowners through guidebooks, workshops, and
one-on-one help can improve landowners' understanding of the values of wetlands, help
them comply with environmental laws and regulations, and help them to become better
stewards of the land. As landowners become more informed, they are able to make better
decisions about how to manage their land.
This section identifies several of the technical assistance resources available to
local governments and private landowners.
Chesapeake Bay Region
The Chesapeake Bay Program Office of the U.S. Environmental Protection
Agency offers many different publications and resources on protecting the Bay. In
addition, the Bay Program offers workshops, technical expertise, and substantial
information concerning land use and watershed practices and conditions within the Bay
watershed.
Chapter Six: Technical Assistance, Education, and Outreach 71
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Maryland
Maryland's Office of Planning provides local governments with technical assistance
to aid them in making sound land use decisions. Maryland's Economic Growth, Resource
Protection and Planning Act, passed in 1992 (See Chapter 2), established a framework to
guide local governments in the establishment of planning approaches that will meet future
land management and environmental protection goals. The Office of Planning has
developed an excellent series of publications for local governments, titled "Managing
Maryland's Growth: Models and Guidelines," to aid in implementation of the Act and
related planning, zoning, and design techniques.
The Maryland Department of the Environment provides technical assistance to
local governments on wetlands issues. The Department can provide training on nontidal
wetland identification, photo interpretation, stream assessments, watershed planning, and
wetland creation, restoration, or enhancement.
The Maryland Department of Natural Resources provides technical assistance to
local governments, watershed associations, and private landowners on how to protect,
restore, enhance and create wetlands for the benefit of wildlife and water quality. The
Department also provides training on how to conduct watershed/stream assessments and
how to minimize the impacts of existing and future developments on water quality and
wildlife habitat. The Department's involvement in improving the management of wetlands
resources is part of an overall effort to improve the management of natural resources from
a watershed/ecosystem perspective.
The Maryland Environmental Trust (MET), a statewide land trust established by
Maryland (See Chapter 4), provides technical and financial assistance to local landowners
and land trusts. MET has three main programs: assistance to local land trusts, a
conservation easement program, and a program to maintain the integrity of rural historic
villages through rural conservation. MET's Local Land Trust Assistance program
channels assistance to local groups, such as watershed groups, to help them acquire and
manage land. MET works with citizen groups to help them establish and operate local
land trusts and provides technical assistance, training, and grants for land protection and
acquisition projects and administrative expenses. MET provides technical assistance
publications, including a Land Trust Assistance Manual, Land Trust Tutorial computer
program, standard easement processing forms, and publications of The Land Trust
Alliance.
Local jurisdictions themselves can be a substantial technical resource. For
example, Anne Arundel County, Maryland, has developed a program to protect the Bay by
encouraging reestablishment of emergent aquatic vegetation in the Bay's estuaries. The
County's Planning and Zoning office provides up to $2,000 worth of wetlands plants and
other materials to citizens, communities, and private projects through their Environmental
72 Protecting Wetlands: Tools for Local Governments
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Grant Program. The resources are provided to encourage citizens to aid in shoreline
stabilization, beautification, habitat enhancement, and water quality improvements. The
County provides project planning, design, and evaluation in exchange for citizen volunteer
time and planting tools.
Nonprofit organizations play a substantial role in technical assistance as well. The
Chesapeake Bay Trust (See Chapter 5) is funded by Maryland's voluntary tax return check
off and the sale of the commemorative Chesapeake Bay license plate. The Trust is a
nonprofit organization that funds nonprofit groups, civic and community organizations,
schools, and public agencies. The Trust has awarded almost 1,000 grants to groups for
stream cleanups, tree and marsh grass plantings, erosion control projects, water quality
monitoring, habitat restoration, and the development of awareness programs and
educational material to promote a better understanding of the Bay.
Pennsylvania
In December 1995, Pennsylvania established the Community Conservation
Partnership initiative. This program was established to provide technical assistance,
training, and $75 million in grants over four years to help communities conserve natural
and cultural resources, provide outdoor recreation, enhance tourism and foster community
development. Six grant programs were established by the Partnership, several of which
are funded through the Keystone Recreation, Park and Conservation Fund which is
managed by the Pennsylvania Department of Conservation and Natural Resources's
Bureau of Recreation and Conservation (See Chapter 5). The Partnership initiative
includes:
(1) About $3 million in Land Trusts Grants are available to nonprofit land trusts or
conservancies for planning and acquisition of critical natural areas and open space
which face imminent loss;
(2) Rivers Conservation Grants are awarded to conserve and enhance river
resources;
(3) Rails-to-Trails Grants are awarded to plan, acquire or develop rail trail
corridors;
(4) Heritage Parks Grants are available to municipalities, nonprofit organizations,
or commissions to conserve natural, cultural, historic and recreation resources in
the Commonwealth's nine heritage park areas;
(5) Urban Forestry Grants encourage the planting of trees in Pennsylvania
communities; and
(6) Eleven million dollars are available to municipalities for Community Grants for
the rehabilitation and development of parks and recreation facilities, park
Chapter Six: Technical Assistance, Education, and Outreach 73
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acquisition, technical assistance, and special funding for smaller communities.
The Department of Environmental Protection's Pennsylvania Rivers Conservation
Program provides technical and financial assistance for local river conservation planning
and implementation activities. The DEP has also created a wetland registry program to
encourage landowners to register land on which they would desire wetland restoration or
creation by the Department. The registry is used to link landowners with public and
private entities and agencies interested in restoring wetlands.
The Center for Rural Pennsylvania was established by the state legislature in 1987
(Act 16, the Rural Revitalization Act) to promote and sustain the vitality of Pennsylvania's
rural and small communities. The Center acts as an advocate for rural communities,
maintains a database on rural tends and conditions, disseminates information, produces
publications, sponsors workshops, and coordinates programs and resources to address
local needs and opportunities. The Center also provides annual grants to rural
communities for applied research and demonstration projects. The three areas of grants
are:
^ Policy Research - applied research initiatives leading to statewide policy and
program recommendations awarded for over a year for up to $50,000;
^ Model Projects - demonstration initiatives that implement innovative yet
replicable approaches to addressing rural issues funded for up to $50,000; and
^ Rural Initiatives - local or regional initiatives to develop or enhance local
capacity building that are leveraged against existing funding and assistance through
partnerships with other groups or organizations.
The Pennsylvania Environmental Council, a nonprofit organization, provides
technical assistance to all of Pennsylvania local governments in identifying and using
appropriate tools to guide growth in a manner consistent with environmental protection.
The Council's manual, Guiding Growth: Building Better Communities and Protecting Our
Countryside, shows local governments how to adapt the authorities provided under
Pennsylvania law to address local and environmental concerns. The Council also operates
The Environmental Advisory Council (EAC) Network to encourage municipalities to
establish and use EACs to identify environmental issues, set objectives, and develop
solutions.
Virginia
The Chesapeake Bay Local Assistance Department provides local governments in
Virginia with financial and technical assistance to implement the Chesapeake Bay
Preservation Act (See Chapter 1). The Chesapeake Bay Preservation Act established a
cooperative program between state and local governments to reduce nonpoint source
74 Protecting Wetlands: Tools for Local Governments
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pollution inputs to the Bay by reducing the negative impacts of land use and development.
The Act requires local governments in the Tidewater region to identify, map, and protect
Chesapeake Bay Preservation Areas. Local governments must also incorporate water
quality protection measures into their comprehensive plans, zoning ordinances, and
subdivision ordinances.
The Department provides technical assistance to local governments including:
interpretation of the Bay Act regulations; review of local comprehensive plans and
ordinances for compliance; advisory review of private development plans at the request of
local governments; training for local government planners and engineers; and
administration of a competitive grants program for localities and planning districts. In
fiscal year 1996, the Department provided funding to 32 local governments in the Bay.
The grants must be matched by local governments with cash or in-kind services. The
grants are often used to help local governments hire planning, engineers, and enforcement
personnel and to purchase computers. Training courses for local governments have
covered such topics as stormwater management, site plan review and comprehensive
planning, and agricultural water quality monitoring, assessment, and planning.
The Virginia Coastal Resources Management Program is a network of state
agencies and local governments that administer coastal laws and policies to manage
subaqueous lands, tidal wetlands, fisheries, point and nonpoint source pollution, and other
issues. The program is administered by the Virginia Department of Environmental Quality
(DEQ); federal funding is made available to state agencies and local governments through
annual Requests for Proposals.
CONCLUSION
Often educational materials and technical assistance can contribute much to an
area's conservation efforts. Individual landowner initiatives and collaborative community
efforts can benefit greatly from some well-placed information and resources. Moreover,
even in communities with a well-articulated strategy making use of the tools discussed in
the previous chapters of this handbook, education can help build the case for community
acceptance, support, and cooperation as the program is carried out. Although technical
assistance and education are not a complete program in themselves, they are a critical
component of any program that a community expects to succeed. There are many
excellent educational resources and technical support programs available to the local
governments and communities of the Chesapeake Bay watershed.
Chapter Six: Technical Assistance, Education, and Outreach 75
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REFERENCES
Anne Arundel County Planning and Zoning, P.O. Box 2700, Annapolis, MD 21401; (301) 222-
7441.
The Center For Rural Pennsylvania, 212 Locust Street, Suite 604, Harrisburg, PA 17101; (717) 787-
9555.
Centre County Conservation District, R.D. #5, Box 390, Bellefonte, PA 16823; (814) 355-6817.
Chesapeake Bay Local Assistance Department, 805 E. Broad Street, Suite 701, Richmond, VA
23219; (804) 225-3440.
Chesapeake Bay Local Assistance Department 1995. A Guide to the Bay Act: Virginia's
Chesapeake Bay Preservation Act Program. Chesapeake Bay Local Assistance Department:
Richmond, VA.
Chesapeake Bay Local Government Advisory Committee. 1991. Chesapeake Bay Restoration:
Innovations at the Local Level. U.S. Environmental Protection Agency. Washington, D.C.
Chesapeake Bay Program. December 1995. Chesapeake Bay Communities: Making the
Connection. U.S. Environmental Protection Agency. Annapolis, MD.
Chesapeake Bay Program. 1995. Catalog of Assistance Programs. (800) YOUR-BAY.
Annapolis, MD.
Environmental Concern. 1995. Wow! The Wonders of Wetlands. P.O. Box P, St. Michaels, MD
21663; (410) 745-9620.
Maryland Office of Planning. 301 West Preston Street, Baltimore, MD 21201-2365; (410) 225-
4550.
Pennsylvania Environmental Council, 1211 Chestnut Street, Suite 900, Philadelphia, PA 19107;
(800) 322-9214 (PA only), or (215) 563-0250.
Pennsylvania Rivers Conservation Program, Program Planning and Development, P.O. Box 8475,
Harrisburg, PA 17105-8475; (717) 787-2316.
World Wildlife Fund. 1992. Statewide Wetlands Strategies: A Guide to Protecting and Managing
the Resource. Island Press: Washington, D.C.
76 Protecting Wetlands: Tools for Local Governments
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Case Studies:
#
Tools Used in the Chesapeake Bay Watershed
to Protect Wetlands
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The case studies presented in this section illustrate how many of the tools
discussed in this handbook have been used by local governments in the Chesapeake Bay
watershed. The purpose of this section is not to assess the tools' effectiveness in particular
locations, but rather to show their use in the ordinary course of local governmental
activities.
The tools are clustered by type, with planning-related tools being presented first,
followed by regulatory and acquisition tools, but with significant overlap where these tools
are used in combination with one another. Thus, for example, acquisition of development
rights by local governments follows the case studies of transferable development rights.
Likewise, a number of tools are discussed together to show how they integrate with one
another in practice. For example, the discussion of Lycoming County's comprehensive
planning includes the county's use of performance zoning to implement the plan.
The selection of specific jurisdictions is not based upon an assessment that these
are either unique or the best examples of these tools in practice but, instead, is intended to
show the range of jurisdictions that can and have used these conservation tools in ways
that protect wetlands or have the opportunity to protect wetlands. References are
provided for each case, along with contacts for additional information.
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Comprehensive Plan: Lycoming County, PA
Comprehensive plans provide a basis for wetlands protection in public decision-
making and establish the basis for further implementation of protective measures in the
zoning and subdivision ordinances that implement comprehensive plans.
Lycoming County, Pennsylvania, adopted a comprehensive plan in which the
environmental quality chapter sets a goal of preserving and protecting wetlands. The plan
recommends the establishment of buffer zones around "valuable" wetlands, the promotion
of "wetlands sensitive development design," the maintenance of wetlands for open space
and recreational purposes, and the promotion of "the usage of urban wetlands to slow
runoff, collect sediment, absorb toxins and other potential pollutants and improve water
quality."
Comprehensive plans affect private activity primarily through the zoning
ordinances that are developed to implement the plans. While Pennsylvania municipalities
have independent powers of land use planning and zoning, the county has authority to
zone for municipalities within the county that do not have their own zoning. Lycoming
County has adopted zoning applicable in 14 of its townships that do not have their own
zoning.
In implementing the comprehensive plan with respect to wetlands, the county has
used performance zoning. The only requirements are that wetlands be identified, that
proposals for developments that "disrupt" wetlands must show proof of state and Corps of
Engineers approval, and that vegetated buffer zones (of 50 feet, or more in the case of
steep slopes) be required to protect stream banks and shorelines. While this is a fairly
modest approach to achieving the conservation plan goals, the goals of the comprehensive
plan provide the basis upon which additional zoning requirements could be adopted.
References: Lycoming County Comprehensive Plan (1994), Chapter 4; Lycoming
County Zoning Ordinance, Article 5.
For additional information contact: Lycoming County Planning Commission, 48
West 3rd Street, Williamsport, PA 17701; (717) 327-2230.
Case Studies CS-1
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Environmental Advisory Commission: East Hanover Township,
Dauphin County, PA
Local advisory commissions can promote municipal wetlands protection by
participating in updating the comprehensive plan or designing natural resource ordinances
that specifically protect wetlands.
East Hanover Township established an Environmental Advisory Commission that
developed a Natural Resource Inventory to assist the township in updating its
Comprehensive Plan. The Inventory included a mapping project that identified the area's
wetlands to aid in local decision-making.
The East Hanover EAC also developed and wrote a wetlands ordinance which was
adopted by its Board of Supervisors in 1992. The ordinance requires that all subdivision
plans, land division plans, and building permit applications that result in a foundation
inspection include a wetlands determination. If a wetland is identified, the applicant must
demonstrate that activities within the wetlands margin will not degrade the water quality
or wetland vegetation or have an adverse hydrological impact on the wetland. In the
event a permit is granted by a state or federal agency for the encroachment or destruction
of wetlands, East Hanover Township will request the state or agency issuing the permit to
require a 1:1 wetlands replacement ratio of both acreage and function by the applicant.
Reference: East Hanover Township, Dauphin County, Pennsylvania, Ordinance
92-4.
For additional information contact: East Hanover EAC, 1552 Sandbeach Road,
Hummelstown, PA 17036; (717) 533-8153; and The EAC Network, Pennsylvania
Environmental Council, 1211 Chestnut Street, Suite 900, Philadelphia, PA 19107; (215)
563-0250.
CS-2 Case Studies
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Environmental Land Preservation Commission: Harford County, MD
Local governments can establish advisory organizations to assist in identifying
environmental issues and planning for the protection of wetlands and other sensitive and
important natural resources. Harford County established a 5-member Environmental Land
Preservation Commission in 1990 to assist the county by "finding ways to protect
environmentally critical areas in difficult economic times and, while in no manner
dampening growth, trying to find ways to direct growth in rational ways in keeping with
the County's rich natural endowment."
The Commission assists the County's Department of Planning and Zoning in
developing innovative recommendations for environmental protection. It provides advice
in setting priorities for environmental land preservation, provides and promotes education
and technical assistance to land owners, promotes an environmental land preservation
easement program, and engages in investigating, evaluating, and providing
recommendations for innovative approaches.
The Commission prepares reports with detailed recommendations and
opportunities for improving public policies, laws, and private voluntary actions. The
Commission also carries out certain administrative functions allotted to it by county
ordinance. For example, the Commission determines eligibility of real property for a
conservation tax credit authorized by the county.
References: Harford County Bill No. 90-74; Commission on Environmental Land
Preservation, Report to the Harford County Executive and Harford County Council
(January 1, 1993); Harford County Bill No. 94-34.
For additional information contact'. Harford Environmental Land Preservation
Commission, c/o Harford County Office of Planning & Zoning, 220 South Main Street,
Bel Air, MD 21014; (410) 879-2000 X3103.
Case Studies CS-3
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Environmental Guidelines: Montgomery County, MD
Local governments can assist in the planning process and the evaluation of new
development and infrastructure in their region by developing environmental guidelines.
Montgomery County has developed and published guidelines to inform and influence staff
recommendations to the Planning Board, "which may then choose to accept, reject, or
modify these recommendations on a case by case basis."
The guidelines describe the process for preparing a natural resources inventory for
development sites and protecting natural resources during the development process. They
also provide detailed support for elements of the county's general comprehensive plan and
local area master plans that deal with sensitive areas as required under Maryland state law.
Montgomery County's environmental guidelines contain wetland guidelines based
on the state's Nontidal Wetlands Protection Act, which establishes a goal of no net loss in
wetland acreage and function. The county guidelines require a minimum buffer of 25 feet
around nontidal wetlands areas and of 100 feet around wetlands of special state or county
concern or adjacent areas containing steep slopes or highly erodible soils. Wetlands and
their buffer areas are to be "maintained in their natural condition unless the proposed
disturbance is for a project determined to be necessary and unavoidable for the public
good." Such projects may include the construction of road crossings, sewer lines, and
storm drain outfalls for which no alternative exists; development of stormwater
management facilities when it can be demonstrated that upland areas are infeasible; and
certain habitat and wetland improvement efforts.
The guidelines direct the Planning Department to evaluate proposed wetland
impacts with the following sequence in order of preference: avoid the impact, minimize the
impact, rectify the impact by repair or restoration, reduce or eliminate the impact by
preservation and maintenance activities, and compensate for the impact by replacing or
providing substitute resources or environments.
The wetland guidelines provide an important local evaluative backstop to state and
federal regulatory requirements. They encourage development and capital infrastructure
investments to be made in ways that protect wetlands and that avoid triggering the need
for state or federal regulation and review whenever possible.
Reference: Montgomery County Planning Board. Jan. 1993 (corrected June
1994). Environmental Guidelines: Guidelines for Environmental Management of
Development in Montgomery County.
For additional information contact: The Maryland-National Capital Park and
Planning Commission, Environmental Planning Division, 8787 Georgia Avenue, Silver
Spring, MD 20910-3760; (301) 495-4540.
CS-4 Case Studies
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Environmental Quality Corridors: Fairfax County, VA
A rapidly developing jurisdiction must pay particular attention to its natural areas
and the linkages between them to ensure that they remain ecologically viable. Fairfax
County, Virginia, has adopted a system of Environmental Quality Corridors (EQCs) as
part of its comprehensive plan. The plan notes that neither low density zoning nor cluster
developments alone are sufficient to protect and conserve the quality of the landscape.
For this reason, the County's planning objective is to "identify, protect, and enhance an
integrated network of ecologically valuable land and surface waters for present and future
residents of Fairfax County."
The core of the networked system is the County's stream valleys and includes all
100-year floodplains, all areas of 15 percent slopes adjacent to the floodplain or beginning
within 50 feet of the stream channel where no floodplain is present, all wetlands connected
to the stream valleys, and an adjacent corridor.
The plan encourages the dedication of lands for preservation where such
dedication is in the public interest. It also provides that the County should consider the
transfer of density within parcels of land where parcels are partially within the EQC. The
plan is also used to evaluate site plan approvals in negotiating proffers with developers and
is used in local governmental decisions about governmental land uses affecting stream
valleys. While not an overlay zone, EQCs serve as an important planning tool for
protecting wetlands.
References: Fairfax County Policy Plan: The Countywide Policy Element of the
Comprehensive Plan (1990).
For additional information contact: Fairfax Office of Comprehensive Planning,
12055 Government Center Parkway, Suite 700, Fairfax, VA 22035; (703) 324-1210.
Case Studies CS-5
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Watershed Planning: Middle Peninsula Planning District, VA
Watershed planning can provide the basis for coordinating activities that affect
wetlands. Often, watersheds cross political boundaries, so it is important to involve a
variety of jurisdictions in the planning and implementation effort.
In Virginia, the Middle Peninsula Planning District Commission (MPPDC),
comprising six counties and three towns, developed the Dragon Run Conservation District
(DRCD) to conserve the watershed of Dragon Run, which lies within four counties --
Essex, Gloucester, King & Queen, and Middlesex. Wetlands comprise 10 percent of the
153 square mile watershed.
The DRCD was established to protect and conserve fragile resource areas which
perform valuable functions in their natural state and which are unsuitable for development
and intense use. Areas designated as the DRCD include wetlands and swamps, areas
important for floodplain management, aquifer recharge, water storage, and critical wildlife
habitat. A Steering Committee consisting of members appointed from the four counties
engages in planning and makes recommendations concerning the district. Steering
Committee representatives include at least one member of the board of supervisors and
two land owners from each county. While the Steering Committee engages in planning
and makes recommendations, implementation is conducted by the counties assisted by the
MPPDC. Three of the four counties adopted the conservation district as an overlay
district.
The Dragon Run Management Program is a watershed planning and
implementation project designed to protect the natural resources within the ecosystem. In
addition to the planning effort, a local land trust, Friends of Dragon Run, purchases
property in the watershed and operates collaboratively with the planning process.
References: Dragon Run Watershed Management Program Annual Reports, 1994,
1995.
For additional information contact: Middle Peninsula Planning District
Commission, P.O. Box 286, Suluda, VA 23149; (804) 758-2311; and Friends of Dragon
Run, P.O. Box 1062, Gloucester, VA 23061; (804) 693-3330.
CS-6 Case Studies
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Watershed Information and Planning: Elizabeth River, VA
The Elizabeth River Project in Virginia was formed in 1992 to encourage broad
community involvement in restoring the environmental health of the Elizabeth River in
southeastern Virginia. The Project also educates the public about the River's ecological,
economic, and recreational importance. The Project received funding from the U.S.
Environmental Protection Agency and the Virginia Environmental Endowment to conduct
a comparative risk assessment of the river. A public conference in Norfolk, Virginia, on
January 10, 1995, announced the results of the analysis that ranked the risks to the river.
In the second phase, the Project established a Watershed Action Team in April
1995, to provide recommendations on restoring habitat and living resources, improving
water quality, improving sediment quality, and reducing toxics. Four volunteer task forces
of more than 80 community leaders have been working together to develop the Watershed
Action Plan. The four work groups are: Habitat & Living Resources, Water Quality, and
Sediment Quality Task Forces and Toxics Reduction Team. The Watershed Action Plan
was presented at the Project's third annual public conference of the Elizabeth River Project
in June 1996.
The Elizabeth River Project also has a Wetlands Pilot Project, which is a
partnership with the city of Norfolk. The project has targeted a one acre site for wetlands
restoration. They plan to create a wetlands habitat park and a demonstration project to
illustrate how wetlands can be used to filter stormwater.
For additional information contact: Elizabeth River Project, 109 East Main
Street, Suite 305, Norfolk, VA 23510; (804) 625-3648.
Case Studies CS-7
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Heritage Greenway Planning: Lower Susquehanna River, MD
In 1992, the Maryland Office of Planning established a Lower Susquehanna
Heritage Greenway Coordinating Committee to determine the level of local commitment
for protecting a greenway corridor in the Susquehanna River Valley. The committee's
efforts resulted in the Lower Susquehanna Heritage Greenway, which was initiated to
enrich the quality of life in the River Valley by conserving the cultural heritage, living
resources, and natural features of the area. The greenway encourages a greater local
understanding of the resources, enhances economic development, and creates an open
space network for the region. The project is run by a committee which is made up of
citizens and individuals from local government, municipalities, and state government.
The corridor being protected for the project winds along the banks of the
Susquehanna River from the Conowingo Dam to the Chesapeake Bay. The corridor
crosses two counties, Harford and Cecil, and includes the City of Havre de Grace and the
towns of Perryville and Port Deposit. The tracts of land falling within the greenway are
mostly large private farms and rural developments and are replete with unique aesthetic,
historic, and natural resources. The State of Maryland, local governments, and public
utilities also manage large open space land holdings in the corridor. The Greenway's
planners feel that little or no land acquisition is required for continued protection of the
Valley's resources.
The committee is currently working on development of an action plan for the
Greenway which will include design standards for the trail, operation and management
guidelines, suggestions for community involvement, economic development, tourism, and
integration of the plan into the overall Chesapeake Bay initiative. Several sections of the
Greenway have already been opened, including a three mile stretch in Harford County in
Susquehanna State Park; a half mile stretch in Port Deposit, Cecil County; a 400-acre park
in the town of Perryville at the head of the Bay; and a waterfront boardwalk in the city of
Havre de Grace. The committee is also working to have the Lower Susquehanna Heritage
Greenway designated as a state Heritage Preservation Area.
References: Lower Susquehanna Heritage Greenway Coordinating Committee.
May 1993. Lower Susquehanna Heritage Greenway: Overview.
For additional information contact: Harford County Office of Planning &
Zoning, 220 South Main Street, Bel Air, MD 21014; (410) 879-2000 X3103.
CS-8 Case Studies
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Special Area Management Plan: Baltimore County, MD
A Special Area Management Plan (SAMP) is a comprehensive approach to
resource management that considers local, state, and federal interests within a geographic
area. It can be applied to wetlands and can be used to provide greater predictability for
government and private decisionmakers and to assure that secondary and cumulative
impacts of planned activities are understood. Baltimore County has used the SAMP to
deal with the expansion of sewer service into areas formerly served by on-lot systems,
some of which are failing.
The Back River Neck SAMP was prepared by the County's Department of
Environmental Protection and Resource Management in cooperation with the County
Department of Public Works, the U.S. Army Corps of Engineers' Baltimore District, and
the Maryland Department of Natural Resources. It focuses on lots to be served by the
proposed sewer systems and those along the routes that might be served in the future.
Much of the analysis was designed to minimize or avoid the impacts upon nontidal
wetlands in these areas, which are important to the health of the Chesapeake Bay.
The SAMP calls for the for the delineation of wetlands. Wetlands are also
functionally assessed using a method adapted for the area from common evaluation tools.
The functions examined include ecological integrity, plant habitat, wildlife habitat, aquatic
habitat, flood control, and water quality and are used to assist in decisionmaking. In
addition, a uniqueness or importance score is applied independently. Certain wetlands are
designated for preservation, such as those that are unique, in Chesapeake Bay Critical
Area Habitat Protection Areas, riparian wetlands, or nontidal fringe wetlands within the
100 foot critical area tidal buffer. Most wetlands are evaluated based on the functional
assessment. Using this assessment, for example, the SAMP contemplates that mature
forested wetlands displaying increasing species diversity will be preserved, while immature
forested wetlands may be developable. In order to accommodate development and
mitigation needs, the SAMP found that in-kind, on-site mitigation for wetlands loss was
"impractical" given the small lot sizes. Therefore, the County is establishing two wetland
mitigation banks to mitigate for the direct impacts of the sewer projects and anticipated
impacts of building permit approvals for development stimulated by the availability of
sewer service. The banks will allow the pooling of mitigation in order to be more effective
and ecologically viable.
The SAMP was not used to develop a "general permit" under § 404 of the Clean
Water Act but instead will be used as the "reference information at the county, state, and
federal level" for all permit decisionmaking.
Reference: Back River Neck Special Area Management Plan. May 26, 1995.
For additional information contact: Baltimore County, Department of
Environmental Protection and Resource Management, 401 Bosley Avenue, Suite 416,
Towson, MD 21204; (410) 887-3755.
Case Studies CS-9
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Special Area Management Plan: Northampton County, VA
Building upon work initiated by The Nature Conservancy in cooperation with local
churches, businesses, and communities, the Northampton County Board of Supervisors
appointed a Sustainable Development Task Force to spearhead a Sustainable Development
Initiative in September 1993. The Initiative was established to address poverty and
coordinate economic development with environmental protection in this depressed area on
the tip of the Delmarva peninsula. The County occupies the southern half of Virginia's
Eastern Shore.
In 1992, the County received a grant from the Virginia Coastal Resources
Management Program and the National Oceanic and Atmospheric Administration
(NOAA). The grant partially supports the County's Special Area Management Plan
(SAMP), which in turn finances the County's Sustainable Development Initiative through
1996. State and federal funds will sustain the remainder of the project. The planning
effort helps to integrate conservation of coastal marshes and other areas with the
development of sustainable industry and communities.
In 1994, the Sustainable Development Task Force published its Sustainable
Development Action Strategy. The Strategy has three interdependent objectives:
development of sustainable industries which capitalize on Northampton's assets while
supporting their protection and enhancement; protection and enhancement of the assets on
which Northampton's sustainable industries depend for their full development and ongoing
success; and active involvement of the entire Northampton community throughout the
sustainable development effort. Northampton County won a national planning award from
the National Association of Counties for its planning effort.
Among other efforts, the County is currently developing a Heritage Trail that will
link natural and cultural resources throughout the Eastern Shore via a series of trails and
historic sites. Through this project, the County hopes to increase public understanding of
the region's resources, secure their long term protection, and develop a sound economic
base. The Initiative aims to improve quality of life in the County by developing a
sustainable economy that consciously protects and celebrates the region's natural and
cultural resources.
References: Environmental Law Institute. 1995. Building on the Blueprint: How
Virginia's Communities are Implementing Sustainable Development. Environmental Law
Institute: Washington, D.C.; Chesapeake Bay Program. Dec. 1995. Chesapeake Bay
Communities: Making the Connection. U.S. Environmental Protection Agency:
Annapolis, MD.
For additional information contact: Director of Sustainable Development,
County of Northampton, P.O. Box 538, Eastville, VA 23347; (804) 678-0477.
CS-10 Case Studies
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Wetland Protection Regulations: Calvert County, MD
Local communities may adopt regulations controlling the impacts of development
on wetlands. Because of a concern for the effect of development on wetland functions,
Calvert County has established a goal of no significant loss of wetlands. The County
passed regulations that "are intended to protect wetlands from the negative effects of
siltation and nullification caused by development" to achieve no net loss.
The County's regulations require the identification and maintenance of a minimum
buffer zone of 50 feet of undisturbed natural vegetation around wetlands that are outside
the Chesapeake Bay Critical Area (which have their own requirements). The required
buffer zone may be reduced by the Zoning Officer if the developer can formulate
alternative ways to minimize soil run-off problems.
The County's regulations provide that filling of wetlands for the construction of
single-family detached residential dwellings will not be allowed. The regulations also
address the effect of subdivision of parcels of land upon wetlands. The County has
determined that lands may not be subdivided "in a manner that requires filling of wetlands
for any activities except road crossing and stormwater management."
Reference: Calvert County Zoning Regulations 4-4.05.
For additional information contact: Calvert County Department of Planning &
Zoning, 176 Main Street, Courthouse Annex, Prince Frederick, MD 20678; (410) 535-
2348.
Case Studies CS-11
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Wetland Protection Regulations: Baltimore County, MD
Wetlands can be protected by local government regulation where local
governments have authority to do so. In Maryland, county governments have substantial
authority to protect wetlands by regulatory means.
Baltimore County has adopted regulations for the protection of forest buffers "to
protect water quality, streams, wetlands, and floodplains." The County Council's findings,
set forth in the County Code, find that forest buffers:
Restore and maintain the chemical, physical, and biological integrity of the water
resources; filter nutrients and toxics; reduce erosion and control sedimentation;
stabilize stream banks; provide infiltration of stormwater runoff; maintain base
flow of streams; provide the organic matter that is the source of food and energy
for the aquatic ecosystem; provide tree canopy to shade streams and encourage
trout and other desirable aquatic species; provide riparian wildlife habitat; provide
scenic value and recreational opportunity; and minimize public investment in
waterway restoration, stormwater management, and other water resource
expenditures.
The regulations provide for design review, review of grading and building permits,
management requirements limiting disturbance of land and vegetation, prohibitions of
certain structures and activities, and enforcement procedures and penalties. The County
has adopted very strict regulations to protect forest buffers. For example, vegetation
within a forest buffer may not be disturbed except under very limited circumstances; soil
disturbances, including grading, plowing, and cultivating, are prohibited; drainage or
ditching is prohibited except by permit; pesticides may not be used except for spot
spraying of identified noxious weeds; and grazing, the operation of motorized vehicles,
and filling or dumping are prohibited.
The County's Department of Environmental Protection and Resource Management
is authorized to grant a variance from the requirements for projects or activities where
strict compliance would result in practical difficulty or unreasonable hardship, or for public
improvement projects where there is no feasible alternative. Mitigation is required when
variances are granted.
References: Baltimore County Code, Article IX, Protection of Water Quality,
Streams, Wetlands and Floodplains, §§ 14-331 - 14-350.
For additional information contact: Baltimore County, Department of
Environmental Protection and Resource Management, 401 Bosley Avenue, Suite 416,
Towson, MD 21204; (410) 887-3755.
CS-12 Case Studies
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Subdivision Ordinance: East Hanover Township,
Dauphin County, PA
Subdivision and building permit ordinances can be used to protect wetlands. East
Hanover Township, Pennsylvania, amended its Subdivision and Land Development
Ordinance and its Building Permit Ordinance in 1992 to explicitly provide wetlands
protection. The amendments were developed by the township's Environmental Advisory
Council, an appointed body authorized by Pennsylvania's Municipalities Code.
The subdivision ordinance states that the township "has determined that the public
interest, health, safety and the economic and general welfare of its residents will be best
served by providing for the protection and preservation of its ponds, lakes, reservoirs,
water bodies, rivers, streams, water courses, wetlands, natural drainage systems and
adjacent land areas from encroachment, spoiling, pollution or elimination, and by
providing for their proper maintenance and use." The ordinance further finds that
"[w]etlands in East Hanover and other areas form an ecosystem that is not confined to any
one property owner or neighborhood." It notes the benefits of wetlands to the Township
for drainage and flood control, subsurface water resources, habitat, pollution control,
erosion control, and other uses.
The ordinances require that prior to preliminary plan approval for a proposed
subdivision, a determination must be made on each lot to ascertain whether wetlands may
be present. When the initial determination indicates that wetlands may be present, the
ordinances require that wetlands delineations, confirming the presence of wetlands and
defining their extent, must be performed. If the Township questions the delineation, the
developer must seek a jurisdictional delineation from the Army Corps of Engineers.
The applicant must "demonstrate to the satisfaction of the Township that activities
within the wetlands margin will not degrade the water quality, wetland vegetation, or have
an adverse hydrological impact on the wetlands." The wetlands margin is defined as a
transitional area of 50 feet from the delineated wetland boundary or to the limit of the
hydric soils outside the wetland boundary, whichever is less.
The ordinances require the Township to request that state or federal agencies that
authorize wetland loss by permit impose a compensatory mitigation requirement on the
applicant of at least 1:1 replacement of both acreage and wetland function.
References: East Hanover Township, Ordinance 92-4, Ordinance 92-5.
For additional information contact: East Hanover EAC, 1552 Sandbeach Road,
Humelstown, PA 17036; (717) 533-8153.
Case Studies CS-13
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Subdivision Ordinance: West Lampeter Township,
Lancaster County, PA
Municipalities can integrate wetlands protection into their land development
regulations. West Lampeter Township, a township adjacent to the city of Lancaster,
amended its subdivision ordinance in 1989 to protect wetlands.
The ordinance requires developers to identify the effect of the proposed use upon
sensitive environmental or cultural conditions. Developers must map the wetlands and
important wildlife habitats (identified by the Pennsylvania Natural Diversity Inventory) on
property that has been determined to contain wetlands. The developer must demonstrate
that it has all permits required by the state or the Army Corps of Engineers for activities
affecting wetlands. In addition, the developer must provide a detailed description of the
methods that are being used to: (1) avoid the disturbance of any wetlands during and
following construction; (2) assure that the proposed use is compatible with important
habitats; (3) mitigate the loss of existing habitats; (4) replace and/or create additional land
areas that will have similar environmental traits; and (5) assure that activities associated
with the proposed use will remain compatible with the site's important habitats over time.
References: West Lampeter Township Subdivision and Land Development
Ordinance, Section 402.05; and Pennsylvania Department of Environmental Resources.
1990. Wetlands Protection: A Handbook for Local Officials. Environmental Planning
Information Series Report #1'. Prepared by the Environmental Law Institute.
For additional information contact: Lancaster County, West Lampeter Township,
852 Village Road, P.O. Box 237, Lampeter, PA 17537; (717) 464-3731.
CS-14 Case Studies
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Subdivision Regulations: Prince George's County, MD
Subdivision regulations prescribe the manner by which parcels of land may be
subdivided for development and sale. They typically prescribe lot sizes, set-back
requirements, roadway access, public facilities access, and other requirements. Many
communities also use subdivision regulations to protect environmentally important
features, such as perennial streams, shorelines, and wetlands.
Prince George's County, Maryland, has enacted subdivision regulations that
include an environmental chapter. The environmental chapter covers floodplains, streams,
wetlands and water quality protection, stormwater management, lands considered unsafe
(due to flooding, erosion, unstable soils, or high water table), woodland conservation and
tree preservation, grading plans, historic preservation requirements, and parkland. The
wetland section provides that proposed subdivisions must be designed "to minimize the
effects of development on land, streams and wetlands, to assist in the attainment and
maintenance of water quality standards, and to preserve and enhance the environmental
quality of stream valleys."
In addition to this performance standard, there are specific requirements for the
protection of natural resources. For example, certain buffer zones are required. For
nontidal wetlands outside the Chesapeake Bay Critical Area, the subdivision plat must
provide a buffer of at least 25 feet measured from the edge of the wetland. The county's
Planning Board may require an expansion of this buffer to include adjacent slopes of 25
percent or greater and adjacent slopes of highly credible soils with a slope of 15 percent or
greater. Where property is within an area covered by an adopted watershed plan, the
subdivision must conform to that plan.
The use of performance standards - requiring the minimization of effects,
assistance in achieving and maintaining water quality, and preserving and enhancing
environmental quality of stream valleys - together with specific design requirements such
as buffer zones, provides a basis for effective local protection of wetlands.
References: Subdivision Regulations of Prince George's County, Maryland. § 24-
130.
For additional information contact: Prince George's County Department of
Environmental Resources, 9400 Peppercorn Place, Largo, MD 20774; (301) 883-5810.
Case Studies CS-15
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Mandatory Cluster Development: Calvert County, MD
Cluster development is a way of accommodating development of land with other
resources and conservation interests. It increases the density of development on part of a
parcel, while requiring that the remaining land be conserved in open space.
Calvert County requires cluster development for residential communities in rural
areas. Within the Rural District, building lots within designated Farm Communities and
Resource Preservation Districts must be grouped onto no more than 20 percent of the site.
Within designated Rural Communities, building lots must be grouped onto no more than
50 percent of the site. In areas zoned as Residential R-l and R-2 outside of town centers,
building lots must be grouped onto no more than 50 percent of the site.
Cluster development provides a tool for protecting not only farmland and open
space, but also wetland resources. In Calvert County, wetlands, floodplains, streams and
stream buffers are recognized as suitable open space uses. Open space created by
approved cluster development must be protected by legal arrangements such as covenants
"to assure the preservation and continued maintenance of the open space for its intended
purposes in perpetuity."
Reference: Calvert County Zoning Regulations 5-1.03.
For additional information contact: Calvert County Department of Planning &
Zoning, 176 Main Street, Courthouse Annex, Prince Frederick, MD 20678; (410) 535-
2348.
CS-16 Case Studies
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Authorized Cluster Development: Kent County, MD
Cluster development is a way to assure that open space - including wetlands and
the surrounding upland areas important for their ecological health - is preserved even
while development is allowed to occur. Development density is increased on part of the
parcel in order to protect open space on the remainder of the parcel. Kent County,
Maryland, allows its planning commission to approve cluster development in districts
zoned as rural residential, provided that at least 30 percent of the site is retained in open
space. Cluster development is not required but is available as a development option.
The county also provides for "enclave" development in the Agricultural district.
Houses developed in enclaves must be grouped close together on small lots around an
internal road to resemble farm buildings. Enclave development authorized under the
county ordinance allows a maximum of 10 dwelling units per enclave, with a maximum lot
size of 1 acre and no minimum lot size (except as required by set-back, yard and other
requirements). Enclave development offers an approach that is particularly well-suited to
agricultural lands.
Reference: Kent County Zoning Ordinance.
For additional information contact: Kent County Planning Commission, Court
House, 103 North Cross Street, Chestertown, MD 21620; (410) 778-7475.
Case Studies CS-17
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Authorized Cluster Development: Monaghan Township,
York County, PA
Cluster development is a tool that can assist in the protection of open space and
other desirable landscape features, including wetlands. Development density is increased
on part of the parcel in order to protect open space on the remainder of the parcel.
Monaghan Township, in York County, Pennsylvania, has adopted zoning
regulations that create a Rural Residential Zone, which allows both agriculture and low-
density residential development. Rural clusters of single family dwellings are authorized as
a conditional use. According to the township's regulations, this is "intended to
accommodate the clustering of rural residences, while reducing the loss of significant
natural features (e.g., steep slopes, woodlands, wetlands, floodplains, etc.)." The
regulations provide a density bonus that increases as the amount of land dedicated to open
space increases.
The applicant for cluster development must prepare a detailed natural and cultural
inventory of the site, which identifies 100-year floodplains, wetlands, streams, ponds,
other water bodies, and various other features. The open space dedication consists only of
these identified natural or cultural features and other open space that "links" such features
together on the parcel of land.
Reference: Monaghan Township Zoning Ordinance, Section 454.
For additional information contact. York County Planning Commission, York
County Government Center Building, 100 West Market Street, York, PA 17401; (717)
771-9870.
CS-18 Case Studies
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Cluster Development with Transferable Development Rights:
Talbot County, MD
Talbot County, Maryland, has both cluster development and cluster development
with transferable development rights (TDK). These tools protect open space and can,
indirectly, benefit wetlands.
In the area zoned as a rural agricultural conservation district, the authorized cluster
development density for parcels over six acres is 3 dwelling units plus 1 dwelling unit for
each 10 acres. This is a greater density than is authorized for ordinary subdivisions in the
district, which are 3 dwelling units plus 1 dwelling unit for each 20 acres. The higher
density for cluster development encourages the retention of open space. Open space
preserved in connection with cluster development must be explicitly preserved by
Reservation of Development Rights Agreements "which prohibit future residential,
commercial, or industrial development" on the open space.
Talbot County has combined its cluster development option with a transferable
development rights option. This alternative allows the landowner to "almost double the
density of a cluster subdivision by transferring additional development rights to the
subdivision" from another property within a rural agricultural conservation district. With
transferred development rights, cluster development density is authorized at 3 dwelling
units plus 1 dwelling unit for each 5 acres of land. The minimum lot size for cluster
development with TDRs is one-half acre, rather than one acre as in ordinary cluster
development. The rural agricultural property from which the TDRs are transferred is
protected from development by a recordation of the transfer, with ten acres protected for
each TDR that is transferred.
Other provisions governing subdivisions in the rural agricultural conservation
district provide that "the landscape shall be preserved in its natural state insofar as
practical, by minimizing tree and silt removal. Topography, tree cover, and natural
drainageway shall receive priority as fixed determinants of road, site and structure
configuration." In addition, areas of the site with "environmental constraints," such as
wetlands, are not to be disturbed by development, but may be included in calculating the
allowable density.
References: Talbot County Code, Title 19.
For additional information contact: Talbot County Office of Planning & Zoning,
11 North Washington Street, Easton, MD 21601; (410) 822-2030.
Case Studies CS-19
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Cluster Development Combinations — TDRs and Overlays:
Howard County, MD
Cluster development in sensitive areas can promote conservation of wetlands,
retain open space, and protect agricultural uses. When coupled with transferable
development rights (TDRs), substantial conservation can be encouraged.
Howard County mandates cluster development in rural areas of the county zoned
as Rural Conservation (RC) districts. Within the RC district, maximum residential density
is one dwelling unit per 4.25 acres; however, the units must be clustered. No subdivision
building lot may be larger than 60,000 square feet. The remainder of the original parcel
must be covered by a permanent conservation easement. On the conservation parcel,
authorized uses include farming, conservation uses, and other limited uses.
The county allows, but does not require, cluster development in the Rural
Residential (RR) district. The RR district is a portion of the county where extensive
subdivision has already taken place. Clustering in the RR district is at the same density as
in the RC district.
Howard County has also created an overlay district for the RC and RR districts in
order to provide additional incentives for the protection of the RC district. The overlay
district allows the transfer of density (development rights) among qualified parcels. The
"sending" parcels must be in the RC district - thus providing greater protection
opportunities for lands in this district.
References: Howard County Zoning Regulations, Sections 104, 105, 106;
Chesapeake Bay Program. Dec. 1995', and Chesapeake Bay Communities: Making the
Connection. U.S. Environmental Protection Agency: Annapolis, MD. pp. 27-28.
For additional information contact: Howard County Department of Planning &
Zoning, 3430 Courthouse Drive, Ellicott City, MD 21043; (410) 313-2350.
CS-20 Case Studies
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Transferable Development Rights: Shrewsbury Township,
York County, PA
Transferable Development Right (TDR) programs can be used to protect
agricultural areas and to differentiate between uses of lands by protecting the best
agricultural lands.
Shrewsbury Township requires that, in the Agricultural Preservation District, all
single family dwellings must be located on lands "not of first quality for agriculture."
Wherever this limitation prohibits an owner from using the full density of dwellings
allowed for the owner's parcel based on acreage, the development rights may be
transferred to another parcel consisting of lands that are unsuitable for agricultural use and
in an "agriculturally inferior" area of the Township.
Although this TDR program does not assist in preserving wetlands, it provides a
model that could be adapted to wetlands protection.
References: Shrewsbury Township Zoning Ordinance, Sections 5.00-5.06.
For additional information contact. York County Planning Commission, 100
West Market Street, Suite 201, York, PA 17401; (717) 771-9870.
Case Studies CS-21
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TDRs with Purchase of Development Rights: Calvert County, MD
Transferable development right (TDK) programs sometimes do not perform as
well as expected because they depend heavily upon an active market for development in
areas designated as TDR receiving areas. To encourage the continued use of TDRs in
light of this barrier, some local jurisdictions have supplemented TDR programs with
programs that rely on government purchase and retirement of TDRs.
One such jurisdiction is Calvert County, Maryland, which has created a program to
"purchase, retire and permanently remove" TDRs in order to preserve farm land from
development. The Purchase and Retirement Fund is made available for purchase of TDRs
upon application of land owners holding the TDRs. A Board made up of 5 members
appointed by the County Commissioners carries out a variety of agricultural preservation
duties including administration of the Fund. It is responsible for reviewing applications for
sale of TDRs using established criteria to determine which applications should be
accepted. A detailed point system considering such factors as agricultural use and activity,
size, soils, and location is used.
The Purchase and Retirement Fund is supported by the county's share of the state
real estate transfer tax. All counties in Maryland have the right to use up to 75 percent of
the state real estate transfer taxes collected in their county if they have a certified
agriculture preservation program. Money for the Fund also comes from county funds that
were originally set aside for matching the state program.
Reference: Calvert County Agricultural Preservation Rules and Regulations
(1995).
For additional information contact: Calvert County Department of Planning &
Zoning, 176 Main Street, Courthouse Annex, Prince Frederick, MD 20678; (410) 535-
2348.
CS-22 Case Studies
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Installment Purchase Program: Howard County, MD
Howard County, Maryland has been successful in its development and
implementation of a tax-exempt installment purchase program for acquiring development
rights on agricultural lands. The county has developed a scheme under which it buys
development rights from farmers with a thirty-year promissory note rather than cash. The
note represents a promise to fulfill the terms of the sale, and payment for most of the
principal is deferred until the end of the contract period. In the meantime, the farmer
receives semi-annual, tax-exempt, market rate interest payments, as well as small principal
payments every two years. Under this scheme, the bulk of capital gains taxes are deferred
until the final payment at the end of the thirty-year contract, or when the estate is probated
if the owner should die earlier.
Contributing to the success of this program is the fact that the agreements between
the county and the landowner are "securitized." This enables the landowner to cash out of
the program by selling his or her interest in the installment payments in the marketplace as
certificates of participation.
The final balloon payment which the county is obligated to pay at the end of the
thirty-year contract period is secured by zero-coupon Treasury obligation bonds that are
scheduled to mature in thirty years. These bonds are steeply discounted, enabling the
county to buy bonds with a future value of about $24 million for approximately $2.4
million.
Howard County's success rate under this financing scheme has been tremendous.
By July 1990, the County had commitments to purchase development rights on more than
4,100 acres. The county paid about $5,500 per acre, about one-third of the appraised
value of the land.
Under Maryland law, Howard County is a "charter county," which means that it is
given significant authority to initiate and manage its own debt. Other counties in
Maryland and in other states are structured differently and would require enabling
legislation to adopt a similar program.
Reference: Lincoln Institute of Land Policy. 1993. Land Conservation through
Public/Private Partnerships. Eve Endicott, ed. Island Press: Washington, D.C.
For additional information contact: Howard County Department of Planning &
Zoning, 3430 Courthouse Drive, Ellicott City, MD 21043; (410) 313-2350.
Case Studies CS-23
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Installment Purchase of Development Rights: Virginia Beach, VA
The City of Virginia Beach, Virginia adopted an ordinance on May 9, 1995
establishing a general obligation bond that allows the city to assume up to $58 million of
debt. The bond designates funding for the newly established Agricultural Reserve
Program (ARP). Although the Virginia Beach ordinance specifically excludes wetland
acquisition from its ARP, other communities could enact a similar ordinance that includes
wetlands acquisition. Through ARP, the City acquires development rights in designated
areas within the southern portion of the city through the purchase of agricultural land
easements. Lahdowners who meet certain eligibility criteria may sell an easement to the
city while holding fee simple title to the land and continuing to farm. The city acquires the
development rights to the land in perpetuity by executing installment purchase agreements
with the landowners.
The installment purchase agreements offered by the city in exchange for a
conservation easement on the land are paid in full approximately twenty-five years after
execution of the agreement. Fanners receive interest payments every six months and
receive the principal payment at the end of the twenty-five years.
In the initial phase of the program, twenty farmers owning 2500 acres in
agricultural lands submitted applications to participate in the program. The applications
must be reviewed and eligible properties appraised. When the appraisals are completed,
the city will make offers to acquire conservation easements on qualifying properties.
Offers to landowners with approved applications are to be made in the latter half of 1996.
Upon the execution of the easement, the city will purchase zero coupon bonds.
The zero coupon bonds purchased at the closing provide income for the farmer's semi-
annual interest payments, as well as the principal balloon payment in 25 years. The City
Council provides additional funds to the bondholders, including a one and one-half cent
increase in the real estate tax and at least $550,000 in other general fund revenues and
surpluses annually.
For additional information contact: Virginia Beach Department of Finance,
Building 1, Room 220, Municipal Center, Virginia Beach, VA 23456; (804) 427-4681.
Virginia Beach City Attorneys Office, City Hall Building, Room 260, Municipal Center,
Virginia Beach, VA 23456; (804) 427-4531.
CS-24 Case Studies
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Resource Protection Zone: Charles County, MD
Resource Protection Zones (RPZs) are a type of overlay zone used to impose
special requirements not specifically addressed by the underlying use-based zone. RPZs
can be used to protect wetland areas found in industrial, commercial, residential,
agricultural, or other zones.
Charles County, Maryland, has defined an RPZ for all county streams located
outside the Chesapeake Bay Critical Area. The purposes of the zone are to "preserve
floodplains in a natural state; preserve wetlands associated with floodplains; preserve
significant habitat associated with stream valleys or in other locations; prevent soil erosion
and sedimentation by protecting steep slopes associated with stream valleys; protect
persons and property from environmental hazards such as unstable or highly credible soils
and flooding; filter nutrients, toxics, and sediment from stormwater; protect scenic values;
provide recreational opportunities; and minimize public investment in floodplain
stormwater management."
The zone is defined as an area encompassing the outermost combined limits of the
100-year floodplain and a buffer. The minimum buffer, defining the outer limit of the
RPZ, is 50 feet from the stream channel (or 100 feet for larger stream channels). Where
adjacent nontidal wetlands are present, the buffer extends 25 feet beyond the outer edge of
the wetlands (within a development district) or 50-100 feet beyond the outer edge of the
wetlands (outside of a development district). If the 100-year floodplain extends beyond
the buffer as adjusted for adjacent nontidal wetlands, the edge of the floodplain constitutes
the edge of the buffer. The buffer is extended 50-100 feet if the minimum buffer includes
or is within 25 feet of a steep slope.
The RPZ provides a modest basis for conserving wetlands and stream corridors in
the County. Certain land uses are prohibited within the RPZ: mining and excavation,
dredging (except when permitted by state law), deposition of fill or waste, alteration of the
stream bed, and clearing of vegetation and grading. Certain land uses are permitted
subject to conditions designed to protect the zone: agriculture with vegetative filter strips,
timber harvesting, utilities where no reasonable alternatives exist, non-motorized
recreational trails, and construction of single-family homes on lots platted prior to October
1992. Any plats prepared for recording must indicate the zone and contain a note stating:
"There shall be no clearing, grading, construction, or disturbance of vegetation in the
Resource Protection Zone except as may be permitted by the Charles County Planning
Commission." For developments adjacent to the RPZ, or authorized in the zone under the
limited conditional uses, a performance bond must be posted with the County to cover any
possible damage to RPZ lands during construction. The bond is released only after the
work done under the applicable grading permit has been approved by the County.
Reference: Charles County, Maryland, Zoning Ordinance, Part III §§ 167-182.
For additional information contact: Charles County, Office of Planning & Growth
Management, P.O. Box B, LaPlata, MD 20646; (301) 645-0692.
Case Studies CS-25
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Overlays and Buffer Zones: Harford County, MD
Overlay zoning provides a means to protect natural resources of particular value
wherever they might occur within a local jurisdiction, regardless of the underlying use-
based zone. Harford County established an overlay zone in 1982 to limit certain uses that
could affect wetlands and stream valleys. In 1985, the County amended the zoning
ordinance to define buffers for wetlands and streams in the overlay zone.
The overlay zone limits development activities, such as residential, commercial or
industrial development. Within the overlay zone, buffer zones also limit disturbance of
soil and vegetation, through the prohibition of such activities as timber harvesting. The
ordinance requires the protection of a natural buffer of 75 feet from the margin of a
wetland. Streams and their adjacent lands are included in the overlay zone to a distance of
150 feet from the stream bank or 50 feet beyond the 100-year floodplain, whichever is
greater. The stream buffer is 75 feet on each side of tributaries that drain an area of 400
acres or more; smaller streams have a buffer of at least 50 feet, plus an additional distance
to account for steep slopes.
References: U.S. Environmental Protection Agency. 1992. Protecting Coastal
and Wetlands Resources: A Guide for Local Governments. U.S. EPA, Office of Water:
Washington, D.C. EPA 842-R-92-002.
For additional information contact: Harford County Office of Planning &
Zoning, 220 South Main Street, Bel Air, MD 21014; (410) 879-2000.
CS-26 Case Studies
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Performance Based Zoning: Queen Anne's County, MD
Performance based zoning uses the characteristics of land to determine the
allowable development capacity. Queen Anne's County, Maryland, uses a simple version
of performance based zoning to determine residential site capacity.
Residential site capacity is the portion of a parcel that can be used in calculating
the applicable density. Performance based zoning is used to assure that areas containing
important resources such as wetlands are not pressured by development, by excluding
them from that part of the land that developers have an expectation of developing. Queen
Anne's County has adopted an approach to the calculation of the developable area of a
parcel of land that is designed to exclude key resource areas from the developable base.
First, the County determines the total resource protection land area for the site.
The resource protection area consists of wetlands, other waters, buffers, and forests, in
various quantities. The resource protection area is deemed to include 100 percent of the
site's acreage that is in rivers, floodplains, and wetlands. It also includes 100 percent of
streams and buffer zones, except in agricultural areas where only 80 percent of the acreage
of streams and buffer zones is included in the total. Woodland acres are included at 100
percent in the Chesapeake Bay Critical Area, 60 percent in other upland areas, and 50
percent in agricultural areas. The sum of these categories gives the resource protection
area for a given site.
Second, the County calculates the parcel's open space requirement by multiplying
the base site area by the applicable open space ratio determined by ordinance for each
zoning district.
Then the greater of the resource protection area total or the open space total is
subtracted from the base site area to obtain the "net buildable area." The net buildable
area is used to determine how many dwellings may be constructed on the parcel. It is
multiplied by the applicable net density (from the zoning ordinance) to obtain the number
of dwelling units permitted. This number is compared to the number of dwelling units
calculated by multiplying the base site area by the applicable gross density (also from the
zoning ordinance). The smaller number is the number of allowable units for the site.
Similar procedures are used to determine the maximum amount of floor area and
impervious area, and the minimum landscape surface area for nonresidential development
in the County.
Performance zoning can be used both directly and indirectly to protect wetlands
and their surrounding uplands in development areas.
Reference: Queen Anne's County Zoning Ordinance, § 5300-5305.
For additional information contact: Queen Anne's County Department of Planning
& Zoning, 107 North Liberty Street, Centerville, MD 21617; (410) 758-1255.
Case Studies CS-27
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Floodplain and Wetland Protection Regulations:
Howard County, MD
Many wetlands are located in the floodplains of rivers and streams. These valuable
wetlands improve flood control and limit pollution and damage to waterways by slowing
the flow of floodwaters as they recede. Floodplain protection regulation, while aimed
primarily at preventing damage to structures and loss of life, can also protect wetlands.
Howard County, Maryland, like many other jurisdictions in the Chesapeake Bay
watershed, includes floodplain preservation regulations as a part of its regulations on
subdivisions of land. Most land within the 100-year floodplain is protected in some
manner. The regulations state that "developers are encouraged to dedicate and deed the
land" in the floodplain to the county as "open space." Absent such dedication, the
developer must grant the county a perpetual easement for access and deed the land either
to a property owners' association or include it within the boundaries of the subdivision
lots. However, the floodplain land is not counted as meeting any part of the requirement
for minimum lot size (with limited exceptions in certain rural districts).
The county also has requirements for the protection of wetlands and streams.
Grading or removal of vegetation is not permitted within 25 feet of any wetland; within 50
feet of any intermittent stream, or perennial stream in non-residential zones; or within 75
feet of a perennial stream in residential zones. Wetlands may not be included within the
boundaries of residential lots but must be included in required open space unless this
cannot be reasonably achieved. Wetland buffers, however, may be located on residential
lots as long as at least 25 feet of usable yard exists between the dwelling and the buffer.
Reference: Howard County Subdivision and Land Development Regulations,
Sections 16.114-. 116.
For additional information contact: Howard County Department of Planning &
Zoning, 3430 Courthouse Drive, Ellicott City, MD 21043; (410) 313-2350.
CS-28 Case Studies
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Wetland Mitigation Guidelines: Baltimore County, MD
Construction and other local development activities often have adverse affects on
wetlands. In these instances, wetland mitigation is typically required by the Army Corps of
Engineers for permitted activities and by state governments. In addition, local governments
may impose mitigation requirements for wetlands impacts. These local requirements may be
satisfied by compliance with federal or state requirements, or they may also be imposed directly
by the local government, including cases where the activity does not require a federal permit or
mitigation at the federal level.
Baltimore County, Maryland, has adopted detailed wetland mitigation guidelines. The
county generally prohibits the destruction or harmful alteration of wetlands or streams; but
where impacts are authorized, mitigation must occur. After avoiding adverse impacts, project
applicants must adhere to the following sequence: minimize the impact by limiting the degree
or magnitude of the action; rectify the impact by repairing, rehabilitating or restoring the
affected environment; reduce or eliminate the impact over time; and, finally, compensate for
the impact by replacing or providing substitute environments.
The County's guidelines give detailed examples of each type of mitigation and how it
might be applied. For example, minimization includes "constructing longer bridges to cross
floodplains instead of channelizing streams" and redesigning the project by "widening an
existing road instead of building a new one." Examples of restoration include "replanting
native wetland and riparian vegetation."
Where compensation is used, the guidelines provide that the restoration or creation
activity must restore lost wetland functions and acreage at a 1:1 ratio or higher. A greater than
1:1 ratio must be required if the wetland adversely affected is a forested wetland, if
uncertainties exist about the probable success of the proposed restoration or creation, if one or
more functions cannot be replaced, or if a period of time will pass between the wetland loss
and the compensation.
The guidelines establish a presumption that compensation will be with the same kind of
wetland as the one adversely affected. However, the project applicant may overcome this
presumption by showing that the affected wetland was already degraded and that another type
of wetland will have greater functional value, or by showing that it is technically infeasible to
restore the same type of wetland due to factors such as persistent exotic species or changes in
watershed hydrology. To the extent possible, compensatory mitigation is to be located
according to the following order of preference: 1) on-site; 2) within the same subdrainage basin
or next higher order stream; or 3) within the same major drainage basin.
Detailed application requirements, financial capability demonstrations, monitoring
requirements, and survey requirements are set out in the County's guidelines.
References: Baltimore County, Maryland, Wetland Mitigation Guidelines.
For additional information contact: Baltimore County, Department of Environmental
Protection and Resource Management, 401 Bosley Avenue, Suite 416, Towson, MD 21204;
(410) 887-3755.
Case Studies CS-29
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Utility Siting and Construction: Baltimore County, MD
Local governments can affect wetlands through the regulations and guidelines
covering utility placement and construction by both public entities and private utilities.
Baltimore County, Maryland, has environmental guidelines that directly address the
relationship between utilities and wetland areas.
The County guidelines governing utility placement and design provide that
disturbance of wetlands and streams should be avoided or minimized "through the use of
practical alternatives such as designing the utility line in a proposed or existing roadway or
using an existing right-of-way." Where this is not feasible, "locating the utility line parallel
to the outer edge of the wetland, along the toe of an adjacent slope, or at the outer edge
of the forest buffer is preferred." The guidelines call for a "minimum 50 foot undisturbed
buffer" between watercourses and the edge of the utility right-of-way.
Stream crossings should be avoided, but where stream crossings are required, the
guidelines provide that they should be perpendicular to the channel to minimize
disturbance of stream bank vegetation and to reduce cuts on the stream bank. Crossings
should also be in areas with low, well-armored banks, to reduce damage. Utility
construction practices must not alter the hydrologic regime. The post-construction
contours of waters and elevations of wetlands in a project area must be the same as the
original contours and elevations. In addition, no material may be placed in any location or
in any manner "so as to impair surface or subsurface water flow into or out of any wetland
area."
Permanent work on utilities "shall not restrict or impede movement of aquatic
species, or restrict or impede the passage of normal or expected high flows" or cause the
relocation or impoundment of water. The County has also developed detailed wetland
mitigation guidelines.
References: Baltimore County's Environmental Policies and Guidelines for Public
and Private Improvements.
For additional information contact: Baltimore County, Department of
Environmental Protection and Resource Management, 401 Bosley Avenue, Suite 416,
Towson, MD 21204; (410) 887-3755.
CS-30 Case Studies
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Land Acquisition: American Chestnut Land Trust,
Calvert County, MD
The American Chestnut Land Trust (ACLT) was founded in 1986 by a group of
local landowners who were concerned about development pressure in Calvert County.
The first order of business of the newly formed trust was the purchase of a threatened
436-acre parcel of land. The Trust financed the acquisition by raising $500,000 through
charter memberships at $2,500 each, enrolling the land in the Calvert County Agricultural
Preservation program, and selling $400,000 worth of transferable development rights to
pay off the mortgage. Since that time, the American Chestnut Land Trust has broadened
their focus to the preservation of the 5,500 acre forested watershed of Parkers Creek. The
parcel contains the Trust's namesake -- the largest American chestnut tree left in the state.
The Trust has now purchased 790 acres within the watershed, helped individual
landowners protect another 485 acres, and assisted the state Department of Natural
Resources and The Nature Conservancy (TNC) with acquisition of an additional 600
acres. ACLT is currently assisting TNC and the State to negotiate the protection of 1,000
acres through land and easement purchases.
Among the tools utilized by the American Chestnut Land Trust are Calvert
County's $1 million revolving loan fund and the county's agricultural preservation
program. In the Parkers Creek watershed, development rights sell for about $2,400 an
acre, making this one of the Trust's most important tools for raising money to purchase
sensitive land.
The Trust has also innovatively used "pass through" purchases to facilitate
acquisition. In pass through purchases, the Trust finds a landowner willing to sell his or
her property and a buyer willing to purchase the property with conservation easements on
it. When the land is targeted for development, the purchaser often cannot afford the
asking price if they have no intent of developing the property. In such cases, the Trust can
purchase the property from the landowner at a "bargain sale," or a price lower than its
appraised value. This allows the seller to get a tax write-off for the difference because he
or she has sold to a nonprofit organization. The Trust then enrolls the land in the Calvert
County Agricultural Preservation program, donates a conservation easement to the
Maryland Environmental Trust, and sells it to the conservation buyer.
In less than 10 years, the Trust will have purchased or facilitated preservation of
more than a third of the watershed's acreage. In a small geographical area where a
landowners cannot afford to make outright donations of land or conservation easements,
the organization has achieved success by relying upon use of an innovative combination of
acquisition tools.
For additional information contact American Chestnut Land Trust, P.O. Box
204, Port Republic, MD 20676; (410) 586-1570.
Case Studies CS-31
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CS-32 Case Studies
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Appendix I:
*
General References
-------
General References
Allegheny Land Trust. 1995. Land Conservation Handbook: A Guide for Conservation
Organizations, Municipalities and Private Landowners. Land Trust Alliance:
Washington, D.C.
Big Annemessex River Nontidal Wetlands Watershed Management Plan. Dec. 1993.
Prepared for Somerset County, Department of Technical and Community Services by
Geenhorne & O'Mara, Inc. Princess Anne, MD.
Ceberio, Robert and Deborah Alaimo Lawlor. July/Aug. 1995. "A Plan for the
Beleaguered Meadowlands." National Wetlands Newsletter. 17(4): 10-13.
Center for Rural Pennsylvania. 1995. Zoning for Farming: A Guidebook for
Pennsylvania Municipalities on How to Protect Valuable Agricultural Lands.
Harrisburg, PA.
Chesapeake Bay Foundation. Oct. 1994. Wetlands Permitting Programs in the
Chesapeake Bay Area. Chesapeake Bay Foundation: Annapolis, MD.
Chesapeake Bay Local Assistance Department. 1995. A Guide to the Bay Act:
Virginia's Chesapeake Bay Preservation Act Program. Chesapeake Bay Local Assistance
Department: Richmond, VA.
Chesapeake Bay Program. 1995. The State of the Chesapeake Bay: 1995. U.S.
Environmental Protection Agency: Annapolis, MD.
Chesapeake Bay Program. Dec. 1995. Chesapeake Bay Communities: Making the
Connection. U.S. Environmental Protection Agency: Annapolis, MD.
Chesapeake Executive Council. Dec. 1987. Chesapeake Bay Agreement. Chesapeake
Bay Program: Annapolis, MD.
Chesapeake Executive Council. Dec. 1988. Chesapeake Bay Wetlands Policy:
Agreement Commitment Report. Chesapeake Bay Program: Annapolis, MD.
Chesapeake Executive Council. Aug. 1992. Chesapeake Bay Agreement 1992
Amendments. Chesapeake Bay Program: Annapolis, MD.
Chesapeake Executive Council. Oct. 1994. Chesapeake Bay Basinwide Toxics Reduction
and Prevention Strategy. Chesapeake Bay Program: Annapolis, MD.
Appendix I General References 1
-------
Chesapeake Executive Council. Oct. 1994. Chesapeake Executive Council Directive 94-
1. Riparian Forest Buffers. Chesapeake Bay Program: Annapolis, MD.
Chesapeake Executive Council. 1995. Directive No. 95-1: Local Government
Partnership Initiative. Chesapeake Bay Program: Annapolis, MD.
Commission on Environmental Land Preservation. Jan. 1993. Report to the Harford
County Executive and Harford County Council. Bel Air, MD.
Coughlin, Robert E., Joanne R. Denworth, et al. 1993. Guiding Growth: Building
Better Communities and Protecting our Countryside, 3rd ed. Pennsylvania
Environmental Council: Philadelphia, PA.
Crane, Saundra, Jan Goldman-Carter, et al. 1995. Wetlands Conservation: Tools for
State and Local Action. World Wildlife Fund: Washington, D.C.
Dahl, I.E. 1990. Wetlands Losses in the United States 1780s to 1980s. U.S. Department
of Interior, Fish and Wildlife Service: Washington, D.C.
Dahl, I.E. and C.E. Johnson. 1991. Status and Trends of Wetlands in the Conterminous
United States, Mid-1970s to Mid-1980s. U.S. Department of the Interior, Fish and
Wildlife Service: Washington, D.C.
Diehl, Janet and Thomas J. Barrett. 1988. The Conservation Easement Handbook. Land
Trust Alliance: Washington, D.C.
The EAC Network. Environmental Advisory Councils: A Brief Overview. Pennsylvania
Environmental Council: Philadelphia, PA.
Environmental Concern. 1995. Wow! The Wonders of Wetlands. Environmental
Concern and Project W.E.T.: St. Michaels, MD.
Environmental Law Institute. 1995. Building on the Blueprint: How Virginia's
Communities are Implementing Sustainable Development. Environmental Law Institute:
Washington, D.C.
GreenSense. Autumn 1995. "Tax Credits for Voluntary Conservation: Back to the
Future." GreenSense: Financing Parks and Conservation. The Trust for Public Land:
Washington, D.C. 1(3).
Lincoln Institute of Land Policy. 1993. Land Conservation through Public/Private
Partnerships. Eve Endicott, ed. Island Press: Washington, D.C.
General References 2 Appendix I
-------
Lower Susquehanna Heritage Greenway Coordinating Committee. May 1993. Lower
Susquehanna Heritage Greenway: Overview. Annapolis, MD.
Maryland Agricultural Land Preservation Foundation. 1995. Annual Report for Fiscal
Year 1995. Maryland Department of Agriculture. MDA 121-95. Annapolis, MD.
Maryland Office of Planning. Managing Maryland's Growth: What You Need to Know
About the Planning Act of 1992. Maryland Office of Planning: Baltimore, MD.
Meyers, Erik, R. Fischman, and A. Marsh. 1995. "Maryland Chesapeake Bay Critical
Areas Program: Wetlands Protection and Future Growth," in Porter, D. and D. Salvesen
(eds.) Collaborative Planning for Wetlands and Wildlife. Island Press: Washington,
D.C.
Mitsch, William J. and James G. Gosselink. 1993. Wetlands. 2nd Edition. VanNostrand
Reinhold: New York.
National Audubon Society. 1993. Saving Wetlands: A Citizen's Guide for Action in the
Mid-Atlantic Region. National Audubon Society: Camp Hill, PA.
Noss, Reed F. and Allen Y. Cooperrider. 1995. Saving Nature's Legacy: Protecting and
Restoring Biodiversity. Island Press: Washington, D.C.
Osborne, Debi. Nov. 30, 1995. "Creative Public-Private Partnerships in Land
Conservation". Speech. Washington, D.C.
Pennsylvania Department of Environmental Resources. 1990. Wetlands Protection: A
Handbook for Local Officials. Environmental Planning Information Series Report #1.
Prepared by the Environmental Law Institute. Harrisburg, PA.
Platt, Rutherford H. 1996. Land Use and Society: Geography, Law, and Public Policy,
2nd ed. Island Press: Washington, D.C.
Strand, Margaret N. 1996. Wetlands Deskbook (2d ed.). The Environmental Law
Reporter, Environmental Law Institute: Washington, D.C.
Tiner, Ralph W., Irene Kenenski, Todd Nuerminger, John Eaton, David B. Foulis, Glenn
S. Smith, and W. Edward Frayer. May 1994. Recent Wetland Status and Trends in the
Chesapeake Watershed (1982 to 1989): Technical Report. Prepared by the U.S. Fish and
Wildlife Service for the Chesapeake Bay Program, U.S. EPA, Annapolis, MD.
Appendix I General References 3
-------
Tipple, Virginia K. 1984. "An Environmental Characterization of Chesapeake Bay and a
Framework for Action." The Estuary as a Filter. Victor S. Kennedy (ed.). Academic
Press: Orlando, FL.
U.S. Army Corps of Engineers. July 1995. Section 404 of the Clean Water Act and
Wetland: Special Statistical Report. U.S. Army Corps: Washington, D.C.
U.S. Environmental Protection Agency. 1988. America's Wetlands: Our Vital Link
Between Land and Water. U.S. EPA: Washington, D.C. OPA-87-016.
U.S. Environmental Protection Agency. April 1989. Wetlands and 401 Certification:
Opportunities and Guidelines for States and Eligible Indian Tribes. U.S. EPA:
Washington, D.C.
U.S. Environmental Protection Agency. 1992. Protecting Coastal and Wetlands
Resources: A Guide for LocalGovernments. U.S. EPA, Office of Water: Washington,
D.C. EPA 842-R-92-002.
U.S. Environmental Protection Agency. Oct. 1992. The Private Landowner's Wetlands
Assistance Guide: Voluntary Options for Wetlands Stewardship in Maryland. U.S. EPA:
Washington, D.C. For copies, call the Wetlands Protection Hotline: (800) 832-7828.
U. S. Environmental Protection Agency. Wetlands FAQ's (Frequently Asked Questions)
for Maryland; for Virginia; and for Pennsylvania. U.S. EPA, Office of Water:
Washington, D.C.
U.S. Environmental Protection Agency. April 1994. ADID Project Summary:
HackensackMeadowlands. Fact Sheet. U.S. EPA: Washington, D.C.
Virginia Outdoors Foundation. Encouraging the Preservation of Open Space.
Richmond, VA.
White, Christopher P. 1989. Chesapeake Bay: A Field Guide. Tidewater Publishers:
Centerville, MD.
World Wildlife Fund. 1992. Statewide Wetlands Strategies: A Guide to Protecting and
Managing the Resource. Island Press: Washington, D.C.
General References 4 Appendix I
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Appendix II:
#
Contacts
-------
Contacts
Alliance for the Chesapeake Bay
6600 York Road, Suite 100
Baltimore, MD 21212
(410) 377-6270
Alliance for the Chesapeake Bay
P.O.Box 1981
Richmond, VA 23216
(804)775-0951
(Chesapeake Regional Information
Service)
800-662-2747
Alliance for the Chesapeake Bay
225 Pine Street
Harrisburg, PA 17101
(717) 236-8825
American Chestnut Land Trust
P.O. Box 204
Port Republic, MD 20676
(410)586-1570
Anne Arundel County Planning and
Zoning
P.O. Box 2700
Annapolis, MD 21401
(301)222-7441
Audubon Society of Central Maryland
P.O. Box 1326
Ellicott City, MD 21041 -1326
Audubon Council of Pennsylvania
1104 Fernwood Avenue, Suite 300
Camp Hill, PA 17011
(717) 763-4985
Baltimore County
Department of Environmental Protection
and Resource Management
401 Bosley Avenue, Suite 416
Towson, MD 21204
(410) 887-3755
Blair County Conservation District
1407 Blair Street
Hollidaysburg, PA 16648
(814) 696-0877
Bradford County Conservation District
R.R. #5, Box 5030-C
Towanda, PA 18848
(717) 265-5539
Bucks County Conservancy
85 Old Dublin Pike
Doylestown, PA 18901
(215)345-7020
Calvert County Department of Planning &
Zoning
(Parkers Creek Watershed Management
Plan)
176 Main Street
Courthouse Annex
Prince Frederick, MD 20678
(410)535-2348
The Center For Rural Pennsylvania
212 Locust Street, Suite 604
Harrisburg, PA 17101
(717) 787-9555
Centre County Conservation District
R.D. #5, Box 390
Bellefonte, PA 16823
(814)355-6817
Charles County
Office of Planning & Growth Management
P.O. Box B
LaPlata, MD 20646
(301) 645-0692
Chesapeake Audubon Society
P.O. Box 3173
Baltimore, MD 21228-3173
(410)203-1819
Appendix II
Contacts 1
-------
Chesapeake Bay Critical Area Commission
45 Calvert Street, 2nd Floor
Annapolis, MD 21401
(410)974-2418
Chesapeake Bay Foundation
164 Conduit Street
Annapolis, MD 21401
(410) 268-8833
Chesapeake Bay Foundation
1001 East Main Street, Suite 710
Richmond, VA 23219
(804) 780-1392
Chesapeake Bay Foundation
214 State Street
Harrisburg, PA 17101
(717) 234-5550
Chesapeake Bay Local Assistance
Department
805 E. Broad Street, Suite 701
Richmond, VA 23219
(804) 225-3440
Chesapeake Bay Program Office
U.S. Environmental Protection Agency
410 Severn Avenue, Suite 109
Annapolis, MD 21403
(800) YOUR-BAY
Chesapeake Bay Trust
60 West Street, Suite 200A
Annapolis, MD 21401
(410) 974-2941
Dragon Run, see Middle Peninsula
Planning District Commission
Ducks Unlimited, Inc.
1709 New York Avenue, NW, Suite 202
Washington, D.C. 20006
(202)347-1530
Eastern Shore Land Conservancy
P.O. Box 169
Queenstown, MD 21658-0169
(410) 827-8056
East Hanover EAC
1552 Sandbeach Road
Humelstown, PA 17036
(717) 533-8153
The EAC Network
Pennsylvania Environmental Council
1211 Chestnut Street, Suite 900
Philadelphia, PA 19107
(215) 563-0250
Elizabeth River Project
109 East Main Street, Suite 305
Norfolk, VA 23510
(804) 625-3648
Environmental Concern
P.O. Box P
St. Michaels, MD 21663
(410) 745-9620
Fairfax Office of Comprehensive Planning
12055 Government Center Parkway, Suite
700
Fairfax, VA 22035
(703) 324-1210
Fredericksburg, City of
Planning Department
(Rappahannock River Watershed Plan)
P.O. Box 7447
Fredericksburg, VA 22404
(703)372-1179
Friends of Dragon Run
P.O. Box 1062
Gloucester, VA23061
(804) 693-3330
Contacts 2
Appendix II
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Gaithersburg, City of
31 South Summit Avenue
Gaithersburg, MD 20877
(301) 258-6330
Hackensack Meadowlands Development
Commission
1 DeKorte Park Plaza
Lyndhurst,NJ 07071
(201) 260-1700
Harford Community College
401 Thomas Run Road
Bel Air, MD 21015
(410) 836-4000
Harford County Office of Planning &
Zoning
220 South Main Street
Bel Air, MD 21014
(410) 879-2000
Harford Environmental Land Preservation
Commission
c/o Harford County Office of Planning &
Zoning
220 South Main Street
Bel Air, MD 21014
(410) 879-2000
Howard County Department of Planning
& Zoning
3430 Courthouse Drive
Ellicott City, MD 21043
(410)313-2350
Isle of Wight County
Office of Planning and Zoning
P.O. Box 80
Isle of Wight, VA 23397
(804) 357-391
Planning and Code Administration
Kent County Planning Commission
Court House, 103 North Cross Street
Chestertown, MD 21620
(410) 778-7475
Keystone Recreation, Park, and
Conservation Fund, see Pennsylvania
Department of Conservation and Natural
Resources, Bureau of Recreation and
Conservation
Lancaster County
West Lampeter Township
852 Village Road
P.O. Box 237
Lampeter, PA 17537
(717)464-3731
Land Trust Alliance
1319 F Street, NW, Suite 501
Washington, D.C. 20004-1106
(202) 638-4725
Lycoming County Planning Commission
48 West 3rd Street
Williamsport, PA 17701
(717) 327-2230
Maryland Agricultural Land Preservation
Foundation
Maryland Department of Agriculture
50 Harry S. Truman Parkway
Annapolis, MD 21401
(301) 841-5860
Maryland Department of Agriculture
Office of Resource Conservation
50 Harry S. Truman Parkway
Annapolis, MD 21401
(410) 841-5700
Appendix II
Contacts 3
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Maryland Department of Natural
Resources
Chesapeake & Coastal Watershed Service
Coastal Zone Management Division
E2 Tawes State Office Building
580 Taylor Avenue
Annapolis, MD 21401
(410) 974-2784
Maryland Department of Natural
Resources
Wildlife & Heritage Division
El Tawes State Office Building
580 Taylor Avenue
Annapolis, MD 21401
(410) 974-2870
Maryland Department of the Environment
Nontidal Wetlands and Waterway Division
B3 Tawes State Office Building
580 Taylor Avenue
Annapolis, MD 21401
(410) 974-3841
(moving to 2500 Broening Rd., Baltimore
21224)
Maryland Department of the Environment
Tidal Wetlands Division
B3 Tawes State Office Building
580 Taylor Avenue
Annapolis, MD 21401
(410) 974-3871
(moving to 2500 Broening Rd., Baltimore
21224)
Maryland Environmental Trust
100 Community Place
Crownsville, MD 21032
(410)514-7900
Maryland-National Capital Park and
Planning Commission
Environmental Planning Division
8787 Georgia Avenue
Silver Spring, MD 20910-3760
(301) 495-4540
Maryland Office of Planning
301 West Preston Street
Baltimore, MD 21201-2365
(410) 225-4550
Montgomery Co. Park & Planning Dept.
MD-Natl. Capital Park and Planning
Commission
Environmental Planning Division
8787 Georgia Avenue
Silver Spring, MD 20910
(301) 495-4540
Middle Peninsula Planning District
Commission
(Dragon Run)
P.O. Box 286
Suluda, VA 23149
(804)758-2311
National Audubon Society
Mid-Atlantic Regional Office
1104 Fernwood Avenue, Suite 300
Camp Hill, PA 17011
(717) 763-4985
National Marine Fisheries Service
1335 East-West Highway
Silver Spring, MD 20910-3226
(301)713-2325
National Marine Fisheries Service
Chesapeake Bay Program Office (F/HP3)
410 Severn Avenue, Suite 107A
Annapolis, MD 21403
(410) 267-5660
Northampton County
Director of Sustainable Development
P.O. Box 538
Eastville, VA 23347
(804) 678-0477
Contacts 4
Appendix II
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Ocean and Coastal Research Management
Office
Department of Commerce
Silver Spring, MD
(301)713-3155
Parkers Creek Watershed Management
Plan, see Calvert County Department of
Planning & Zoning
Piedmont Environmental Council
P.O. Box 460
Warrenton, VA 20186
(540) 347-2334
Piedmont Environmental Council
1111 Rose Hill Drive
Charlottesville, VA 22903
(804) 977-2033
Pennsylvania Department of
Environmental Protection
Bureau of Dams, Waterways and Wetlands
P.O. Box 8554
Harrisburg, PA 17105-8554
(717) 783-6827
Pennsylvania Department of Conservation
and Natural Resources
Bureau of Recreation and Conservation
(Keystone Recreation, Park, and
Conservation Fund)
Room 555, Forum Building
Harrisburg, PA 17120
(717) 787-7672
Pennsylvania Environmental Council
1211 Chestnut Street, Suite 900
Philadelphia, PA 19107
(800) 322-9214 (PA only)
(215)563-0250
Pennsylvania Land Trust Association
Chairman of Membership
(610) 965-4397
or c/o Western Pennsylvania Conservancy
316 Fourth Avenue
Pittsburgh, PA 15222-2075
(412) 288-2777
Pennsylvania Rivers Conservation
Program
Program Planning and Development
P.O. Box 8475
Harrisburg, PA 17105-8475
(717)787-2316
Prince George's County Department of
Environmental Resources
9400 Peppercorn Place
Largo, MD 20774
(301)883-5810
Program Open Space
E-3 Tawes State Office Building
580 Taylor Avenue
Annapolis, MD 21401-9974
(410)974-3581
Queen Anne's County Department of
Planning & Zoning
107 North Liberty Street
Centerville, MD 21617
(410) 758-1255
Rappahannock River Watershed Plan, see
Fredericksburg, City of Schuylkill County
Planning & Zoning Commission
401 North 2nd Street
Pottsville, PA 17901
(717) 622-5570
Appendix II
Contacts 5
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Somerset County Technical and
Community Services
Office of Planning of Zoning
11916 Somerset Avenue
Princess Anne, MD 21853
(410)651-1424
Southern Environmental Law Center
201 West Main Street, Suite 14
Charlottesville, VA 22902
(804) 977-4090
Talbot County Office of Planning &
Zoning
11 North Washington Street
Easton, MD 21601
(410) 822-2030
The Nature Conservancy
Home Office
1815 North Lynn Street
Arlington, VA 22209
(703) 841-5300
The Nature Conservancy
Maryland Field Office
Chevy Chase Metro Building
2 Wisconsin Circle, Suite 300
Chevy Chase, MD 20815
(301) 656-8673
The Nature Conservancy
Pennsylvania Field Office
1211 Chestnut Street, 12th Floor
Philadelphia, PA 19107-1400
(215) 963-1400
The Nature Conservancy
Virginia Field Office
1233-A Cedars Court
Charlottesville, VA 22903-4800
(804) 295-6106
Trust for Public Lands
666 Pennsylvania Avenue, SE
Washington, D.C. 20003
(202) 543-7552
U.S. Army Corps of Engineers
Regulatory Branch
20 Massachusetts Avenue, NW
CECW-OR
Washington, D.C. 20314-1000
(202) 761-0199
U.S. Department of Agriculture
Natural Resources Conservation Service
Wetlands and Watersheds Division
P.O. Box 2890
Washington, D.C. 20013
(202) 720-3534
U.S. Environmental Protection Agency
Wetlands Division
Wetlands Strategies and State Programs
Branch
401M Street, SW
Washington, D.C. 20036
(202) 260-9043
U.S. Environmental Protection Agency
Wetlands Division
Wetlands and Aquatic Resources
Regulatory Branch
401 M Street, SW
Washington, D.C. 20036
(202) 260-7791
U.S. Environmental Protection Agency
Wetlands Information Hotline
(800) 832-7828
U.S. Fish and Wildlife Service
4401 North Fairfax Drive, Room 400
Arlington, VA 22204
(703) 358-2201
Contacts 6
Appendix II
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Virginia Beach Department of Finance
Building 1, Room 220
Municipal Center
Virginia Beach, VA 23456
(804)427-4681
Virginia Beach City Attorneys Office
City Hall Building, Room 260
Municipal Center
Virginia Beach, VA 23456
(804)427-4531
Virginia Institute of Marine Science
Wetlands Program
P.O. Box 1346
College of William and Mary
Gloucester Point, VA 23062
(804) 642-7000
Virginia Marine Resources Commission
Habitat Management Division
P.O. Box 756
2600 Washington Avenue
Newport News, VA 23607-0756
(804) 247-2200
Virginia Outdoors Foundation
203 Governor Street
Richmond, VA 23219
(804) 225-2147
Western Pennsylvania Conservancy
316 Fourth Avenue
Pittsburgh, PA 15222-2075
(412) 288-2777
World Wildlife Fund
1250 24th Street, NW
Washington, D.C. 20037
(202) 293-4800
York County Planning Commission
York County Government Center Building
100 West Market Street
York, PA 17401
(717) 771-9870
Appendix II Contacts 7
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Appendix III:
#
List of Wetlands Workgroup Members
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Wetlands Workgroup Membership
Living Resources Subcommittee
Chesapeake Bay Program
Chair
Carl Hershner, VA Institute of Marine Sciences
Wetlands Workgroup Chair as of January 1997
Frank Dawson, MD Department of Natural Resources
Former Wetlands Workgroup Chair
Members
Rick Ayella
Tom Barnard
Carin Bisland
Terry Clark
Lee Crockett
Barbara D'Angelo
Tom Filip
Steve Funderburk
Tim Goodger
Harry Knight
Fran Koch
Anne Lynn
Pam Mason
Peter May
Michael McCarthy
Karen Mulligan
Vivian Newman
David Norris
Ira Palmer
Matthew Perry
Walter Pomeroy
Tony Redman
Tony Watkinson
Bruce Williams
Elizabeth Zucker
Affiliation
MD Department of the Environment
VA Institute of Marine Sciences
US Environmental Protection Agency/Chesapeake
Bay Program Office
MD Department of the Environment
National Oceanic and Atmospheric Administration
US Environmental Protection Agency - Region III
US Army Corps of Engineers
US Fish and Wildlife Service
National Oceanic and Atmospheric Administration/
National Marine Fisheries Service
Citizens Advisory Committee
PA Department of Environmental Protection
National Resources Conservation Service
VA Institute of Marine Sciences
DC Environmental Regulations Administration
US Fish and Wildlife Service
US Army Corps of Engineers
MD Wetlands Committee
VA Department of Game and Inland Fisheries
DC Environmental Regulations Administration
National Biological Service
Citizens Advisory Committee
Local Government Advisory Committee
VA Marine Resources Commission
US Army Corps of Engineers
Chesapeake Bay Foundation
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Coming Soon: Phase II of This Handbook
This document, Protecting Wetlands: Tools for Local Governments in the Chesapeake Bay
Region, is the first phase of a two-phase project. The second phase, a guide to federal and state
wetlands protection programs, will be a companion document to this handbook describing how
local governments can participate in federal, state, and regional activities and decisions about
wetlands. Federal and state technical assistance and informational resources will be discussed as
well. The second phase document is expected to be printed by the Spring/Summer of 1998.
For more information or to receive a copy of Phase II of this handbook, please contact:
Wetlands Workgroup Fellow
Chesapeake Bay Program
410 Severn Avenue, Suite 109
Annapolis, MD 21403
1-800-YOURBAY
FAX: (410) 267-5777
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Chesapeake Bay Program
The Chesapeake Bay Program is a unique regional partnership leading and directing
restoration of Chesapeake Bay since 1983. The Chesapeake Bay Program partners include
the states of Maryland, Pennsylvania, and Virginia; the District of Columbia; the
Chesapeake Bay Commission, a tri-state legislative body; the U.S. Environmental
Protection Agency (EPA), which represents the federal government; and participating
citizen advisory groups.
In the 1987 Chesapeake Bay Agreement, Chesapeake Bay Program partners set a goal to
reduce the nutrients nitrogen and phosphorus entering the Bay by 40% by the year 2000. In
the 7992 Amendments to the Chesapeake Bay Agreement, partners agreed to maintain the
40% goal beyond the year 2000 and to attack nutrients at their source—upstream in the
tributaries. The Chesapeake Executive Council, made up of the governors of Maryland,
Pennsylvania, and Virginia; the mayor of Washington, D.C.; the EPA administrator; and the
chair of the Chesapeake Bay Commission, guided the restoration effort in 1993 with five
directives addressing key areas of the restoration, including the tributaries, toxics,
underwater bay grasses, fish passages, and agricultural nonpoint source pollution. In 1994,
partners outlined initiatives for habitat restoration of aquatic, riparian, and upland
environments; nutrient reduction in the Bay's tributaries; and toxics reductions, with an
emphasis on pollution prevention.
The 1995 Local Government Partnership Initiative engages the watershed's 1650 local
governments in the Bay restoration effort. The Chesapeake Executive Council followed
this in 1996 by adopting the Local Government Participation Action Plan and the Priorities
for Action for Land, Growth and Stewardship in the Chesapeake Bay Region, which
address land use management, growth and development, stream corridor protection, and
infrastructure improvements. A 1996 riparian forest buffers initiative furthers the Bay
Program's commitment to improving water quality and enhancing habitat with the goal of
increasing riparian buffers on 2010 miles of stream and shoreline in the watershed by the
year 2010.
Since its inception, the Chesapeake Bay Program's highest priority has been the restoration
of the Bay's living resources—its finfish, shellfish, bay grasses, and other aquatic life and
wildlife. Improvements include fisheries and habitat restoration, recovery of bay grasses,
nutrient reductions, and significant advances in estuarine science.
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