STATE WETLAND PROTECTION PROGRAMS -
STATUS AND RECOMMENDATIONS
Prepared for:
The U.S. Environmental Protection Agency,
Office of Wetlands Protection
Prepared by:
C. Deming Cowles, Lisa Bennett Haas,
Glenn 3. Akins, William Britt, Terry Huffman,
& Amy Wing
December 1986
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TApLE OF CONTENTS
Page
EXECUTIVE SUMMARY 1
INTRODUCTION 4
METHODS 7
STATE PROGRAMS 10
Water Quality Certification Programs 10
State Environmental Policy Acts 21
Taxation Programs 26
Acquisition Programs . . . 34
Research and Development Programs 42
Coastal Wetland Programs 47
Inland Wetland Programs ... 60
State Program Integration 70
PRIVATE ORGANIZATION PROGRAMS ' 78
GENERAL RECOMMENDATIONS 90
APPENDICES
LITERATURE REVIEW Appendix A
CONTACT LIST Appendix B
STATE PROGRAM MATRIX AND CHARTS Appendix C
SAMPLE DISCUSSION QUESTIONS Appendix D
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EXECUTIVE SUMMARY
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State governments have played an active role in wetland manage-
ment since the beginning of this century. The significance of
these state activities has been overlooked too often in recent
y'ears, with the focus on the federal program created under Sec-
tion 404 of the Clean Water Act.
Today, many federal agencies, including the EPA, recognize that
much of the progress being made on wetland protection is occur-
ring within state and local programs. Although past federal
efforts have focused on the specific mandates of federal law, a
new pattern is emerging in 1986. Faced with dramatic threats to
wetlands, and restricted budgets, state and federal managers are
exploring ways to work together to stretch the patchwork of state
programs into a broader fabric of management. It is in this
spirit that EPA initiated this project, to identify the contribu-
tion of states to wetland management and learn how EPA can most
effectively interact with states.
To obtain information on state wetland programs, we discussed the
programs with managers from each state. They were asked if the
state had taxation, acquisition, research/development, coastal
wetland, or inland wetland programs. In addition, we asked about
means of implementation, funding level, wetland definitions,
activities covered, compliance efforts, education efforts, and
program successes and problems. Finally, we asked about further
needs for EPA assistance.
We found that some experiences were unique to one state, but many
were common to numerous states. We found success stories which
could serve as an inspiration to all and a lesson. Several suc-
cessful programs, such as the Michigan Environmental Policy Act,
the Missouri state sales tax, and New Jersey's Green Acres Pro-
gram, are described in the body of the report.
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Overall, we found state .wetland managers are generally committed
to wetland protection but lack the resources and public support
based on education for strong enforcement of existing regula-
tions or enactment of tougher regulations. This, coupled with a
general dissatisfaction with Corps of Engineers wetland protec-
tion efforts, suggests a strong role for EPA.
State program managers made it clear that action by EPA, not just
strong statements, is necessary to support state wetland protec-
tion programs. They requested that EPA design and implement a
comprehensive wetland protection program that includes substan-
tive federal oversight, technical and financial assistance to
state programs, assistance to and active participation in state
and local planning processes, a centralized data base on wetland
resources and activities, public education, and integrated
research on management-related topics with broad applications.
Other recommendations from the states for EPA action include the
following:
Act as clearinghouse/coordinator/public affairs office
for wetlands protection programs in other federal
agencies, to facilitate coordination and information
transfer.
Increase emphasis on public relations and public educa-
tion.
0 Catalogue all federal programs and policies which act as
disincentives to wetland protection.
Conduct an analysis of gaps in federal wetlands protec-
tion, and methods adopted by states to plug these gaps.
I
Increase ,oversight functions, particularly as they relate
to the Corps of Engineers §404 permitting program.
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Establish greater^ field presence.
Additional recommendations, and detail regarding the recommenda-
tions listed above, are included in the General Recommendations
section of the report.
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INTRODUCTION
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State governments have played an active role in wetlands manage-
ment since the beginning of this century. The significance of
these state activities has been overlooked too often in recent
years. Since 1972, the focus of wetland protection attention has
been on the federal program created under Section 404 of the
Clean Water Act. It is important to remember that in many parts
of the nation support for that often controversial program was
not produced by an act of Congress. Rather, the support resulted
from a recognition of resource values, and a willingness to use
the tools of government to protect those values in the face of
immediate threats.
The oversight of state accomplishments is partly understandable
because the use of the term "wetlands" is fairly recent. Wetland
areas were among the resources states have been setting aside for
special attention in management for decades. 'But the focus was
on parcels of land and water with a broad range of attributes,
including wetland functions and values. Public access to
beaches, maintaining fishing and waterfowl hunting, and protect-
ing scenic areas for visitor use were the purposes for which many
programs were established by states, with the end result that
wetland areas were protected or otherwise managed in the process.
In the 1920's, Oregon set aside the state's ocean beaches for
protection. Oregon also created a state coastal management pro-
gram years before the enactment of the federal Coastal Zone
Management Act,i!as did California. Wisconsin and Minnesota
enacted shoreline management programs that became models adopted
by other states (such as Washington) and resulted in specific
protection for wetlands. Many state wildlife refuges, critical
habitat areas, and other special management areas have been
created and protected over the years because of wetland values.
(:'
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The contributions by these states and many others are important
in supporting federal efforts. They are also significant in
protection of the resource, especially when federal efforts
falter or are non-existent.
At the state level, it is recognized that many of the state pro-
grams have local roots. Town boards in New England, and counties
along the coast of Oregon, were dealing with wetlands before the
enactment of Section 404.
Today, many federal agencies, including the U.S. Environmental
Protection Agency (EPA), are recognizing the management experi-
ence and practical perspective of state and local programs.
Although the nationwide pattern of state programs is far from
complete, the coverage is nonetheless extensive. Within these
state programs are experiences which may be unique to one state.
But there are also experiences which are common to many, if not
most, other states. Also within these programs are success
stories which could serve as an inspiration and a lesson to other
states, as well as a number of common complaints and problems.
Some of the problems may be solved only by a joining of state and
federal interests.
In the past, federal efforts have focused on the specific man-
dates of federal law. These have included efforts by the U.S.
Fish and Wildlife Service (Fish and Wildlife Service) to map
wetland habitat of importance to waterfowl, and EPA efforts to
delegate management functions to the states.
In 1986, a new pattern is emerging. Faced with dramatic
threats to the resources (such as serious wetland losses and
coastal erosion in Louisiana), and shrinking budgets, state and
federal managers are exploring ways to work together, to stretch
the patchwork of state programs into a broader fabric of manage-
ment. It is in this spirit that EPA initiated this and other
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projects, to identify .the contribution of states to wetland
management, and to increase and extend specific state programs „-
which result in protection of the nation's wetland resource.
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METHODS
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INVENTORY
>
A brief inventory of material available on state wetland programs
li ••,'.'• .-•'..
was conducted to'1 avoid duplication and to summarize pertinent
points for subsequent use. To increase the efficiency of this
and the subsequent process, a form was developed to standardize
collection of information from reports and direct inquiries.
Discussions were held with key agency and organization managers
to determine the availability, scope, and usefulness of existing
information. The first round of discussions also served to
introduce the project to federal agencies and organizations.
Additional literature sources identified during the initial
discussions were reviewed, and an annotated bibliography was
compiled (Appendix A). Program-specific information was placed
on the forms for use during further discussions with state
manager s.
The initial discussions and literature reviews were used to
develop a list of names and telephone numbers of state managers
for further in-depth information gathering.
INFORMATION GATHERING FROM STATE PROGRAM MANAGERS
The underlying assumption of this project was that conclusions
and recommendations concerning wetland protection strategies
should come primarily from state managers implementing wetland
protection programs in the field. Therefore, gathering informa-
tion from state program managers comprised the bulk of the
research project.
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State manager contact nafoes were obtained from the initial dis-
cussions and the literature reviews. In addition, state managers
for one specific program frequently provided contact names for
agency personnel associated with other programs which impacted
wetlands.
£
Some 300 state contacts provided answers to a number of ques-
tions relating to the types of state programs which protect
wetlands, names of specific programs, implementing agency, method
of implementation, available resources, jurisdiction, problems,
EPA role, and suggestions for additional assistance from EPA. In
addition, there were discussions with state managers relating to
"taking" issues, mitigation, cumulative impacts and wetland func-
tion. Each state contact was asked to provide literature on
their program; any literature which was received was reviewed for
additional program details. Sample questions appear in App.endix
.D. ' ,
A study of this magnitude has some inherent limitations. One
such limitation in the approach we used is that state program
managers were an almost exclusive source of information on their
own programs. We did not attempt to conduct a survey for com-
ments on each state program, nor , was it in the scope of this
project to review our findings with EPA regional §404 coordina-
tors (an effort that should be undertaken). Therefore, the
information on the program reflects the opinion of the individual
we contacted. We also relied on state program managers to iden-
tify programs in their states which contribute to wetland protec-
tion. We felt this method would better identify programs which
make real contributions to wetland protection, as opposed to
programs which only look effective on paper. However, the danger
of this approach is that some programs which protect wetlands may
have been missed • inadvertently. To prevent this, each person
contacted was sent a list of all wetland-related programs identi-
fied by contacted individuals in the same state.
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VERIFICATION > T
Following the inquiries, the program summaries were mailed to
each manager contacted, for comments. Comments received from
program managers were incorporated into the final program sum-
. ** .-'•..
maries (Appendix C). Within the body of this report it has been
necessary to use more generalized statements concerning program
elements. Readers will need to consult the charts of state pro-
grams in Appendix C for specific information on the programs
identified. : '•:..-. ,
INTERPRETATION ; : -:;,.'. ; , , .:.. ;.'
Programs were grouped into the following categories: water
quality, taxation, acquisition, research/development, coastal
wetland regulation, and inland wetland regulation. The programs
were then reviewed by category to determine whether there were
common concerns expressed among programs in each category. We
also grouped the state requests for additional EPA assistance by
program category to develop recommendations' for EPA to assist in
wetland protection. General recommendations were, derived from
the specific recommendations identified by the states. The
general recommendations are provided to assist EPA in developing
a national wetland protection strategy.
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STATE PROGRAMS
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WATER. QUALITY CERTIFICATION PROGRAMS
ALLT
INTRODUCTION
Review of state §401 water quality certification programs indi-
cates the majority of . states feel §401 is not specifically
designed for wetland protection, and therefore is not very
effective in that role. The vast majority of states have not
developed specific water quality criteria for wetlands, and
instead apply general surface water quality standards. Anti-
degradation policies and antidegradation standards have made the
program a more effective wetlands protection tool in several
states, including ,Iowa, Minnesota, and Ohio.
JURISDICTION
Most states use federal wetland definitions to determine the jur-
isdictional boundaries of their §401 programs. Inland wetland
laws (discussed in a subsequent section) take over in some states
where the jurisdiction of the §401 programs end, or supersede
state water quality efforts to protect wetlands. However, in
many states the §401 program is the only means for the state to
protect wetlands.
COMPLIANCE
The majority of states do not conduct compliance monitoring or
enforcement activities under §401. Most monitoring and enforce-
ment is left to the appropriate federal agency (e.g., Corps,
Federal Energy Regulatory Commission [FERC], Coast Guard).
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PUBLIC EDUCATION/AWARENESS
Public awareness activities related to §401 programs, aside from
required public notices, are generally incorporated into an over-
all public awareness program. These overall programs educate the
p'ublic on wetland values and laws. However, they rarely specif-
ically address the §401 programs.
PROBLEMS/ISSUES
An annotated list of problems and issues identified by the states
is given below. Specific problems and issues listed by individ-
ual states are given in the program charts in Appendix C.
1. Lack of funding and staff resources (Connecticut, Idaho,
Indiana, Iowa, Maryland, Michigan, Ohio, North Carolina,
.South Carolina, Tennessee, Wisconsin).
A large number of states reported a lack of funds and per-
sonnel for adequate review of permits. For example, Ohio
only has one person for the entire §401 program. The lack
funds and staff for the state programs cause many of the of
remaining problems.
2. Lack of coordination within and between state and federal
agencies (Colorado, Hawaii, Maryland, Minnesota, Missouri,
Nebraska, Nevada, New York, Ohio, Pennsylvania).
•>, •
:'N.:
States which have multiple Corps districts frequently men-
tion differences in interpretation of jurisdiction and
authority between districts. For example, Missouri is
covered by five Corps districts, each of which acts inde-
pendently in defining Section 404 jurisdiction, and carrying
out wetland compliance and enforcement activities. EPA com-
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munication with man^ states consists primarily of infrequent
calls from the regional offices. Several states noted that
haphazard way of communicating, and a lack of coordination
on EPA's infrequent site visits.
Duplication; of effort with the Corps process, difficulties
coordinating between different departments within the state,
and problems coordinating activities with FERC and the Coast
Guard were also mentioned. Several states, including Mary-
land and Pennsylvania, recognized the need for joint permit
processing with the Corps as a partial solution to coordina-
tion problems. The joint permit process seems to be a use-
ful tool in states where it has been employed (e.g., Illi-
nois). North Carolina has employed a system, approved by
the Corps, whereby approval by the state of a coastal permit
has constituted approval of the Corps §404 permit.
3. Lack of adequate protection for inland wetlands (Alabama,
Connecticut; Delaware, Kentucky, Maryland, Minnesota,
Nebraska, North Carolina, Ohio, Pennsylvania, South Caro-
lina, Tennessee, Virginia, West Virgi'nia).
In some states (e.g., Alabama, Minnesota, Ohio) §401 and
§404 are the only means for protecting wetlands in the
state. In Ohio, an antidegradation policy has been applied
to water quality certification in wetlands. This policy
requires that existing instream uses be maintained, making
§401 a more powerful tool in areas where a permit is
'••V1
required. "It does not affect the extent of program juris-
diction. '•'•
Many states indicate §401 is insufficient for protecting
isolated wetlands on private property.
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4. Lack of compliance,^enforcement, and follow-up evaluation by
the federal agencies (Alaska, Arkansas, California, Colo-
rado Delaware, Iowa, Kentucky, Oklahoma, Maryland, Missouri,
New Hampshire, North Carolina, Tennessee, Virginia, Pennsyl-
vania, Rhode Island, West Virginia, Wyoming).
Because of limited fiscal resources, almost all states turn
to federal agencies for compliance monitoring and enforce-
ment. However, in general, the federal agencies are not
providing this support. After-the-fact permits are. wide-
spread and there are no penalties for after-the-fact per-
mits.
5. Lack of public education/support for land use planning and
wetland protection (Alabama, Arizona, California, Iowa,
Maryland, Missouri, Oklahoma, Washington, and West Vir-
ginia).
Non-compliance with regulatory requirements is often the
result of ignorance on the part of the public', ignorance of
the requirements and of the wetland- and other values the
regulatory program is meant to protect. Most state agencies
do not have adequate resources to both aggressively pursue
their mandated programs and conduct substantial public
education on those programs. Faced with a choice, the
limited resources are generally utilized in areas other than
education.
6. Lack of adequate techniques and follow-up case histories to
evaluate the impacts of wetland projects, including cumula-
tive impacts (California, Colorado, Iowa, Kansas, Maryland,
North Carolina) .
Concern over the technical defensibility of using water
quality as --'a basis for protecting wetlands was widespread.
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The states noted th*e lack of evaluation criteria, based on
case histories, to determine impacts from various categories
of activity.
7. Other problems:
0 State rarely denies certification (Delaware).
State needs complete inventory of wetlands (Alaska, Ken-
tucky) .
Jurisdictional debates over definition of a wetland
(Maryland, Pennsylvania, Tennessee).
Storm water control (North Carolina).
u Fresh water runoff into saline areas, harmful to shell-
fish nursery (North Carolina).
u High development pressure (Rhode Island).
" Need bonding requirement (Tennessee).
Substantial wetland loss (Tennessee).
0 Inadequate Corps public notices (West Virginia).
Wetlands loss due to Federal Department of Transportation
(DOT) activities (West Virginia).
Need policy for case-by-case review (West Virginia).
u Need clarification on what should be done with spoils
from intercoastal waterways (Texas).
Hazardous waste threat to wetlands (Oregon).
0 Dredging does not require a permit (New Mexico).
" Balancing^economic development and environmental protec-
tion (Michigan, Oklahoma).
u Existence'of previously zoned wetlands, conflicts between
zoning and state law (Michigan).
u Constant court challenges to the regulation of wetlands
on private property (Michigan).
0 Lack of techniques to assess functional values of wet-
lands (Colorado).
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CURRENT EPA ROLE
State managers were asked to comment on the current role of EPA
in their water quality certification program. A list of these
comments is provided below.
&
Many states recognized that EPA's limited staff and
travel money contribute to their lack of participation in
state programs. Some specific comments included:
EPA plays only a small role (Georgia, Missouri, Min-
nesota, Oklahoma, Iowa).
EPA is too lenient (Indiana).
EPA does not comment on §404 (New Mexico).
EPA serves only a watchdog role and provides little
technical assistance (Michigan, Oregon).
EPA comments were requested but not received on §401
(Nebraska).
EPA can be a negative influence in wetland protection,
but provides major . source of state's funding
(Nebraska).
EPA's restricted travel budget means they do not see
many projects (Alabama).
EPA does not have enough funds to do oversight, and
field people are spread too thin (Kentucky).
EPA has little interaction with state resource agen-
cies under §401; duplication with state processes
would occur if EPA took more of a role in §401 (New
York).
«
V.
nt>
0 Many state managers said that EPA has a more substantial
role in their program. Some specific comments included:
j
EPA provides the major funding source (Alaska, Arkan-
sas, Idaho, Louisiana, Ohio).
EPA is assisting state in developing water quality
standards (Wisconsin).
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EPA has 230.80 .^designation underway (Nebraska).
EPA and the state have a close association through the
permit process, quarterly interagency meetings, and
frequent telephone conversations (Alabama).
EPA assists state by enunciating a national perspec-
tive, state sees a shift in effort from CZM to EPA
wetland management (Alabama).
Coordination with EPA is rarely a problem (Georgia) .
EPA has a great deal of influence in the state (Ken-
tucky) .
EPA and the state have joint evaluation meetings twice
a month (Maryland).
EPA has increased their emphasis on §401 within the
last year, and has good communication with the state
(Massachusetts).
State refers to EPA on big projects, such as marinas;
the-state and EPA have quarterly meetings but do not
discuss §401 in detail (North Carolina).
EPA has formed a work group with the state on anti-
degradation (South Carolina).
EPA is present at monthly Corps meetings and monthly
meetings with the Highway Department, and consults
with state on individual projects (Virginia).
EPA pressured Corps and did good work on Caanan Valley
project (West Virginia).
EPA has preapplication meetings with the state and
Corps (California, Nevada).
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
Both general and specific recommendations were received from the
states concerning potential avenues for further EPA assistance.
1. EPA should develop a strong policy to establish their com-
mitment to wetland protection on a national basis. This
policy should set the stage for EPA to play a key role in
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coordination' and information transfer within and between
federal and state agencies.
Coordination , and communication between federal agencies will
produce a more coherent framework for wetland protection and
promote more efficient use of limited funds and staff.
EPA should also make a greater effort to place personnel in
field positions, and to relate to state agency personnel on
a one-to-one basis. Even when travel funds are short, EPA
should reach;out to state personnel by phone to discuss cur-
rent wetlands protection efforts, and establish a line of
informal communication and rapport with state agencies.
Facilitated information transfer between states, and between
federal agencies and the states, will encourage implementa-
tion of new programs found to be successful in other states
and help prevent repeat applications of policies which have
failed in other states.
Such a policy could be used to establish consistent inter-
pretations of jurisdiction and permitting requirements under
the §404 (and subsequently §401) program. EPA should work
with the states and take the lead to insure that the Corps
develops consistency guidelines and facilitates implementa-
tion of those guidelines regionally and nationwide. For
example, each Corps District should require permit appli-
cants to provide a 404 (b)(1) project alternatives anal-
ysis. Curre'ntly, requirement of such an analysis is very
limited. '
2. EPA should develop firm enforcement and mitigation pol-
icies. The limited financial resources of most state agen-
cies, in combination with their sensitivity to political
issues, makes them less able to develop a strict, large-
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scale enforcement -.program. However, many states suggest
that if EPA takes the lead on enforcement and mitigation,
the states will back them up. EPA should coordinate compre-
hensive compliance monitoring activities among state, local,
and federal agencies, and work with those agencies to estab-
& lish priority areas for enforcement activities.
3. EPA should fund or conduct evaluation projects to provide
technical backup for the use of water quality as a means of
protecting wetlands, and to provide case histories of the
impacts of filling. Evaluation projects should include
studies of wetland functions and values, as well as the
effects of cumulative impacts.
4. EPA should work with the states to improve existing public
education programs, and develop programs where none exist.
This effort.will complement a strong enforcement program, as
there will be fewer violations due to insufficient knowl-
edge, and a more knowledgeable public can serve as addi-
tional eyes and ears for EPA. Additional public education
work could include workshops for specific problem solving
and education of public officials.
5. EPA should develop a basin management approach to incorpo-
rate lakes, streams, and other wetlands into a comprehensive
regulatory framework. This would include modifications of
§401 to incorporate wetland protection and to establish spe-
cific water quality criteria for wetlandls.
''.$
6. Other suggestions from the states include:
Continue technical assistance to states on permit review;
Continue'funding;
0 Pressure the Corps to place land clearing under the scope
of their"regulatory program;
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Provide more guidance on regulations for issuing/denying
certification to*further clarify the §401 program;
Outline a practical approach to wetland protection, con-
centrating on solutions and remedies developed through
applied research;
Develop water quality standards for dredge and fill
activities (Sections 301 through 307 of the Clean Water
Act); and
Develop criteria for placement of solid waste sites.
EXAMPLES OF SUCCESSFUL PROGRAMS
The limited jurisdiction of §401 water quality certification pro-
grams limits their effectiveness in wetland protection efforts.
However, several improvements- to specific state programs have
made §401 more successful.
In Iowa, the antidegradation policy provides that existing sur-
face water uses, and the water quality . necessary to maintain
those uses, will be protected. The policy provides' for protec-
tion of chemical, physical, and biological water quality. In
addition, the policy provides that projects cannot impact water
quality either on an individual or cumulative basis. The Fish
and Wildlife Service and Conservation Commission serve as consul-
tants for assessing impacts. An antidegradation policy for wet-
lands in Ohio also provides for maintenance of existing instream
uses. In both Ohio and Iowa, water quality permits are the
states' only means of protecting wetlands.
\r>
Minnesota has an antidegradation standard which can be applied to
designated outstanding resources. The antidegradation standard
provides for use of background levels as a standard if background
is better than general surface water standards, and use of back-
ground as a standard if background levels are different than
general levels for some identifiable reason (e.g., peat bogs).
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A second method of making water quality certification programs
more successful in protecting wetlands is to establish joint per-
mitting procedures with the Corps. For example, Illinois has
established a joint permit application process with the Corps,
Illinois Department of Transportation, and Illinois Environmental
{*
Protection Agency.
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STATE ENVIRONMENTAL POLICY ACTS
INTRODUCTION
State environmental policy acts range from simple statements con-
cerning control of air, water, and land pollution to complex
documents with requirements for environmental impact statements.
NUMBER OF PROGRAMS
Thirteen of the states have state environmental policy acts:
California, Connecticut, Idaho, Indiana, Maryland, Massachusetts,
Michigan, Minnesota, Nebraska,. New York, North Carolina, Vir-
ginia, and Washington.
FUNDING SOURCES
In general, funding is from state general revenues or federal
grants. However, in Minnesota developers are assessed the costs
of preparation of environmental impact statements, and Nebraska
is considering a fee system for permit and engineering review to
cover agency costs.
JURISDICTION/ACTIVITIES COVERED
The California, Idaho, Illinois, Indiana, and Nebraska Acts are
broad pieces of legislation which either provide for or incorpo-
rate regulations covering air, water, and land pollution. The
Michigan, New York, and Minnesota acts provide for citizen suits
to prevent pollution, impairment or destruction of natural
resources. The Minnesota, New York, Connecticut, Massachusetts,
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North Carolina, Virginia", and Washington acts can require envi-
ronmental impactistatements.
COMPLIANCE
••f
The ability of the states to conduct compliance monitoring, and
the penalties for noncompliance, vary. In California, Idaho,
and Indiana, penalties for noncompliance with the regulations
include administrative, civil, and criminal actions. The
Nebraska act is compatible with NEPA language and most enforce-
ment is through federal programs. In Washington, the state has
recourse through appeals to the policy board or civil court
system, but there are generally no punitive measures. In Michi-
gan, every permit is reviewed to determine whether the issuance
is in compliance with the act.
PUBLIC EDUCATION/AWARENESS
Various public awareness activities, including newsletters and
public meetings, are incorporated into programs covered under the
•;
California, Idaho, Indiana, and Nebraska SEPA's. Washington has
annual workshops on their act. Michigan does not have a public
education program related to their SEPA, however Michigan's act
has received so much news media coverage and has been so visible
that the public is very aware of the program.
PROBLEMS/ISSUES
The following problems with SEPA's were identified by the states
V
1. Vague, unclear definitions of jurisdiction.
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2. Lack of authority arTd limited enforcement.
3. Other problems:
0 Projects with significant impacts can be conducted with-
it out undergoing state permitting (Massachusetts).
Rivalries with other state agencies (California, Massa-
chusetts)..
Corps won't work with SEPA process (Massachusetts).
0 Shortage of staff (New York).
0 Inconsistency between implementation of the program in
different localities (New York has 9 regional offices,
all state or local quasi-government or government agen-
cies, responsible for program implementation).
Lack of a specific threshold to determine whether or not
to issue a permit (Connecticut).
0 Act does not cover private activities unless they involve
public funding or state action (North Carolina).
Political pressures often force state approval; NEPA pro-
cess appears less vulnerable (California).
CURRENT EPA ROLE
In states where the SEPA includes regulations covering air,
water, land, and hazardous materials, EPA is involved in specific
programs. .:
In states with other types of SEPA's, EPA generally does not play
"V';t
a role in the program. However^ in Washington, state and federal
agencies (often EPA) jointly develop the required environmental
document when NEPA and SEPA are both in effect.
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RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
In cases where the SEPA parallels or overlaps with NEPA (e.g.,
Washington), EPA should recognize the existence and value of SEPA
and closely coordinate their actions with the state.
£
Massachusetts noted that it would be of value for EPA to under-
stand their SEPA .process and recognize its value as an early
warning system, which can be used well in advance of permitting.
EXAMPLES OF SUCCESSFUL PROGRAMS
Michigan
The Michigan Environmental Protection Act (MEPA) is a powerful
piece of legislation allowing citizen injunction suits to prevent
pollution, or impairment or destruction of air, water, and other
natural resources. .It requires every state and local agency to
consider whether their actions will pollute or impair resources.
MEPA has been used for protection of wetlands, including manmade
wetlands. It has also been used in several cases against the
State Department of Natural Resources (DNR). For example, the
DNR was sued for permitting oil and gas development within the
range of the only wild elk herd.
The state has initiated action using MEPA in several cases. In
one case, a landowner was planning to destroy a wetland which
contained a great .7 blue heron rookery. The DNR threatened suit
under MEPA, and the landowner withdrew his plans.
New York
''ij
New York's State Environmental Quality Review (SEQR) Act also
allows citizen suits against state and local governments if envi-
li
24
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w,
ronmental impacts are not7thoroughly considered. SEQR parallels
the federal NEPA, and provides for a comprehensive process to
evaluate environmental impacts on major actions requiring state
or local approval or funding.
& '
Before any state or local agency can approve or fund an action,
that agency must ; determine whether the action is covered by
SEQR. "Type I" actions, or covered actions, are such projects as
nonresidential construction covering ten acres or more. The
agency may decide . an action will still be covered even if it
fails to meet the appropriate threshold if the project contains
other significant factors. Actions which are not covered include
"Type II" actions (minor structures or in-kind replacement struc-
tures), exempted actions (actions of the state legislature) or
excluded actions (approved prior to SEQR). The effect of the
classifications scheme is to provide coverage of major actions,
but discretion to catch smaller projects with potentially signif-
icant impact. For actions covered by SEQR, agencies must decide
whether the covered action significantly affects the environ-
ment. If so, an EIS is required, and a lead agency is assigned.
If not, a negative declaration is prepared. This decision is
made on the record.
25
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TAXATION PROGRAMS
INTRODUCTION
&
A variety of taxation programs with wetland protection components
are in effect across the country. Some of these programs give
tax advantages to individuals who protect wetlands. These advan-
tages can include a reduction in property tax, income tax, gift
or inheritance tax, or capital gains tax.
Other taxation programs provide a mechanism to raise funds for
wetland acquisition and research, such as documentary stamp
taxes, sales taxes, and nongame checkoffs.
For programs offering tax abatement for retaining wetlands, the
success of the programs is related to two key factors. .First,
and foremost, is whether the compensation given to the property
owner offsets the loss in income from use of the property. The
second key factor is whether payments in lieu of taxes are made
to the tax base. Programs for which the state offers property
tax incentives for protecting wetlands, but does not make "in
lieu of taxes" payments to the local governments, are generally
unsuccessful. This is even more of a problem if the program is
administered on the local level, since the county or city govern-
ments generally will not promote programs which decrease their
revenue base.
NUMBER OF PROGRAMS
Information was collected on 55 taxation programs across the
country.
26
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METHODS OF IMPLEMENTAT10
The states, and in some instances local governments, implement
the following tax programs for wetland and natural area protec-
tion.
£
Property Tax Incentive Programs: Open Space protection tax
incentives exist in many states (Connecticut, Delaware, Maine,
New Hampshire, North Carolina, Rhode Island, Tennessee, Vermont,
Virginia). Wetlands often comprise a major portion of the land
protected under Open Space programs. Some programs offer tax
abatement specifically for retaining wetlands in their natural
condition (Iowa, Minnesota, New Hampshire). Minnesota offers an
exemption from property taxes on wetlands which could be used for
agricultural purposes, if the landowner agrees not to drain the
area for that year.
In some cases wetlands are protected under other eligible cate-
gories, such as recreation, agriculture or timberlands (Connecti-
cut, Maine, Oregon, Vermont). Maine offers an assessment lower
than current use for large wetlands associated with timber.
Oregon also has a riparian tax incentive program, which provides
for a complete exemption of county property tax and a 25% per-
sonal state income tax exemption for money spent on habitat
improvement.
Most states do not limit the amount of land that can be eli-
gible. However, in Maine where wetlands may be protected under
the timber forest category, tracts must be 10 or more acres in
size to be eligible for the program.
Some states reimburse localities for a reduction in the tax base
(Iowa, New York,;- Pennsylvania, Vermont). Localities are less
likely to pro'mote or cooperate with preferential assessment
programs where there is no state reimbursement (Maryland, Rhode
27
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Island, Virginia). In^'Georgia and North Carolina, the state
completes the assessment and the localities are bound by the
assessment.
The success of current tax incentive programs is dependent partly
it
upon whether compensation offsets the loss in income from use of
the property, and partly upon the landowner's motivation to keep
the land undeveloped. Many programs discourage landowners from
changing the use of the property by levying a substantial penalty
(Connecticut, Maine, New Hampshire, Rhode Island, Tennessee, Vir-
ginia) .
In some states landowners can obtain property tax reductions for
granting conservation easements (Delaware, Maryland, New Jersey,
Rhode Island, South Carolina). Maryland offers a complete tax
credit for 15 years and then assesses the land at its encumbered
value. Generally, easements must be granted in perpetuity. How-
ever, temporary easements of a. minimum of ten years are available
for areas that do not meet the criteria for Open Space in New
Hampshire.
New York is unique in offering a reduction in property tax to
landowners who have been denied permits to develop wetlands.
Income Tax Programs: Some states offer a charitable deduction
from income tax for donation of interests in land (Delaware,
Maryland, North Carolina, Oregon, Rhode Island, Vermont, Vir-
ginia). Under Virginia's program, land must be held under an
easement for five years before it can qualify for income tax
benefits. In North Carolina, income tax credits of 25?o of fair
market value of donated conservation easements can be carried
over, up to a maximum credit of $5,000 per year. Oregon's
riparian lands program allows for a 25% personal state income tax
exemption for money spent on habitat improvement.
28
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In addition, 32 states offer nongame income tax checkoffs. Non-
game funds are used for various wetland-related purposes, such
as: conducting habitat research and developing wetland inven-
tories and classification data bases (Alabama, Delaware, Kansas,
Maine, New Jersey, New York, North Carolina, Oregon, Pennsyl-
¥
vania, South Carolina, Virginia); advising private land owners
and state agencies on natural and preserve area management (Dela-
ware); funding Natural Heritage Programs that register and
acquire natural areas, including wetlands, for protection (Ala-
bama, Delaware, Illinois, Kentucky, Massachusetts, Mississippi,
South Carolina); and funding acquisition of wetlands and other
natural areas (Iowa, Louisiana, New Mexico, Ohio, Oregon, West
Virgini a).
In general, the nongame checkoffs do not raise a significant
amount of funds for state wetland protection and acquisition.
Nationwide checkoff donations in 1985 totaled approximately $9.36
million (New York alone raised about $1.6 million). In 17
states, nongame checkoffs compete with one or more checkoffs for
other causes; in several states, they compete with as many as
four other checkoffs.
Gift and Inheritance Tax Programs: Gift and inheritance tax
advantages are available in Delaware, Maryland, North Carolina,
and Virginia. These tax benefits provide an important incentive
for donating property. Some laws specify tax benefits to non-
profit organizations, such as the Nature Conservancy (Maine,
North Carolina, Tennessee). Donations to these organizations
allow the state to pursue other wetlands for protection. ,
Capital Gains Tax Programs: Capital gains tax reductions are
available in some states (Delaware, Maryland, North Carolina).
Documentary/Severance Tax Programs: Some states use documentary
stamps and severance taxes to raise money for acquisition. A tax
29
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of a few cents for every ijylOO.OO valuation of property is placed
on the transfer of.land in several states. Large sums of money
can be derived from these programs (Florida, South Carolina,
Tennessee). Both Tennessee and South Carolina's programs are
new. To accommodate management problems, Florida will allow a
percentage of the proceeds raised to be used for property manage-
ment. Tennessee will allow a portion to function as an in lieu
payment program for local governments.
Severance taxes on mineral, oil, and gas extraction are dedicated
to acquisition of lands, including wetlands, in Florida.
Sales Taxes: In Missouri, one-eighth of one percent of the sales
tax is used to fund the Missouri Department of Conservation.
Much of the money is used for acquisition of property, including
wetlands. The sales tax provides a relatively stable and sub-
stantial source of funds. Arkansas has pending legislation to
establish a similar program.
PROBLEMS/ISSUES
1. Lack of Consistent Funds (Alabama, California, Kansas, Ken-
tucky, Maine, New Mexico, New York, Oregon)1
I!
Tax programs which require a renewal of commitment each year
(e.g., nongame checkoff and duck stamp or print programs)
tend to be inconsistent sources of program funds. Typi-
cally, the first year of implementation is the most profit-
able with varying degrees of success during subsequent
years.
.it: 30
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2. Lack of Uniform Program Administration (Minnesota, New
Hampshire, New York, Tennessee)
Many of the tax programs are administered on the local
level. A lack of local support and training for local
£ administrators can lead to inconsistent program administra-
tion. Local governments may provide different levels of
effort, including enforcement and public education aspects.
3. Decrease in Funds to the Local Tax Base (Iowa, New Hamp-
shire)
A lack of in lieu payments to the local tax base decreases
local support for the program and greatly affects program
success. In some cases, tax payers who are not participat-
ing in the program feel as though they are subsidizing those
who place land in protective status.
4. Lack of Adequate Incentives (Oregon)
In some cases, a tax break is not a large enough incentive
for landowners to participate in a program. The Oregon
Riparian Tax Incentive program provides for a complete prop-
erty tax exemption for money expended on habitat improve-
ment. However, farmers must spend a great deal of money
fencing riparian areas to protect them from cattle, and the
tax incentives rarely balance the costs of fencing.
5. Lack of Program Publicity (Kentucky, Minnesota)
For voluntary programs where the landowner signs up to
become eligible, public awareness of the program is a key
factor determining program success.
31
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6. Criteria for Participation Limits Program Success (Georgia)
Georgia's tax incentive program has an acreage limitation
and a penalty for termination of participation. Both of
these constraints tend to limit participation in the pro-
? gram.
7. Lack of Comprehensive Wetland Network (California,. New
York)
Through a tax incentive program, the state may end up with
small pieces of wetlands scattered across the state. These
wetland units may not fit into a comprehensive plan for wet-
land protection and may not be large enough to preserve wet-
land functions.
CURRENT EPA ROLE IN PROGRAMS
In general, EPA did not play a role in the state taxation pro-
grams .
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
Many of the state taxation programs need additional funds to make
the program more effective. However, in most states the primary
need from EPA is assistance in promoting the program. EPA should
be aware of the various taxation programs in the states and
actively promote those programs as part of an overall public
awareness campaign. An example of EPA direct assistance to state
awareness campaigns is EPA Region II inclusion of duck stamp and
print promotional material in personnel's paychecks.
32
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EXAMPLES OF SUCCESSFUL TAXATION PROGRAMS
Two of the most successful taxation programs are in Missouri and
Florida. Each of these taxation programs provide funds for wet-
land acquisition.
£
Missouri
The Missouri program was established in 1976 by an initiative
' -tt\
petition by the people. It provides for one-eighth of one per-
cent of the state sales tax to be earmarked for the Department of
Conservation. A large portion of the funds go toward acquisition
of land including wetlands. The amount of money generated on an
annual basis ranges from $50 to $60 million, depending on the
economy. A large public education program is conducted by the
state, and land is purchased only from willing sellers for
appraised market prices. Arkansas and Rhode Island are consider-
ing similar programs.
Florida
The Florida program involves a documentary tax of 7.54 per
$100.00 on all real estate transactions. This money goes into
the Water Management Lands Trust Fund which is divided among five
water management districts throughout the state. The money is
used for acquisition and management of floodplains and wetlands,
including isolated wetlands. Revenue estimates projected over
the next 30 years go as high as $1 billion. This program incor-
porates public participation through hearings prior to each land
purchase, and for an annual 5-year water management plan update.
A substantial amount of public education material is distributed
on the program. Under a new 1986 law, 10% of the funds can go
toward management i'of the acquired properties, thereby helping to
solve the problem of many unmanaged parcels of state land in the
future. j.
33
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ACQUISITION PROGRAMS
INTRODUCTION
a
Review of state acquisition programs indicates the majority of
states have at least one program which acquires wetlands, and
some have more than one program. However, many of the programs
were not specifically designed to acquire wetlands. Wetlands
were frequently acquired incidentally because of their ability to
provide habitat for endangered/nongame species and waterfowl,
open space, or other values.
NUMBER OF PROGRAMS
Information was collected on 88 acquisition programs across the
country. •
METHODS OF IMPLEMENTATION
Most states prefer fee simple acquisition over conservation ease-
ments as a method of obtaining control over wetlands. In gen-
eral, conservation easements provide less control for a shorter
duration, at (in some cases) almost the same cost. In a few
states with limited funds, acquisition of conservation easements,
including trail easements and flow easements, have provided some
wetland protection.
-------
PROBLEMS/ISSUES .
1. Lack of Funds (Arkansas, California, Connecticut, Georgia,
Idaho, Illinois, Indiana, Iowa, Michigan, Nebraska, New
York, North Carolina, Ohio, Rhode Island, South Carolina,
^ Tennessee, Washington)
States with both low and high land values note a lack of
adequate funds for wetland acquisition. In farm country,
land values have dropped as much as 40% and there are an
overwhelming number of wetlands available for purchase by
the states. In addition, draining of agricultural land is
no longer economically profitable in these areas. States
dominated by agriculture are finding they have more willing
sellers than available dollars.
States with high land values (e.g., California) are finding
funds may be • insufficient to purchase wetlands. In some
areas, like San Francisco Bay, development interests can
outcompete state funds.
2. Lack of Public Awareness and Support (Idaho, Indiana, Ken-
tucky, Nebraska, North Carolina, South Carolina, Wisconsin)
The lack of public awareness concerning the value of wet-
lands and specific acquisition processes contributes to a
lack of support for state acquisition efforts. In some
states (e.g., Nebraska), the general perception that govern-
ment intervention is bad hampers efforts to acquire wet-
lands. Public lands policy , such as the "open range" con-
cept in Idaho, may also hinder efforts to protect wetlands.
Wisconsin managers note that many municipalities do not
support state efforts to acquire wetlands because of the
perceived loss in tax base, despite state payments to com-
pensate local governments for lost revenue.
35
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3. Lack of Adequate Inventories or Means of Prioritizing Pur-
chases (Kentucky, Maine, North Carolina, South Carolina,
Tennessee)
Without inventories, states cannot determine which property
* should be acquired, or assure that the most critical wet-
lands are acquired first.
4. Intense Development Pressure (Illinois, Iowa, Michigan,
Ohio, Rhode Island, South Carolina, Texas, Washington)
In many states the pressure to develop wetlands for agricul-
tural or for residential/commercial use remains high. A
state acquisition program often must compete with other
interests to acquire wetlands.
5. Lack of Adequate Management and Oversight of Acquired Prop-
erty (North Carolina, Tennessee)
States may use most of the available funds acquiring prop-
erty and leave little money for oversight of purchased prop-
erties. Problems such as controlling off-road vehicles and
littering can occur on properties with no management or
oversight.
6. Lack of Inland Wetland Focus (Virginia)
Coastal areas are often prioritized over inland areas. How-
ever, in most cases, coastal wetlands also receive the
greatest regulatory protection and may not experience the
degree of threat inland wetlands receive.
36
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CURRENT EPA ROLE IN PROGRAMS
In general, EPA does not contribute to state acquisition pro-
grams .
£
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
EPA should provide technical assistance to states compiling
inventories of critical areas and prioritizing areas for acquisi-
tion. Other technical assistance could include:
research into effective means of assessing wetlands;
research into effective spatial distribution of wetland
parcels (are five 2-acre parcels as successful as one
10-acre parcel in preserving wetland functions and
values?);
research into effective methods for acquiring property
rights, including purchase of development rights, flow
easements, etc.
EPA should assist in coordination of acquisition programs with
federal, state, local, and private groups. In particular, EPA
should coordinate with the Fish and Wildlife Service regarding
wetland assessment under the 1986 Emergency Wetland Resources
Act. In many states, individuals in one department were not
aware of acquisition efforts in another department, and few
mechanisms exist to facilitate exchange of acquisition informa-
tion with federal agencies. Acquisition of wetlands by private
groups represents '.a large portion of the acquisition efforts in
some states. EPA's role could be as clearinghouse and nationwide
data base, including inventory information, and lists of key
wetlands prioritized according to the need for acquiring each
parcel. Such priorities should be established with federal,
state and local input. State, federal, and private groups could
then access the information system when funds are available for
37
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acquisition, to determine which properties to acquire. A
national list of critical wetland areas could be developed in
this fashion. If EPA is unwilling or unable to serve in this
role, it should make sure another federal agency does assume the
role, and that adequate support is provided to that agency.
£
Most states acquire properties only from willing sellers. EPA
could assist in coordination between sellers and potential pur-
chasers .
EPA should assist states with public education and information
about acquisition programs as part of an overall public informa-
tion program.
EXAMPLES OF SUCCESSFUL PROGRAMS
Illinois
The Natural Heritage Program in Illinois has established a
Natural Heritage Endowment Trust Fund. -The fund is a unique
method of providing money for a program. It provides $2.5 mil-
lion for one-to-one matching funds from private parties for
stewardship of natural areas, including management, monitoring,
and research.
New Jersey
New Jersey's Green Acres Program focuses on acquisition of inland
areas, since coastal areas have a significant degree of protec-
tion through existing regulations. The program concentrates on
watersheds as a basis for stream corridor protection. All acqui-
sition efforts are conducted through one agency within the state,
which sets priorities for acquisition.
38
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Local acquisition is su key element in the program, including
20-year loans at 2% interest, and grants to municipalities with a
25% bonus if environmentally sensitive land such as stream corri-
dors and headwaters are purchased. Municipalities are required
to put up open space as collateral. They are not permitted to
unse Green Acres money to replace existing open space slated for
development. Fee simple acquisition is preferred for all areas
except stream corridors and headwaters, where easements are the
preferred alternative.
A large amount of money is available for the Green Acres Pro-
gram. A state bond issue of $183 million in 1983 included $83
million for Green Acres loans to townships, and $52 million for
state acquisition. The program is operated under annual budgets
of approximately $3 million by a staff of about 50. The state
has acquired roughly 650,000 acres in open space, a substantial
amount of which is wetlands.
Florida
In recent years, Florida has created several acquisition pro-
grams, funded by taxation and other sources, and coupled with
various management strategies to protect the acquired prop-
erties. Hundreds of millions of dollars have been spent to
acquire hundreds of thousands of acres, a substantial part of
which are wetlands.
The Save Our Coast program is funded from state bond proceeds and
the Land Acquisition Trust Fund, which is funded, in turn, by a
documentary stamp tax. Through purchase and donation, the pro-
gram has acquired some 350,000 acres of combined coastal uplands
and submerged lands, including a large amount of coastal wet-
lands. This acreage has been acquired for passive recreation,
wildlife habitat and watershed protection, with approximately
39
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100,000 acres going int'p the state Aquatic Preserves program for
added protection.
The Conservation and Recreation Lands Trust Fund, or CARL pro-
gram, has acquired substantial acreage in 59 tracts (including
substantial wetlands acreage) for habitat protection, water qual-
ity enhancement, watershed protection and recreation. Funding
comes from some $40 million of severance tax on oil and minerals,
with the potential for an additional $100 million in bond funds
if approved by the electorate. Acquisition priority lists are
developed in-house and in conjunction with local government and
the Nature Conservancy, with final selection approval by the
Governor and cabinet, sitting as the Board of Trustees of the
Internal Improvement Trust Fund. Like the New Jersey Green Acres
program, the CARL program is less likely to propose acquisition
of a site adequately regulated under the state's wetland act.
The Save Our Rivers Program (see Taxation) is a concerted, long-
range effort to purchase hundreds of thousands of acres along the
state's major river systems in the state's five water management
districts, for water management and protection purposes. Sub-
stantial acreage has been purchased for restoration of chan-
nelized or impounded rivers which feed the Everglades. As part
of the Save Our Everglades program, the state has purchased
thousands of acres along the Kissimmee River, to restore it to
its original channels, and has initiated a pilot project of marsh
habitat renewal. Massive acreage has been purchased in the Green
Swamp. The program purchases floodplains in addition to river
banks. Management of these lands is within the water management
districts.
State owned lands are eligible for designation under a number of
protective management programs, such as Florida Aquatic Pre-
serves, the Florida Reserve System and the Outstanding Florida
Waters (OFW) program (the state's antidegradation program).
v.
!V 40
l-ii
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These programs generally include substantial wetland acreage and
involve development (with local and federal agencies) of specific
management plans aimed at providing increased levels of protec-
tion. Under the OFW program, permits in such designated areas
require a substantially greater burden of proof than under fed-
eral wetland regulations for permitting of activities in wet-
lands. In these wetland areas, dredge and fill activities are
generally not allowed except for minor or public recreation or
navigation purposes.
41
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RESEARCHED DEVELOPMENT PROGRAMS
INTRODUCTION
Most state wetland research is conducted in conjunction with
£
research on fish and wildlife. Most is performed by universities
or agencies other than those certifying water quality under
§401. Few states have applied research efforts designed to eval-
uate wetlands. Studies are needed to assess the impacts of per-
"s
mitted activities on water quality and wetland functions, and to
assess the effects of cumulative impacts.
NUMBER OF PROGRAMS
Most states conduct at least some research which is associated
with wetlands. However, only 23 states had at least one well
developed research program, and most of this research was not the
applied research requested by state wetland managers.
FUNDING SOURCES
Many of the states fund research with state general revenue
funds. Other sources of funding include nongame tax refund
checkoffs, land and water conservation funds, bond issues, pri-
vate contributions, hunting and fishing permits, federal Pittman-
Robertson and Dingle-Johnson funds, USFWS funds, and other
federal grants.
PROBLEMS/ISSUES '
1. No Substantial Research Program (Many States)
;?'l
Many states do not have a research program per se, although
a small amount of research may be conducted as part of other
42
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programs. A.'state without a well developed research program
must rely on research information from other entities.
Information transfer through normal channels (journals, con-
ferences, etc.) is slow, and the information may not be spe-
cific to the area, wetland type, or problem being
considered. . " .
2. Lack of Applied Research (Georgia, Illinois, Kentucky)
Managers indicate that although research on wetlands is
being conducted, it is rarely applied research. Managers
need research which gives them technical backup for their
managerial decisions, such as permitting or certification of
specific activities.
3. Lack of Methodologies Related to Key Problems/Issues (Most
States)
In addition to the lack of applied research on specific
problems, most states noted a lack of methods for addressing
general problems critical to the overall operation of wet-
land protection programs. Most consistently noted were the
need to develop methods of evaluating and assessing cumula-
tive impacts, developing functioning wetlands through miti-
gation, assessing "acceptable alternatives" to a project,
and determining jurisdiction.
4. Lack of Funds (-Arkansas, Delaware, Georgia, Kansas, Ken-
tucky, Wisconsin)
Aside from some earmarked federal funds, most states do not
have funds which are specifically designated for wetland
research. In addition, funding for research often does not
receive priority over funding for other activities, such as
management or acquisition.
c
. ' I
43
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CURRENT EPA ROLE 7
EPA' s role in state wetland research programs is very small and
consists primarily of funding a few specific research projects.
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
EPA should develop a working group to identify specific research
needs. Members of the working group should include representa-
tives from federal, state, local, university, and private
sectors. General research needs include:
0 Methods to assess functional values of wetlands and cumu-
lative impacts to wetland systems;
0 Answers to mitigation questions such as: how to create a
wetland; how to evaluate functions lost versus functions
created; how much acreage should be required to "r,eplace"
a wetland;
0 Methods for identifying wetland functions and boundaries
which are inexpensive and easy to use;
0 Identification and quantifications of the water quality
functions of wetlands (to guide decisions made under
§401);
0 Case histories of specific projects, to document effects
on water quality and wetland functions; and
0 Methods to assess various wetland protection measures and
programs.
-------
The working group shoulsd develop a rapport with state personnel
and familiarity with state programs, to identify general and
region-specific wetland problems which need to be researched.
Research strategies could then be developed on a regional basis.
The strategies would identify regional wetland problems, the cur-
r'fent status of knowledge on those problems, and the research
required to fill gaps in the knowledge. The research needs
could then be prioritized.
EPA should serve as a repository for the collection and dissemi-
nation of information on research being conducted and high prior-
ity research efforts which remain to be addressed. During and
following high priority research 'efforts, updates could be sent
to EPA, and EPA could transmit the information to interested
parties. ; ; '.'•'.- , .-'•*'
EPA should also assist state research efforts by identifying
sources of funding f.or research projects.
EXAMPLES OF SUCCESSFUL PROGRAMS
The research currently conducted in some states is aimed at
addressing specific management questions. Some of these manage-
ment issues are confronted nationwide and the results of these
kind of studies could be useful for all states. Florida and
Rhode Island are doing research that offers insight to states
nationwide.
Rhode Island •
One important management function for many states is the deter-
mination of wetland existence and boundaries. The University of
Rhode Island is ^conducting a study correlating the vegetation,
hydrology, and soils of freshwater forested wetlands in southwes-
45
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tern Rhode Island. A knowledge of this correlation may make it
possible to use any of these features as an indicator of wetland
existence and boundaries. Rhode Island also plans to research
wetland value assessment techniques, criteria for determining the
avoidability of proposed wetland alterations, and criteria for
determining the form and extent of mitigation where wetland
losses are unavoidable.
Florid a
Florida is undertaking extensive wetland restoration and creation
research. The work is being performed at several sites, with
monitoring of in-place mitigation done on a regular basis. The
results are used for state mitigation planning, and by industry
to meet phosphate surface mining reclamation requirements.
Municipal wastewater treatment is also being researched in
Florida. These studies began in 1973 and led to state develop-
ment of regulations permitting discharge .of wastewater into wet-
lands. Research demonstrations are given to state and local
authorities.
Rhode Island and Florida identified priorities for applied
research which are applicable nationwide. These include: infor-
mation sharing, long-term cyclic patterns of wetland systems, and
regional approaches to wetland value assessment and impact
assessment.
46
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COASTAL WETLAND PROGRAMS
INTRODUCTION
There are generally three types of state coastal programs that
include wetland protection. .Many states have enacted substantive
coastal wetland regulatory acts which focus on the protection of
wetlands, such as Maine's Alteration of Coastal Wetlands Act, and
Maryland's Tidal Wetlands Act. Other coastal regulatory laws,
such as Maine's Mandatory Shoreline Zoning and Subdivision
Control Act, and Maryland's Chesapeake Bay Critical Areas Protec-
tion Act provide wetland protection as one of several program
goals. Finally, coastal zone management programs include protec-
tion of wetlands and other critical areas within the coastal
zone. • ' ••':'-:••.'; . •,'.• '.'•• •.. • ••. •
By 1970, Connecticut and Massachusetts had adopted coastal regu-
latory programs specifically to protect coastal wetlands. These
programs established a permitting system for development activi-
ties which would alter the characteristics of coastal wetlands.
Both laws became models for numerous other states. However, most
states did not develop these programs until after passage of the
federal Coastal Zone Management Act (CZMA) in 1972. That act
provided states with the financial and management incentives for
adoption of coastal programs, including wetland and other regula-
torylaws.
California and Oregon were the only states to have coastal zone
management programs before 1972. However, several states were
developing coastal management programs affecting wetlands at that
time (Maryland, Minnesota, Washington, Wisconsin). Now all
coastal states have approved coastal management plans except
Georgia, Illinois-,; Indiana, Minnesota, Ohio, and Texas. Georgia
and Minnesota have coastal regulatory programs, though they do
not have federally approved coastal zone management plans.
* 47
1
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Coastal zone management pVlans evaluated by the federal Office of
Ocean and Coastal Resources Management are generally based on a
number of state permitting laws for the coastal zone. Some of
these laws are specific coastal wetland protection laws and
others regulate activities throughout the coastal zone. For
if
example, in New Jersey the coastal zone management plan was
approved on the basis of three coastal laws. One, the Wetlands
Act, is a specific wetland permit program. The other two, the
Waterfront Development Act and CAFRA, are examples of land use
permitting laws which affect wetlands though they apply to the
entire coastal zone.
Several states with coastal wetland laws have delegated these
programs to local governments. States that allow delegation
include Connecticut, Delaware, Florida, Maine, Rhode Island,
Virginia and Washington. States that do not allow delegation
include Alabama, Georgia, Massachusetts, Mississippi, New Jersey,
New York, Pennsylvania -and 'South Carolina. In Massachusetts,
local governments implement the state program. In some
non-delegating states local authorities participate in wetland
decision making.
Town conservation commissions in New Hampshire report findings
and recommendations to the state. In South Carolina, local
authorities regularly comment on development proposals. Local
authorities in New York influence state coastal regulation
through the state environmental policy act.
Some states, cooperate with localities in the designation of crit-
ical areas (Alabama, Pennsylvania, South Carolina). In South
Carolina, a local ordinance is required for critical areas to be
designated and to receive additional protection. In some non-
delegating states j(New York) local governments can adopt their
own, more stringent wetlands program. In contrast, Virginia (a
delegable state) localities have little flexibility, and must
48
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adopt a statutory model^ordinance in order to establish regula-
tory authority. :, •:..'..'• ..'..'
The states can retain a portion of their coastal wetland author-
ity through several means: emphasis on oversight of local pro-
gram administration (Florida); required local reporting of permit
applications (Maryland, New Hampshire, Virginia); state option to
intervene in the permit process (Maryland, Virginia); and by the
state administrating agency taking appeals (Massachusetts, Vir-
ginia). , ,
FUNDING ;;. .;;-.;
Funding of coastal programs comes primarily from state general
funds and federal CZM funds. Applicant fees is another source of
funding (Maine). Some states offer grants to localities for
coastal regulation (Maine, Maryland).
JURISDICTION
Generally, states have jurisdiction over both public and private
property and do not distinguish between them. However, Missis-
sippi's law only applies to public tidelands.
The coastal zone of both Florida and Delaware includes the entire
state. However, tidally influenced areas are distinguished from
the remainder of the states by the estuarine focus of Florida's
law and by the delineation of Delaware's coastal strip (which
extends 4 miles inland from the coast). South Carolina's coastal
law covers the eight coastal counties of the state." Their non-
tidal areas are 'regulated separately by way of a certification,
rather than permitting, process.
49
f
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Specific boundaries arer spelled out in some laws. Oregon's
coastal program includes areas within 500' of coastal lakes and
100' of estauries. Maine's coastal program covers land within
250' of the high water mark, and Rhode Island's covers 200'
inland from coastal wetlands. Many states have buffer zones that
if
define the coastal program's boundaries. New Jersey, New York,
and Pennsylvania laws encompass a buffer of 300' from any coastal
wetland. Maryland's Chesapeake Bay critical areas program
involves a buffer 25' from any inland wetland and, like
Massachusetts, a 100" buffer from any coastal wetland
(Massachusetts 100' buffer also applies to freshwater wetlands).
In addition to a specified buffer, some states (Mississippi, New
Jersey, Rhode Island) restrict activity in any area where the
impact would affect the coastal zone.
Some coastal programs include special management areas, the
boundaries of which are defined specifically to include the
resources of state concern (Alabama, South Carolina).
INVENTORY/CLASSIFICATION
Most coastal states have ongoing inventory and mapping programs.
These programs are essential for classifying priority wetlands
for protection, and for measuring the loss or gain of wetlands
and the impacts of development.
Mapping of coastal wetlands has been completed in Connecticut,
Delaware, Maryland, Massachusetts, New Jersey, New York, Pennsyl-
vania, South Carolina and Virginia. In Florida, Mississippi and
New Hampshire mapping is in progress. Minimal mapping is being
done in Georgia, Maine and Rhode Island. Alabama is securing
funding now forlla major inventory effort to be conducted with
several state and, federal agencies.
50
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'The designation of critical areas and land use zoning are means
of.planning for protection and directing development. States
that are classifying wetlands include Alabama, Massachusetts, New
Hampshire, South Carolina and Virginia.
V-f •"•'•:...• '"•• . :-: '"'- v- '/••-.'.-";V- "• '
Land use zoning establishes what uses are to be permitted or
restricted in specific areas. Zoning can be based on the current
use of the area as well as its classification or value as a
natural area. Zoning under coastal programs is being done in
Maine, Maryland, Mississippi and Rhode Island.
PERMITTING
Regulatory programs in the coastal zone sometimes outline minimal
criteria for permit issuance, and all other development is pro-
hibited. Some of these restrictive criteria include: the activ-
ity must be in the public interest (Rhode Island for Class I & II
activities); must be water dependent (Alabama, New Jersey); there
must be no alternative site available (New Jersey). Any altera-
tion of the natural topography or habitat, "or any damage to flora
or fauna requires a permit in the following states: Alabama,
Georgia, Mississippi, New Jersey, Rhode Island, South Carolina
and Virginia. Under Maryland's Critical Area Program, habitat
and water quality enhancement are required for permit issuance.
Cumulative impacts are considered in a few states during the per-
mit review process (Florida, Rhode Island). In Florida, project
reviews consider the specific impacts of the project, and cumula-
tive impacts of other approved projects. Consideration of cumu-
lative impacts are' on a case by case basis in Alabama, Missis-
sippi, New Hampshire, New Jersey, New York and Virginia.
.'5
Mitigation is often a condition for permit issuance in several
states. All these states noted that additional research on
b
• 51
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mitigation-related topicsL, would be of major assistance to their
programs. Although considered on a case by case basis in most
states, several states try to use a ratio for wetland destroyed
to wetland created for replacement (Alabama, 1:1.15; Mississippi,
1:1.25-2.0; New Jersey 1:2; Pennsylvania 1:1; South Carolina,
*1:2-3). Compensatory land purchase or restoration are means of
mitigation used by a few states (Connecticut). Some states
require on or near-site mitigation (Alabama, Maryland). Alabama
has 17 mitigation projects underway entailing creation of 102
acres of wetland for the loss of 77 acres. Massachusetts has
several mitigation projects being done on the local level. Maine
and Rhode Island require mitigation for Department of Transporta-
tion (DOT) activities.
Major exemptions diminish the effectiveness of state regulatory
programs in protecting wetlands. Some exemptions in state
coastal programs include: agriculture (Alabama, Massachusetts
for agricultural draining but not clearcutt ing , Mississippi);
silviculture (Mississippi); DOT activities (Georgia); ditching
(Connecticut); water dependent projects (Alabama, .Mississippi);
public interest projects (Alabama); and -general permits for
unwarranted hardships (Maryland, Rhode Island).
There are two states, Mississippi and Virginia, where an applica-
tion for an exemption is required. Three states have no exemp-
tions under their coastal programs (New Hampshire, New York, Pen-
nsylvania) .
Frequently the states permit the same activities that are regu-
lated by the Corps under §404. Some states have arranged for
joint permit processing with the Corps (Florida, Georgia,
Mississippi, South Carolina, Virginia). The Corps is bound by
Virginia's general' permit to adopt the decision of local communi-
i.
ties. At this time, if North Carolina issues a "CAMA" permit,
the Corps §404 permit is automatically issued.
t 52
If
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COMPLIANCE
'.','..•'. . . .
Enforcement of regulations and policies is often the element of
most concern to state program managers. Funding and political
support are often inadequate for these activities.
Some states rely on court action to stop filling and restore the
areas affected. Many states use specific enforcement orders
(e.g., notices of violation, compliance orders) to get results
prior to taking legal actions. Alaska's "compliance order",
similar to EPA's compliance under Section 309 of the Clean Water
Act, sets out specific actions and deadlines for a violator. If
met, subsequent legal action and penalties can be avoided.
on
States with programs emphasizing local government implementati
attempt to achieve compliance through the local programs by
requiring enforcement of state standards, or by withholding
funds.
All the states conduct some degree of monitoring of permitted
projects. Some states rely on public citizens to provide compli-
ance information (Alabama, Massachusetts, Virginia).
PUBLIC EDUCATION/AWARENESS
An emphasis on public education has been one of the major contri-
butions of coastal management programs. These efforts include:
school curricula (Alabama, Maryland, Mississippi, New Hampshire,
Pennsylvania); newsletters and statewide mailings (New Hampshire,
New Jersey, Pennsylvania, South Carolina); public presentations,
such as movies and/or speakers (Delaware, Maryland, Mississippi,
New Jersey, New Hampshire, Virginia); articles written for local
newspapers (South Carolina, Virginia); wetland protection plaques
53
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displayed on wetland sites (Alabama); material targeted for
developers (Mississippi, New Hampshire, Rhode Island); and tech-
nical assistance and/or guidebooks for local officials (Maryland,
New Hampshire, Pennsylvania, Virginia). Virginia conducts an
annual symposium for local boards. Additional efforts are.neces-
sary in most states to promote support for coastal programs.
Louisiana and Massachusetts both mentioned lack of public educa-
tion as a specific management problem.
PROBLEMS/ISSUES .,
The list of issues and problems related to coastal programs and
coastal wetland management is not as extensive as with other pro-
grams. This is the result of greater national interest in coast-
al areas and a long history of management.
1. Lack of funding and staff support (Louisiana, Michigan).
2. Coordination among state agencies, and between the states
and the federal government (Alaska, Oregon).
3. The need for research and development of applied management
techniques for specific coastal problems, including
resource inventories, abatement of water quality problems,
development of oil spill plans, prevention and abatement of
coastal erosion, determination of 'cumulative impacts, wet-
. land values for mitigation appraisals, and effects of water
diversion on coastal wetlands (Louisiana, Maine,
Massachusetts, Oregon, Wisconsin).
CURRENT EPA ROLE jIN PROGRAMS
i,
EPA's role in coastal and tidal wetland programs is variable,
though generally regarded as small or inadequate. States
:fe . 54
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recognize that EPA tend'js to focus on interaction with federal
agencies and programs, and suggest that EPA's participation in
state efforts could be increased. Specific comments follow:
EPA has no role, no positive role, or a limited role
£ - (Maine, Oregon);
EPA's construction grants program should recognize wet-
lands protection goals (Michigan);
EPA has assisted in wetlands assessments (Massachusetts);
and
EPA is effective in laboratory support and coordination
with permit reviewers (Maryland).
EPA provides consultation to some states on issues where a fed-
eral overview and more extensive experience can provide bene-
fits. EPA is assisting Massachusetts in their Buzzards Bay pro-
gram and providing consultation on spoil disposal and area desig-
nation to Maine.
EPA is visible, active, and takes the lead in protection of wet-
lands in some states. Alabama sees EPA in the forefront of man-
agement efforts. EPA does investigations and takes violators to
court in Delaware, and meets regularly with the Corps on specific
permit actions in several states . (Maine, Maryland, Massachu-
setts, Virginia).
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
State recommendations occurred in general categories, and cate-
gories specific to individual states' issues. The individual
issues reflect day to day concerns of state officials working in
thefield.
f-1
1. The coastal states see EPA as the focal point for a network
of federal iand state agencies with common interests in
i
./• 55
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preventing further ^.losses in wetlands, principally through
exchange of technical data and public information.
0 EPA could be the clearing house for informationon what
the federal, state, and local governments are doing to
protect wetlands (Massachusetts);
EPA should make a major effort to develop a national wet-
lands data base (Pennsylvania);
EPA should develop a national wetland protection program
under the Clean Water Act. There is no current mechanism
for coordinating plans (Alabama);
EPA should take the lead in enunciating the importance of
wetlands to support the protection efforts of states, and
should advocate adequate and consistent federal funding
for wetland protection efforts (Alabama);
EPA should support funding for federal and state fish and
wildlife agencies, in support of wetlands management pro-
grams (Pennsylvania); and
0 EPA should provide additional policy and scientific
information on wetlands (Massachusetts).
2. EPA should coordinate a major effort, by state and federal
governments, to provide public education on wetlands func-
tions and values, to gain support for protection efforts.
There is a need for general education of the public and
local officials (Massachusetts);
There is a need for public education regarding zoning and
wetland values (Mississippi); and
There is a need for more education on the importance of
wetlands and the benefits of restricting development
(North Carolina).
3. EPA should coordinate and sponsor research on wetland miti-
gation methods and progr-ams.
*-
0 Studies of salt marsh values are needed for use in devel-
oping, mitigation portions of state and local regulations
and ordinances (Massachusetts); and
56
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EPA should sponsfer research on mitigation, with emphasis
on the practical, i.e., what plants to use in establish-
ing a new wetland (Pennsylvania).
4. EPA should support and assist in a number of specific
fc research and applied management efforts throughout the
nation.
EPA should support additional bay studies. Boston harbor
would benefit from such an effort (Massachusetts);
EPA should develop models and technical guidance manuals
for state use (New York);
EPA should develop an assessment methodology for cumula-
tive impacts of metropolitan development (New York);
0 EPA, in cooperation with the state, should develop a
methodology to assess losses and gains in wetlands (New
York);
0 EPA should support research on wetlands and water quality
(Connecticut);
EPA should place greater focus on nontidal wetlands,
including better definitions of functions and values'
(Virginia).
5. EPA should take the lead in addressing dredge spoil disposal
issues, and work with state managers on this issue.
0 EPA should help solve the spoils disposal problem,
because wetlands are the most available disposal sites
(Alabama);
° EPA should provide input into Corps dredging projects to
assure proper spoil disposal (Connecticut).
EXAMPLES OF SUCCESSFUL PROGRAMS
Connecticut
I,
The Connecticut Tidal Wetlands Act lays claim to reducing the net
fill of coastal wetlands to near zero over the last fifteen
57
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years, primarily due to Strong public support for strict regula-
tion. In addition, the program has required restoration of wet-
lands by the removal of tidegates and vegetative enhancement for
permitted pier, dock, or highway work.
>jt
All wetlands have been mapped at a scale of 1" = 200', and field
surveyed. The state program has been delegated to some 41 com-
munities. In communities with delegation, the state provides
technical assistance. The state or local authority reviews per-
mit applications for wetland considerations, which include habi-
tat and aesthetics. Most activities, with a few minor excep-
tions, are regulated in tidal wetlands and tidally influenced
areas at or below one foot above the local high water mark.
Relatively few permits are actually granted, and courts have
upheld challenged denials. Activities in the area of jurisdic-
tion are viewed by department staff on their initiative of upon
complaint by local officials or citizens. If violations are
discovered, the most common remedy is restoration or removal.
Massachuset ts
The oldest state wetland program in the nation is the Massachu-
setts Wetland Protection Act (MWPA). Now a combined coastal and
freshwater wetlands program, it covers all wetlands except some
isolated, minimally inundated wetlands. The program is adminis-
tered by local conservation commissions with state-developed
regulations, under state approved programs (320 out of 351 com-
muniti
exist.
munities). .'.Only limited exemptions from regulated activities
MWPA is generally acknowledged to be a model program. Deficien-
cies do exist, however. Wildlife habitat has only recently been
added as a protected wetland value, and appropriate regulations
will not be adopted until approximately November 1987. Funding
for program administration is quite limited, restricting enforce-
58
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ment, research, and educational efforts. Also, with local imple-
mentation can come a periodic lack of uniform decision making,
and training for 2,500 volunteer commission members (with a
10-15% turnover rate), is a prodigious effort. On the other
hand, local implementation produces a large number of individuals
throughout the state with an interest in wetland protection.
59
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INLAND WETLAND PROGRAMS
INTRODUCTION
£ '
Inland wetlands nationwide generally receive less protection than
coastal wetlands. There are a wide range of programs providing
protection to inland wetlands from specific state wetland acts to
a variety of other programs providing incidental protection.
Specific state wetland acts include Maine's and Rhode Island's
Freshwater Wetland Acts. There are 13 states that administer
specific wetland protection laws (Connecticut, Florida, Maine,
Massachusetts, Michigan, Minnesota, New Hampshire, New York,
Oregon, Pennsylvania, Rhode Island, Vermont, Wisconsin). Of
these states, eight operate combined programs with jurisdiction
over both the coastal and inland wetlands of their states
(Florida, Massachusetts, Michigan, Minnesota, New Hampshire,
Oregon, Pennsylvania, Wisconsin). Some inland wetland programs
are delegable to local governments (e.g., Connecticut, Florida,
New York), or are implemented through district environmental com-
missions (e.g., Vermont) or by local government (as in
Massachusetts, where some 2,500 conservation commissioners
involved in permitting wetlands can become advocates of wetland
protection).
States have also used other inland laws to have an affect on wet-
land protection, including development permitting and water
quality standards. Alaska1 Habitat Protection Permit Program,
Maine's Great Ponds Act, and Florida's Outstanding Florida Waters
nondegradation program are examples of such programs. Vermont's
Protection of Wetlands of State Significance legislation was
passed as a 1986 amendment to the state's Land Use and Develop-
ment Law (Act 250). This addition requires consideration of
specific development impacts on wetlands. The Massachusetts
60
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Wetland Restriction Act*" places conservation restrictions on
privately owned wetlands statewide. In contrast, Maryland's
Resource Enhancement program is nonregulatory and emphasizes
education on inland wetland values and management as a means to
accomplish protection. The Maryland Department of Natural
!?
Resources assists local governments in developing inland wetland
protection programs. Kentucky has also developed a nonregulatory
educational program. The.Kentucky Division of Water has created
a public participatory program called "Water Watch." It is
designed to educate, monitor, and clean-up chosen water or
wet 1 and sites.
NUMBER OF PROGRAMS
Information was collected on 21 specific inland wetland programs
and 29 other programs affecting inland wetlands.
JURISDICTION
The boundaries of inland wetlands can be difficult to discern.
Most states use both soil and vegetative criteria in their defi-
nition of freshwater wetland boundaries (Connecticut, Florida,
Maine, Pennsylvania, Vermont). Inland wetland boundaries are
also elusive due to seasonal changes. Permit decisions are often
deferred due to winter conditions in Maine.
Small, isolated wetlands nationwide are generally the least pro-
tected wetlands. Many such wetlands do not fall under state jur-
isdiction due to size limitations (Maine, New York, Rhode
Island).
Some inland wetlands are covered under coastal programs where
coastal jurisdiction extends inland, sometimes because of the
61
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buffer zone (Maryland, Njew Jersey). Inland and coastal wetlands
are protected under a single law in at least five states
(Florida, Massachusetts, New Hampshire, Pennsylvania,
Wisconsin). Inland wetlands are also afforded protection where
entire states are designated as "coastal zone" (Delaware,
Florida).
INVENTORY/CLASSIFICATION
Inventory and mapping of inland wetlands is being undertaken by
many inland wetland programs. New York has a major inventory,
mapping and classification effort underway. Inland wetlands are
evaluated by the Golet method of classification under Rhode
Island's Freshwater Act. This method is used for permit deci-
sion making and designation of critical areas. Localities desig-
nate "prime wetlands" in New Hampshire, and Florida designates
critical areas, such as mangroves, or areas meriting special pro-
tection under the Outstanding Florida Waters Program.
PERMITTING
Some inland wetland programs require permits for activities in
wetlands beyond those covered under Section 404. Some states
have other inland wetland programs along with their inland wet-
land permit program. For example, Wisconsin has an inland wet-
land permit program, a voluntary nonpoint source pollution pro-
gram, and a lake management program. Maine has an inland wetland
permit program, and their Great Ponds legislation.
62
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PROBLEMS/ISSUES ."r
1. Lack of Funds and Staff (Kansas, Texas, Washington)
Even though some states have regulatory mechanisms in place
to protect wetlands, frequently funds and available staff
limit the programs' effectiveness.
2. Lack of Enforcement or Compliance Monitoring (Kansas,
Louisiana, Minnesota, Nevada, Washington, Wisconsin)
As a result of the limited funds and staff, enforcement is
frequently lacking in state inland wetland programs.
3. Lack of Comprehensive Inventory (Kansas, Maine, Oregon)
A beneficial first step in regulating inland wetlands is a
comprehensive inventory of wetlands under the programs'
jurisdiction. States lacking adequate inventories are
handicapped in enforcement and implementation of the
programs.
4. Lack of Clear Delineation of Jurisdiction and Authority
(Minnesota, Texas)
Regulating inland wetlands beyond those covered under fed-
eral programs can raise numerous legal issues. Inland pro-
grams which lack clear definitions of jurisdiction and
authority have difficulties with administration.
5. Limitations on Acreage (Connecticut, Maine, New York, Rhode
Island) >
Exemptions for small wetlands (e.g., the New York program
exempts wetlands less than 12.5 acres in size, unless desig-
63
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nated as being of frlocal significance) can make the state
programs less successful.
6. Other Problems:
& ° Few large wetlands remain (Kansas);
Large regulatory program; requires a large, well trained
staff at the county level with technical and management
expertise (Wisconsin);
Water plan is based on a voluntary approach (Kansas);
0 Gaps in regulation of certain types of wetlands (Min-
nesota) ;
Numerous court cases (Minnesota, Pennsylvania);
Lack of public support (Minnesota, Pennsylvania);
Balancing development and protection interests (Min-
nesot a);
0 Program does not regulate fill (but fits in well with
§404 program)(Texas);
Lack of consistency in local decision making,-and inabil-
ity to provide the desired amount of oversight of local
implementation (Connecticut);
0 Broad forestry and agricultural exemptions (Maine);
Lack of evaluation methods and wetland definition clari-
fication (Maine);
0 Limited jurisdiction over inland wetlands (Pennsylvania);
0 Time consuming permitting process (Rhode Island);
0 Need better coordination within state government (Rhode
Island);
0 Stormwater discharge problem (Rhode Island);
Wetlands near intermittent streams receive inadequate
protection (Rhode Island).
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CURRENT EPA ROLE IN PROGRAMS
EPA generally plays a small role in state inland wetland programs
(Connecticut, Kansas, Louisiana, Maine, Minnesota, New Hampshire,
New York, Oregon, Texas, Wisconsin). However, in Rhode Island
V*
EPA conducts joint site visits and analyses of site conditions
with the state. Alaska and Kansas note that EPA and the state
have a good relationship.
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
Inland wetlands receive little protection in most of the coun-
try. They have been identified by both private and public groups
as a resource which is being lost at tremendous rates in many
parts of the country. Overall, EPA needs to develop a strategy
for protecting inland wetlands, and evaluate current programs to
determine their impact on these wetlands.
EPA needs to establish a national wetlands policy which gives
states a clear signal that wetland protection is a priority.
States which have inland programs are frequently operating with-
out EPA input or support. In many cases, states are receiving
negative public reaction from implementing these programs without
backup from EPA. A clear, definitive policy statement from EPA
which outlines specific, obtainable goals will assist the states
in developing political and public support for their inland wet-
land programs.
Several state inland wetland managers did not know what programs
EPA had to assist them. EPA should provide more information to
states concerning available resources, including funding, educa-
tional materials, data bases, and technical publications.
65
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A nationwide data base is^needed to facilitate information trans-
fer regarding inland wetland programs. Not all state managers
can attend conferences to obtain current information, but most
managers could obtain access to a terminal and connect to a
computerized information base. Such a data base could contain
it
information such as this report. Information on current state
regulatory concerns, needs from EPA, successful inland programs
and pending legislation could also be incorporated. In addition,
continuous tracking of state programs could help identify region-
al and nationwide trends in wetland protection efforts. .
EPA should become' more aware of the large scale efforts some
states are making to protect inland wetlands and encourage coor-
dination between state and federal agencies. In a number of
states, the Fish and Wildlife Service works closely with state
agencies to conduct site investigations and develop technical
support for field staff. EPA should coordinate with the Fish and
Wildlife Service to assist state inland wetland programs without
duplication of effort. In addition, EPA should encourage devel-
opment of a method to quantify and record inland wetland losses,
to determine the relative success of the various inland pro-
grams. A method of quantifying the rate of inland wetland loss
is also essential for increasing public awareness of the impor-
tance of inland wetland legislation.
States could use more guidance on mitigation. Specific questions
include: When and what type of mitigation should be required?
When can mitigation through development of one type of wetland
replace destruction of another type? For example, if there are
numerous red maple swamps, should mitigation include creation of
a different type of wetland?
The states need a consistent methodology for identifying inland
wetlands and delineating jurisdictional boundaries. Such tech-
niques have been developed by EPA and the Corps, and training for
state personnel should be offered locally and inexpensively.
66
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Inland wetland programs trend to be visible and controversial pro-
grams. States with inland programs need technical assistance
from EPA to support their programs, and assistance in distribut-
ing this information to the public. States need training man-
uals, films, videos, and other written materials to assist in
&
their public information efforts. The public information mate-
rials should concentrate on the reasons why wetlands are of value
to the general public.
Other recommendations for assistance from EPA to state inland
wetland programs include:
Development of information on the values of buffer strips
around wetlands, and formulas or guidelines to determine
the size of buffers needed;
Better methods for evaluating urban wetlands;
Specific criteria for evaluating recreation and visual
impacts on inland wetlands;
Evaluation of the effectiveness of §404 in states which
have inland wetland programs compared to states which do
not;
Development of a nationwide nonpoint source pollution
program; and
More research on wetland functions and values.
EXAMPLES OF SUCCESSFUL PROGRAMS
Connecticut
Connecticut's Inland Wetlands and Water Courses Act serves as a
model of an effective inland wetland program. It is a delegable
program, and some 155 of 169 communities have state approval to
run the program. The state provides technical assistance and
training to local officials. Local program authorities provide
reports on their permitting activities, and the state provides
67
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oversight through program" audits. The state has rescinded pro-
gram authority from local communities in the past. The program's
jurisdiction is more extensive than the Corps' jurisdiction, with
20-25% of the state covered. Wetlands are defined by soil type,
and all inland wetlands are mapped. Exempt activities are
ii
limited, although agriculture, an important activity in the
state, is generally exempted. The only size limitation applies
to farm ponds; ponds less than three acres are not subject to the
program.
The major deficiencies appear to be inconsistency in enforcement
by local officials, inadequate funding for training of local pro-
gram administrators, and lack of oversight. State administrators
note that a method of quantifying wetland gains and losses needs
to be developed.
Michigan
Michigan1s Goemaere-Anderson Wetland Protection Act combines per-
mit requirements, strong penalties for noncompliance and a well
developed education program to yield a very successful inland
wetland program. The program covers a broad range of wetlands,
including contiguous wetlands, noncontiguous wetlands greater
than 5 acres (in counties with populations greater than 100,000)
and noncontiguous wetlands less than 5 acres which are designated
as essential. Permits are required for dredging, filling, drain-
ing, constructing, operating or maintaining any use or develop-
ment in a wetland. All permitted activities are logged on a
computer data base, and state administrators feel wetland loss is
negligible.
New York
Many aspects of New York's inland wetland program make it one of
the potentially most successful programs. The New York program
68
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has nine regional office;^, with two staff persons per region, and
a highly knowledgeable, energetic, and dedicated headquarters
staff. The program is delegable to local government, and gener-
ally covers mapped wetlands in excess of 12.4 acres. The mapping
effort involves aerial photography, field checking on a county-
wide basis, and notifying landowners subject to the legislation.
Mapping should be completed by the end of 1986. The acre limita-
tion can be reduced if wetlands are designated "of local signifi-
cance." While agriculture is generally exempt, clear cutting and
filling are not exempt activities. There are a few major draw-
backs, including size limitations, exemptions, and the need to
complete mapping.
The New York classification system for wetlands could be of use
in other states. The system consists of four levels, which are
used for permit evaluation. For projects in the highest wetland
classification level, "compelling need" for the project, with no
alternatives, must be shown for a permit to be issued.
69
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STATE^PROGRAM INTEGRATION
INTRODUCTION
£
States have developed a variety of programs to protect wetlands.
The most common are regulation, taxation, and acquisition. Spe-
cific efforts to integrate various protection programs are rare.
The programs are sometimes based on comprehensive or regional
planning, and some degree of coordination may exist as a result.
Some state agencies have increased their capability to protect
wetlands through arrangements with federal or local governments,
or with private organizations. These agreements can promote
integration of purposes and efforts. Specific and incidental
actions resulting in increased coordination are considered below.
PLANNING
Intrastate planning and coordination of wetland protection
efforts are relatively rare, but do occur in some states.
Extensive planning is performed in sub-state regions in Maryland
and New Jersey. New York has made comprehensive planning for
wetland protection a priority. The New York Department of Envi-
ronmental Conservation is attempting to administer an integrated
protection program, to pull together disparate activities under a
common set of objectives. They provide oversight of regulatory
programs, a priority weighing system for acquisition, and direc-
tion for management and restoration. A Tennessee executive order
establishing wetland protection policy and mandating all state
and local agencies to consider wetland values during permit eval-
uations could be considered a type of planning or coordination
mechanism.
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Regional coordination riray be intrastate or interstate. Inter-
state programs are rarer than intrastate efforts, though several
useful examples exist. Regional integration of efforts is highly
desirable, since large wetland/aquatic systems often extend into
or influence several states or large areas within a single
if
state. Regional coordination has the potential to address the
entirety of such systems and to fit protection efforts to a com-
bination of local and national goals. Within states, regional
integration can transcend local concerns and approach wetland
complexes from the perspective of the 'greater good.'
One of the best examples of successful 'regional' planning is the
national Coastal Zone Management Act (CZMA). State plans were
approved based upon common national goals and the ability of the
states to carry out planning and regulatory mandates.
Multiagency approaches to planning and regulation were mandated
and have now been institutionalized in many instances. In
Florida, a CZMA committee composed of several state agencies and
local water management districts documents development impacts
and designs management plans. In Alabama and Alaska, state
agencies with coastal concerns coordinate Under the CZMA office.
Regional acquisition efforts have generally centered on river
valleys. Maryland, Massachusetts, New Jersey and Vermont have
such efforts. Florida uses a water basin approach in managing
acquisitions. Delaware and New Jersey are planning to establish
a "sister reserve' system for waterfowl enhancement that will
involve education, registration of private property, and perhaps
acquisition.
The Pinelands Comprehensive Management Plan covers one-quarter of
the state of New Jersey. Approximately one-quarter of the Pine-
lands are wetlands. The plan involves local land use plans, and
has regulatory and acquisition functions separate from New Jer-
sey's wetland regulatory program. Private landowners are compen-.
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sated for strict use restrictions on their land, and the pro-
gram's regionally transferable development rights remain unique
in this country.
The Hackensack Meadowlands regional plan in New Jersey is a fed-
eifal/state/local effort. The plan is administered by the Hacken-
sack Meadowland Development Commission and the townships of the
region, with cooperation from EPA, the Fish & Wildlife Service,
National Marine Fisheries Service, and the Corps. The plan
involves large track zoning and restoration of wetlands degraded
by previous development. Local governments are compensated for
land use restrictions by tax sharing. Acquisition is carried out
in conjunction with New Jersey's Green Acres Program. Enforce-
ment is performed by the federal government.
Maryland's Chesapeake Bay Critical Area Protection Act is the
strongest protection -effort directed at that estuary. The act
provides each locality in the region with the option to assume
authority for the program. All eligible counties and some munic-
ipalities have opted to adopt ordinances within the state's cri-
teria, which include mandated enhancement- programs directed at
water quality and habitat improvement. The state provides tech-
nical assistance. Some small localities are considering drafting
joint ordinances which would also be implemented jointly.
In sum, planning can provide a framework for integration of wet-
land protection programs, either by tailoring the programs to fit
existing plan-generated goals, or by undertaking planning speci-
fically to gain efficiencies in protection programs with compat-
ible goals. Unfortunately, such planning is not universally
employed.
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WETLAND PROTECTION PROGRAMS
Section 401 Water Quality Certification applications are pro-
cessed jointly with Corps permit applications in some states.
This creates a de facto review of §401 applications by a broader
ij.
spectrum of state and federal resource agencies. Wetland impacts
are generally reviewed by the various state fish and game depart-
ments. Many states use the National Wetland Inventory System
developed by the Fish & Wildlife Service in their §401 considera-
tions (Alabama, Florida, Kentucky, Illinois, Indiana, Maryland,
Massachusetts, Michigan, Mississippi, Nebraska, New Jersey,
Oklahoma, Rhode Island, Tennessee, Vermont). States generally
rely heavily on the Corps for compliance/enforcement related to
§401.
Broader interagency notification has been institutionalized in
several other ways. Several states have water quality acts in
addition to §401 certification (Alaba.ma, Georgia, Kansas, New
Mexico, Ohio, South Carolina, Tennessee, West Virginia), and
several of those process and issue their state certifications
simultaneously with the §401 certifications. A number of other
states (Connecticut, Illinois, Maine, New Jersey, New York, North
Carolina, Pennsylvania) process §401 certifications in conjunc-
tion with state wetland regulatory programs. In Massachusetts,
there is formal interagency notification despite separate §401
and wetland permitting processes. Illinois has established a
joint permit process which integrates requirements of the Corps,
Department of Conservation, and Department of Transportation.
Other regulatory programs and resource agencies can mandate
integration and coordination. Maine's new antidegradation water
quality classification applies to all state regulatory programs.
New Jersey's Division of Coastal Resources administers three pro-
grams: the Wetlands Act; the Waterfront Development Act; and the
Coastal Area Facility Review Act.
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State Environmental Policy Acts (SEPAs) can be broad environ-
mental impact assessment and reporting programs where they exist
and are aggressively exercised. They represent the potential to
integrate large numbers of resource-oriented and other regulatory
programs within several layers of government into a single review
It
framework. They can create coordination among agencies and citi-
zen review opportunities. Unfortunately, most states do not have
SEPA's, and of those that do, most do not have significant pro-
grams nor do they utilize them frequently.
New York has a strong SEPA program incorporated in their wetland
regulatory program. Most wetland development proposals trigger a
State Environmental Quality Review (SEQR) to determine whether
the state policy act applies. State and local governments are
open to citizen suits regarding SEQR accountability.
Michigan also has a powerful SEPA called the Michigan Environ-
mental Protection Act (MEPA) which provides for governmental and
citizen suits for injunctions to prevent pollution, impairment,
or destruction of air, water, and other natural resources. It
has been used for protection of wetlands, including manmade wet-
lands. State and local governments, persons, corporations, and
associations are open to suits under MEPA.
Taxation programs are generally directed toward acquisition or
limitations on development rights. As such, they require coordi-
nation between the resource agencies that create the inventory of
lands to be acquired or over which conservation easements are
desirable, and the agencies implementing the tax structure. Cer-
tain tax programs, such as non-game checkoffs and conservation
easements, create opportunities for public education about wet-
lands and other sensitive lands. This can indirectly benefit
regulatory programs. New Hampshire is a good example of public
outreach. Each year their tax incentive program is widely adver-
tised and public hearings are held in each of three regions to
-------
determine the scope and application of the law. Missouri's sales
tax program provides a consistent, dependable level of funding
compared to unstable nongame checkoff funds and is associated
with an extensive public education program, including primary and
secondary school programs. Much of the money goes toward land
acquisition.
Acquisition programs are very widespread. There are now over 40
states with Natural Heritage programs, most initiated by the
Nature Conservancy. The programs can pull together government
agencies, elected officials, private citizens and private organi-
zations for the purpose of setting goals, raising funds for
acquisition, and managing the acquired lands. Arkansas's Natural
Heritage Program protects wetlands through parcel acquisition,
and through cooperative arrangements with state and federal
agencies to maintain water quality. Often, the state's Natural
Heritage inventory is used in other state programs, such as
Virginia's Scenic Rivers Program.
North Carolina's National Estuarine Sanctuary Program, Florida's
Save Our Rivers and Save Our Coast programs, Michigan's Natural
Resource Trust Fund, and Vermont's Land Acquisition Review Com-
mittee are all examples of multi-government or multi-agency coor-
dination centered on acquisition. Often, funds for acquisition
are raised through taxation programs such as documentary stamp
taxes or severence taxes. Priority selection is the responsibil-
ity of one or more entities, and management is performed by
separate, entities. Michigan has an acquisition program based on
funds acquired through oil and gas lease revenues. A news
release initiates the acquisition process, informing the public
that the state is beginning its annual search for land to
acquire. Nominations are received from state, local, and private
entities for specific parcels of property. Parcels are evaluated
by a board of state managers, and an acquisition package passed
on to the legislature for approval.
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Ohio's Natural Areas andj-Preserves Program integrates the income
tax checkoff program, dedication program (in which compensation
consists of a total real estate exemption), and capital improve-
ment funds. The state searches for the most critical areas and
prioritizes the areas based on the level of diversity and degree
(f
of threat. The cost of the parcel is estimated, a budget is
established, and the landowner is approached to determine if he
is a willing seller. This process funnels available funds into a
coordinated effort to protect critical areas. Missouri has long
range plans for acquisition of 12 different types of land,
including wetland areas, community lakes, stream access, and
stream frontage. After a parcel of property is offered to the
state for purchase, a four-person multi-disciplinary team of
reviewers examine the properties' potential in terms of fish,
wildlife, forestry, and natural history benefits. A public edu-
cation effort includes programs in primary and secondary schools
and a program directed toward the general public.
In some instances, the state program is administered in major
part at the local level (Virginia). These divided responsibil-
ities mandate communication among the agencies involved. Acqui-
sition is sometimes considered as a result of state regulatory
programs (New Jersey), or additional regulatory protection is
specifically afforded to areas that have been acquired or desig-
nated for acquisition (Massachusetts).
Research can link various wetland programs by a common need.
Planning, regulation and acquisition all depend upon, or are
served by, research programs. However, programs which integrate
federal, state, local, and private research efforts and needs are
lacking. Many state wetland research studies are geared toward
specific fish and wildlife habitat questions. The questions are
generally not asked within the context of an integrated approach
to larger questions about wetland functions, cumulative impacts,
and other such topics. Ohio is unique among the states, provid-
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ing a statewide clearinghouse which monitors and approves
research projects.
Research that serves other wetland protection programs includes
inventories (Alabama, Wisconsin), habitat functions (Alabama,
•f
Delaware, Maine, Massachusetts, New Jersey, South Carolina),
wetland boundary determination (Rhode Island), and assessment of
the impacts of development activities as diverse as wastewater
treatment, mining, and agricultural runoff (Delaware, Georgia,
Kentucky, North Carolina). Research can also include public
education, as in Delaware, Florida, North Carolina and South
Carolina.
CONCLUSIONS
Coordination of wetland protection efforts is desirable for a
numbe.r of reasons related to efficiency and efficacy. Nonethe-
less, specific efforts to integrate state or multistate programs
are rare, and superlative examples that can serve as a model for
others are rarer still.
This void presents the federal government with an outstanding
opportunity to provide sorely needed technical assistance to the
states. The maximization of protection with limited financial
resources is a goal that has universal appeal, and assistance
directed toward that end should be well received. The variety of
bureaucratic structures that are directed toward wetland protec-
tion within the states will require that the initial coordination
be general and flexible. This will likely enhance their accept-
ability to the states. Initial successes could provide the driv-
ing force for further assistance efforts.
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PRIVATE ORGANIZATION PROGRAMS
-------
INTRODUCTION
.There are a large number of national private organizations for
which government effo.rts in wetland regulation, acquisition, or
research constitute a primary focus of concern. These organiza-
*,
tions spend considerable time, effort, and resources attempting
to inform their members of the variety of government activities
and their consequences with regard to wetlands. By and large,
these groups focus on wetland efforts at all levels of govern-
ment, although interest in any one level tends to vary among
organizations.
From the wide array of organizations, a manageable number of
representative public and private organizations were contacted
concerning their view of state wetland programs, and state needs
from EPA. Participating organizations included American Paper
Institute/Forest Products (API/FP), Environmental Defense Fund
(EOF), International Association of Fish and Wildlife Agencies
(IAFWA), Land Trust Exchange (LTE), National Wildlife Federation
(NWF), the National Association of Home Builders (NAHB), and the
Nature Conservancy (NC).
Each of the participating groups provided information on: their
view of EPA's role in assisting state efforts; their knowledge of
any specific exemplary state programs; and their interaction with
EPA. While speaking from experiences and knowledge within the
context of their organization's policies, participants advised
that their responses did not constitute official responses to a
federal agency. Each participant was willing to speak candidly
and authoritatively, and each expressed interest in follow-up
conversations with EPA officials.
Many generalizations can be drawn from this sampling of public
and private organizations' views. The recommendations are sum-
marized below, followed by a more detailed presentation of organ-
ization interviews.
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INVOLVEMENT IN STATE OR LMCAL WETLAND PROGRAMS
Each of the organizations identified some organization activity
at the state or local level, and each identified substantial mem-
bership interest in state or local activities. Activities
£r
included work with state legislatures on freshwater wetlands
legislation (NAHB), extensive inventories and acquisitions (LIE,
NC), and substantial membership involvement in permitting
(API/FP, EOF, NAHB, NWF) . Some of the organizations had activi-
ties limited to a few states, while several had extensive
involvement in most states and several communities (LIE, NC,
NWF).
RECOMMENDATIONS FOR FURTHER ASSISTANCE FROM EPA
Each organization provided input regarding methods by which EPA
could assist state and local wetland protection efforts. NAHB
and API/FP expressed a marked preference for regulation by state
or local government, while others clearly identified specific
efforts EPA should undertake to improve wetland programs over-
all. The comments fell into the following categories:
1. EPA should assist in developing clearer definitions of wet-
lands and wetland boundaries, as well as specific activities
that are or should be covered or exempted. For instance,
most participants noted that agricultural conversion is not
exempt from regulation, but that some agricultural and sub-
agricultural activities are exempt, and that the distinc-
tions tend to be blurred.
2. Most participants identified the need for EPA to provide
greater applied research related to management decisions,
and to maintain greater technical capacity within its own
staff to assist state and local programs. Specific research
needs identified included development of methods for
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assessing the appropriateness of water quality standards,
development of appropriate mitigation measures, development
of means of assessing cumulative impacts and alternatives,
and development of means of determining jurisdiction.
'. • fr" '. •••••'••
3. Most participants identified a need for EPA to provide bet-
ter training and evaluation for their own staff as well as
state and local program people. Further, EPA needs to com-
municate better with the public and with other federal
agencies regarding wetland values and functions, particular-
ly fresh water .
4. Most participants identified a need to inventory federal
activities that have impacts on wetlands and to coordinate
or mediate conflicting federal programs and policies.
SUCCESSFUL PROGRAMS
Some participants were unable to identify specific successful
state programs, while others were able to name some in each state
program category. Some of the programs identified as successful
by private organizations were regarded as failures by program
managers. :
Section 401 - With the exception of Wisconsin, no exemplary §401
programs were noted. Participants considered them generally
neither strong nor effective.
5EPA - Generally SEPA programs were considered ineffective, with
the exception of the New York program (SEQR).
Taxation - Exemplary programs noted were: Oregon (riparian tax),
Florida (documentary stamp tax), Nantucket Island and a few Long
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Island townships (land transfer tax), and New York (which gen-
erates more non-game check-off funds than all others combined).
Acquisition - Generally there is too little money available, but
Florida's CARL and other programs, and New York's and Minnesota's
programs were cited as beneficial.
R esearch - Research is fragmented and not always identified as
"wetlands" research.
Coastal - Connecticut is considered the model for state coastal
programs, followed by Massachusetts. All others are generally
acceptable because of the public perception of the importance of
coastal wetlands.
Inland - Generally, these programs need much more focus. Good
staff efforts were noted in California, Connecticut,
Massachusetts, Michigan, and New York. Th.e combined program in
Florida is too new to evaluate, especially concerning its
approach to mitigation and agriculture.
ORGANIZATION'S INTERACTION WITH EPA
A few organizations acknowledged substantial interaction with EPA
(EOF, NWF), while others had limited contact with EPA. NAHB and
API/FP both expressed great interest in further contact with EPA,
with NAHB pointing to a successful meeting last year in which
agency personnel spent time with NAHB officials to discuss
priorities and directions. API/FP advised that such efforts
could be quite useful to both parties in developing a more
cooperative working relationship. The IAFWA found it curious
that EPA did not meet more with natural ally groups. All organi-
zations thought more substantial contact to be appropriate and
helpful.
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SUMMARY OF ORGANIZATION INTERVIEWS
National Wildlife Federation (NWF)
NWF is the largest environmental group in the country, consisting
f
of a national office with field staff, five regional offices and
state affiliate groups. Wetlands are a priority issue with NWF.
NWF is generally pleased with its relationship with EPA, and
appreciative of assistance it has received from EPA in the past,
especially joint efforts on workshops and seminars, and access
for programmatic comments. NWF is generally complimentary of EPA
staff, specifically in Regions I, IV, and IX.
NWF provided the following comments:
1. Take a more assertive role with the Corps, especially where
the Corps is wrong or inactive.
Consistent interpretations are needed in multi-district
states; more §404(c) actions are needed where the asser-
tive role does not produce change.
Provide better assistance and support to the states; EPA
lets states take on the Corps when EPA should.
2. Pay more attention to little projects with less spectacular
wetlands or isolated wetlands.
3. Muster general support for wetland protection.
4. Assist the states in developing wetland/habitat-related
water quality standards. Better habitat consideration under
§401 and §404 is needed.
5. Inventory and disseminate information on intra-EPA wetland
activities, including research.
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6. Develop greater interaction with other federal agencies hav-
ing programs impacting wetlands.
7. Educate program administrators and the public on jurisdic-
tional questions including:
^ 0 "
Agricultural conversion exemptions.
Definitions and descriptions of covered areas and wetland
boundaries.
8. Make greater enforcement efforts.
9. . Designate sites such as prairie potholes and hardwood bot-
tomland inappropriate for disposal of dredged soils.
10. Develop an overall policy and strategy based on problems
identified by §404 coordinators. Establish priorities at
the headquarters level, then implement them through the §404
coordinators.
National Association of Home Builders (NAHB)
NAHB has 145,000 members, one-third of "which are contractors.
The remainder are in support or service-related industries.
Wetlands are a major concern for contractor-members, and NAHB has
worked at the state and national levels on wetland legislation.
NAHB has had limited contact with EPA and would welcome more, to
inform EPA of home builders' problems and learn of EPA program
direction.
NAHB provided the following comments:
1. Develop a clear, scientifically sound wetland definition.
NAHB believes that an impartial investigation using soils,
moisture, and vegetation criteria would result in less area
considered "wetlands." This would minimize conflicts over
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"marginal" wetlandst such as prairie potholes and moist
areas a distance from flowing water.
2. Develop better wetland inventories.
ii
3. Develop a better understanding of, and scientific assessment
method for, cumulative impacts. This issue is not ade-
quately addressed by the Corps.
4. Develop and foster a better understanding of the economics
of development at all levels of government. NAHB believes
that EPA and the environment would benefit from an easing of
outdated zoning requirements. With greater residential
density, there will be more money for pollution control.
5. Develop a more business-like approach, including:
A better understanding of NAHB member problems;
A more efficient permit system (prompt decisions, reduced
conflicts among agencies);
More and better applied research for decisions (lack of
information means delays);
Preferably one agency, probably the Corps, for §404
implementation.
6. Develop a real delegation program, stop second-guessing the
states at each turn.
International Association of Fish and Wildlife Agencies (IAFWA)
The IAFWA is composed of each of the state fish and game
agencies, and declares habitat protection its priority, and wet-
land protection as its number one habitat concern. IAFWA has a
strong working relationship with the Fish and Wildlife Service,
and views EPA's current wetland role as limited to §404 and
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drainage activities. Thefy believe that role is determined by the
Regional Administrators, because they set priorities and
policies. The IAFWA urges a more activist role for EPA in wet-
land protection and encourages EPA to adopt a strong working
relationship with them.
-j
IAFWA provided the following comments. EPA should:
1. Analyze the effectiveness of state wetland protection
efforts and the §404 program by habitat type and species.
Determine the amount and cause of wetlands loss. Assess the
number of permits issued and resulting wetlands lost.
Assess how wetlands are identified and whether there is
ground truthing.
2. Act to resolve conflict among agencies.
Assert leadership to identify conflict areas. Develop an
i-nformation list of inconsistent policies and programs.
Develop strategies jointly with other agencies.
Mediate conflicts of major policy at the federal level.
Communicate, coordinate, and strategize with other states
and federal agencies and IAFWA wetland efforts.
3. Develop uniform mitigation policies. Press for mitigation
in water appropriation bills.
4. Identify and help coordinate research at the federal and
state level.
5. Identify and disseminate information on nonhabitat values
for wetlands. Permit decisions should not rely on duck
habitat alone; there should be a stronger focus on ground-
water, floodplain, stormwater, and other functions.
6. Identify major systems and their values, and assist with
research in those areas.
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Land Trust Exchange (LTE)^
Based in Maine, 'LIE serves as the national clearinghouse for
local land trusts. LIE has published a directory of land trusts
in the U.S., identifying regional and local contacts, land types,
••f
and methods of protection. LIE has frequent contact with states
and the Interior Department but infrequent contact with EPA. It
would welcome more contact to keep EPA informed of regional and
local activities.
LIE provided the following comments. EPA should:
1. Be better informed on federal acquisition efforts and dis-
seminate the information to §404 coordinators and the
states. The information should be incorporated into EPA
programs and policies.
0 The President's Commission on Outdoor Recreation will
place major focus on a greenway program to provide
stream, river, and headwater protection. EPA could
coordinate local efforts and private-public partnership.
2. Be better informed on local, state, regional and private
efforts. Disseminate the information and incorporate it
into EPA programs and policies.
Environmental Defense Fund (EOF)
An active, non-profit environmental group, EOF has played a major
role in the development of national wetland policy..'. EOF has a
good working knowledge of and relationship with EPA, and is com-
plimentary of EPA's increased efforts in wetland protection.
EOF provided the following comments. EPA should:
1. Focus the wetlands debate through applied research and
increased technical capabilities, including staff training.
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Also, provide: overall program evaluations; methods for
assessment of wetland resources, especially small, isolated
urban wetlands; jurisdictional determinations; water quality
standards applicable to wetland protection; methods for
assessing cumulative impacts; methods for assessing mitiga-
fX
tion, with a focus on restoration; and methods of assessing
acceptable alternatives.
2. Define activities covered by wetland protection programs.
Clarify the agricultural exemption.
3. Provide assistance to the states.
0 Perform applied research on cumulative impacts, mitiga-
tion, and alternative analyses.
Assign EPA staff to important problem areas. This
approach helps the states be anticipatory rather than
reactive and provides a more programmatic approach for
EPA staff. Less time is needed to react to the Corps on
a permit by permit basis.
4. Focus public attention on the importance of freshwater and
isolated wetlands. Coastal wetlands are generally getting
decent protection.
American Paper Institute/Forest Products (API/FP)
As the national association for the forestry industry, API/FP has
a keen interest in EPA's wetland efforts. While there has been
infrequent contact in the past, API/FP encourages closer contact
so that EPA can understand the forestry industry. API/FP works
closely with the State Forestry Association, and prefers state
regulations to federal efforts. API/FP encourages a cooperative,
incentive-based, market-oriented wetland program geared more
toward acquisition (the Nature Conservatory approach) to avoid
"taking" concerns.
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API/FP provided the following comments. EPA should:
1. Develop a better definition of wetlands to be protected.
Too often areas of little real value are included as
"wetlands" for protection purposes.
2. Conduct applied research on the effects of wetlands manage-
ment, and develop a methodology to evaluate wetland gains
and losses. Corps projects have created wetlands without an
assessment of net gains or losses. Have we really lost, and
lost too much? How much development value must we forego to
protect areas with questionable wetlands value?
3. Provide better education, field training, and hands-on
experience for EPA staff. They need a better understanding
of local problems.
4. Act as coordinator/facilitator for local, state, and federal
reviews. EPA should encourage local decisions, because of
better understanding of resources and local concerns. EPA
should also encourage better communication between industry,
environmental, and scientific communities, to evaluate proj-
ects in a coordinated manner. More talk, less regulation,
and less §404(c) actions are needed.
5. Develop greater contact with API/FP and other industry
groups. It would help to get companies involved in protect-
ing valuable wetlands, and to develop a better attitude on
the part of the private sector. The possible payoff is pro-
tection through innovative approaches such as transferred
development rights.
Nature Conservancy (NC)
A private, not for profit organization, NC conducts an aggressive
acquisition and land management program in most states through
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private donations of cateh and land. NC works with state and
local governments to identify and purchase valuable properties
(often wetlands), frequently providing up-front interim funding.
NC provided the following comments. EPA should:
1. Maintain a strong, consistent regulatory effort.
2. Coordinate or assist in coordinating inconsistent, conflict-
ing federal policies.
0 Focus on agricultural policies that encourage wetland//
destruction versus the good efforts of the Soil Conserva-
tion Service, and the swampbuster provisions.
Coordinate with the Fish and Wildlife Service to develop
a more supportive administrative position on .pending
legislation.
Develop a mitigation implementation policy, and get the
Fish and Wildlife Service into an enforcement role in
mitigation.
0 Encourage federal policies like the Garrison Diversion
Wetlands Trust or the Platt River Trust. Funding for
mitigation was included in the original project appro-
priations, so funds are there when needed to implement "
mitigation.
0 Assist in getting more acquisition funds.
3. Assist in developing appropriate inventories, and identifi-
cation methods for wetlands. The Heritage Programs need a
uniform classification methodology to assure that the best
areas are getting protected.
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GENERAL RECOMMENDATIONS
-------
Specific recommendations on how EPA could assist states follow
the descriptions of the program types (acquisition, taxation,
cpastal, etc.). However, during the study process, it became
apparent there were some overriding concerns expressed by many
states, regardless of the program being discussed. We have com-
piled the following general recommendations for EPA to consider
along with the specific recommendations in the previous chapters.
1. Currently federal wetland management nationwide is a patch-
work of varied and separate protection efforts with signifi-
cant gaps. There is no single agency overseeing all state
and federal programs, no one agency monitoring and evaluat-
ing the overall successes and failures of all the programs
or the quantity and quality of existing and threatened
wetland acreage. States have identified the following
priority needs from EPA: access to centralized information
regarding wetland education, research and management; finan-
cial and technical assistance in wetland program development
and administration; and a mechanism for joint federal/
state/local planning. Recommendations from the states on
how EPA could meet these needs are outlined below.
0 EPA should assume the role of "federal wetlands protec-
tion coordinator." In undertaking this positipn EPA
should design a long-term, comprehensive wetlands protec-
tion strategy that includes substantive federal oversight
of state programs and federal efforts, public education,
and research on topics with broad applications. EPA
should be available to provide technical assistance and
information to state and local planning efforts when
requested.
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EPA should accommodate the need for coordination and
information transfer among federal agencies by serving
the function of information clearinghouse/coordinator/
public affairs office for federal agencies with programs
that affect wetlands (such as the Corps, Fish and Wild-
life Service, Office of Ocean and Coastal Resource Man-
agement, National Marine Fisheries Service, Sea Grant and
the Bureau of Land Management.)
Coordination will bring the many federal efforts into a
more coherent framework and make more efficient use of
limited funds and staff. Information transfer within the
federal government will encourage new efforts to build on
previous work and will provide federal, state, and local
wetland protection workers with a more complete knowledge
of existing . sources of information and experience.
Information transfer outside the federal government will
encourage federal/nonfederal interaction on wetland
protection by dispensing information on previous and
existing programs, and increasing the coherence and
accessibility of the numerous federal programs.
EPA should focus on policy, oversight, and intergovern-
mental communication to supplement and strengthen state
wetland protection efforts. EPA should encourage and
assist the states by:
Providing a wetlands data bank in which current infor-
mation on existing and proposed state, local, and fed-
eral wetland efforts is maintained. This should be
available on computer for access by state and local.
wetland program managers.
Developing a standardized method of analyzing the
efficiency of state and local wetland programs. Sub-
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stantial concern exists at the federal level that
state and local local programs will be more suscept-
ible to development pressures. Rather than resist
efforts at state or local implementation, EPA should
analyze the effectiveness of existing programs and
identify how they can be improved.
Providing financial and technical assistance to state
and local governments attempting to establish wetland
programs (sample ordinances, guidance documents, per-
mit programs).
States depend on public support for enacting and implement-
ing wetland protection programs. States have difficulty
protecting inland.wetlands, which continue to be seen by
much of the public as "wastelands." Public support could be
increased with a general understanding of the wetland eco-
logical functions which benefit society, such as water qual-
ity enhancement, flood and erosion control, wildlife and
fisheries habitat, and aesthetic and recreational values.
The message from the federal government that wetland protec-
tion is an important matter of national interest could
arouse the public commitment necessary to the success of
local, state and federal programs. Recommendations on how
EPA could meet these state needs are outlined below.
P EPA should enunciate the policy that wetlands are a pri-
ority. In the short-term, the message needs to continue
to come from the highest levels of the agency in Washing-
ton, D.C., in the regions, and in the states, that EPA is
emphasizing wetland protection.
o
EPA should provide public information assistance to
shorten the gap between wetlands protection program
implementation and broader, knowledge and acceptance of
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the program by t?he public and other governmental enti-
ties. In the era of Gramm-Rudman, this will require:
Better coordination of public education efforts with
other federal and state efforts on wetlands to avoid
duplication.
Better technical assistance and information transfer
to private groups and government agencies developing
educational materials. ,
Better coordination with broadcast media and school
curricula development. .Local or regional workshops to
produce informational materials and television and
radio public service announcements could be useful.
It should be noted that a considerable amount of
informational material is being produced by private
conservation organizations. These organizations would
be necessary and useful participants in a coordinated
public relations program. EPA 'regional §404 coordi-
nators should have, as part of their work assignments,
responsibility to act as regional information clear-
inghouses.
EPA should increase the amount of public education on the
importance of non-tidal wetlands, isolated wetlands,
prairie potholes and other less-understood wetland
areas. Most likely, such efforts will need to be
"targeted." EPA could emphasize such public education
efforts by:
Making . the regional coordinators accountable for a
specific amount of public information and public edu-
cation work with state and local governments, and pri-
vate organizations.
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Leading the jr national philosophical discussion on
environmental protection, on such topics as societal
benefits from wetland protection versus limits on pri-
vate property rights. Past EPA efforts were useful to
those who were aware of them. Public forums to con-
sider these sorts of questions exist and, especially
in the case of wetlands, EPA is the appropriate leader
of the discussion.
Better coordination of all phases of wetland protection
needs to occur on a regional basis as well as within
states. Regional planning for wetland protection is essen-
tial because even isolated wetlands function within larger
hydrologic systems. The effects of activities in one place
are carried elsewhere through water systems. In addition,
wetland values are determined not only by their functions in
one locality, but their rarity in occurrence and their role
in the functioning of large ecosystems. Some wetland areas
cover several states (for example, the bottomland hardwoods
of the Lower Mississippi Valley). Generally, the far reach-
ing and cumulative impacts of development are not tracked,
and therefore not considered in permitting. Furthermore,
the value of a threatened wetland is rarely assessed in
light of the entirety of the wetlands of a region. The
classification of critical areas would be best done by a
combined local/state/national perspective.
In order to meet these needs:
0 EPA should provide a framework for comprehensive wetland
protection. The interagency meetings in the states that
currently conduct §404 permit processing are a potential
vehicle for approaching wetlands protection on a regional
or hydrological basis. Several state and federal agen-
cies with the peripheral role of commenting on permits
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could participate in a wetland planning capacity. EPA
regional §404 coordinators and regional Fish and Wildlife
Service personnel could jointly direct these meetings.
The potential here is not only to encourage coordination
of different levels of government, but to further involve
the administrators of nonregulatory wetland programs
(such as acquisition, taxation, education and research)
in discussions. This should institute a means for com-
prehensive wetland protection on a regional level.
EPA should develop a wetlands strategy in conjunction
with state and local wetland officials. What are the
priority problems? Who can best deal with each problem?
Through internal meetings and in-depth discussions with
state and local program managers, lists could be estab-
lished of wetland protection efforts best accomplished by
EPA or other federal agencies and those best accomplished
at the state and local levels.
EPA should work with the Fish and Wildlife Service on
wetland classification. An assessment of the nation's
wetlands will make it possible to give protection to sen-
sitive wetlands or those wetlands which provide espe-
cially valued functions'. EPA should support and work
closely with the Fish and Wildlife Service as they initi-
ate the National Priority Plan for wetland assessment
under the 1986 Emergency Wetland Resources Act. This
program will be used to direct both federal and state
spending of federal Land and Water Conservation Fund
money for wetland acquisition in the near future.
EPA should hold meetings throughout the year, through the
regional §404 coordinators, with state program managers
for information exchange. One session could be dedicated
to an update on each state's efforts; other sessions
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could focus on priority problems within wetland protec-
tion programs. At least one workshop a year should be
held at the regional (or subregional) level for local
wetland program participation.
EPA should establish greater field presence to avoid the
"ivory tower" syndrome, and to understand the difficul-
ties of program implementation "in the trenches."
Exchanges of EPA personnel between headquarters and the
field, interagency personnel agreements assigning EPA
personnel to state and local programs, and exchanges
between state programs should be encouraged to create
empathy for others' tasks and problems and to provide
cross-pollination of ideas.
Beyond the jurisdictional and resource limitations of state
regulatory programs, federal actions under the Clean Water
Act are crucial to the protection of wetlands nationwide.
In some states, state and federal permit review under the
Clean Water Act essentially provide the only regulatory
wetland protection. Many wetlands are lost due to inade-
quate development impact assessments, inaccurate boundary
interpretations, inconsistency of permit reviews, and lack
of monitoring and enforcement under the Corps' §404 permit-
ting program. Many states would like to see EPA increase
its presence in the dredge and fill permitting process.
In order to meet these state needs:
EPA should increase its oversight functions, particularly
as they relate to the Corps permitting program. This is
perceived as one of the most valuable functions that EPA
performs relative to wetland protection. The function
should maintain a high profile and be substantive in its
execution. A good deal of support exists for greater EPA
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involvement in fhe dredge and fill permit program, by
greater involvement in policy and regulation reviews
prior to promulgation, by more frequently invoking the
Administrator's prerogative to ban filling in specific
areas, and the like.
EPA should enunciate as policy, and then attempt to
incorporate in wetland permitting efforts, as many of the
following as possible:
Study the benefits of designating one Corps district
as the §404 permitting authority in multi-district
states. States were this has been accomplished (North
Carolina, Virginia) seem favorable to the concept.
States without this arrangement (Kentucky, Missouri,
Tennessee) cite manpower problems and problems with
consistency as reasons for serious consideration of
the idea.
Share of all relevant environmental data available
with local, state and federal' agencies involved in
wetland permitting, §401 certification and CZM con-
sistency determinations.
Coordinate site visits; all agencies visit sites at
one time, or one or two agencies inspect a site for
all interested agencies.
Encourage preapplication meetings between state,
local, and federal agencies and permittees.
V
Encourage joint public notices, public hearings, and
permit processing (to the extent regulations permit;
EPA should review regulations to determine if changes
are necessary to accomplish these policies).
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Coordinate amo'ng state, local, and federal agencies to
develop comprehensive monitoring of compliance with
wetland protection laws.
Develop comprehensive enforcement in conjunction with
state and local program managers and law enforcement
officials.
Coordinate geographic jurisdiction methodology within
regions. Awareness of the extent of jurisdiction can
be enhanced through training offered to federal,
state, and local wetland management personnel.
Wetland research receives limited funding and emphasis in
most states. In addition, it takes special effort and com-
munication to bridge management and science. However,
studies that investigate data needed for wetland defini-
tions, classification and permit evaluation are essential to
wetland protection. Wetland administrators and scientists
need to co llaborate to create and support research programs
aimed at addressing current technical problems such as
stormwater runoff, sedimentation and restoration methods.
Some states had great praise for EPA's efforts to assist
them through the EPA regional labs.
In order to meet these state needs:
EPA should target significant monies within its research
budget at wetland protection issues.
EPA should be involved to a greater degree in research
that solves recurring regional or national wetland pro-
tection problems. Specific examples of such research
include cumulative impacts of wetland losses, innovative
mitigation techniques, and real, preferably quantitative,
wetland function assessment techniques.
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Another research' opportunity involves "mitigation bank-
ing." Some state and local program people expressed
concerns over mitigation banking. Often developers
incorporate mitigation banking in their initial applica-
tion as a de facto "application fee." Too little is
known about the length of time necessary to establish a
functioning wetland, number and extent of areas necessary
to provide an equivalent of the wetlands proposed for
fill, and whether all the functions of an existing wet-
land can be duplicated in the mitigation wetland. These
are ripe areas for additional substantial research
efforts.
Other suggestions relating to research include:
Consult with state and local programs, through the EPA
regional coordinators, to develop wetland research
priorities.
Employ state and local experts in universities or
state research centers to perform research under the
direction of EPA's research people. EPA should con-
tinue to make the scientific and analytical capabili-
ties of the EPA regional laboratories available to
state and local program managers. There should be
increased efforts to build teams of EPA scientists,
coupled with state and local experts.
Coordinate with other federal agencies conducting wet-
land-related research to avoid duplication and assure
priority needs for research are being met.
EPA should act as "wetlands research coordinator" to
gather, maintain, and disseminate materials on completed
and ongoing research. This information should be avail-
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able to state antj local wetland program managers through
a computer data base.
Significant wetlands of the U.S. are inadequately pro-
tected. The degree and type of protection afforded to wet-
lands varies even within states. This is due to the varying
extent of regulatory program jurisdiction, the different use
restrictions for different wetlands, variation in enforce-
ment, and voluntary participation under tax and natural area
registry programs. In addition, several state and federal
laws act as disincentives to wetland protection.
In order to meet the state needs:
EPA should catalogue the federal and state laws, programs
and policies which act as disincentives to wetland pro-
tection (e.g., state drainage laws). EPA should develop
and promote wetland protection efforts within other fed-
eral and state agencies. Strategies should be developed
to correct the federal disincentives; and monitoring
should be conducted to assure corrective measures are
implemented. Good examples of federal policies which
protect wetlands are the federal agricultural legislation
passed in 1985, which incorporated strong wetland conser-
vation measures (sodbuster, swampbuster).
EPA should work with the Fish and Wildlife Service and
states to identify major gaps in wetland protection.
This report provides much of the data required to conduct
a more comprehensive analysis of the coverage and gaps in
wetland protection under state programs. One important
task is to promote completion of the National Wetland
Inventory System mapping, to assure a comprehensive data
base. A comparison of wetland maps (in progress in most
states) with the area covered by state and federal wet-
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land protection ^programs should reveal a rough geograph-
ical picture of the extent to which these programs have
jurisdiction over the nation's wetlands. This kind of
jurisdictional overlay on wetland maps should be contem-
plated. Eventually it could be used for insight into the
scope of wetland protection nationwide.
EPA should clarify the link between wetlands and ground-
water when framing issues for dialogue. Wetlands may
function to recharge and purify groundwater in some
instances, although the data appear to be contradictory.
Groundwater is receiving increasing attention as more is
learned about this critical and threatened resource. If
links exist between wetlands and groundwater in some
instances, additional public information could encourage
more public support for both. It could also influence
regional water basin planning.
EPA should examine wetland protection on Indian reserva-
tions. It is unknown how much of the 50 million trust
acres held by the federal government for the Indian
people are wetlands. Reservation lands are not ade-
quately integrated in the regulatory framework of state
and federal programs that affect reservation wetlands.
This is a major gap in the national data base on wetland
management. A catalogue, similar to the one in this
report for state programs, should be done for tribal,
state and federal programs that protect reservation wet-
lands. In addition, an effort should be made to inform
tribes of' state and federal management resour.ces.
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