GUIDANCE
ON DEVELOPING
LOCAL WETLANDS PROJECTS
A Cas« Study
Of Thr«« Counties
and
Guidelines for Others
Submitted to Office of Wetlands Protection
United States Environmental Protection Agency
by:
C. DEMING COWLES
DYANNE SHELDON
SUZANNE DIETZ
NEW ENGLAND INTERSTATE WATER
POLLUTION CONTROL COMMISSION
November, 1991
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GENERAL INTRODUCTION
Wetlands exist in towns, cities, and unincorporated areas of
counties. They are next door to individuals, or beside streets and
highways which individuals drive past on the way to work each day.
As they are local resources, their functions and values are
appreciated on a local level.
The federal government has espoused the importance of the
national functions and values of wetlands by calling for a "no net
loss1* of wetlands nationally for two years. However, it has become
apparent that with the President's recent proposed changes to the
Federal Manual for Delineating Wetlands, greater responsibility
will be placed on state, regional and local governments to
implement their own wetlands protection programs. This
pronouncement does lay questions as to what areas are under
reevaluation. Hence, local citizens are rapidly discovering that
they have a stake in, and a role to play, in protecting the
wetlands they encounter or those that affect them on a daily basis.
Presently, local wetland programs are being developed and
implemented in increasing numbers. Three such programs have been
developed in the locales discussed herein, to include: King County
(Seattle), Washington; Dade County (Miami), Florida; and Monroe
County (Pocono Mountains), Pennsylvania. This document outlines
briefcase studies of these programs. It identifies the types of
wetlands protection programs, the methods of implementations, and
the successes and failures resulting from the establishment of
these programs. From them, recommendations are offered to local
governments on establishing local wetlands programs — a guidance
cookbook, if you will, on the types of things local governments can
expect to encounter in developing and implementing such programs as
they look to the new proposal.
We want to acknowledge the able editorial and research
assistance of Jennifer Kelleher and the word processing skills of
Nora McDonald.
The Project Team
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TABIJi OT {YHPPEHTS
General Introduction. i
King County, Washington State 1
Geographic Region. 1
Land Use 1
Currant Program 2
Program Development 3
Program Implementation 4
Program Effectiveness €
Dade County, Florida 9
Geographic Region 9
Land Use 9
Current Program 10
Other Regulatory Jurisdiction 11
inventory 11
Program Development 12
Program Implementation 14
Program Effectiveness 16
Monroe County, Commonwealth of Pennsylvania 20
Geographic Region 20
Land Use 20
Current Program 21
Program Development 21
Program Implementation 22
Program Effectiveness 23
Recommendations 25
Define Goals and Objectives 25
Conduct an inventory of the Resource 25
Identify Method of Protection 27
Provide Sufficient Program Funding 31
Provide Appropriate Public Involvement 32
References 34
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Local Wetland Regulation Case study I
King County, Washington state
Geographic Region
King County, Washington, is a 2,134 square mile area which
ranges in elevation from sea level to 7,986 feet, approximately
2,434 meters. The rain in the lower elevations, and land mass lies
on the west side of the Cascade Mountains. Winter precipitation
falls as rain in the lower elevations, and as snow in the
mountainous areas forming a snowpack and permanent snowfields.
Innumerable streams flow into major river systems which empty into
the salt water of Puget Sound, a major coastal estuary of the
Pacific Ocean.
The climate in King County is influenced by the presence of
the ocean, mountain ranges, and Puget Sound. Seasonal weather
patterns are similar to sub-tropical regions: heavy precipitation
during the winter season of November through March, and often
drought-like conditions from late June through September. This
wide fluctuation is significant in relation to the functional value
of Pacific Northwest wetlands and the public perception of their
importance.
The eastern portion of the County is characterized by high
alpine mountainous regions which are predominantly forested below
treeline. Major river valleys are either currently agricultural or
historically cultivated and now undergoing suburbanization and
commercialization. Lowland foot hills are forested and quickly
succumbing to urbanization.
The one major estuary within the County has lost 98 percent of
its former extent as the result of the construction of the Port of
Seattle (Bortleson 1980).
Land use within the County varies from the major metropolitan
district of the city of Seattle, extensive "second-ring*1 urban city
centers, rapidly increasing large suburban areas, rural and
agricultural lands, and significant public and private land masses
still in natural forest cover. The forest zones within the eastern
portions of the County are within National Forest jurisdiction
including wilderness designations, or in private timber company
landholdings which are actively being harvested.
Because of the extreme diversity of land forms and human
effects, King County is a complex geographic region. While it
encompasses sophisticated urban centers and rapidly expanding
suburbia, large agricultural zones and remote wilderness regions
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also can be found. Diversity of land forms and existing effective
land use policies and regulations are difficult to develop.
The King County Sensitive Areas Ordinance (SAO) regulates the
following classifications of Sensitive Areas: erosion hazards;
coal mine hazards; landslide hazards; seismic hazards; wetlands;
and anadromous fish bearing streams.
The existing wetland portion of the ordinance states that "...
wetlands ... shall not be disturbed or altered ... unless King
County determines, upon review of special studies completed by
qualified professionals that either, (1) the wetland does not serve
any of the valuable functions of wetlands identified in ... Army
Corps of Engineers 33 CFR 320.4(b) ..., or (2) the proposed
development would preserve or enhance ... valuable wetland
functions ... and would be consistent with the purposes of this
ordinance ... If the application of this section would deny all
reasonable uses of a property, development may be allowed which is
consistent with the general purposes of this ordinance and the
public interest."
Typical of many policies and ordinances written at that time,
this broadly written ordinance is subject to diverse interpretation
and continuing legal challenge.
Other Regulatory Jurisdiction. The ordinance is implemented
by the County completely independently of the Federal 404 permit
process. In cases of proposed wetland fill greater than one acre
in size, County staff will require the applicant to contact the
U.S. Army Corps of Engineers (Corps) and obtain a permit; however,
this is a rather informal process.
Wetlands and shorelands associated with Puget Sound, and lakes
larger than 20 acres in size, are regulated under the State of
Washington Shorelines Management Act. Any proposed activity within
these Shoreline associated wetlands may require both a Shoreline
Substantial Development Permit and a wetland review per the SAO.
Inventory. An inventory of the wetland resources contained
within the western two-thirds of King County was conducted in 1981.
Baseline data was compiled from aerial photographs, the National
Wetland Inventory (FWS, 1979), Soil Conservation Service soil maps,
U.S.G.S. quad maps, and any available local references. Potential
wetland sites were identified and field-verified. The inventory
was limited to the western two-thirds of the County as the eastern
portion of the County is mountainous, forested wilderness which was
not subject to substantial development pressure at the time.
Approximately 900 palustrine wetlands were identified during
the initial inventory. These wetlands were then rated based on
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information compiled during the inventory. Ratings were based on
habitat diversity, documented on potential habitat for rare,
endangered, or threatened species, wetland size, and the presence
of unusual wetland habitat types such as estuaries or bogs. The
wetland ratings established are: 1) unique/outstanding;
2) significant; or 3) low concern.
The King County SAO was initiated by a 1973 ordinance (11838)
which outlined broad-based policies suggesting the protection of
environmentally sensitive resources such as wetlands. Those
policies were never implemented in any significant manner.
In 1979, the SAO, as outlined above, was adopted by the County
Council. At that time there was no inventory of the resources, nor
any trained staff to implement the ordinance. Although the
Guidelines for Conducting Sensitive Areas Studies were adopted
administratively in 1980, these Guidelines focused primarily on
techniques for conducting studies in hazardous areas such as steep
slopes and coal mines, not wetlands.
In 1981, a wetland inventory was conducted by the King County
Resource Planning staff to identify the resources to be protected.
During the following winter, the first draft of the Wetland
Management Guidelines was prepared. The first wetland planner was
hired by the County in 1984, and, in 1985, the King County
Comprehensive Plan was adopted by the Council. This plan outlined
specific wetland protection measures including wetland buffers and
limiting wetland use for stormwater retention/detention.
Since 1986, there has been a continuing effort to update and
revise the SAO in order to eliminate the existing ambiguities,
close loopholes, provide guidance to staff and the public, and
provide more thorough protection of the resources.
The revised SAO was derived via the information generated by
the wetland inventory. Once the resources were identified, County
planning staff began requiring permit applicants to conduct special
studies to determine potential impacts of projects on wetlands and
other sensitive areas. As it soon became clear that the County did
not have adequately trained staff to review the submitted plans or
studies, the County hired a wetland planner who attempted to
implement the existing ordinance. The Ordinance was severely
limited in its effectiveness and applicability to provide
protection to the environmentally sensitive resources. The broad
nature of the text, the lack of any guidance regarding buffers,
setbacks, or the use of wetlands for stormwater storage, all proved
to be controversial.
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To address the problems acknowledged in the SAO, a wetland
permit ordinance was initially proposed. It was then proposed to
revise the wetland portions of the SAO. Finally, it was agreed
that the entire SAO needed updating in order to protect adequately
all the environmental resources and hazard areas within King
County.
As of this writing, the proposed amendments to the SAO have
undergone, at a minimum, twenty re-writes in the past three years,
and are yet to be adopted by the County Council. The amendments
were originally drafted by the Wetland Planner, with input from
other resource planning staff. They were then sent to various
County departments and divisions for review and comment. Over one
and a half years and multiple revisions later, internal County
staff consensus on the amendments was obtained.
Many public hearings were conducted early in the revision
process, and specific participation from major elements of the land
development community was required. The development community
demanded, and was granted, inclusion in the drafting and review
process of the proposed amendments.
According to members of the environmental community, the
proposed amendments were compromised in favor of the developmental
community. An environmentally aware member of the County Council
proposed a version of the amendments with a stronger resource
protection orientation. Issues focused on requiring clear
protection and buffers for all classifications of wetlands,
limiting the use of wetlands from stormwater detention, water
quality issues, and limiting the alteration of wetlands in the
guise of mitigation. Public opposition, fueled by the development
community, prevented the approval of the proposed amendments and
required County staff to conduct another series of public hearings.
The ordinance is still under revision and is not available at the
time of this writing.
Funding and Staffing. The SAO is primarily implemented by the
Technical Services staff within the Building And Land Development
Division (BALD) of King County. Staff within BALD is supported by
permit application fees. King County, like much of the west side
of the Puget Sound region in the late 1980 's, is going through a
rapid surge of growth, hence, funding appears to be stable.
However, funding is directly dependent upon permit application
fees. Declines in economic growth are followed by declines in
permit review staff.
Staffing levels are approved by the County Council budget
review process. It is very difficult to convince Council members
of the need for competent trained staff within the technical
positions. Staffing for the wetlands section has increased from
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one to two positions within the last two years. Currently, one of
these staff positions is vacant due to the lack of qualified
applicants.
The present County wetland staff has had formal training in
wetland delineation and identification. Two successive staff
persons have had formal training in the biological and
environmental sciences. In addition, "on the job training"
provides experience in interpreting technical construction plans,
evaluating wetland impact assessments and determining the
feasibility and appropriateness of wetland mitigation plans.
During the County land use hearing process, staff quickly acquired
knowledge of case law, wetland regulations and related land use
issues.
Methods off Implementation. The existing SAO is implemented
either through the State Environmental Protection Act (SEPA) or
through the direct conditioning of development permit applications
submitted to the County.
A development permit must pass through SEPA as the first step
in the environmental review process. (Note that building permits
for single family residences are exempt from SEPA review.) An
environmental checklist is completed by the applicant and the
information described is utilized to determine whether or not the
proposed project will have significant adverse impacts on the
environment. Unfortunately, inadequate information is often
provided on a SEPA checklist, making the declaration process
tenuous.
Staff review of the checklist can result in one of three
declarations:
* Declaration of Non-significance (DNS) - determines that
the proposed action poses no significant environmental
impacts; or,
* Mitigated DNS (MDNS) - the project has identifiable
impacts which can be mitigated by pre-set conditions.
This is often used for anticipated wetland impacts.
Buffers or placement of the wetland within a Native
Growth Protection Easement may be required; or
* Declaration of Significance (DS) - requires that a full
Environmental Impact Statement (EIS) be prepared for the
proposed project. Suggested mitigation for identified
impacts can be included within the EIS.
In addition to SEPA, development permits may be conditioned
through the authority of the SAO. One of the primary motives for
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revising the existing SAO is to clarify the legal authority for
implementation and conditioning of development permits. The
current ordinance is subject to extreme pressure and modification
by opponents during the permit hearing and conditioning process.
The existing SAO is written to include most development permit
applications submitted to King County. This includes all
applications to divide land such as long plats, short plats, and
Master Plan Developments, development/construction permits such as
building permits, commercial permits, industrial permits, rezones,
grading permits and conditional use permits.
A significant exception within the existing SAO are Right of
Way permits, which are required for the construction of utility or
sewer lines. This is significant because sewer and water lines are
commonly placed in low topographic regions such as wetlands and
stream courses, development/construction permits due to the cost
efficiency of gravity fed systems.
Development permits, on sites with identified sensitive areas,
must include technical reports by qualified professionals which
identify the location of the wetland and provide an assessment of
the potential impacts of the project to the resource. Once the
report is received and reviewed, the permit may be conditioned to
avoid or minimize anticipated adverse impacts.
Common conditions include requiring an undisturbed buffer
surrounding the wetland edge (the buffer width varies from 25 to 50
to 100 feet, depending upon the rating of the wetland). The
wetland and its buffer are required to be placed in a separate
tract or easement to ensure no subsequent land division in the
future, and to avoid single individual ownership.
Additional conditions may include the pretreatment of
stormwater by passing it through 200 feet of vegetation-lined swale
prior to its discharge into the wetland. Use of number 1 rated
wetlands for storm water retention/detention is prohibited, and
limited within wetlands rated as number 2.
Where filling is unavoidable, the wetland area must be
compensated on a one to one acreage ratio. "Enhancement" of
wetlands for aesthetic reasons or for improvement in storm water
storage capabilities is discouraged, though not always avoidable.
Successes. Over the last six years, the wetlands regulation
program at King County has expanded from "non-existence" to a model
program within the region. Despite the broad nature of the
existing SAO ordinance, the implementation program has established
legal precedent for preserving wetlands and their appropriate
buffers.
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Permit applications for activities on lands including
sensitive areas Bust include technical reports which analyze the
presence and anticipated level of impacts from the proposed
project. Project designs are required to avoid adverse impacts to
wetlands unless there is no other feasible alternative on a site.
Unavoidable adverse impacts are required to be mitigated at least
on a one to one ratio.
Wetland buffers are required; the wetland and its buffer must
be placed in a separate legal tract during a land division process.
The tract must be identified as a Native Growth Protection Easement
(NGPE). An additional fifteen-foot Building Setback Line is
required between the NGPE and any proposed construction. This
stipulation is to assure that construction activities do not
adversely impact the wetland or its buffer.
A recent State Supreme Court finding upheld a lower court
decision that implementation of the SAO did not preclude a property
owner from achieving some "reasonable use" of his property;
implementation of the ordinance did not constitute a "taking".
This is a very significant precedent in land-use law and provides
substantiation for continued protection of these resources.
Six years of implementation have created a program that is
well-known within the development community. However, this example
does not mean that it is not constantly tested and challenged.
Nevertheless, six years of precedent for conditioning permits has
provided a strong course of action for wetland permitting staff to
follow.
Wt^Kntffftff- Although years of implementation have created
convincing precedence for continued implementation, the existing
SAO is still a legally vulnerable ordinance, subject to the charge
that implementation and conditioning of permits is too often
"arbitrary and capricious".
The loopholes for protection of wetlands from clearing or
agricultural conversion still exist, as well as the impacts from
utility line (sewer and water) construction permitted by the Right
of Way permit.
A previous loophole, which allowed filling of up to 500 cubic
yards of fill placed less than 3 feet in depth, has been closed by
amending the County grading permit. The amended grading permit now
has a zero threshold for allowable fill within sensitive areas.
No clear direction or guidance for staff exists regarding a
way to determine the appropriateness of mitigation or enhancement
concepts. Staff is too often subjected to a "hard sell" by
consultants as to the relative virtue of a proposed enhancement or
mitigation for a proposed alteration or loss.
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There remains a very large backlog of incoming permits to
review. This pressure results in an inability of staff to field
check sites prior to conditioning, lack of time to adequately
review submitted reports and materials, and virtually no time for
follow-up on permit conditions or mitigation requirements. Lack of
available staff means that permit conditions may never be verified
and mitigation requirements may never be built or may be built
improperly. This is one of the most significant faults in the
existing process — not enough time, resources, or staff to
implement and follow through with permit conditions.
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Local Wetland Regulation Case study II
Dade County, Florida
eorahic
Dade County, Florida, is a 1,955 square mile area which is at
or near sea level throughout its entire jurisdiction. It is
located in the Southeastern tip of the peninsula of Florida, and
has the Atlantic Ocean as its eastern boundary. The area,
historically known as the Everglades, comprises the western portion
of the County.
Little needs to be said about the climate of the area. It is
subtropical, humid, relatively stable in temperature, with few
episodes of extremely cold or extremely hot weather. Historically,
the area is subjected to increased rain in the summer and early
fall months, with periodic hurricane or hurricane-aftermath
episodes, often resulting in substantial excess water runoff or
flooding.
Perhaps one quarter of the land mass of Dade County is made up
of two national parks, Everglades National Park and Biscayne
National Park. As much as eighty percent of the county constitutes
wetlands areas. Development and agriculture are primarily
restricted to the remaining land area, which is primarily rock
ridge, pinelands and wetlands which have been degraded by drainage
and the invasion of exotic plant species.
In South Florida, wetlands are a critical resource. The
freshwater wetlands serve to filter and purify the surface and
ground waters, preserve wildlife habitat, provide temporary storage
<5f water during storms, and recharge the sole aquifer serving as
the sole source of drinking water for the county, the Biscayne
Aquifer.
Land use within Dade County varies dramatically from the major
metropolitan area of Miami, to connected urban areas of Miami
Beach, Hialeah and Coral Gables, to the agricultural areas and
wilderness areas of the Everglades to the West.
Including the City of Miami, Miami Beach, Hialeah, Coral
Gables, and twenty-two other municipalities, metropolitan Dade
County currently has a population of some 1.8 million people. It is
one of the fastest growing metropolitan areas in Florida and in the
nation. In the last decade, over 125,000 people moved into the
area, and population projections call for another 190,000 by the
turn of the century. Population density is significant — some
2250 people per mile, in the developed areas of the county.
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Substantial development has already occurred in the Dade
County area, due to Miami's position as the bridge to Latin
America, its status as a regional financial and business center,
and its climate, making it a major recreational and retirement
area. While a large number of the County's residents depend on
commerce for their livelihoods, the western and southern parts of
the County are heavily agricultural. The developmental pressures
from commerce, housing, and agriculture, in an area with such a
substantial percentage of wetlands have led the County to establish
a comprehensive wetlands planning, regulatory and acquisition
effort.
Dade County's approach to wetlands protection is multifaceted
and comprehensive. The State of Florida has extensive provisions
for master planning by each of its counties, including State
approval of county plans and consistency of locally adopted
development regulations and orders with the local plan. Dade's
plan, Adopted Components. Year 2000 and 2010. Comprehensive
Development Master Plan for Metro-Dade County. Florida, is the
third update of the county-wide planning effort. The plan and the
lane use element of the plan, including the Land Use Plan map, form
the framework for action by the Board of County Commissioners
concerning development proposals throughout the Metro Dade area.
Under the Comprehensive Plan, the County has begun to develop
a series of more localized wetlands plans for use in developing
environmental protection zones. In addition, zoning overlay
regulations have been established for the East Everglades.
Finally, the county has established a wellfield protection
ordinance to preserve the public water supply. Cones of influence
of wellfields are defined by computer generated hydrologic models
to assist in the review of proposed development projects, providing
substantial land use limitations.
Activities in both freshwater and coastal wetlands are
regulated by the Dade County Environmental Protection Ordinance,
Coastal and Freshwater Wetlands Regulations, Sections 24-58 and 24-
59. Essentially, permits from the County's Department of
Environmental Resources Management are required for work in all
wetland areas. Exceptions to the permit requirements are
specifically spelled out by ordinance, and tend to apply strictly
to maintenance and repair of existing structures, facilities and
roadways. Projects requiring permits must comply with zoning and
master planning provisions, and must avoid unnecessary impacts, and
mitigate for unavoidable impacts.
The jurisdictional area for coastal (Class 1) permits is all
tidal waters of Dade County, as well as non-tidal areas
characterized by coastal wetlands vegetation (primarily mangroves).
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The jurisdictional area of freshwater wetlands is the area of the
County historically known as the Everglades. Wetlands are defined
in the ordinance by vegetation and hydrology, and coincide with,
but does not duplicate, the Corps of Engineers definition.
The County has developed its own acquisition program and has
participated in, and benefitted from, acquisition efforts initiated
by the federal government and by the State of Florida. The County
has recently approved a two year, county-wide property tax of some
.75 mils (to generate some $90 million) for the purchase of
wetlands, pinelands and tropical hammocks. The philosophy of the
County is that, even with the appropriate strict regulation and
mitigation, the best way to protect the most sensitive areas is to
own them.
Other Regulatory Jurisdiction
The County program was developed independently of the State of
Florida's and the Corps of Engineers' wetlands efforts, and, with
certain exceptions, is implemented separately. However, the County
has been delegated by the Corps of Engineers the authority to
handle small dredge and fill and coastal construction projects.
Certain small dredge and fill authorities have been delegated by
the State Department of Environmental Regulation, and certain water
management permits have been delegated by the South Florida Water
Management District. There is a Corps of Engineers general permit
in effect for a restricted portion of the Everglades (eastern
limits of the Bird Drive Everglades Basin). Further delegation
will occur in the near future with regard to the mine reclamation
rules of the State Department of Natural Resources.
In addition to the limited delegations from the water district
(the State and the Corps), there appears to be cooperation among
the three regulatory entities. The County makes it clear in its
excellent permitting guidelines and applications materials that
permits may be necessary from the water district, from the State
and/or from the Corps. There is good interaction and information
exchange among these governmental entities.
Inventory
A wetlands inventory for Dade County wetlands is available.
The Wetlands Permit Basins Map delineates the boundaries of
the various freshwater wetlands basins in Dade County, as well as
the coastal wetlands areas. The Basins Map sets out the areas for
which permits are required, what uses are permissible in these
areas, and what conditions or restrictions may generally apply.
The County advises that the Basins Map should not be construed as
the definitive location of all wetlands, but as general guidance,
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since wetlands are defined hydrologically and vegetatively. In
some basins, such as East Everglades and Bird Drive, detailed
vegetation maps have been developed and habitat evaluation analysis
has been applied. The goal is to complete all basins and develop
separate management plans for each basin.
Program Development
The comprehensive approach to wetlands management in Dade
County has evolved over the past two decades in response to
substantial local concern for protection of natural resources and
the environment essential and instrumental to life in Southeastern
Florida.
There has been substantial concern in Southeast Florida for
some time over the rapid growth, resulting in expansion of
development pressures along the shorelines and into the areas of
the State historically known as the Everglades. Filling of coastal
areas to accommodate growth was recognized as impacting habitat for
natural wildlife, affecting natural storm protection, impacting
recreational opportunities and generally eliminating a natural,
"wild" aspect of the "Old Florida." Filling of the Everglades area
became recognized for its critical impacts on the sole source of
drinking water for the area, reduction of the flood and storm
control aspects of the Everglades (hurricanes and their aftermath
made a lot of wetland protection believers of local residents), and
elimination of essential habitat. These sentiments were publicly
voiced, creating in County Commissioners a growing awareness of
citizens' concerns that they assure protection of public water,
deal with growth patterns and the like.
Citizen awareness helped create the support for establishment
of the Biscayne Bay National Park (the nation's first underwater
national park), and the Everglades National Park. The former was
established to protect the recreational and wildlife values and the
latter was set aside to protect water supply and habitat.
Development impacts in other coastal areas and in the East
Everglades led to public support for County action. This support
for local action came at a time when there was growing awareness
that the Corps of Engineers' and the State Department of
Environmental Regulation's permitting efforts were overworked and
understaffed. Additionally, population increases in the area
continued.
Two general attitudes began to manifest themselves in the Dade
County area — 1.) something needed to be done at the local level
to develop a comprehensive regulatory scheme to protect the many
values and uses of valuable and sensitive areas such as wetlands;
and, 2.) ownership by the County of as much of these lands as
possible would be the most effective means of achieving protection
of the resources. To that end, efforts began to draft ordinances,
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including wetlands and wellfield protection ordinances, develop
overall Master plan and zoning programs and develop a local
acquisition program, while working with the State's acquisition
programs and the federal appropriations process. All of this did
not happen at once, but given the solid community support for the
overall concept of developing local programs, the process of
putting programs in place was made somewhat easier. The public had
expressed its concerns and the County Commissioners wanted to
respond positively.
Substantial time was taken by County staff to listen to
representatives of the affected groups — farmers, developers,
environmentalists, rock mining companies, and the like. Farmers
were concerned that freshwater regulations would prohibit their
further expansion into the Everglades, environmentalists were
concerned that the County would not be stringent enough on
activities in wetland areas given the county revenue benefits, rock
miners (limestone) were concerned about the effect of the ordinance
on their ability to expand existing mining acquisitions, and
individuals were concerned about being able to build on lots bought
in the Everglades for retirement.
Constant discussions with affected groups was essential for
County staff as they developed draft ordinances. Large workshop
formats open to all affected groups were not found as helpful to
problem resolution as separate meetings to hear individual groups'
concerns.
There was no uniform approach taken by the agricultural and
development communities. Some "industry" groups were willing to
work with the County staff for the simple reason that they felt
there would be better understanding of local concerns by local
government than by the more distant State or federal governments.
Therefore, there seemed little doubt that some level of government
would adopt action plans. It was not unexpected that a few members
of the affected development community did not restrict their
expression of concern to the review of and comment on drafts.
While there was general citizen support for local government
action on wetlands and water supply protection, an important
element in the development of the plan was the active support of
conservation activists. Not surprisingly, conservation activists
pushed for substantially more restrictive provisions. With the
pressure from the affected "industry" groups towards less-
controlling provisions, the conservation community provided an
appropriate counterbalance.
In essence, it took some two years to obtain final approval of
the wetlands ordinance. At least six drafts were necessary before
the County Commission was prepared to take final action. Initial
drafts were sent to interested citizens for comment, with
subsequent redrafting. A series of public meetings was then held
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by County staff, with additional redrafting. At each step of the
way, the County Commission was kept informed and individual members
of the Commission took an active interest in the public discussions
leading to the final draft submitted to the Commission. The
process ended with the majority of the most difficult issues
resolved prior to the final approval of the Commission, leaving the
vast majority of the wrangling out of the Commission meetings. For
example, an issue arose over whether melaluca could be called a
wetland indicator, thus increasing areas of jurisdiction
dramatically. Melaluca has little to no wildlife value at all, and
ultimately the County decided not to use melaluca as a plant
species (although hydrology still applies) . It was resolved that
agricultural lands that were revegetated with native plants would
require permits, and all others would not need permits.
Funding and Staffing
The coastal and freshwater wetlands ordinances are implemented
by the Metro-Dade County Department of Environmental Resources
Management (DERM) . Funding for staff implementation does not come
from tax revenues, but rather from grants and fees, including
wetlands permit fees, utility service fees and County-wide water
fees. Program managers point out the good news/bad news aspect of
this funding mechanism. The program can remain self-sufficient,
but the funding does rely, at least with regard to wetlands
permitting, on alteration of natural resources. It is interesting
to note that the funding source for implementation of the County's
new acquisition program is the proceeds from the Endangered Land
Tax itself.
To date, the Department has not found funding to be a problem.
For example, staffing for biological resources includes some six
staff positions for Biscayne Bay, four for wetlands protection,
three for basin planning, and four for upland resource protection.
In numbers, the County's staff far surpasses that of the Corps of
Engineers, EPA or the State Department of Environmental Regulation.
As far as ability, the staff tends to be dedicated, well educated
(masters or candidates for masters in biological sciences) , and
generally knowledgeable about resource protection, many with
specific knowledge of South Florida.
The County appears interested in continuing education for
staff, encouraging additional training, either through attending
conferences and short courses or pursuing more formal training.
For example, the County will pay up to half the cost of advanced
degrees related to resource protection. There is good interface
with the local colleges and universities, expanding the opportunity
for attending relevant lectures and the like.
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County staff have developed formal and informal cooperative
arrangements with the staff of the various federal, state and
regional agencies and local universities concerned about wetland
protection. In addition to the cooperation on permitting mentioned
earlier, there is a large-scale mitigation and wetlands enhancement
project in the Everglades for which the federal government provides
staffing and the County funding. Basin-wide studies are currently
underway in conjunction with the Corps of Engineers and the South
Tlorida Water Management District. With the University of Miami
and Florida International University, there is a cooperative
monitoring effort of Biscayne Bay.
Methods of Implementation
The County has developed a very comprehensive, yet
comprehensible, permitting system for activities in wetlands.
There are easy-to-follow permitting guidelines for both Class I
(coastal) and Class IV (freshwater) wetlands permits. As mentioned
earlier, most activities in wetlands will require submission of an
application to DERM. The process is similar for each permitting
program, and in each instance, applicants are encouraged to contact
relevant federal and State agencies to determine if additional
permits are required.
Through the "Freshwater Wetlands Permit Application Package1*
and the companion "Freshwater Wetlands Permit Guidelines Manual,"
applicants are provided guidance on which projects can be permitted
through either a short form application or a standard form, or
whether the project is so minor or involves no wetlands alteration
that it is exempt altogether. The "Manual" is used in conjunction
with wetlands maps to indicate specific requirements delineated by
industry for each freshwater basin. Similarly, an applicant is
guided by the County's "Class I Coastal Construction Permit
Application Project" for activities in the tidal waters of the
County. These manuals detail the steps and informational
requirements for activities in wetlands within the County. They
also advise the applicants to the possibility of zoning overlays,
such as the minimum-sized parcel for agricultural or residential
development of five acres or forty acres, depending on location.
For both Class I and Class IV permits, whether short form or
standard, applications and application fees must be filed with DERM
along with construction plans. In most instances, DERM will
perform a biological assessment (usually on-site), and will make
initial recommendations for approval or denial. If a short form is
appropriate, DERM can approve, with performance conditions, and may
require a performance and/or mitigation bond. If the standard form
is appropriate, public notice and a public hearing by the County
Commission will be required, and if approved, bonds and a permit
fee will be required. For short form permits, the process can take
two to three weeks; for the standard form, ten weeks to over a
year.
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The County is not satisfied merely with permitting or denying
permitting of activities in wetlands; they maintain a substantial
in-field oversight and enforcement posture. DERM carries a large
and active case load of violations, primarily consisting of illegal
cutting of mangroves and illegal or unacceptable (causing
groundwater pollution) filling in the Everglades.
There is a substantial compliance section at DERM, perhaps
upwards of 35 people, who operate as the field eyes of the County
for all pollution related incidents, including wetlands, hazardous
waste, wellfieId protection and the like. Additionally, twenty
biologists and inspectors in the Biological Resources Section make
their best effort to oversee the projects approved for wetlands to
assure compliance with permit terms and conditions, although the
County is large and the responsibilities of these individuals are
broad.
Upon discovering alleged violations, the County generally
issues a Notice of Violation, providing cease and desist
instructions and a timetable for compliance. Fines may or may not
be included. Generally, the County seeks restitution for wetlands
loss, penalties or additional mitigation on a two for one basis.
If compliance does not occur under a consent agreement negotiated
with the violator, then actions are filed with the County
prosecutor's office. Most of these violations do not go to court,
but are settled along the way. The County has a perfect record in
civil court to date.
In addition to the Notice of Violation, for certain minor
freshwater wetlands violations the County uses an administrative
penalty approach. Not unlike a parking ticket, the administrative
penalty provides a mechanism for dealing with continuing violations
on a daily basis until a maximum fine of $5,000 is reached. The
County then files a lien on the property.
The enforcement efforts generally seem effective. The Corps
of Engineers and the State Department of Environmental Regulation
use the County as the lead agency on enforcement because of their
staffing and their reliable record.
Program Effectiveness
Successes
Overall, the comprehensive approach of planning, zoning,
permitting, enforcement and acquisition leads quickly to the
conclusion that Dade County has a model program, with a number of
demonstratable successes.
The coastal wetlands program can be considered fairly to very
effective. The primary strength of the program is the
comprehensive code, or statutory authorities. Basically, the
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program has authority over all work in the tidally connected tidal
zone. Further, these authorities are clear, concise, and widely
understood by the development community.
Additionally, a major strength of the coastal program is the
very strong, dedicated staff. While more staff could be useful,
(see below), the coastal staff is well trained, experienced and
hard working.
An additional aspect of the staffing issue is the increasingly
better communication and cooperation with the State Department of
Environmental Regulation. This cooperation has led to more joint
inspection of projects, and resulted in more consistent responses
from the County and the State. Overall, the program benefits
because the public is provided with greater efficiency.
The County has not delegated any wetlands permitting
authorities, although the municipalities do review development
proposals for zoning and structural concerns. Apparently, this
suits the municipalities fine, and may contribute to a stronger
program overall by removing the closest level of government from
the pressures of the local development community.
Finally, there is generally recognized strong enforcement.
Penalties are real, the law is enforced, the County can and does go
to court, they have their own attorneys and there is an enforcement
attitude. There is general awareness on the part of the public
that enforcement can and does occur.
The freshwater wetlands program has been effective. As in the
coastal program, the freshwater program has extensive permitting
requirements. Any work in defined wetlands areas requires a
permit, and the freshwater wetlands regulations and permitting
manuals make it extremely clear to the development community what
is expected of them.
Also similar to the coastal program is the key program element
of manpower. The freshwater program also has dedicated,
knowledgeable staff (see below). In addition to the permitting
responsibilities of the program, staff are focusing on the
mitigation aspect of permitting and are working on a method of
measuring restoration and wetlands loss in the East Everglades.
Cooperation with state and federal entities has been good.
Staff makes a point of keeping other governmental entities apprised
of general information on wetlands activities to improve the
channels of communication. Joint inspections are conducted with
the federal government. In addition, even though the processing
times of the County's, the State's and the Corps of Engineers'
permits are not the same, conscientious efforts are made to try to
coordinate the timing of permit processing, to the extent possible.
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As most of the freshwater wetlands occur in the unincorporated
areas of the County, only a few Municipalities interact with the
County. There is no delegation to these few municipalities. This
may actually benefit overall wetlands protection, since local
developers cannot pressure municipal officials concerned about
erosion of the tax base in wetlands areas of no or limited
development potential.
Weaknesses
It is difficult to say that there are staffing limitations in
either the freshwater or coastal program. However, it is not
unusual, especially when dealing with programs of quality, to try
to figure out how much better a program could be if certain
additions were to be made. That is the case with staffing in each
of the County's wetlands programs. Both programs could use
additional staff, in order to deal with "special projects" separate
from the day to day activities of the permitting aspects of the
program. That additional efficiency would mean that one aspect of
the program would not be disadvantaged by another.
For example, in the coastal program, staff are required to
conduct permit review and biological assessments and other related
portions of the permitting program. At the same time, staff are in
the process of developing marina siting criteria, intended to
provide consistency of application throughout the Dade County
coastline. Further, a new mangrove trimming policy is being
developed. With current staffing levels, there is a question of
priority, and at times, some permitting delays have occurred. It
goes without saying that permitting delays can exacerbate any
opposition from development interests, and Dade County is no
exception.
One problem with the freshwater (and not the coastal) program
is jurisdictional. Certain areas with "wetlands" soils are not
actually jurisdictional because of the vegetative definition.
These same areas can be jurisdictional under the Corps' program.
A similar situation exists with regard to plats previously
approved in sensitive areas. In some situations, no activity has
been proposed on some of these areas platted twenty years ago until
recently. The County is concerned that changes in zoning in those
areas will trigger takings arguments.
Until recently, an additional situation existed with regard to
the transfer of permits. Permits were once transferrable with the
sale of land. Developers with a poor track record of compliance
with permit stipulations or violations of the code rarely were
penalized. Nevertheless, the county has recently established a
code revision to enable them to deny transfers of permits with the
sale of land in the event that the purchaser has a record of
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violation of permit conditions or the code, or has entered into a
consent agreement with the County. Ordinance No. 90-130, Section
24-58.9 deals with this problem by limiting the length of time
approval will last, and allows additional restrictions based on
environmental circumstances. In other words, permits can be
extended, yet new restrictions can be implemented as well.
In sum, the County has effectively put together a
comprehensive wetlands approach which has been quite successful.
The Department of Environmental Resource Management has become the
largest local environmental organization in Southeast Florida,
based initially on the concern for and efforts made to protect the
aquifer. The success of the DERM itself has helped to generate
county-wide support for environmental concerns. DERM has become
the governmental organization for permitting and enforcement,
enabling one-stop shopping for the development interests and strong
environmental review, monitoring and enforcement to protect the
public interests.
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Local wetland Regulation case study III
Monroe county, Commonwealth of Pennsylvania
Monroe County, Commonwealth of Pennsylvania, is a 611 square
mile area comprised of the glaciated Pocono plateau to the North
and East of the county and lowlands to the Southwest. The
elevation of the Pocono Mountains is not sufficiently high to
maintain year-round snow fields, thus there is an annual runoff as
the snow melts.
The mountainous region covers two-thirds of the County, and
soils in this area generally are unsuitable for cultivation. There
are numerous small and medium sized lakes scattered through this
region, but no major rivers. A recent Planning Commission survey
indicates that the Pocono region contains as much as 25% of the
total wetlands in Pennsylvania. Monroe County also contains a
declining peat moss excavating industry.
The lowlands in southwestern Monroe County are used
extensively for agricultural purposes. While there is very little
dairy farming, the major crops include hay, soybeans, and corn. In
addition, there is also a growing emphasis on Christmas tree
farming for the nearby New York and Philadelphia markets.
In 1970, the population of Monroe County was listed at 45,000
residents. Today, the estimated population has grown to
approximately 100,000 people, representing an average influx of
5,000 new residents a year. There are no indications that the
number of people moving into Monroe County will decline in the
coming years. Many of the newer residents have moved from the New
York metropolitan area, and now commute to the city.
Decades ago, the principal attraction to the Pocono region of
Monroe County was its natural beauty, which inspired the
development of resort areas centralized around the mountains in
winter and the lakes in summer. Tourism has become the primary
industry within the county and resorts have evolved into a four
season vacation destination for the Middle Atlantic region.
In recent years, many of the resorts have sought to develop
their holdings further, by constructing housing developments to
accommodate the year around second home market, as well as primary
residences. Ironically, it appears that the desire of so many to
live in an area endowed with an abundance of natural beauty
presents the biggest threat to the region's attraction.
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Under the laws of the Commonwealth of Pennsylvania, authority
for local government is vested in the numerous townships, boroughs
and cities, rather than in the counties. Thus, the various County
Conservation Districts work with the local governments to provide
regulatory mechanisms, through ordinances, for protecting wetlands
within each jurisdiction through Erosion/Sediment Pollution Control
reviews.
The Monroe County Conservation District Office works with the
twenty municipalities in the county to ensure that adequate review
of building and construction permit applications takes place. To
date, most of the local governments have ordinances in place,
though none is more restrictive than those of the Corps or the
State Department of Environmental Resources.
The local ordinances require building permit applicants to
submit a site plan with all wetlands clearly delineated, as
surveyed and certified by a qualified biologist using the Federal
guidelines. The District Office reviews plans in conjunction with
its responsibilities to oversee the Erosion/Sediment Pollution
Control Plan. Upon review, the District Office may recommend
changes in the building permit application, or based on the
potential impact on wetlands, recommend denying the permit.
Other Regulatory Jurisdiction. The local ordinance requirements
are executed independently of the Corps' 404 program, which are
reviewed by a Corps biologist. In those cases, when a joint permit
is required, the applicant submits a permit for joint review by the
Corps and the Department of Environmental Resources prior to
seeking local review.
Inventory. The current inventory within Monroe County was derived
from remote sensing data, aerial photographic surveys, and the
National Wetland Inventory and Soil Conservation Service maps. The
baseline data for the inventory was compiled in the late 1980's,
and no further mapping activities are anticipated.
Under Department of Environmental Resources guidelines, the
wetlands are placed into two categories. The first category
includes wetlands of limited value, e.g., man-made areas such as
sewage lagoons. All other wetland sites, i.e., all natural wetland
sites, are considered to have exceptional value, and are afforded
much stricter protection than the manmade sites.
Implementation of a viable wetlands protection program in
Monroe County began in the mid 1980's. At that time, a development
proposal for the "Estates at Emerald Lakes" came to the attention
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of the District Office. Citing numerous instances of damage to
wetland sites in the proposal, the District office sought to have
the permit denied based on federal regulations. To date, there are
no "Estates at Emerald Lakes" , though other development proposals
continue to be presented for review.
Since 1986, the majority of municipalities in Monroe County
have, as noted, adopted wetlands protection ordinances. Some of
the local governments have placed restrictive regulations to
preclude the following activities:
Cutting vegetation in certain areas if the
loss of vegetation would impact a wetlands site;
constructing storm water basins in a wetland site;
and
allowing only 20% of a buffer zone, or impacted area, to
be impacted.
The emphasis of the wetlands program lies in providing early
warnings through the permit application process, backed by
enforcement actions for violators. While the District Office has
primary responsibility for permit reviews at the local level, other
government agencies, both state and federal, are active
participants in implementing wetlands policy.
The U.S. Fish and Wildlife Service has a presence in the
County and has been charged by the Environmental Protection Agency
to represent its interests in Monroe and other counties for
purposes of enforcement. The active pursuit of enforcement actions
against filling operations has proved valuable, not only as a
deterrent, but as an educational tool, as well through publicity
regarding the actions through local media outlets.
In addition to representing the interests of the Environmental
Protection Agency, the Fish and Wildlife Service provides follow-up
visits to most permitted sites to ascertain compliance. The Corps
has stationed a biologist at the Tobyhanna Army Depot, located in
Monroe County, to supplement the wetlands protection program.
m T»l
ftaffinq. In addition to the Corps of Engineers
biologist stationed at Tobyhanna and the Fish and Wildlife Service
staff, the Monroe County Conservation District Office Manager has
three technicians, all of whom were trained by the Corps. The
Monroe Conservation District and the Pike County Conservation
District contribute to the support of artother Fish and Wildlife
biologist stationed at the Monroe District Office. The Department
of Environmental Resources reviews plans at Harrisburg (the State
capital) .
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Funding levels restrict the number of staff available at the
District office to work on wetlands. The Office receives funds
from permit fees, its recycling program, arrangements with local
schools and its Environmental Education Center, as well as support
from a contract with the Nature Conservancy. In addition, the
Office has annual tree and wild bird seed sales to produce
additional funds.
The Nature Conservancy has taken an activist role in
protecting the wetlands of Monroe County. Over the past three
years the Conservancy's Pocono Acquisition Office has acquired
approximately 3,000 acres of wetlands, and has contracts to
purchase an additional 4,000 acres.
Methods of Implementation. The Monroe County Wetlands Program
emphasizes public education concerning wetlands, followed by strong
enforcement actions. All of the offices involved make continuous
efforts to inform the public through seminars, visiting schools,
public meetings and using the media to publicize violations.
Building permit applications are presented to the local
governing body which forwards the material to the District Office
for an erosion and sediment pollution control review. The District
Office staff makes a determination and returns the application to
the municipality for further action.
The Fish and Wildlife Office staff makes site inspections to
ensure compliance, and initiates further action, if necessary. The
formal regime is supplemented by volunteers from the Nature
Conservancy, zoning officials, local environmentalists as well as
waterway conservation officers, and others who report violations.
Successes. During the past several years, aggressive public
education efforts have culminated in a very high awareness of the
presence of wetlands within Monroe County, the dedication to
protect them, and an understanding of consequences for violators.
Permit applications are not given preliminary approval by the local
governing body unless the applicant can prove involvement by the
appropriate State and Federal agencies.
Because of the nature of development in Monroe County,
particularly as a growing market for primary home sites, tracts
which have been left undeveloped for years will change hands for
development purposes. It has become increasingly common for real
estate contracts to contain information regarding the existence of
wetlands on the property, which is regarded as part of the "early
warning1* system the wetlands managers promote.
Overall, the number of violations has decreased within Monroe
County, and today fills of areas as large as an acre are
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nonexistent. Tying the permit review process into the municipal
building permit review systems ensures a higher degree of
compliance.
While there will never be any "Estates at Emerald Lakes1*,
program managers expect to see the same property in other packaged
applications. However, with a strong program in place, and the
consistent efforts to inform the public, it is very likely that the
developers will come in with a plan that works around the sensitive
wetland areas, recognizing that the cumulative impact of
development is a factor in the permit process.
WtTllsntffftff While the Monroe County program is one of the more
effective wetland programs in the East, those who manage the
program are impeded by low funding levels and the resulting low
staffing levels. Site inspections by District Office personnel are
i:.frequent due to the large number of permit applications submitted
for review.
In 1990, Senate Bill 1326, which posed considerable potential
problems for the Monroe County and other Pennsylvania wetlands
programs, was introduced in the State Legislature. The rationale
for introducing this bill centered round two concerns: that some
municipalities had ordinances in place not so much to protect
wetlands, but to prevent further development in their jurisdiction;
and that these ordinances were perceived as preventing some
residents from fully recognizing their economic assets through full
use of their property. Senate Bill 1326 would have amended
existing law and contained provisions that would have:
• put mitigation above alternatives;
• provided compensation for economic losses due to
restrictions on the use of wetlands;
• provided an assortment of waivers to State regulations; and
• preempted local wetlands ordinances.
Senate Bill 1326 never received full consideration in the Senate,
but died in the committee to which it had been referred.
In 1991, two new bills concerning state and local wetlands
programs were introduced in the Pennsylvania Legislature. Senate
Bill 982 calls for a comprehensive identification of wetlands
throughout the state, outlines new permitting procedures, and calls
for the purchase of wetlands deemed significant. Senate Bill 983
would provide for tax credits as incentives to property owners to
preserve and protect their wetlands.
Hearings on both bills were held in May and passage in the
Senate is expected this autumn. House action is expected to follow
in early 1992.
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RECOMMKHDATIOMB FOR LOCAL JURISDICTIONS
The following are issues that should be considered by any
local jurisdiction considering establishing a formal wetland
regulatory or protection program. The outline provided is listed
in a prioritized format; it is important to establish the "whys" of
protection before determining the "hows". It is also important to
have a realistic idea of how many wetlands may be within your
jurisdiction. This may provide direction as to which preservation
option is most effective for your jurisdiction.
Obectives
Define why the jurisdiction is protecting wetlands. Knowing
why you want to protect the resource will help in developing the
best method of doing so and will help to educate the public to
assure continued community support for the protection measures. In
that process, the following should be considered:
* Are wetlands being protected because of their value for
wildlife habitat, stormwater storage and flood attenuation,
water quality impacts, and/or their education/aesthetic/
passive recreation values?
* Are wetlands being protected because they create a hazard
to development and pose subsequent legal liability to the
jurisdiction?
* Do wetlands provide some significant economic value or
impact within the community such as blueberry farms or
critical recharge areas for streams producing commercial
or recreational fisheries?
Included in establishing the goals and objectives should be an
honest assessment of what the community wants to and can
accomplish, and should also include realistic time lines to
coincide with objectives.
2. Conduc^ fln inventory of the Resource
It is important to know the approximate quantity and quality
of the wetlands present within the jurisdiction. It may also be
important to identify significant wetland resources located outside
the legal limits of the jurisdiction which may effect or influence
the resources within the jurisdiction's boundaries.
An inventory may be conducted based on a review of available
literature and interviews with appropriate local resource agency
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staff. For more effective results, the "paper inventory" should be
field-verified wherever possible.
The following resources may be used to identify potential
wetland sites:
* Aerial photographsi may be available through a local,
state, or federal agency such as a Department of Natural
Resources or Wildlife, the regional headquarters of the
Corps of Engineers (COE) (usually only coastal areas or
areas adjacent to rivers used for navigation), or, if
necessary, a flight may be flown specifically for the
wetland inventory;
* National Wetland Inventory Maps (MWI)t available from
the U.S. Fish and Wildlife Service. These maps may not
be complete for every region of the country. The
regional office of the Environmental Protection Agency
(EPA) or the COE may also have copies available. These
are maps based on aerial photography interpretation of
vegetation communities which are field-verified. These
provide an excellent starting point for identifying
wetland resources; however, dependent upon the region and
its vegetation community types, the accuracy may be
variable;
* Soil Conservation Service (8CS) Jlapss the local SCS
should have a listing of the hydric (wetland) soils
within their region, and hopefully will have conducted
soils mapping of the region as well. The soils maps may
be used to identify those areas which have hydric soils;
* U.S. Quad Maps: these provide topography for the area as
well as the location of streams, and often times,
wetlands; and,
* Regional Expertsx local resource experts from resource
or regulatory agencies, local tribes, and environmental
groups such as Audubon often have individuals who may
have knowledge of existing wetland areas. Contacting
these people can provide a wealth of otherwise
unavailable information.
These sources of information can be compiled into a map which
indicates the locations of potential wetland sites. It may be
possible to use such a map as a resource to require further study
of a specific site at the time of a development permit application.
However, if it is financially feasible, it is most effective to
have a field confirmation of the identified potential sites. A
field-verified inventory provides more information about each
identified site, which will aid in any subsequent conditioning
process.
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An inventory can be used to determine the approximate number
and condition of wetlands present within the jurisdiction. This is
critical information to create a regulatory program which will
address the needs of a particular jurisdiction.
An inventory for a suburban city may disclose only 20 wetlands
remaining within the city limits and each of those wetlands may be
impacted in some manner. An inventory conducted for a complete
state may identify thousands of wetlands, from severely impacted
systems to pristine areas. The regulatory program for each of
those jurisdictions may be very different, though their goals and
objectives could be very similar.
Through an inventory process, special areas of significance
may be identified: remnant vegetation communities, habitat for
rare wildlife species, unusual plant associations or the presence
of endemic species may be found. These areas may require special
management techniques to assure their viability and continued
protection.
3. Identify Method of Protection
The method chosen for protecting wetlands is dependent upon
numerous factors. These include, but are not limited to:
* Size and structure of the jurisdiction;
* Funding and staffing available;
* Political climate;
* Quantity and quality of the wetlands to be protected; and
* Existing or potential threats to the wetlands.
For discussion, the two basic methods for protection will be
separated into acquisition and regulation.
Acquisition
This method of protection is based on an economic incentive
for preservation through outright purchase, tax incentives, or
transfer of development rights. Acquisition is not limited to fee-
simple purchase, but may include purchase or transfer of
development rights/density credits, tax incentives through creation
of Conservation Easements or donations to land-trusts, or various
other creative purchase or donation methods.
Benefits
* Economic incentive is provided which can preclude the issue
of "taking" an owners property rights;
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* The process proceeds with the wilful cooperation of the
landowner; and
* May provide creative land use options, such as transfer of
development rights, which allow higher density use on less
environmentally sensitive lands.
Drawbacks
* Purchase options require substantial capital. Limited
capital means that choices must be made as to which sites
will be protected;
* Transfer of development rights means that appropriate high
density areas must be identified to "receive" the
transferred density credits;
* Transfer of density credits is often of little value to an
individual who may only own one small parcel of land, this
option is of more value to owners of large land holdings;
* Land trusts must be established and funded for acceptance
of donated sites; and
* Tax incentives are not incentives for many single property
owners.
Regulation.
This method of protection is based on controlling the land use
(and subsequent impacts) within or adjacent to a wetland in order
to insure its continued stability and integrity. Protection by
regulation means limiting or precluding the development of the
wetlands based on adopted policies or laws within a jurisdiction.
Land use can be regulated through adoption by the local
jurisdiction of land-use policies or land-use ordinances. The
differences between the two processes may be very significant,
dependent upon the jurisdiction.
Policies. The distinction of a policy is that it is an
adopted guideline within the jurisdictional framework. It is not
a legally adopted ordinance with the full effect of the law.
Policies are often found as language adopted within a Plan
developed by the jurisdiction. Plans may include a long-term
comprehensive plan, a community plan for a smaller sub-set area of
the entire jurisdiction, or various other planning documents
typical within a jurisdiction.
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Benefits
* Usually a plan approval process does not receive the
degree of scrutiny associated with the passage of
ordinances. Thus, the approval of policies is often an
easier process; and,
* Broadly written policies may be implemented through a
variety of means depending upon the format of the
jurisdiction.
Drawbacks
* Policies do not have the legal authority of law,
therefore, they can be very difficult to enforce; and
* Broadly written policies are subject to a variety of
interpretations by both agency staff and the community.
9rfliimn??ff- Within the context of this report, an ordinance
is a law adopted by a jurisdiction to control development through
the legal process. Land-use is most often included within a
jurisdiction's Zoning Code or its equivalent.
Benefit*
Ordinances are laws and therefore can provide a solid
defensible legal basis for establishing protective
conditions; and
Usually, the approval process for ordinances, which often
includes a public hearing process, must be approved by
the governing body of the jurisdiction. This approval
process often includes a public hearing process.
Therefore, an adopted ordinance has the political support
of the governing body.
Drawbacks
* The political process of approval often involves a severe
compromise of the originally proposed regulations. Such
compromise may render an ordinance meaningless or
unenforceable; and
* The public review and input process may be so divisive
that there is no possibility of political approval and
the entire wetland protection program may be eliminated.
Tit7?Mtnd»tion«. it is suggested that if a regulatory
ordinance program is being considered, the following issues should
be addressed:
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* Require the applicant to submit a detailed wetland
analysis of the subject property including a professional
survey of the wetland edge. The wetland analysis must be
conducted by a trained wetland ecologist. The
jurisdiction should establish a list of required criteria
for a wetland study to assure that a thorough analysis is
provided. (This assumes that the jurisdiction has
trained staff to review a technical analysis);
* Require trained staff to field verify the findings in the
wetland study prior to conditioning any permits;
* During a proposed division of land, require the wetland
to be protected by an adequate undisturbed buffer. Also,
require the wetland and its buffer to be placed within a
permanent open space or protective easement tract. This
is done to preclude future subdivision of the wetland;
* Development should not be allowed to use wetlands as
surrogate stormwater detention/retention structures. Any
stormwater directed into a wetland should be pre-treated
by flowing through a two-celled sedimentation pond and
two-hundred feet of vegetation lined swale;
* Jurisdictions, in cooperation with local resource
agencies, should conduct a technical analysis as to what
constitutesappropriate mitigation. The guide would have
to include methods to accurately assess existing
functional values of various wetland types and what type
and amount of alteration/enhancement may or may not be
appropriate for maintenance or improvement of the
functional value of a wetland. Proposed wetland
mitigations would have to follow the guidance provided by
that analysis;
* Trained wetland staff must conduct site reconnaissance
pre- and post-permit issuance. When wetland fill is
permitted, it must be clearly marked in the field prior
to construction so that post-construction reconnaissance
can confirm compliance with permit conditions; and
* Construction near wetland areas must utilize Best
Management Practices (BMP), including proper placement
and installation of sedimentation control and clearly
marked limits of construction (on site) to avoid
inadvertent wetland impacts. Non-wetland field staff
such as Building Inspectors, Grading Inspectors, or any
other appropriate staff must be trained to recognize (not
technically identify) wetlands and to assure the BMP are
used and enforced during the construction process.
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The most critical step beyond approving an effective wetland
ordinance is to assure adequate funding for staff and enforcement.
A common downfall of wetland protection programs is inadequate
funding to draw and keep well trained dedicated staff to assure
staff for follow through and enforcement.
The most effective and most widely used method of funding is
user fees. Permit applications which entail potential wetland
impacts and require special studies, review, mitigation and follow-
up should be assessed a fee. The fee is based on the complexity of
the project and anticipated staffing impacts. In this manner, a
wetland protection program can be self-supporting: staffing levels
can reflect the numbers and significance of permit applications and
anticipated wetland impacts. Complex projects which require
lengthy review, mitigation design, follow-up, and monitoring will
have adequate staff to assure compliance and if need be,
implementation of contingency plans.
Another common downfall of regulatory programs is lack of
enough trained staff. Permits which are approved with conditions
are often not field checked to confirm compliance. Required
mitigation is too often not constructed because staff is
overwhelmed reviewing new permits and therefore they do not have
the time or resources to check on previously required conditions.
In order to assure protection of the resource, a jurisdiction
must assure adequate staffing for their program. Inadequate
staffing often leads to similar wetland loss and impacts as if
there were no regulatory program in place. This happens when
wetland fill is permitted on the assumption that compensation will
be provided. When staff is overwhelmed with a permitting backlog,
they too often do not have the opportunity to confirm that
compensation has been adequately provided.
An additional pitfall of local programs is continuing staff
education. When funds are short, funding for training courses,
symposia, and advanced degrees are often cut short. This is most
unfortunate, because the staff needs to keep up with the latest
changes in technology and in procedural developments nationwide in
order to serve their individual communities. It is a sad fact that
in many communities where funding is not made available for
continuing education and advanced work that the development
community may be more up to speed than government staff. Since
protection of the public resources is the purpose of the regulatory
exercise, (then) the staff should be armed with the best and the
latest tools.
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It is critical to know where the support and the opposition
are for local wetlands protection efforts. This entails an effort
to identify, as early as possible in the process of proposing a
local program, each of the interest groups likely to favor or
oppose the development of such a program. In addition, it is
essential to understand the basis for support and opposition from
the identified groups.
This information will be important to:
* the staff of the local governmental organization charged
with developing the initial proposals for local programs. First,
staff cannot develop a program in a vacuum and expect the political
process to adopt it in entirety. Secondly, understanding the
rationale for positions taken by the interest groups will make it
easier for staff to develop initial proposals. Finally, staff can
assume that at some point members of the public will begin to
appear at their doors, at the local council chambers, at the
mayor's office or front porch and in the press with thoughts on
what should and should not occur. Staff should "scope out" the
potential support and opposition groups in order to develop an
orderly method of dealing with them.
* the local administrative and legislative bodies that
participate in the approval process. In the first place, people in
the political process need an early and full understanding of the
implications of the actions they are asked to take. Secondly, from
previous work with identified interest groups, individuals with the
local administration or local council may be able to assist in
mediating points of conflict, forging compromises, narrowing points
of contention or merely sending the "right" signals at the right
time. Finally, nobody likes surprises, least of all individuals
whose careers depend on current information.
* the groups in favor and opposed to the development of a
local program. Support groups can be useful in three ways: (1)
making it clear how important adoption of an effective program is;
(2) urging the approval process to accept more than it is likely to
accept; and (3) acting as a countervailing force to opposition
groups. For support groups to be most effective, they need to know
that they are an identified part of the process.
Opposition groups can become part of the eventual solution if
they know they are also recognized as part of the process. Some of
them will actually work constructively while pursuing their
interests, whereas others may never serve a constructive purpose.
Staff need to be in the position of being able to differentiate the
two.
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Staff will want to be careful as they approach this aspect of
developing a local program; they will not want to be perceived as
manipulating the political process. However, staff understanding
of how various groups perceive themselves affected by a proposal
for a local program can expedite the development of that program
and can lead to the creation of a more effective program with a
greater chance of ultimate success.
Each local jurisdiction will have some form of formal public
process through which the developing program will receive public
review and comment. It is important to comply with each of the
steps in the process for legal, public education, and information
reasons. Most likely there will be public review drafts available
for discussion between staff and the public prior to preparation of
a public comment draft for which formal public hearings will be
established.
Experience shows that the most effective way to obtain the
most useful public comment from individual support and opposition
groups is to meet early with individual groups in a workshop
setting. In that manner, staff can present ideas on why and how
the program may develop in an informational tone. In that setting,
staff is less likely to see posturing by the various groups, since
they are not appearing with other groups in a public comment
framework. Rather, members of the groups may actually feel more
open to positive discussion, recognizing that staff is acting in a
consultative role. This does not obviate the need for general
public meetings of an informational nature, and in no way is a
substitute for the formal, legal public process.
By understanding who the support and opposition groups are,
staff is able to develop an effective public education effort as
the program is developing. In addition, once a program is in
place, continuing a public awareness effort on the program's
progress will help maintain public interest, confidence and
support.
In addition to fostering public support through release of
information, public meetings and workshops, efforts should be made
by staff to develop a network among the related federal, state,
regional and local governments. If maintained as a general
information exchange, this network can informally, or through
cooperative agreement, result in better coordination of permitting
programs, enforcement actions and more efficient and effective
programs overall.
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LITERATURE CITED
Bortleson, G.C., M.J. Shrzastowski, and A.K. Helgerson. 1980.
Historical changes of shoreline and wetland at eleven major
deltas in the Puget Sound Region. Hydrologic Investigations
Atlas, U.S. Geological Survey. Atlas HA-617.
United States Department of the Interior, Fish and Wildlife
Service. 1987. National Wetlands Inventory.
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if U.S. Government Printing Office : 1991 -312-014/40030
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