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Home My WebLink AboutProtecting Nontidal Wetlands David G. Burke is chief of the Nontidal Wetlands Divi- sion of the Maryland Department of Natural Resources. Erik J. Meyers is the general counsel for the Environmental Law Institute. Ralph W. Tiner, Jr., is the Region 5 NWI coor- dinator for the U.S. Fish and Wildlife Service. Hazel Groman is the enforcement liaison of the Office of Wetlands Protection, U.S. Environmental Protection Agency, and was formerly editor of the National Wetlands Newsletter and a staff attorney for the Environmental Law Institute. The authors thank Dr. Jon A. Kusler, who previously assisted with the publication of Non-Tidal Wetlands Protec- tion: A Handbook for Maryland Local Governments and helped provide inspiration and basic materials for this re- port. His advice and comments on the model ordinance were particularly invaluable. We also wish to acknowledge the assistance of Richard Newton, who prepared the photo Cover design by Dennis McClendon reproductions of all the graphic materials and the line draw- ings of the sundew plant, which appear with chapter titles, and of the skunk cabbages, which appear before the chapter notes iR Chapters 1 and 2. Finally, we thank the Environmental Law Institute's wetlands program for continuing assistance in reviewing drafts of this report. The border in Chapter 5 is of sandhill cranes on a Platte River roost at sunrise. It was adapted from a single-frame photo that originally appeared in Wetlands of the United States: Current Status and Recent Trends by Ralph W. Tiner, Jr. This report was made possible by a grant from the William and Flora Hewlett Foundation in Menlo Park, Cali- fornia. Planning Advisory Service is a subscription research service of the American Planning Association. Eight reports are produced each year. Subscribers also receive the PAS Memo each month and have use of the Inquiry Answering Service. Israel Stollman, Executive Director; Frank S. So, Deputy Executive Director; Sylvia Lewis, Publications Director; Welford Sanders, Associate Director of Re- search; Thomas P. Smith, Associate Director of Research. Planning Advisory Service Reports are produced at APA. James Hecimovich, Editor; Adele Rothblatt, Assistant Editor. © Copyright December 1988 by the American Planning Association, 1313 E. 60th St., Chicago, IL 60637. APA has headquarters offices at 1776 Massachusetts Ave., N.W., Washington, DC 20036. Protecting Nontidal Wetlands By David G. Burke, Erik J. iVIeyers, Ralph W. Tiner, Jr., and Hazel Groman TABLE OF CONTENTS Preface .................................................................................................................... iii Chapter 1. What Are Wetlands, and Why Are They Important? ............................................. Wetland Definitions and Classification ............................................................................. Nontidal (Palustrine) Wetlands ....................................................................................... 3 Why Wetlands Are Important ........................................................................................ 4 Current Status and Trends of U.S. Wetlands ...................................................................... 9 Regional Historical Perspective ..................................................................................... 12 Chapter 2. Federal and State Regulatory Programs ............................................................. 17 Section 404 and Section 10 Permits ................................................................................. 19 State Wetland Regulatory Programs ............................ ~. ................................................. 21 The Takings Issue ......................................................................................................27 Chapter 3. Local Wetland Regulations ............................................................................ 29 Overview ................................................................................................................ 29 Zoning for Wetland Protection ..................................................................................... 29 Elements of a Wetland Protection Ordinance .................................................................... 31 Administration of Regulations ...................................................................................... 48 Chapter 4. Other Types of Regulations and Protection Techniques ........................................ 51 Floodplain Regulations ............................................................................................... 51 Subdivision Regulations .............................................................................................. 52 Sanitary Codes and Other Regulations ............................................................................ 53 Other Protection Techniques ........................................................................................ 53 Chapter 5. A Model Nontidal Wetland Protection Ordinance ............................................... 63 Commentary ............................................................................................................ 63 Model Nontidal Wetland Protection Ordinance ................................................................ 65 Bibliography ............................................................................................................ 75 Preface In recent years, public understanding of the importance of nontidal wetlands has grown, but many people still re- main unaware of the value of these areas. As a result, non- tidal wetlands have not received the same degree of protection as their coastal counterparts--the tidal wetlands--which are highly valued and strongly protected. Since nontidal wetlands comprise about 95 percent of the wetlands in the coterminous U.S., and probably an even higher percent in Alaska, and their vulnerability to destruc- tion is higher than it is for tidal wetlands, it is important for planners, other officials, and citizens to learn more about nontidal wetlands and the array of protection techniques available to help minimize their loss. Marshes, swamps, and other wetlands are actually assets to society. They provide numerous products for man's use and consumption, protect private property, help improve water quality, and provide opportunities for recreation and enjoyment of nature's beauty. Destruction or alteration of wetlands eliminates or diminishes these values. Drainage of wetlands, for example, eliminates all their beneficial effects on water quality and directly contributes to flooding problems. This report is designed to help local government officials, public interest groups, landowners, and other citizens to pre- serve nontidal wetlands. It describes wetland types and values and includes a look at the current status of wetlands in the United States; it discusses how to create a wetland pro- tection program; and it reviews federal, state, and local regulations designed to protect nontidal wetlands. This re- port q~raws heavily from an APA survey of PAS subscribers and on two earlier works--Non-Tidal Wetlands Protection: A Handbook for Maryland Local Governments and Wetlands of the United States: Current Status and Recent Trends. iii Chapter 1. What Are Wetlands, and Why Are They Important? (_ Each of us usually has developed some impression of what a wetland is. Unfortunately, many first impressions are often negative ones--a wetland, all too often, means a swamp with mosquitos, snakes, and smelly muck. The general no- tion has been that wetlands are wastelands. This notion has led to the conversion of many wetlands to farmland, hous- ing developments, and industrial sites. But this notion is changing as science discovers the many ways in which wetlands enhance the environment. Nontidal wetlands consist of marshes, swamps, and bogs that are not influenced by ocean-driven tides. They are usually created by a combination of surface-water flooding or ponding and groundwater discharge. Consequently, they form along nontidal rivers, streams, lakes, and ponds; in iso- lated upland depressions where surface water collects; in association with springs and seeps (points of active ground- water discharge); and where the water table stays near the surface for some time. In these situations, the soil becomes saturated (hydric soils) and plants adapted for life in wet conditions (hydrophytes) become established to form non- tidal wetland communities. WETLAND DEFINITIONS AND CLASSIFICATION In general, the wetlands of the United States can be divided into two main groups: tidal wetlands (coastal wetlands) and nontidal wetlands (inland wetlands). Tidal wetlands are largely comprised of coastal marshes, mudflats, and mangrove swamps that are subjected to periodic flooding by ocean-driven tides. Nontidal wetlands occur further inland, beyond tidal influence. Flooding of many nontidal wetlands is common in winter and spring when rivers overflow their banks. Other inland wetlands, like those in the arid West, may be flooded only intermit- tently during heavy storms. Still others may never have standing water present, yet their soils remain saturated for long periods due to groundwater seepage or a seasonal high water table. Nontidal wetlands, therefore, represent a com- plex assemblage of inland wet environments. They include freshwater marshes and ponds, shrub swamps, bottomland hardwood forests, wooded swamps, and bogs, as well as in- land saline and alkaline marshes and ponds. Wetlands have been defined and classified in many ways over the years. The U.S. Fish and Wildlife Service (hereinafter, the Service) has developed a wetland definition and classification system for the primary purpose of inven- torying the nation's wetlands. (See Figure 1.) Their defini- tion and classification system is scientifically based and covers the vast array of wet habitats found in the United States. Consequently, the classification system has become the national standard for identifying and classifying wetlands. Moreover, the Service's National Wetlands In- ventory Project (NWI) is producing a series of large-scale (1:24,000) maps that show the general locations and types of w~tlands and deepwater habitats throughout the coun- try. It is important for planners and others with an interest in wetlands to learn the Service's wetland classification system, especially since NWI maps are available for much of the country. In developing a definition of wetland, the Service ac- knowledged that "there is no single, correct, indisputable, ecologically sound definition for wetlands, primarily because of the diversity of wetlands and because the demar- cation between dry and wet environments lies along a con- tinuum.''~ Previous wetland definitions grew out of the different needs of various waterfowl managers, hydrolo- gists, flood-control engineers, and water quality experts. The Service needed a definition that would allow accurate identification and delineation of the nation's wetlands for resource management purposes. The Service's definition takes a multidisciplinary ap- proach to defining wetlands. Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow wa ter. For purpo res of defini- tion, wetlands must have one or more of the following three attributes: 1) at least periodically, the land supports predominantly hydrophytes; 2) the substrate is predominantly undrained hydric soil; and 3) the substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year.2 {Emphasis added. ] 1 System --Marine --Estuarine -- Riverine --Lacustrine . -- Palustrine Subsystem Subtidal Intertidal Subtidal Intertidal, , Tidal Upper Per~..i~l Intermittent Littoral Class Rock Bottom Uuconsolida~d Bottom Aquatic Bed Reef FAquatic Bed R~ef ~Rocky Shore i--Unconsolidated Shore Rock Bottom Unconsolida~d Bottom Aquatic Bed [--Aquatic Bed ~Streambed ]-- Rocky Shorn ~ Unconsolidal~.~:l Shore [-- Emergent Wetland ~- ~crub-Shrub Wetland ~- Foresf~d Wetland IRock Bottom Unconsoliclaf~d Bottom Aquatic Bed Rocky Shore Unconsolidated Shore Emergent Wetland iRock Bottom Unconsolidated Bottom Aquatic Bed Rocky Shore Unconsolidar~ed Shore Emergent Wetland iRock Bottom Unconsolidated Bottom Aquatic Bed R~cky Shore Unconsolidated Shore ,Streambed Rock Bottom Unconsolidated Bottom Aqua~ic Bed IRock Bottom Unconsolidated Bottom Aquatic Bed Rocky Shore Unconsolida~i Shore Emergent Wetland - Rock Bottom - Unconsolidated Bottom - Aquatic Bed - Unconsolidated Shore - Moss-Lichen Wetland - Emergent Wetland --Scrub-Shrub Wetland Foresr~i Wetland FIGURE 1. Classification hierarchy of wetlands and deepwater habitats, showing systems, subsystems, and classes. The Palustrine System does not include deepwater habitats. (Cowardin et al., 1979) This definition emphasizes three key attributes of wetlands: wetland vegetation (hydrophytes); hydrol- ogy (the degree of flooding or soil saturation); and hydric soils (periodically flooded and/or saturated soils). All areas considered wetlands must have enough water at some time during the growing season to support plants and animals adapted for life in water or saturated soils, and stress or eliminate those that are not. The Service has developed a list of plants occurring in the nation's wetlands, and the U.S.D.A. Soil Conservation Service has prepared a list of hydric soils to help further define wetlands? Particular attention should be paid to the reference to flooding or soil saturation during the growing season in the Service's definition. When soils are covered by water or saturated to the surface, free oxygen is usually not available to plant roots. Most plant roots must have access to free oxy- gen for respiration and growth; flooding during the grow- ing season presents problems for the growth and survival of most plants. In a wetland situation, plants must be adapted to cope with these stressful conditions. If flooding occurs only in winter when the plants are dormant, there is little or no effect on them. It is important to note that the Service does not include permanently flooded deepwater areas as wetlands. Instead, these water bodies (generally deeper than 6.6 feet) are defined as deepwater habitats, since water and not air is the principal medium in which dominant organisms must live. The Service's classification system groups wetlands ac- cording to ecologically similar characteristics. It first divides wetlands and deepwater habitats into five ecological systems: I) Marine, 2) Estuarine, 3) Riverine, 4) Lacustrine, and 5) Palustrine. The Marine and Estuarine systems con- sist of salt and bra~:kish tidal wetlands and the open ocean and estuaries. The Riverine System is limited to freshwater river and stream channels. It is mainly a freshwater, deep- water habitat system but has nonpersistent marshes and aquatic beds along its banks. The Lacustrine System is also a deepwater habitat system that includes standing water bodies like lakes, reservoirs, and deep ponds with nonper- sistent shoreline marshes and aquatic beds. The Palustrine System encompasses the vast majority of the county's non- tidal wetlands (i.e., marshes, swamps, and bogs) and does not include any deepwater habitats. NONTIDAL (PALUSTRINE) WETLANDS Nontidal wetlands occur throughout the country and largely consist of freshwater wetlands, although inland saline and alkaline marshes exist in arid and semiarid areas. Three major types are common: emergent wetland; scrub-shrub wetland; and forested wetland. Shallow, open-water bodies, such as ponds and playa lakes (less than 6.6 feet deep), are also considered nontidal wetlands. Table I lists these dif- ferent wetland types and the kinds of vegetation common to each. Emergent Wetlands Emergent wetlands are dominated by herbaceous (non- woody) vegetation, including certain grasses, cattails, rushes, and sedges. These wetlands are commonly referred to by a variety of terms, including "marsh,' "wet meadow," "fen," and "inland salt marsh," depending on the region of the country and individual characteristics. Emergent wetlands may be flooded for variable periods from as little as a couple of weeks early in the growing season to as much as permanently flooded throughout the year. Emergent wetlands occur in a variety of situations, in- cluding along the margins of rivers and lakes, in isolated depressions surrounded by upland (as in the Prairie Pothole Region of the Dakotas), in seepage areas on gentle slopes, and i~ saturated permafrost areas of Alaska. FIGURE 2. Schematic draw ng showing wet ands, deepwater habitats, and uplands on landscape. Note differences in wetlands due to hydrology and topographic location. 3 TABLE 1. VEGETATION COMMON TO NONTIDAL WETLANDS Type of Wetland Vegetation Emergent Wetlands: Freshwater Saline Shrub Wetlands: Northen Bogs Pocosins Others Forested Wetlands: Northern Southern Alaskan Bottomland hardwood forests: Southern Northern Riparian forested wetlands: Western Cattails, wild rice, sedges, rushes, bulrushes, spikerushes, burreeds, rice cutgrass, maidencane, reed, arrowheads, pickerelweed, smartweeds, bluejoint, whitetop, reed canary grass, manna grass, asters, goldenrods, marsh fern. Glassworts, saltgrass, cattails, alkali grass, dropseed, alkali bulrush, harstem bulrush, arrow grass, barley grass Leatherleaf, sweet gale, cottongrass, peat moss, bog rosemary, Labrador tea, cranberry, bog laurel, sedges, black spruce, larch, lodgepole pine, balsam fir, water willow, sheep laurel, highbush blueberry Pond pine, sweet bay, inkberry, fetterbush, titi, red bay, wax myrtle Buttonbush, alders, willows, dogwoods, red maple saplings, cottonwood saplings Red maple, ashes, northern white cedar, black spruce, larch Bald cypress, red maple, Atlantic white cedar, overcup oak, water tupelo, black gum, black willow, pumpkin ash Western hemlock, red alder, willows Black spruce, larch, lodgepole pine, balsam poplar Sweet gum, beech, loblolly pine, slash pine, sycamore, water hickory, black walnut, pignut hickory, various oaks Silver maple, pin oak, sycamore Cottonwoods, green ash~,box: elder, elms, willows Scrub-Shrub Wetlands Freshwater wetlands dominated by woody vegetation less than 20 feet tall are called scrub-shrub wetlands. Although not as abundant as nontidal emergent and forested wetlands, they occur widely throughout the nation. These scrub-shrub wetlands are commonly called "bogs,' "pocosins,' "shrub- carrs," or "shrub swamps" in different parts of the country. Northern and southern peat bogs are particularly in- teresting types of scrub-shrub wetlands. Both types are rarely flooded and are generally characterized by a saturated organic soil with the water table at or near the surface for most of the year. Northern bogs are prevalent in the glaciated region of the country in isolated depressions, along river courses, and along the margins of lakes in some states, including Alaska, Maine, Michigan, Minnesota, New York, and Wisconsin. Southern bogs, locally called "pocosins," occur along the southeastern coastal plain and are most abundant in North Carolina. They are found in broad flat plateaus usually apart from large streams. The term "pocosin" is an Indian term meaning swamp on a hill. Forested Wetlands Forested wetlands dominated by trees (i.e., woody plants 20 feet high or taller) occur mostly in Alaska and the east- ern half of the United States. In the East, they are the most abundant nontidal wetland type. As in other nontidal wetlands, flooding is extremely variable depending on re- gional climate, topographic position, and local hydrology. WHY WETLANDS ARE IMPORTANT Wetlands are important because they provide socioeco- nomic benfits, contribute to environmental quality values, and support fish and wildlife.4 (See box.) Socioeconomic Values The most tangible benefits of wetlands include flood and storm damage protection, erosion control, water supply and groundwater recharge, harvest of natural products, live- stock grazing, and recreation. Since these values provide ei- ther dollar savings or financial profit, they are easily understood by most people. Flood and Storm Damage Protection. In their natural con- dition, most wetlands serve to temporarily store flood waters, thereby protecting downstream property owners from flood damage. After all, such flooding has been the driving force in creating these wetlands. This flood storage function also helps to slow the velocity of water and lower wave heights, which reduces the water's erosive potential. C Rather than having all flood waters flowing rapidly downstream and destroying private property and crops, wetlands slow the flow of water, store it for some time, and slowly release stored waters downstream. (See Figure 3.) In this way, flood peaks of tributary streams are desyn- chronized and flood waters do not all reach the mainstem river at the same time. This function becomes increasingly important in urban areas where development has increased the rate and volume of surface-water runoff and the poten- tial for flood damage. In 1975, 107 people were killed in flood waters and poten- tial property damage for the year was estimated to be $3.4 billion? Almost half of all flood damage is suffered by agriculture as crops and livestock are destroyed and produc- tive land is covered by water or lost to erosion. Approx- imately 134 million acres of the coterminous United States have severe flooding problems. Of this, 2.8 million acres are urban land and 92.8 million acres are agricultural land? Many of these flooded farmlands are wetlands or previously drained wetlands. Although floodplain development regulations required by the Federal Emergency Management Agency (FEMA) may help reduce flood losses from urban land, agricul- tural losses are expected to remain at present levels or increase as more wetlands are put into crop production. Protection of wetlands, therefore, remains an important means of minimizing flood damage in the future. The U.S. Army Corps of Engineers recognized the value of wetlands for flood storage in Massachusetts in the early 1970s. At that time, the Corps' New England Division con- sidered various alternatives to providing flood protection in the lower Charles River watershed near Boston, including a 55,000-acre-foot reservoir; extensive walls and dikes; and perpetual protection of 8,500 acres of wetlands. If 40 percent of the Charles River wetlands were destroyed, flood damages would increase by at least $3 million annually. Loss of all basin wetlands would cause an average annual flood FIGURE 3. Wetland value in reducing flood crests and flow rates after rainstorms. (Adapted from Kusler, 3.983) damage cost of $17 million.7 The Corps concluded that wetland protection--"Natural Valley Storage"--was the least costly solution to flooding problems. In 1983, it com- pleted wetland acquisition in the Charles River basin. Erosion Control. When located between watercourses and uplands, wetlands help protect uplands from erosion. Wetland vegetation can reduce shoreline erosion in several ways, including increasing durability of the sediment through binding with its roots; dampening waves through friction; and reducing the velocity of the current through friction.8 Some states, such as Maryland and Virginia, pro- mote the planting of wetland vegetation to stabilize eroding shorelines in low-wave-energy areas. Wetland vegetation also helps reduce turbidity and thereby improves water quaI!~,y. Ol~viously, trees are good stabilizers of river banks. Their roots bind the soil, making it resistant to erosion, while their Major Wetland Values Socioeconomic Values · Flood control · Wave damage protection · Erosion control · Groundwater recharge and water supply · Timber and other natural resources · Energy source (peat) · Livestock grazing · Fishing and shellfishing · Hunting and trapping · Recreation · Aesthetics · Education and scientific research Environmental Quality Values · Water quality maintenance: Pollution filter Sediment removal Oxygen production Nutrient recycling Chemical and nutrient absorption · Aquatic productivity · Microclimate regulator · World dimate (ozone layer) Fish and Wildlife Values · Fish and shellfish habitat · Waterfowl and other bird habitat · Furbearer and other wildlife habitat trunks and branches slow the flow of flooding waters and dampen wave heights. The banks of some rivers have not been eroded for 100 to 200 years due to the presence of trees.9 Among the grass or grasslike plants, bulrushes and reed have been regarded as the best at withstanding wave and current action,t° Water Supply and Groundwater Recharge. Many wetlands ~ ,reas of groundwater discharge, and some may provide sufficient quantities of water for public use. In Mas- sachusetts, about half of the wetlands may be valuable potential sources of drinking water. At least 60 municipalities in the state have public wells in or very near wetlands. In many coastal areas across the country, urban development of wetlands and subsequent groundwater withdrawals have caused saltwater intrusion into valuable public water supply aquifers. Prairie pothole wetlands store water important for wildlife and may be used for irrigation and livestock watering by farmers during droughts. These situations may hold tva,., for many other states, and wetland protection could be instrumental in solving current and future water supply problems. Since the recharge potential of wetlands varies according to numerous factors, including wetland type, geographic location, season, soil type, water table location, and precipitation, there is considerable debate over the rote of wetlands in groundwater recharge. Depressional wetlands, like cypress domes in Florida and prairie potholes in the Dakotas, may contribute to groundwater rechargeJ~ Floodplain wetlands also may do this through overbank water storage,tx Marshes and swamps along the Ipswich River in Massachusetts occasionally operate as recharge areas.13 Harvest of Natural Products. A variety of natural prod- ~r ucts are produced in wetlands, including timber, fish and shellf, i~.h, wildlife, peat, cranberries, blueberries, and wild rice. V~/etland grasses are hayed in many places for winter livestock feed. During other seasons, livestock graze directly in wetlands across the country. These and other products are harvested by man and provide a livelihood for many people. In the 49 continental states, an estimated 82 million acres of commercial forested wetlands exist,t4 Most of these forests lie east of the Rockies, where trees like oak, gum, cy- press, elm, ash, and cottonwood are most important. The standing value of southern wetland forests alone was $8 billion in 1979. These southern forests have been harvested for over 200 years without noticeable degradation, and they can be expected to produce timber for many years to come, unless converted to other uses. Conversion of bottomland forests in the Mississippi Delta to agricultural fields (for such crops as soybeans) has reduced these wetlands by 75 percent.~s Wetlands also produce fish and wildlife for man's use. Commercial fishermen and trappers make a living from these resources. From 1956 to 1975, about 60 percent of all Sources of water for nontidal wetlands. Many wetlands are areas of groundwater discharge, and some may pro vide sufficient quantitites of water for public use. (Adapted from Novitsky, 1978) C of the U.S. commercial landings were fishes and shellfishes that depend on wetlands.~O Major commercial fish species associated with nontidal wetlands are catfish, carp, and buf- falo. Furs from muskrat alone yielded roughly $74 million in 1980.2? Louisiana is the largest fur-producing state in the country, and nearly all furs come from wetland animals. Nontidal wetlands provide a greater value of fur harvest per acre than coastal wetlands.~ Many wetlands produce peat, which is used mainly for horticulture and agriculture in the United States. Over 52 million acres of peat deposits exist in the country. Five states account for more than 75 percent of the peat production-- Michigan, Florida, Illinois, Indiana, and New York? This is a particularly interesting finding, since our largest peat reserves are in Alaska and Minnesota. For centuries, peat has been used as a major fuel source in Europe. Recent shor- tages in other fuels, particularly oil and gas, have increased attention to wetlands as potential fuel sources. Unfor- tunately, peat mining can destroy wetlands and most of their associated values. Recreation and Aesthetics. Many recreational activities take place in and around wetlands. Hunting and fishing are popular sports. Waterfowl hunting is a major activity in wetlands, but big game hunting is also important locally. In 1980, 5.3 million people spent $638 million on hunting waterfowl and other migratory birds? Nearly all freshwater fishing is dependent on wetlands. In 1975 alone, sport fishermen spent $13.1 billion to catch wetland- dependent fishes in the U.S.2~ Other recreation in wetlands is largely nonconsumptive and involves activities like hiking, nature observation and photography, swimming, boating, and ice-skating. The aesthetic value of wetlands is extremely difficult to evaluate. Nonetheless, it is a very important one because, in 1980 alone, 28.8 million people (17 percent of the U.S. popula- tion) took special trips to observe, photograph, or feed wildlife. Moreover, about 47 percent of all Americans showed an active interest in wildlife around their homes.22 In 1980, 55 million people spent almost $10 billion observ- ing and photographing waterfowl and other wetland birds.23 Wetlands are indeed valued natural resources of Americans. Environmental Quality Values Wetlands play an important role in maintaining the quality of the natural environment, especially in aquatic habitats. They do this in a number of ways, including puri- fying natural waters by removing nutrients, chemical and organic pollutants, and sediment, and by producing food that supports aquatic life. Water Quality Improvement. Because of their location between land and water, wetlands are particularly good water filters. They intercept runoff from both land and water--they intercept runoff from land before it reaches the water and help filter nutrients, wastes, and sediment from flooding waters. First, wetlands remove nutrients, especially nitrogen and phosphorus, from flooding waters and thus help prevent eutrophication or overenrichment of natural waters. It is, however, possible to overload a wetland and thereby reduce its ability to perform this function. Every wetland has a limited capacity to absorb nutrients, and individual wetlands differ in their ability to do so. Second, wetlands have been shown to be excellent removers of waste products from water. In fact, certain wetland plants are so efficient in this task that some artificial waste treatment systems are using these plants. [:or exam- pie, the Max Planck Institute of Germany has a patent to create such systems, in which a bulrush is the primary waste removal agent.24 Numerous scientists have proposed that certain types of wetlands be used to process domestic wastes. Some wetlands are already used for this purpose. The Brillion Marsh in Wisconsin has received domestic sewage since 1923. On the average, this cattail marsh removed $0 percent of biological oxygen demand, 85 percent of coliform bacteria, S1 percent of nitrates, 40 percent of chemical oxygen demand, 44 per- cent of turbidity, 29 percent of suspended solids, and 13 per- Wetlands help purify water by filtering out nutrients, wastes, and sediment from runoff and floods. WETLANDS PURIFY WATER SEDI~AENT TRAPPED BY VEGETATION 7 cent of total phosphorus. After water passed through Brillion Marsh, there was a significant improvement in its quality,z~ Bottomland forested wetlands along the Alcovy River in Georgia filter impurities from flooding waters. Human and chicken wastes grossly pollute the river upstream, but after passing through less than three miles of swamp, the river's water quality is significantly improved. The value of the 2,300-acre Alcovy River Swamp for water pollution control was estimated at $~. million per year.~ Wetlands also play a valuable role in reducing the ~ur- bidity of flooding waters. This is especially important for aquatic life and for reducing siltation of ports, harbors, rivers, and reservoirs. Removal of sediment load is also valuable because sediments often transport absorbed nutrients, pesticides, heavy metals, and other toxins that pollute the nation's waters. Depressional wetlands should retain all of the sediment entering them. In Wisconsin, watersheds with 40 percent coverage by lakes and wetlands had 90 percent less sediment in water than watersheds with no lakes or wetlands.27 Aquatic Productivity. Wetlands are among the most pro- ductive ecosystems in the world, and certain types may be as highly productive as the country's best cornfields. Wetland plants are particularly efficient converters of solar energy. Through photosynthesis, plants convert sunlight into plant material or biomass and produce oxygen as a by- product. This biomass serves as food for a multitude of animals, both aquatic and terrestrial. For example, many waterfowl depend heavily on seeds of marsh plants, while muskrat eat cattail tubers and young shoots. Moose, cari- bou, black bears, and brown bears graze on marsh plants in Alaska. Although direct grazing of most wetland plants is generally limited, their major food value is reached when the plants die and fragment to form detritus. This detritus forms the base of an aquatic food web that supports higher con- sumers, like game fishes. Detritus from wetland vegetation along western rivers feeds aquatic insects important to the diet of resident fishes. Thus, wetlands can be regarded as the farmlands of the aquatic environment in which great volumes of food are produced annually. The majority of nonmarine aquatic animals depend, either directly or in- directly, on this food source. Fish and Wildlife Values Most scientists believe that maintaining a diversity of species is insurance for the future health of the world. Wetlands play a significant role in maintaining this diversity. The variety of nontidal wetlands across the country create habitats for many forms of fish and wildlife. Some animals spend their entire lives in wetlands, while others use wetlands primarily for reproduction and nursery grounds. Numerous fish and wildlife frequent marshes and swamps for feeding or feed on organisms produced in wetlands, whereas many animals visit wetlands for drinking water. Wetlands are also crucial for the survival of numerous en- dangered animals. Nontidal wetlands are essential to maintaining important fish populations. In fact, most freshwater fishes can be con- sidered wetland-dependent because: many species feed in wetlands or upon wetland-produced food; many fishes use wetlands as nursery grounds; and almost all important recreational fishes spawn in the aquatic portions of wetlands,zs Wetland vegetation along rivers is important to fish, providing cover, shade for water temperature regula- tion, and food for aquatic insects that are eaten by fishes. Nontidal wetlands also provide year-round habitats for resident birds and are especially important as breeding grounds, overwintering areas, and feeding grounds for migratory birds. (See Figures 4 and 5.) Wetlands also provide homes for furbearers, like muskrats, beavers, and otters. Larger mammals may also be observed. Black bears find ref- uge ar~i food in forested and shrub wetlands of northeast- em P~nnsylvania and western Massachusetts and other areas. In northern states, white-tailed deer depend on white cedar and other evergreen swamps for winter shelter and FIGURE 4. Wetland habitat use by several families of birds. (Weller and Spatcher, 3.965) WRENS PLOVERS TERNS DUCKS BITTERN8 RAIL~ I--SHORT-BILL__-- LONG-BILL- UPLAND -- KILLDEER -- -- BLACK -- S.W. TEAL- -FORSTERS- ~ MALLARD RUDDY ~ vat'u~n"~ KING R LEAST-- /~""~..~ J GALLINULE / ~ ~ ~.R~K~ REDWING-- --YELLOWHEAD ORIOLE/RGEDRAwCiNKGLE...~ ]( UPLAND LOWLAND GRAS~E~ G~A$$E$ SEDGE CATTAIL HAROS?EM MUSKRAT MUSKRAT C ,.! i GuLF OF MEXICO P~iority A~e~ Name Prairie Pocholes and Parklands 12 Middle-Upper Pacific 2 Central Valley of Cai' omia D~t!alJ~a 13 Klamath Basin 3 Yukon-Kuskokwim 14 Upper Alaska Peninsula ...... 4 Middle-Upper Atlantic Coast 15 Copper River Delta 5 Lower Mississippi River Delta and Red River Basin 16 West-Central Gull' 6 lzembek Lagoon i7 Upper Coo~ inle~ 7 Upper Mississippi River and Nonhero Lakes 18 San Francisco Bay 8 No.hem Gmat Plains 19 NE United Sla~es - SE Canada 9 Yuko~ Flats 20 Sandhills and Rainwater Basin 10 lnte~'~ountain West IGreat Basin) 21 Playa Lakes I I Teshelpuk i~ke FIGURE 5. Waterfowl habitat areas of major national concern. (U.S. Fish and Wildlife Service, 1984) food. The extensive wetlands of Alaska's North Slope are used as summer range and calving areas by caribou. Other forms of wildlife make their homes in wetlands. Turtles, reptiles, and amphibians are important residents. The largest reptiles occurring in the United States--the American alligator and the American crocodile--live in wetlands. Many snakes inhabit wetlands, with water snakes being most abundant throughout the country. The San Francisco garter snake, an endangered species, also requires wetlands for survival. Nearly all of the approximately 190 species of amphibians in North America are wetland- dependent, at least for breeding? CURRENT STATUS AND TRENDS OF U.S. WETLANDS Wetlands exist in every state in varying numbers. Their abundance depends upon climate, soils, geology, land use, and other regional differences. The map in Figure 6 shows the estimated extent of wetlands within each of the 50 states. Alaska, Louisiana, and Florida contain the most wetland acreage. Other states with considerable acreage include Al- abama, Arkansas, Georgia, Maine, Michigan, Minnesota, Mississippi, North Carolina, South Carolina, and Wiscon- sin. Smaller states like Delaware and New Jersey also con- tain an abundance of wetlands relative to their small size. In the mid-1970s, an estimated 99 million acres of wetlands existed in the coterminous United States? (Alaska and Hawaii are not included in these figures.) Estimates of Alaska's wetland resources vary, but about 200 million acres probably exist. Only five percent of the land surface in the lower 48 states contains wetlands. Nontidal (palustrine) wetlands, in- cluding freshwater marshes and swamps, comprise 94 per- cent of these wetlands. In the mid-1970s, 93.7 million acres of nontidal wetlands were present; over half of this acreage was forested wetlands and about a third was emergent wetlands. Remaining palustrine wetland acreage equals an area about the size of California. In contrast, only 5.2 million acres of tidal (estuarine) wetlands existed in the mid- 1970s. This amounts to an area approximately the size of Massachusetts. Estimates of the original wetlands acreage present at this country's settlement vary because the available information is scattered and largely incomplete. A reliable account, how- ever, places this acreage at 215 million acres for the coter- minous United States.$~ Thus, today's wetlands resources in the lower 48 states probably represent less than 46 percent of the country's original wetlands. Forces Changing Wetlands Wetlands represent a dynamic natural environment that is subject to both human and natural forces. These forces directly result in wetland gains and losses and affect wetland quality. Major causes of wetland loss and degradation are listed in the box below. Natural events influencing wetlands include rising sea level, natural succession, the hydrologic cycle, sedimenta- tion, erosion, beaver dam construction, and fire. The rise in sea level, for example, both increases and decreases wetland acreage, depending on local factors. Along the Eastern Shore of Chesapeake Bay, the rise in sea level has allowed coastal wetlands to become established in former upland pine areas while permanently flooding wetlands at lowest elevations. Rising sea level is one factor converting salt marshes to bay bottoms in Louisiana. I~atural succession and fire typically change the vegeta- tion of a wetland, usually with no net loss or gain in wetland acreage. However, fire in Alaska's permafrost wetlands may convert the area to nonwetland. Disturbance of the vegetative cover can cause the frostline to recede, and dry- site plants may become established. The hydrologic cycle also plays an important role in the dynamics of wetlands. Great Lakes water levels, for exam- ple, fluctuate drastically, roughly on a 20-year cycle. This adds an important dimension to wetlands, making them vulnerable to drainage during dry periods. Similar condi- tions have resulted in wetland drainage in the Prairie Pot- hole Region of the Dakotas. The activities of beavers create or alter wetlands by damming stream channels. Thus, nat- ural forces act in a variety of ways to create, destroy, and modify wetlands. Human actlons are particularly significant in determining the fate of wetlands. Unfortunately, many human activities are destructive to wetlands, either converting them to agricultural or other land uses or degrading their quality. Key human impacts include drainage for agriculture; chan- nelization for flood control; filling for housing, highway, in- dustry, and sanitary landfills; dredging for navigation channels, harbors, and marinas; reservoir construction; timber harvest; peat mining; oil and gas extraction; strip mining; groundwater extraction; and various forms of water pollution and waste disposal. A few activities, however, create wetlands. Construction of farm ponds and, in some ff Malor Causes of Wetland Loss ~ind Degradation Human Threats: Direct · Drainage for crop production, timber production, and mosquito control · Dredging and stream channelization for navigation channels, flood protection, coastal housing developments, and reservoir maintenance · Filling for dredged spoil and other solid waste disposal, roads and highways, and commercial, residential, and industrial development · Construction of dikes, dams, levees, and seawalls for flood control, water supply, irrigation, and storm protection · Discharge of materials (e.g., pesticides, other pollutants, nutrient loading from domestic sewage and agricultural runoff, and sediments from dredging and filling, agricultural, and other land development) into waters and wetlands · Mining of wetland soils for peat, coal, sand, gravel, phosphate, and other materials Human Threats: Indirect · Sediment diversion by dams, deep channels, and other structures · Hydrologic alterations by canals, spoil banks, roads, and other structures, and groundwater withdrawals · Subsidence due to extraction of groundwater, oil, gas, sulphur, and other minerals Natural Threats · Subsidence (including natural rise of sea level) · Droughts · Hurricanes and other storms · Erosion and accretion · Biotic effects, e.g., muskrat, nutria, and goose "eat-outs" Source: Tiner, 1984. 10 LEGEND []Less than 5% ] 5-15% [15-25% []Greater than 25% FIGURE 6. Relative abundance of wetlands in the United States (1984}. Percentage of state that is wetland is shown. (Tiner, 1984) cases, reservoirs and irrigation projects may increase wetland acreage, although valuable natural wetlands may also be destroyed in the process. Marsh creation and the restoration of previously altered wetlands can also be beneficial. Federal and state fish and wildlife agencies tradi- tionally manage wetlands to improve their value to waterfowl Recent National Trends Information on historical wetland gains and losses is limited and often subjective. The Service recently completed a study of the current status and recent trends in the status of U.S. wetlands between the mid-1950s and mid-1970s?2 Although the results of this study are valid at the national level, few comparable statistics exist for individual states. The following discussion summarizes the results of the Ser- vice's national study and other regional studies. More detailed information on national wetland trends can be found in Wetlands of the United States: Current Status and Recent Trends.~ The Service plans to update this informa- tion by 1990~ Recent Gains. Slight net gains in manmade lakes, reser- voirs, and coastal waters, and in two wetlands types-- inland flats and ponds--took place between the mid~1950s and mid-1970s. (See Figure 7.) Lake acreage increased by 1.4 million acres; 94 percent of this gain occurred in the eastern half of the country. These new manmade lakes and reser- voirs were created primarily in upland areas, but some vegetative wetlands were destroyed in the process. Some new wetlands, however, have formed along the edges of the new upland waterbodies. Two wetland types experienced gains between the mid- 1950s and mid-1970s: inland flats and ponds. Two hundred thousand acres of unvegetated wetland flats and 2.1 million acres of ponds were created. Pond acreage nearly doubled from 2.3 million acres to 4.4 million acres, primarily due to farm pond construction in the Central and Mississippi Flyways. Most of this pond acreage came from former upland, although 145,500 acres of forested wetlands and 385,000 acres of emergent wetlands were converted to open water. During the same period, coastal open waters increased by 200,000 acres. Most of this gain came from Louisiana at the expense of coastal wetlands that are being permanently flooded at an accelerating rate. Causes of this change from marsh to open water are numerous and complicated, and 11 WETLANDS GAINS +3- +2- +1- -0.$ -3¸ -4- -5- -E* WETLAND LOSSES LEGEND [] PALUSTRINE OPEN WATER · PALUSTRINEFLAT ~ ESTUARINEWETLAND [] PALUSTRINE EMERGENT WETLAND · PALUSTRIN~SCRUB--SHRUB WETLAND [] PALUSTRINE FORESTED WETLAND FIGURE 7. Net losses and gains in wetlands of the coterminous United States between the mid-1950s and mid-1970s. (Tiner, 1984) 12 they include natural rise of sea level, subsidence of the coastal plain, levee construction, channelization, and oil and gas extraction. Recent Losses. Despite these modest gains, nontidal and tidal wetlands losses were enormous. In the mid-1950s, there were an estimated 108.1. million acres of wetlands in the lower 48 states,a4 Just 20 years later, these wetlands were reduced to 99 million acres, despite some gains in wetlands due to reservoir and pond construction, beaver activity, and irrigation and marsh creation projects. This loss of 9 million acres equates to an area about three times the size of Con- necticut or twice the size of New Jersey. (Actually, 11 million acres of our most valuable natural wetlands were destroyed, but these acreage losses were somewhat minimized by gains of 2 million acres of newly created wetlands, giving a net loss of 9 million acres.) The average rate of wetland loss from the mid-1950s to the mid-1970s was 458,000 acres per year-- 440,000 acres of nontidal wetland losses and 18,000 acres of tidal (estuarine) wetland losses. This annual loss equals an area about half the size of Rhode Island. Agricultural development involving drainage was responsible for 87 percent of recent national wetlands losses, while urban development and other development caused only eight percent and five percent of the losses, respectively. Agriculture had the greatest impact on forested wetlands and emergent wetlands, with losses of 5.8 and 2.7 million acres, respectively. In addition, 0.4 million acres of scrub- shrub wetlands were converted to agricultural use between the mid-1950s and the mid-1970s. The most extensive wetland losses occurred in Louisiana, Mississippi, Arkansas, North Carolina, North Dakota, South Dakota, Nebraska, Florida, and Texas. Greatest losses of forested wetlands took place in the Lower Mississippi Valley with the conversion of bottomland hardwood forests to farmland. Shrub wetlands were hardest hit in North Carolina where they were converted to cropland or pine plantations, or mined for peat. Inland marsh drainage for agriculture was most significant in the Prairie Pothole Re- gion of the Dakotas and Minnesota, Nebraska's Sandhills and Rainwater Basin, and Florida's Everglades. Between the mid-1950s and mid-1970s, tidal (estuarine) wetland losses were heaviest in the Gulf states (i.e., Louisiana, Florida, and Texas). Most of Louisiana's coastal marsh losses were at- tributed to submergence by coastal waters. In other areas, urban development was the major, direct, human-induced cause of tidal wetland loss. Dredge-and-fill residential development in coastal areas was most significant in Florida, Texas, New Jersey, New York, and California. REGIONAL HISTORICAL PERSPECTIVE While the national decline in wetlands is dramatic, losses in particular regions and states are even more startling. For example, California has lost over 90 percent of its original wetlands resources,as Less than five percent of Iowa's nat- ural wetlands exist and over 90 percent of the wetlands in Nebraska's Rainwater Basin have been destroyed,as Only 20 percent of the original bottomland hardwood forests in the Lower Mississippi Alluvial Plain remain,a7 Other states with less than half of their original wetlands include Michi- gan, Minnesota, Louisiana, North Dakota, and Connecti- cut. (See Table 2.) By 1955, Michigan had lost 8 million acres of wetlands.~ Ohio, Indiana, and Illinois probably have C TABLE 2. EXAMPLES OF WETLAND LOSSES IN VARIOUS STATES Original Today's Percentage of Wetlands Wetlands Wetlands State or Region (acres) (acres) Lost Source Iowa's Natural Marshes 2,333,000 26,470 99°,'0 California 5,000,000 450,000 91 Nebraska's Rainwater Basin 94,000 8,460 91 Mississippi Alluvial Plain 24,000,000 5,200,000 78 Michiga6 11,200,000 3,200,000 71 North Dakota 5,000,000 2,000,000 60 Minnesota Louisiana's Forested Wetlands Connecticut's Coastal Marshes North Carolina's Pocosins 18,400,000 8,700,000 53 11,300,000 5,635,000 50 30,000 15,000 50 2,500,000 1,503,000' 40 Bishop (1981, personal communication) U.S. Fish and Wildlife Service (1977) Farrar (1982) MacDonald, et al. (1979) Michigan Department of Natural Resources (1982) Elliott, U.S. Fish and Wildlife Service (personal communication) University of Minnesota (1981) Turner and Craig (1980) Niering (1982) Richardson, et at. (1981) *Only 695,000 acres of pocosins remain undisturbed; the rest are partially drained, developed, or planned for development. Source: Tiner, 1984. lost over half of their wetlands, but supportive statewide data are not available. In selected areas of Illinois, wetland losses have been dramatic. For example, virtually all wetlands have been eliminated in the East-Central Region, Big Prairie Region, and Green River Watershed, while 98 percent of Illinois' southern bottomland swamps have been destroyed? Before there was general understanding of the importance of wetland resources, federal legislation actually helped en- courage their destruction. In many areas, wholesale wetland destruction was greatest from the mid-1800s to the early 1900s due to the passage of the Swamp Land Acts of 1849, 1850, and 1860. These acts granted all swamp and overflow lands to 15 states: Alabama, Arkansas, California, Florida, Illinois, Indiana, Iowa, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Ohio, Oregon, and Wisconsin. These states were to drain these wetlands for agriculture by con- structing levees and drainage ditches. About 65 million acres had been transferred from the federal government to the states by 1954. The original 13 states had retained all lands within their borders when the federal government was established, and Texas also kept all its land at the time of annexation. In- terestingly, the extensive coastal wetlands of these 14 states were never owned by the federal government, and most coastal wetland losses have occurred relatively recently-- between 1954 and 1978, the loss rate of coastal wetland doubled. This was due primarily to the postwar urban and industrial development in the U.S. coastal zone and to ac- celerated erosion and subsidence of Louisiana's vast coastal marshes? While wetland losses in some states or regions may have been heaviest at the turn of the century, loss rates remain high in many areas. (See Table 3.) Between 1955 and 1978, Kansas lost 40 percent of its wetlands. In Illinois, an estimated 20 percent of the remaining wetlands are de- stroyed every decade. About 6.7 million acres of Ohio's original wetlands have been drained, while over half of its wetlands along Lake Erie have been destroyed since 1954. Kentucky's wetlands along the Mississippi and Ohio Rivers hav~rbeen reduced by 37 percent in the past 20 years. Heavy annual losses are continuing in the bottomland hardwood forested wetlands of the Lower Mississippi Delta and ac- celerating in pocosin wetlands along the North Carolina coast, State wetland protection programs have slowed this trend in several states in recent years. (See Chapter 2 for a discus- sion of state programs.) Before passage of the Wetlands Act in 1973, Delaware was losing almost 450 acres of tidal wetlands each year. After the law, losses dropped to just 20 acres annually. Coastal wetland losses in Maryland and New Jersey were also dramatically reduced through wetland regulations. In addition to state laws, the Clean Water Act added a level of federal protection to these wetlands nation- wide in the early 1970s. (See Chapter 2 for a discussion of federal regulations affecting wetlands.) Effective implemen- tation of similar laws in other states has probably reduced wetland losses substantially. Even though nontidal wetlands are protected to varying degrees by provisions of the Clean Water Act and in some states by local laws, they continue to be vulnerable to development pressure in some regions. In the Northeast, for example, urbanization seriously threatens nontidal wetlands in northern New Jersey and near other growing urban centers. Peat mining and resort development are major causes of wetland losses in the Pocono Region of Penn- sylvania. Agricultural impacts are greatest in the bot- tomland hardwood swamps of Delaware, Maryland, and 13 TABLE 3. EXAMPLES OF RECENT WETLAND LOSS RATES Loss Rate State or Region (acres/year) Source Lower Mississippi Alluvial Plain 165,000 Louisiana's Forested Wetlands 87,200 North Carolina's Pocosins 43,500 Prairie Pothole Region 33,000 Louisiana's Coastal Marshes 25,000 Great Lakes Basin 20,000 Wisconsin 20,000 Michigan 6,500 Kentucky 3,600 New Jersey's Coastal Marshes 3,084 50' Palm Beach County, Florida 3,055 Maryland's Coastal Wetlands 1,000 20' New York's Estuarine Marshes 740 Delaware's Coastal Marshes 444 20* MacDonald, et al. (1979) Turner and Craig (1980) Richardson, et al. (1981) Haddock and DeBates (1969) Fruge (1982) Great Lakes River Basin Commission (1981) Wisconsin Department of Natural Resources (1976) Weller (1981) Kentucky Department of Fish and Wildlife Resources (1983) Ferrigno, et al. (1973) JACA Corporation (1982) U.S. Fish and Wildlife Service (1982) Redelfs (1983) O'Connor and Terry (1972) Hardisky and Klemas (1983) *Loss rate after passage of state coastal wetland protection laws. Source: Tiner, I984. Virginia, and in New York's mucklands. Agricultural drainage of wetlands is continuing to destroy large tracts of wetlands in the Southeast, especially in the Lower Mississippi Delta, Florida, and along the coastal plain of North Carolina. Bottomland hardwoods are being clear- cut for timber and then deared and drained for crop produc- tion, chiefly soybeans. Pocosin wetlands are similarly used, as well as being mined for peat. Many nontidal wetlands are being converted to pine plantations throughout the South- east. Phosphate mining in Florida and North Carolina is destroying considerable wetland acreage. Puerto Rico's in- land marshes ("savannahs") are being transformed into sugar cane farms. Tidal wetland destruction has slowed in most states with passage of protection laws, but enforcement may present problems. Agricultural development in the Midwest corn belt and Great Plains remains the greatest threat, by far, to the re- maining nontidal wetlands. Coastal marshes along the Great Lakes continue to be affected by industrial, residential, and agricultural development. Although several of the Midwestern states have laws protecting certain wetlands or regulating certain activities in wetlands, agricultural drain- age is still largely unregulated. In the western states, agricultural development remains the primary threat to wetlands. Drainage and irrigation im- pacts, guch as the Garrison Diversion, continue at high rates. With increased tension over water rights, remaining wetlands may be deprived of sufficient quantities of water to function properly. This is especially true in Colorado where high population growth has increased demand for water. Urban and industrial developments are destroying wetlands near urban centers. Along the West Coast, tidal wetlands are generally pro- tected by state laws. Despite this protection, they are still under heavy pressure from urban and industrial develop- ment. Nontidal wetlands remain subject to agricultural pressures, particularly in California's Central Valley and the Great Basin of Nevada, Oregon, and Idaho. Degradation of existing wetlands through urban and agricultural runoff re- mains a problem. Alaska's wetlands were once subjected to very few development pressures. With the discovery of significant deposits of oil and gas and subsequent pipeline construction and energy development, many wetlands have recently been altered. The oil boom has also increased pressure on wetlands for urban development. Increases in timber harvest, mining, and agricultural activities are also threaten- ing large areas of wetlands in Alaska. 14 C Chapter Notes 1. L.M. Cowardin et al., Classification of Wetlands and Deep- water Habitats of the United States, FWS/OBS-79-31 (Washington, D.C.: U.S. Fish and Wildlife Service, 1979). 2. Cowardln, Classification of Wetlands. 3. See P.B. Reed, Jr., National List of Plant Species ThatOc- curin Wetlands, Biological Report 88(24) (Washington, D.C.: U.S. Fish and Wildlife Service, 1988) and U.S. Department of Agriculture, National Technical Committee for Hydric Soils, Hydric Soils of the United States 1987 (Washington, D.C.: USDA, 1988). 4. For an in~epth discussion of wetland value, see P.E. Greeson et al., eds., Wetland Functions and Values: The State of Our Understanding (The Proceedings of the National Symposium on Wetlands, November 7-10, 1978, Lake BuenaVista, Fla.) (Bethesda, Md.: American Water Resources Association, 1979). 5. U.S. Water Resources Council, The Nation's Water Resources 1975-2000, vol. 1 (Washington, D.C.: U.S. Water Resources Council, 1978). 6. U.S. Water Resources Council, "Nationwide Analysis Report," Appendix B in Estimated Flood Damages, (Washington, D.C.: U.S. Water Resources Council, 1977). 7. F.R. Thibodeau and B.D. Ostro, "Economic Analysis of Wetland Protection," Journal of Environmental Management 12 (1981): 19-30. 8. R.G. Dean, "Effects of Vegetation on Shoreline Erosional Processes," in Wetland Functions and Values, edited by P.E. G/~,on (Bethesda, Md.: American Water Resources Association, 1979). 9. R.S. Sigafoos, "Botanical Evidence of Floods and Floodplain Deposition, Vegetation, and Hydrologic Phenomena." U.S. Geological Survey Professional Paper 48S-A. (Washington, D.C.: USGS, 1964). 10. J.A. Kadlec and W.A. Wentz, State-of-the-art Survey and Evaluation of Marsh Plant Establishment Techniques: lnduced and Natural, vol. 1, Technical Report D-74-9 (Vicksburg, Miss.: U.S. Ar/ny Corps of Engineers Waterways Experiment Station, 1974). 11. T.C. Winter and M.R. Cart, Hydrologic SettingofWetlands in the Cottonwood Lake Area, Stutsman County, North Dakota, Water Resources Investigations 80-99 (Washington, D.C.: USGS, 1980). 12. J.M. Klopatek, "Nutrient Dynamics of Freshwater Riverlne Marshes and the Role of Emergent Macrophytes," in Freshwater Wetlands: Ecological Processes and Management Po tential, edited by R.E. Good et al. (New York: Academic Press, 1978), 195-216. 1.3. U.S. Department of the Interior, "The Value of Wetlands to Modern Society" in Proceedings of Project MAR Conference, November 12-16, 1962, International Union for the Conservancy of Nature Publication, New Series No. 3, 57-63. 14. R.L. Johnson, "limber Harvests from Wetlands,' in Wetland Functions and Values, edited by P.E. Greeson et al. (Bethesda, Md.: American Water Resources Association, 1979), 598-605. 15. L.H. Frederickson, "Lowland Hardwood Wetlands: Current Status and Habitat Values for Wildlife,' in Wetland Functions and Values, edited by P.E. Greeson et al. (Bethesda, Md.: American Water Resources Association, 1979), 296-306. 16. D.S. Peters et al., "Harvest and Value of Wetland-Associated Fish and Shellfish,' in Wetland Functions and Values, edited by P.E. G/~eson et al. (Betbesda, Md.: American Water Resources Associa- tion, 1979), 606-17. 17. J.S. Feierabend and J.M. Zelazny, Status Report on Our Na- tion's Wetlands (Washington, D.C.: National Wildlife Federa- tion, 1987). 18. R.H. Chabreck, "Wildlife Harvest in Wetlands of the United States," in Wetland Funcffons and Values, edited by P.E. Greeson et al. (Bethesda, Md.: American Water Resources Association, 1978), 618-31. 19. J.M. Carpenter and G.T. Farmer, Peat Mining: An Initial Assessment of Wetland Impacts and Measures to Mitigate Adverse Effects (Washington, D.C.: EPA, 1981). 20. U.S. Department of the Interior and Department of Com- merce, 1980 National Survey of Fishing, Hunting, and Wildlife- Associated Recreation (Washington, D.C.: U.S. Fish and Wildlife Servic~e and Bureau of the Census, 1982). 21. Peters et al., "Harvest and Value of Wetland-Associated Fish and Shellfish." 22. Department of the Interior and Department of Commerce, 1980 National Survey. 23. Feierabend and Zelazny, Status Report on Our Nation's Wetlands. 24. W.E. Sloey et al., "Management of Freshwater Wetlands for Nutrient Assimilation," in Freshwater Wetlands, edited by R.E. Good et al. (New York: Academic Press, 1978), 321-40. 25. K.G. Boto and W.H. Patrick, Jr., "Role of Wetlands in the Removal of Suspended Sediments," in Wetland Functions and Values, edited by P.E. Greeson et al. (Bethesda, Md.: American Water Resources Association, 1978), 479-89. 26. C.H. Wharton, "The Southern River Swamp: A Multiple- Use Environment," Georgia State University, School of Business Administration, 1970. 27. S.M. Hindall, Measurements and Prediction of Sediment Yields in Wisconsin Streams, U.S. Geplogical Survey Water- Resources Investigations 54-75 (Washington, D.C.: USGS, 1975). 28. Peters et al., "Harvest and Value of Wetland-Associated Fish and Shellfish.' 29. J.E. Clark, "Fresh Water Wetlands: Habitats for Aquatic In- vertebrates, Amphibians, Reptiles, and Fish,' in Wetland Functions and Values, edited by P.E. Gree~n et al. (Bethesda, Md.: American Water Resources Association, 1978), 330-43. 15 30. W.E. Frayer et al., Status and Trends of Wetlands and Deep- water Habitats in the Coterminous United States, 1950s to I970s (Fort Collins, Colo.: Colorado State University, Department of Forest and Wood Sciences, 1983). 31. H.B. Roe and Q.C. Ayres, Engineering for Agricultural Drainage (New York: McGraw-Hill, 1954). 32. Frayer et al., Status and Trends of Wetlands. 33. R.W. Tiner, Jr. Wetlands of the United States: Current Status and Recent Trends (Washington, D.C.: U.S. Fish and Wildlife Service, March 1984). 34. Frayer et al., Status and Trends of Wetlands. 35. U.S. Fish and Wildlife Service, Concept Plan for Waterfowl Wintering Habitat Preservation, Central Valley, California. (Portland, Ore.: USFWS, Region 1, 1977). 36. j'. Farrar, The Rainwater Basin: Nebraska's Vanishing Wetlands (Lincoln: Nebraska Games and Park Commission, 1982). 37. P.O. MacDonald et al., Documentation, Chronology, and Future Projections of Bottomland Hardwood Habitat Loss in the Lower Mississippi Alluvial Plain, vol 1. (Vicksburg, Miss.: U.S. Fish and Wildlife Service, Ecological Services, 1979). 38. Michigan Department of Natural Resources, Michigan's Wetlands (Lansing, Mich., 1982). 39. Letter from D. Kenny, Illinois Department of Conservation, to B. Wilen, U.S. Fish and Wildlife Service, February 16, 1983. 40. J.G. Gosselink and R.H. Baumann, "Wetland Inventories: Wetland Loss Along the United States Coast," Annals of Geomor- phology N.F. Supplement Bd. 34 (1980): 173-87. 16 C Chapter 2. Federal and State Regulatory Programs The primary federal regulatory program covering wetlands is Section 404 of the Clean Water Act ? The pro- gram regulates discharges of dredged or fill material into the waters of the United States, including most wetlands. The Section 404 program has been joined by an increasing number of complementary and supplementary regulatory programs that cover wetlands or activities occurring in them. For example, in 1982, Congress passed the Coastal Barrier Resources Ac02 that mandated the denial of all federal subsidies for development on designated undevel- oped barrier islands (including their adjacent wetlands). In addition, nearly all the American coastal states have enacted laws to control activities in their tidal wetlands; some of these laws go beyond the federal 404 program in that they cover all human disturbances, not just activities related to the "discharge of dredged or fill material." Some state wetland programs predate the federal 404 program. All states have been given review and certification authority by Section 401 of the Clean Water Act43 over "any federal license or permit" that "may result" in a discharge to waters. Section 401 is an important provision that allows states to deny or condition the issue of such federal permits in order to protect state water quality. As discussed in the previous chapter, the majority of wetland losses have been in inland, nontidal areas and are, in large measure, caused by agricultural drainage and related activities. These conversions are often not subject to the Sec- tion 404 program. In fact, several federal programs actively encouraged conversion of wetlands into farmland, including commodity support programs of the U.S. Department of Agriculture, the Small Watershed program of the Soil Con- servation Service, and favorable federal Internal Revenue Code provisions. In recent years, however, the federal stance on agricultural conversions has changed dramatically. The 1985 Food Security Act~ induded a 'swampbuster' provi- sion that denies all federal farm benefits--mortgages, com- modity support, crop disaster loans, and so forth--to farmers or other persons converting wetlands to dry cropland after the effective date of the Act (12/85). The Tax Reform Act of 19864s includes significant amendments related to the deductibility of the expense of converting wetlands. The new tax code provisions altered the previous favorable tax treatment afforded land clearing, and drain- ing and filling wetlands for farmland. While not prohibited, these activities now receive substantially less favorable tax treatment. (See Chapter 4 for further discussion.) The 1986 Act also eliminated the previous deduction for expenses in installing center-pivot irrigation systems, the cause of substantial direct and indirect wetland loss in some areas of the country. The Conversion Reserve provision of the Food Security Act provided positive incentives to take "highly erod0vle" lands out of crop production for at least 10 years and t~ restore natural vegetative cover. The U.S. Fish and Wildlife Service is initiating some limited wetland restora- tion efforts on lands covered by defaulted mortgages held by the Farm Home Mortgage Administration (FmHA). The sum of these various actions significantly reverses decades of government support for wetland conversion to cropland. Table 4 provides an overview of the many federal statutes and regulations affecting wetland protection. There are further indications that federal agencies are becoming more aggressive and innovative in applying federal regulations to the protection of wetlands. The U.S. Environmental Protection Agency (EPA) has increasingly become more assertive in its wet]and protection efforts both within and outside of the 404 Clean Water Act program. At EPA, an Office of Wetlands Protection has been established to lead the agency's efforts. The office is promoting and coordinating new programs aimed at reducing nonpoint- source pollution, regulating stormwater discharges, and im- proving protection of the nation's estuaries and coastal waters. The office has helped the agency find new ways to use the 404 program. It has actively explored and employed seldom-used sections of the Clean Water Act, induding"ad- vanced identification" of wetlands, 404(c) vetos of Corps- issued permits, and Section 401 state water-quality certifi- cation. There is no doubt that wetland regulation, perhaps too long ignored, has matured and entered a new phase of innovation and expansion. 17 TABLE 4. SUMMARY OF SELECTED FEDERAL STATUTES AND REGULATIONS AFFECTING WETLANDS Act and Authorization Comment Section 404 Federal Water Pollution Control Act See text for discussion. (FWPCA) (33 USC Sec. 1344) Rivers and Harbors Act of 1899 (33 USC Secs. 401, 403, 404, 406-107) Executive Order 11990 (42 FR 26961 [1977]) Executive Order 11988 (45 FR 26951 [1977]) National Flood Insurance Program (42 USC Secs. 4001-4128) Food Security Act of 1985 (PL 99-198) (16 USC Sec. 3801 et sea.) Section 1221 of the Food Security Act of 1985 (16 USC Secs. 3821) Water Resources Development Act of 1986 (WRDA) (PL 99-662, 100 Stat. 4082 Coastal Zone Management Act of 1972 (CZMA) (16 USC Secs. 1453, etseq.) Coastal Barrier Resources Act of 1982 (16 USC Secs. 3503,-3510) Special Area Management Planning (SAMP), conducted under authority of the Coastal Zone Management Act of 1972 (see above) Tax Reform Act of 1986 (PL 99-514), 100 Stat. 2085 See text for discussion. Requires federal agencies to avoid activities that have adverse impacts on wetlands, if practical. Requires federal agencies, whenever practical, to avoid undertaking funding or permitting actions in the 100-year floodplain. Requires communities that want to participate in the National Flood Insurance Program to control development in 100-year floodplain areas. Communities must prohibit development that increases flooding downstream and that places unprotected structures in the floodplain. Encourages comraunities to protect nontidal wetlands and other environmentally significant areas. Provisions of the Act provide for a conservation reserve for "highly erodible lands" that are taken out of crop production for 10 to 15 years. Other provisions authorize obtaining easements from property owners defaulting on FmHA loans if the lands are fish and wildlife habitat, floodplains, prime forest or rangeland, erodible uplands, or areas of high water quality. Development rights and easements for conservation purposes can be transferred to local governments and nonprofit organizations. Known as the swampbuster provision. Prohibits federal benefits from being paid to anyone who converts a former wetland area to dryland agricultural production. Local governments can work with the Soil Conservation Service to help identify areas of wetland losses and adequacy of farmers' conservation plans. Requires mitigation of loss of wetlands concurrently with project construction and further authorizes the U.S. Army Corps of Engineers to undertake corre~ive mitigation for past losses, without further action from Congress, to the extent of $30 million annually. Where benefits are not "national," mitigation costs must be matched with a 25 percent local or other nonfederal share. Provides for federal funding and technical assistance for state coastal zone management programs and plans. Typically, nontidal wetlands are specifically protected by these programs. The Act requires any activity of the federal government or those activities supported in whole or in part with federal funds to be conducted in a manner "consistent with" a state's coastal zone management plan. Bars the use of any federal funds to develop or provide access to development for barrier islands or segments of barrier islands covered by the Act (approximately one-third of the coastal barriers on the Atlantic and Gulf coasts). Works to coordinate local governments, state agencies, and other federal agencies in planning development and conservation in regional areas defined by CZMA as subject to comprehensive planning. The result is intended to enhance protection of designated segments of areas and to facilitate development in others. See discussion in Chapter 4. C SECTION 404 AND SECTION 10 PERMITS The Section 404 program--the principal federal regulatory program governing activities in wetlands--is ad- ministered jointly by the U.S. Army Corps of Engineers and the U.S. EPA. Other federal agencies--specifically, the U.S. Fish and Wildlife Service of the Department of the Interior, and the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration--are given ad- visory and commenting roles in the 404 process. State and local agencies also play key roles. This program is statutorily authorized by Section 404 of the Federal Water Pollution Coi~trol Act of 1972, as amended (Clean Water Act). Sec- tion 404 expressly prohibits the discharge of dredged or fill material into "waters of the United States" and their adjacent wetlands without prior approval from the Secretary of the Army. The Corps has promulgated a regulatory program for Section 404 permit applications and activities? An older, related regulatory program found in Section 10 of the Rivers and Harbors Act of ~.899 is also administered by the Corps. Section 10 requires a permit for dredging or the placement of fill or structures in navigable waters of the United States. Section 10 coverage extends only to tradi- tionally navigable waters but is, in large measure, coexten- sive with Section 404 coverage. Section 404 covers all waters of the United States without regard to their navigability and is therefore much broader than Section 10. The Corps or- dinarily will combine Section 10 and Section 404 review where their coverage overlaps in an individual permit re- quest. Many nontidal waters clearly fall within the definitions of both "navigable waters" and "waters of the United States." The term "waters of the United States" has been in- terpreted broadly by the courts and the EPA to include tidal waters, tributaries to tidal waters, streams, lakes, nontidal wetlands, intermittent streams, and prairie potholes, the lat- ter with the requisite showing of a connection to interstate commerce (e.g., use as a nesting or stopover habitat for migratory waterfowl). In 1985, a unanimous U.S. Supreme Court decision upheld the Corps Section 404 regulatory authority to cover wetlands adjacent to, although not nec- essarily connected hydrologically with, other waters of the U.S.47 Despite 3,5 years of legal and regulatory development, the jurisdictional reach of Section 404 remains hotly contested. A recent federal district court decision on isolated wetlands--those wetlands not connected with other navigable waters or their tributaries--held that the Corps had the discretionary authority to review each such isolated wetlands on a case-by-case basis, but that it did not have to find that such wetlands were subject to Section 404 permit- ting requirements? The Corps successfully argued that it could decide when interstate commerce connections were substantial enough to regulate the wetland in question. Some Corps districts do not consider isolated wetlands to be part of the waters of the U.S. that affect interstate commerce. U.S. EPA and conservation groups, however, continue to assert that isolated wetlands cumulatively have ample in- terstate commerce ties and should, as a class, be regulated in all cases by the Corps under its Section 404 permitting authority. Each of the Corps' 36 districts independently determines how isolated waters (wetlands) are to be handled in the absence of any clear directive from Corps head- quarters. Because individual Corps districts operate with such autonomy, local governments can play an influential role in permit hearings or reviews. When a local government, in ac- cordance with the provisions of a local ordinance, denies a permit or license that is required to proceed with a fill, dredg- ing, or other project in "waters of the United States" or their adjacent wetlands, the Corps will similarly deny a Section 404 (or Section 10) permit. Even where no local law exists, the Corps will still take into account the local government's comments or p~sitinn on the permit request. Local governments can participate in the Corps permit- ting process through the Corps "notice and comment" pro- cedures for permit applications. They can monitor activities in wetland areas and report unauthorized filling or dredg- ing to the Corps. The Corps prefers to conduct evaluations of permit requests under Section 404 (and, occasionally, Section 10) simultaneously with other federal, state, and local permit reviews whenever possible. If any of these lat- ter permits are denied within 30 days of the issuance of a Corps public notice about the proposed activity, the Corps will usually deny the requested Section 404 or Section 10 permit. Section 404 and the Corps regulations specifically exempt certain activities. Exemptions include "normal" farming, silvaculture, and ranching activities; the construction or maintenance of farm or stockponds, or irrigation ditches; and the construction of farm or forest roads. These exemp- tions are subject to the so-called "recapture" provision of subsection 404(f)(2) that negates the exemption for the ac- tivities listed if the purpose of the activity is to bring an area of navigable waters into a new use--one that either impairs the flow or circulation of waters or reduces the extent of waters. As with the definition of "waters,' the scope of the exeg~ptions, particularly those for "normal farming," and the "recapture" provision have been the subject of substan- tial litigation .49 Section 404 also authorizes nationwide permits for the conduct of certain activities (e.g., placement of aids to navigation; repairs of current serviceable structures; utility crossings; etc.) in covered waters, including wetlands. These activities are to be "similar in nature," and their individual and cumulative impacts are presumed to have only minimal impacts on the environment. Curiously, the Corps has pro- mulgated one nationwide permit that is for all discharges into two classes of waters: "[nlontidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are located above the headwater" and "[o]ther nontidal waters of the United States, including adjacent wetlands,' that are not part of other navigable waters,s° This nation- wide permit--the so-called "headwaters and isolated waters" nationwide permit--covers wetlands that are 10 acres or less in size and in which the flow is less than five cubic feet per second. When the activity occurs in an area between one and 10 acres in size, the permit requires notification of the Corps; where less than one acre is in- volved, no notification is required. With the one- to 10-acre "fill," the Corps can, in its discretion, require an individual permit application. It is worth noting that a number of states have denied state water-quality certification of this nation- wide permit; in those states, the Corps must require in- dividual permits for activities in isolated or headwaters 19 wetlands, as long an interstate commerce connection exists. Other nationwide permits deal with such activities as minor road crossings in nontidal wetlands; utility line cross- ings; repairs to existing infrastructure; and stream bank pro- tection. While "best management practices" are described by Corps regulations for those undertaking activities falling under one of these general permits, advance notice is not re- quired (except in the case of isolated waters and wetlands). Federal projects specifically authorized by Congress are ex- empt under 404(r) if an environmental impact statement hos been prepared under the National Environmental Policy Act (i.e., Garrison Diversion Reformulation Act of 1986). Local government monitoring of compliance with best manage- ment practices spelled out in Corps regulations can help in- crease the effectiveness of federal enforcement. Informing state water-quality agencies where certification has been con- ditionally granted or denied for a general permit can also be an effective exercise of local government influence. In the permit review process, the Corps applies the Sec- tion 404(b)(1) environmental guidelines developed by the EPA. The guidelines require that practicable alternatives be considered before discharges of dredged or fill material are permitted into waters of the United States (including wetlands). Practicable alternatives are presumed to exist for uses that are not water dependent. The Corps applies both the guidelines and its own public interest review to in- dividual permit applications. The factors that may be con- sidered to determine if issuance of a permit would be in the public interest include aesthetics, conservation, economics, general environmental concerns, wetlands, flood hazards, historic properties, fish and wildlife values, land use, naviga- tion, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety food and fiber production, mineral needs, considera- tions of property ownership, and, "in general, the needs and welfare of the people." There is a significant difference between the Corps review of Section 404 permit applications and its review of applica- tions under Section 10 of the Rivers and Harbors Act. The Corps Section 404 program is subject to the 404(b)(1) guidelines. Section 10 of the Rivers and Harbors Act (which governs dredging activities and the placement of structures in navigable waters of the U.S.) does not require conformity with EPA 404(b)(1) guidelines if there is no redeposit of dredged materials in the water. It is only after passing the substantial environmental review criteria of the guidelines that the district engineer should reach the second stage in the 404 permit evaluation--the public interest review, which is a far more subjective weighing of project benefits and detriments. Section 10 requires only the public interest re- view, which, because it is less rigorous, may not provide the needed level of environmental protection to wetlands. Local governments should seek combined Section 404 and Section 10 review whenever applicable to ensure the most com- prehensive federal consideration of environmental protec- tion factors in activities proposed for nontidal wetlands. Two other aspects of Section 404 deserve mention since they also offer a significant rol~ for local governments. Sec- tion 404(c) gives the EPA "veto" authority to block any Corps-issued permit on the grounds of unacceptable adverse effects on aquatic ecosystems and also authorizes the EPA to designate areas in advance where discharges of dredge or 20 David Burke Top: The Maryland Wildlife Administration controls hunting and fishing in the state's nontidal wetlands. Right: Canadian geese are only one of the many waterfowl species that use wetlands as a nesting and stopover habitat during migration. Below: In some cases, it is clear that wetlands deserve protection solely on aesthetic grounds. Forest Preserve District of Cook County, Illinois ( David Davis fill material will or will not be permitted. U.S. EPA has made increased use of its 404(c) veto authority in recent years and plans to continue to do so. The process can be initiated by any EPA regional office. Under Section 230.80 of the Agency's 404(b)(1) guidelines, EPA has, in recent years, been using its "advanced identifica- tion'' authority to provide public notice of areas unsuitable for fill or dredge discharges. While it also has advanced iden- tification authority under Section 404(c), EPA has not used this binding designation. Instead, EPA has used its Section 404(b)(1) authority as a new protective tool in guiding development activity away from critical wetland areas. Local governments can seek EPA's advanced identification assistance in protecting nontidal wetlands they regard as being of paramount importance. For example, EPA Region Seven is leading state, federal, and local governmental agencies in a large-scale advanced identification effort in the Rainwater Basin area of Nebraska. Region Three is recommending that "(s)tate and localentities . . . considernominatingareasasadvanced identification candidate sites. Selection criteria should reflect values versus development pressures."5~ Region Three has proposed advanced identification efforts in the Pocono Mountain region of northeastern Pennsylvania; Eastern Sussex County, Delaware; and Cedar Island, Virginia. Other U.S. EPA advanced identification efforts have also been initiated or proposed. STATE WETLAND REGULATORY PROGRAMS Beyond federal programs, wetland protection has made major strides at the state and local level. Almost a decade prior to the enactment of Section 404 of the Clean Water Act, Massachusetts became the first state to regulate altera- tion of wetlands. In 1963, it passed a law requiring a permit for dredge-and-fill activities in tidal wetlands. Two years later:~ Massachusetts passed a nontidal wetlands law, and the two statutes were subsequently consolidated. Although the 1972 Clean Water Act included highly detailed provisions that allow states to assume operation of the Section 404 program, only Michigan has actually done so. Several others, including New Jersey and Oregon are considering picking up the program. States have been primarily engaged in developing their own innovative pro- grams. Thirty states have enacted tidal wetland reglatory programs; 14 have regulatory programs covering inland nontidal wetlands. In addition, the Clean Water Act requires a state water-quality certification for "any federal license or permit" that may result in a discharge to the navigable waters. Some states have used this authority to prevent the issuance of Corps 404 permits or other licenses (e.g., Federal Energy Regulatory Commission licenses to build small hydropower dams). Here again, significant innovation has come about at the state level. Unlike Section 404 of the federal Clean Water Act, which regulates both tidal and nontidal wetlands, state regu- latory laws have tended to differentiate between tidal and nontidal wetlands, with the former receiving far greater protection. One possible explanation is that public awareness of and concern about the nation's coastal resources led to the passage in 1972 of the federal Coastal Zone Management Act, which provided states with finan- cial and management incentives for the adoption of coastal 21 TABLE 5. SUMMARY OF SELECTED STATE LEGISLATION SPECIFIC TO NONTIDAL WETLAND REGULATION Wetland Agency Mapping Regulated Permit-Requirement/ Exempted Definition Requirement Activities Local Implementation Activities Connecticut Based on soll type (wetlands include poorly drained, very poorly drained, flood- plain, and very poorly drained organic and alluvial soils). Maps prepared by local government agency (prior to 1987, by state agency). Include removing or depositing material; obstructing, construc- tion in, or alteration or pollution of inland wetlands and water- courses. Permit is required from local agency. Mandatory local implementation after 7/87. Agricultural uses; boat anchorings and moor- ings; uses incidental to use/maintenance of residential dwelling or building; home on lot approved prior to law's adoption (1972); construction of dams, reservoirs; and impoundments for public water supplies. Michigan All wetland areas contiguous to inland lakes, rivers, streams, or ponds, or the Great Lakes and their connecting waterways; designated isolated wetlands. Agency is to compile wetlands inventory, including mapping. Dredging, filling, construction in wetlands; draining. Permit is required for regulated activities. Municipalities may adopt more stringent ordinances (optional). Most grazing, farming, and lumbering activities; maintenance of farm, forest, or mining roads; others. New Jersey Based on Federal Clean Water Act Section 404 regulatory definition; also directs regulatory authority to use EPA's Wetland Identification National Wetlands Inventory Maps are interim maps until state can produce "compos- ite'' maps based on most recent aerial photos, and Delineation Manual soils, etc. No scale in designating a wetland; specified. requires adoption of a list of hydrophytic plants within one year. Include removal, dis- turbance, or dredging of soil; drainage or disturbance of water ~r level or water table arid discharge or fill activity within a wetland; also prohibits structures, pavement, dumping, and filling within 150 feet of "exceptional" value wetland and within 50 feet of "intermediate" value wetlands. Permit is required from state agency. No local implementation. Normal farming, silviculture, and ranching activities, provided new uses do not impair flow or circulation of wetland waters. Continued management programs. As a result, all coastal states have laws providing some degree of protection to tidal wetlands. Many of those states have specific tidal wetland regulations that require permits for development in coastal wetland areas. Other states protect tidal wetlands as a component of broader regulatory efforts. In contrast to the protection afforded tidal wetlands, non- tidal wetlands generally receive less protection at the state level. In fact, relatively few of the 50 states have enacted specific nontidal wetland regulatory laws. Some of these states, such as Massachusetts, Florida, and Oregon, have laws that apply to both tidal and nontidal wetlands; others, like New York and New Jersey, specifically pro tect nontidal wetlands. Several states, like New Jersey, regulate activities 22 in nontidal wetlands through state permit requirements. Others, like Massachusetts, establish standards that are im- plemented by local governments, but they also provide for state agency intervention in the event that the localities fall short of their responsibilities. In addition to those states with specific nontidal wetland regulations, several other states protect nontidal wetlands as part of broader regulatory ef- forts applying to state waters, shorelands, floodplains, wild and scenic rivers, or other areas. Examples of these ap- proaches to state nontidal wetland regulation are highlighted below and summarized in Table 5. Comprehensive Regulatory Programs In 1987, New Jersey joined the short but growing list of TABLE 5. CONTINUED Wetland Agency Mapping Regulated Permit Requirement/ Exempted Definition Requirement Activities Local Implementation Activities New York Lands and waters that appear on the wetlands map and that contain certain vegetation. Mapping by agency is a prerequisite to Act's jurisdiction. A broad range of activities is regulated, including draining, dredging, soil removal, dumping, or erecting any structures. Permit is required for any regulated activity. Implementation by local governments or by county permitted (optional). Certain farming, grazing, and silvi- cultural activities. Rhode Island Based on vernacular Agency is authorized to terms (e.g., bog, swamp, designate wetlands by etc.); plant community; mapping. size; flooding; soil saturation; proximity to shorelines. Draining; excavating; filling; "altering the character of any freshwater wetland." Agency "approval" of proposed activity is required. No provision for local implementation. No specific exemption. Washington Based on proximity to shorelines; lands extending landward for 200 feet in all directions from ordinary high water mark. Local governments are Include dredging, required to complete an drilling, dumping, inventory of wetlands filling, bulk-heading, or within their jurisdiction, any project that interferes with normal public use of the surface of the waters. Permit is required for Certain timber practices; "substantial develop- certain construction ment"--one that exceeds practices for farming, $3.,000in value or inter- irrigation, or ranching. feres with public use. Primary responsibility for initiating and administering the regulatory program rests with local government. states having specific nontidal wetland regulatory laws with the passage of the Freshwater Wetlands Protection Act (FWPA).52 Since the New Jersey law is intended to provide the state with the statutory authority needed to assume the Clean Water Act 404 program, it creates a state-level regulatory program to be implemented by the New jersey Department of Environmental Protection (DEP) that in most respects is consistent with the federal program. The New Jersey statute preempts local government wetland permit- ting programs, but does not otherwise bar local govern- ments from exercising their typical ]and-use regulatory and planning prerogatives, such as site-plan approval, platting, zoning, and the like. While FWPA adopts the Section 404 definition of "wetland,' it goes beyond the federal law to regulate a va- riety of activities including removal, disturbance, or dredg- ing of soil; drainage or disturbance of the water level or the water table; and discharge or fill activity. Like 404, however, the New Jersey law exempts from the permit requirement "normal farming, silviculture, and ranching activities." For the purpose of determining applicable permit criteria and buffer distances, FWPA ranks wetlands as having ex- ceptional resource value, intermediate resource value, or or- dinary value. It establishes buffer zones of 75-150 feet for wetlands of exceptional resource value and 25-50 feet for those of intermediate resource value, and prohibits most regulated activities in these areas. However, the DEP is au- thorized to grant an applicant a waiver that reduces the size of the buffer zone, provided that the proposed activity would have no substantial impact on adjacent wetlands and the waiver is needed to avoid substantial hardship to the ap- plicant. Perhaps the most stringent provisions of the New Jersey law are the permitting criteria, which incorporate the "water dependency" and "practicable alternative" tests and other provisions of the Section 404(b)(1) EPA guidelines. More- over, it goes beyond the guidelines to specify what a permit applicant must demonstrate to provide proof that there is no practicable alternative site for a nonwater-dependent ac- tivity. It also requires that the applicant demonstrate a com- pelling need for the project or an extreme hardship from denial if activities are proposed in wetlands of exceptional resource value. FWPA authorizes DEP to require mitigation in the form of creation or restoration of a wetland area of"equal ecolog- ical value" to that being lost and to determine whether such mitigation should be conducted on site or off site. If DEP determines that on-site mitigation is not feasible, it may per- 23 mit off-site mitigation or allow the applicant to make a con- tribution to a wetland mitigation bank, which is governed by a seven-member Wetland Mitigation Council. Significantly, FWPA provides DEP with a variety of en- forcement tools. Most of the law's provisions took effect July 1, 1988; however, DEP may not implement the buffer zone provisions until July 1, 1989. Unlike the New Jersey scheme, the Massachusetts Wetlands Protection Acts~ applies to both tidal and non- tidal wetlands; moreover, it is administered in the first in- stance not by the state-level Department of Environmental Quality Engineering (DEQE), but rather by local conserva- tion commissions composed of volunteer members. The role of DEQE is to serve as an appeals body with regard to con- servation commission rulings and to promulgate and inter- pret regulations implementing the law. According to one observer, this approach reflects intense political suppoYt for home rule, especially with regard to land-use decisions. And while the wetland protection program at times has proved to be cumbersome, it has developed extensive grass roots political support,s~ The Massachusetts law authorizes the conservation com- missions to regulate work involving filling, dredging, removing, or otherwise altering wetlands by requiring per- sons to file a "notice of intent" to do work and to obtain from the conservation commission a permit (called "an order of conditions") that specifies what work, if any, may be done and the manner in which it may be accomplished. "Normal" work on land already in agricultural use and silvicultural 24 Top: Cranesville Swamp in Garrett County, Maryland. Bottom: l~attle Creek Cypress Swamp in Calvert County, Maryland. harvesting are exempted from regulation. The law presumes that wetlands are significant to one or more of the follow- ing eight interests: flood control; storm damage prevention; protection of public and private water supply; prevention of pollution; protection of fisheries; protection of ground- water supply; protection of land containing shellfish; and protection of wildlife habitat. In 1983, D~QE promulgated comprehensive regulations implementin~he law with regard to nontidal wetlands. The regulations govern four specifically defined resource areas: resource areas bordering vegetated wetlands; land under waterways or water bodies; banks; and land subject to flooding. Any regulated activity proposed or undertaken in one of these protected areas automatically requires the fil- ing of a notice of intent and issuance of an order of condi- tions. Moreover, work within 100 feet of each resource area, except land subject to flooding, may require the filing of a notice and the issuance of an order of conditions if a conser- vation commission determines that the activity proposed in this 100-foot buffer zone will in fact alter the resource area. To guide the regulator and the project proponent in how work can be performed in a particular area, the regulations also establish performance standards tailored to each of the four nontidal wetland resource areas. For each protected area, the regulations explain how the area typically func- tions; describe its physical characteristics; and set forth a rebuttable presumption that, if the area functions in the specified manner and possesses the stated characteristics, it is significant to the interests of the state. The burden of over- coming this presumption of significance falls on the project 25 proponent. Where it is not overcome, the performance stan- dards must be met. The standards prohibit any work that will impair or otherwise destroy any area bordering vegetated wetlands. Nonetheless, work resulting in the loss of up to 5,000 square feet of such wetlands may be permit- ted if adequate mitigation is provided. Additionally, the regulations authorize DEQE to waive application of the per- formance standards when it is deemed necessary to accom- modate an overriding public interest or to void an order of conditions that so restricts the use of private property ~s to constitute an unconstitutional taking without just compen- sation. (See below for a further discussion of the takings issue.) Protection as Part of Broader Regulatory Effort In the state of Washington, nontidal wetland regulation is a component of a broader state regulatory effort apply- ing to shorelands. The Shoreline Management Act of 1971 (SMA) was enacted in response to public concern over in- creasing shoreland development,ss It provides for develop- ment of land-use plans for state shorelines and establishes a permit program for construction activities in such areas. The jurisdiction of SMA extends to wetlands associated with lakes larger than 20 acres and with streams where the mean annual flow is greater than 20 cubic feet per second. Correspondingly, wetlands associated with lakes smaller than 20 acres and with streams with a mean annual flow of less than 20 cubic feet per second, as well as small isolated wetlands, are excluded from the law's coverage. Virtually ail activities on shorelines are subject to the SMA. However, many activities are exempted from the permit process, in- cluding agricultural development and repairs to existing structures. It is estimated that as much as 70 to 80 percent of the state's wetlands fall outside of the law's jurisdiction?6 The SMA establishes a cooperative state/local adminis- trative process, with primary responsibility given to local governments based on statewide guidelines and review by the state's Department of Ecology. Thus, local governments (39 counties and 160 incorporated towns) developed Shoreline Master Programs (SMPs) for all shorelines within their jurisdictions. These programs are based on shoreline inventories and generally classify shorelines based on ap- propriate uses. Most SMPs include goals, objectives, and policy statements; regulations for 23 defined uses; and map- ped environment designations, such as urban, rural, natu- ral, and conservancy. The shoreline plans are implemented primarily through a permit process for all regulated shoreline development. Shoreline substantial development permits are issued by local governments and reviewed by the Department of Ecology to ensure consistency with the local SMP and the policies of the SMA. The permit process has a public review component and public hearings.can be held. All permit actions are subject to appeal by citizens, citizen groups, and/or government agencies. Some local governments have attempted to protect wetlands through their SMPs. A plan usually designates wetland areas as natural or conservancy areas, restricting certain practices such as logging and mining. Most plans, however, have no specific policies regarding wetland development or protection. And since many plans are based on performance standards--as opposed to strict regulations--there can he considerable flexibility in inter- 26 pretation and implementation. As a result, SMPs vary greatly in effectiveness. Maryland, like the state of Washington, lacks a com- prehensive nontidal wetlands regulatory program. How- ever, in 1984, the Maryland Legislature passed the Maryland Critical Area Act, which seeks to protect and preserve the Chesapeake Bay by fostering more sensitive development in a corridor 1,000 feet landward from mean high tide along the bay and its tidal tributaries and their wetlands,s? The goals of the Act are to minimize adverse impacts on water quality from land-based activities; conserve fish, wildlife, and plant habitats; and establish land-use policies for development in the Critical Area.~ Implementation of the resource protection program rests with local governments, which must develop local critical area plans based on statewide criteria. The criteria were de- veloped by the Critical Area Commission, a 25-member body that is also authorized to approve or disapprove loca~l plans and, in cases of noncompliance with such plans, to in- tervene in local planning and zoning decisions. Such in- tervention is likely to take the form of comments but, in cases of flagrant violations, could result in a commission decision to overrule a local decision. The statewide criteria have the effect of controlling many aspects of land-use planning and development in critical areas that previously had been within the province of local planning authorities. Local jurisdictions are required to divide and map their entire critical area into three land-use categories: 1. Intense Development Areas (IDAs), which have high residential density or concentrations of commercial or industrial development; 2. Limited Development Areas (LDAs), which are areas ~f moderate- to low-density residential development; hnd 3. Resource Conservation Areas (RCAs), which are areas predominantly in agricultural or forestry use or primarily comprised of wetlands. The program aims to limit future growth within the critical area by requiring thht all new development be located within either the Intense Development Area or the Limited Development Area and by severely limiting hous- ing densities within the Resource Conservation Area (one dwelling unit per 20 acres). Also, the program criteria re- quire strict best management practices for any future development activity and address agricultural and forestry operations. The wetland habitat protection criteria con- stitute the most comprehensive provisions? Local jurisdic- tions are directed to identify, inventory, and map all significant plant and wildlife habitat areas, including tidal and nontidal wetlands, and to develop specific resource pro- tection plans. Any new development in the critical area must be designed to maximize the site's habitat potential through open space preservation. Moreover, such development must provide a 100-foot buffer of natural vegetation along tidal waters, tidal wetlands, and perennial and intermittent streams (subject to exemptions for water~tependent facilities and urban areas under specified conditions). Nontidal wetlands are protected by a 25-foot vegetated buffer. When losses of wetlands occur due to the use of the narrowly Some nontidal wetlands produce edible fruits like cranberries (pictured here), blueberries, pawpaw, and blackberries. defined exemptions allowed by the program, those wetlands must be replaced. The water quality and fish and wildlife ha- bitat of the new wetlands must be equivalent to those of the destroyed wetland. THE TAKINGS ISSUE Wetlands, floodplain, and similar regulatory programs have, from time to time, been subject to legal challenges as violations of the "takings" clause of the Fifth Amendment to the U.S. Constitution (extended to the states by the Four- teenth Amendment). But the outcomes of those cases have by no means produced clear, uniform understanding of what will pass constitutional muster and what will be found lacking. A comprehensive discussion of the takings issue is beyond the scope of this text. A few points can be made, however, that will sketch out the issues and some very general guidance concerning wetland regulation. The U.S. Supreme Court recently had little trouble in disposing of a claim that the Section 404 Clean Water Act permit program was a taking of private property without compensation. In United States v. Riverside Bayview Homes, 106 S. Ct. 455, 16 ELR 20086 (1985), the Court em- phasized that the "mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking." Specifically with regard to the Section 404 program, the Court said: A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself "take" the property in any sense; after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. At all levels of government, the actions of regulatory bodies are accorded considerable deference by the courts. Most programs benefit from a strong presumption of con- stitutionality as to the general validity of the regulations but gregter scrutiny as applied to a specific case. What is not always clear is that a particular statute (or regulatory pro- gram) can be sustained as valid and constitutional, but its application in a particular instance can be found to have taken private property without just compensation. Several recent decisions by the U.S. Supreme Court both clarified and muddied the legal picture with regard to tak- ings. One ruling, Keystone Bituminous Coal Association v. DeBenedictus, 107 S.Ct. 1232, 17 ELR 20440 (March 19, 1987), emphasizes that environmental protection regulation is a strong public purpose that will generally be upheld. However, if a taking has been found in a specific instance by operation of the law or regulation on a particular property, the Supreme Court has declared that the Constitution re- quires that compensation must be available as a legal remedy to the landowner. (See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S.Ct. 2378, 17 ELR 20787, June 9, 1987). Finally, the Court held in a third major takings decision that there must be a substantial relationship between the condition imposed on the landowner and the public purpose that is the basis for imposing the condition or denying per- mission to do something with the property in question. (Nollan v. California Coastal Commission, 107S.Ct. 3141, 17 ELR 20918, June 26, 1987). Even if enforcement of a wetland regulatory program is found to have resulted in a taking, a number of difficult 27 issues remain, particularly the proper measure of the value of what has been taken (and for what period of time the tak- ing has been in effect). Denial of all or substantially all economic value is the Court's test for determining the ex- istence of a taking, and it is generally difficult to establish that no economic value is left in a property if a particular per- mit request is denied.~° Except where little but open space use remains and a non-nuisance type use is proposed, wet- land regulation is upheld.61 Some wetland regulatory applications have lec~ to successful takings claims in state courts, but no wet- land regulatory program has been invalidated in any jurisdiction.62 Despite the intricacies of the legal arguments in the tak- ings area, several points can be noted for local government guidance: 1. Regulations adopted for a valid public purpose and · ~tith an adequate basis in fact may substantially re- duce land values without effecting a taking., 2. The impact of regulations must be evaluated for an en- tire piece of property (not just one portion) to deter- mine whether a taking has occurred. 3. Public safety and the prevention of nuisances are para- mount concerns of government, and no landowner has an intrinsic right to threaten public safety or cause 4. Regulations will result in a taking only if they deny "all use" or all "economic use" of an entire property, in- cluding reasonable "investment-backed expectations.' Even then, regulations may be valid under certain cir- With adequate care to provide constitutionally valid remedies and procedures, local governments may not only continue to regulate critical land and water resources, such as wetlands, but they can more stringently regulate them based upon adequate public health, safety, or general welfare grounds. Chapter Notes 41.33 u.s.c. Sec.1344 42.16 U.S.C. Secs.3501-3510 43.33 U.S.C. Sec.1341 44. P.L. 99-198, 16 U.S.C. Secs.3801 et seq. 45. P.L. 99-514 46. Reissued in November 1986, see 33 C.F.R. Part 320 et seq. 47. U.S.v. Riverside Bayview Homes, 106 S.Ct. 455,474 U.S. 121, 16 ELR 20086 (I985). 48. National Wildlife Federation v, Laubscher 17 ELR 20891 and 17 ELR 20892, 662 F.Supp. 548 (S.D. Tex, May 26, 1987). 49. See, for example, Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 13 ELR 20942 (5th Cir. 1983); Conant v. United States, 786 F.2d 1008, 16 ELR 20453 (llth Cir. 1986); United States v. Akers, 785 F.2d 814, 16 ELR 20538 (gth Cir. 1986). 50. It is nationwide permit No. 26 (33 C.F.R. Part 330.5(a)(26)) 51. March 1987 information sheet prepared by U.S. Environ- mental Protection Agency Region III, Philadelphia, Fa. 52. Public Law 92-500, 86 Stat. 816. 53. Mass. Gen. Laws Ch. 131, 40. 54. See Roderick GaskeI1, "Wetlands Protection Through Regulatory Standards and State/Local Cooperation: A Manager's View,' in Wetland Protection: Strengthening the Role of the States, edited by Jon Kusler and Richard Hamann (Gainesville, Fla.: Association of State Wetland Managers/Center for Governmental Responsibility, University of Florida College of Law, 1985). 55. Wash. Rev. Code 90.88 56. Andrew McMillan, "Washington State's Wetlands Protec- tion Program,' Nation al Wetlands Newsletter 7, no.6 (Nov./Dec. 1985). 57. ~ld. Nat. Res. Code Ann. 8.1808(d) 58. Ann Powers, "Protecting the Chesapeake Bay: Maryland's Critical Area Program,' Environment 28, no.4 (May 1986). 59. See Steven Bunker, '~Fhe Maryland Critical Area Program: A Comprehensive Land Management Approach," National Wetlands Newsletter 9, no.1 (Jan./Feb. 1987). 60. In addition to cases already cited in text, see Florida Rock In- dustries, Inc. v. United States, 791 F.2d 893, 16 ELR 20671 (Fed. Cir., 1986), cert. den. 107 S.Ct. 926 (1987). 61. See, for example, Turnpike Realty Co., [nc. v. Town of Dedham, 284 N.E.2d 891 (Mass. 1972); Moscow v. Comm'r. of Department of Environmental Management, 427 N.E. 2d 750 (Mass. 1981); Sibson v. State, 111 N.H. 305, 382 A.2d 664 (N.H. 1971l; Sibson v. State of New Hampshire, 336 A.2d 239 (1975); Sands Point Harbor, Inc, v. Sullivan, 346 A.2d 612 (N.J. Super. 1975); Dur-Bar Realty Col. v, City of Utica, 394 N.Y.S. 2d 913 (Sup. Ct.App. Div.,1977); Starer. Capuano Bros., Inc., 384 A.2d 610 (R.I. 1978); and Graham v. Estuary Properties, Inc., 399 S.2d 1374 (FI. 1981). 62. See Bartlett v. Zoning Commission of Town of Old Lyme, 161 Conn. 24, 282 A.2d 907 (1971); State v. Johnson, 265 A.2d 711 (Me.1970); Mo rr~ County Land Improvement Co. v. Parsippany- Troy Hills, 40 N.J. 539,193 A.2d 232 (1963); de St. Aubin v. Flacke, 492 N.Y.S. 2d'766 (Sup. Ct .App. Div.1985); and Annicelli v. Town of South Kingstown 483 A.2d 133 (R.I. 1983). 28 Chapter 3. Local Wetland Regulations Despite decades of development and drainage, a signifi- cant acreage of high-quality nontidal wetlands can still be found throughout the United States. But many nontidal wetlands face severe threats. Since the majority of the states have not implemented specific, statewide, nontidal wetlands programs and the U.S. Army Corps of Engineers Section 404 regulatory program has limited authority to protect all non- tidal wetlands, the responsibility for protection lays mainly with local governments. Protecting nontidal wetlands is not an insurmountable problem. In most instances, development can be shifted to upland sites or upland portions of a parcel. Most of the tools and techniques are already in place. Existing land-use con- trois often require minimal adjustments, and many federal and state programs offer financial and technical assistance. Assistance is also available from private nonprofit land trusts. Counties and municipalities can focus their efforts on coordinating techniques and sources of assistance. Com- munities that choose to adopt new regulations can minimize expenditures of time and money by drawing on the ex- perience of other jurisdictions. The effort needed to protect nontidal wetlands is often not great, and the rewards can be substantial to present and future generations. This chapter describes how to design and develop local wetland protection regulations. It presents an overview of various regulatory techniques used to protect wetlands and illustrates the basic elements of a wetland protection or- dinance, citing language from existing regulations. Finally, it reviews points to consider when adopting and administer- ing wetland protection regulations. OVERVIEW Land-use regulation is the most commonly used wetland protection technique among local governments throughout the country. Wetland regulations have been adopted in at least 2,000 communities. Regulations are inexpensive relative to acquisition and can provide substantial protec- tion for wetlands if adequately enforced. Local governments can tailor a regulatory program to fit their needs. Regula- tions can be narrowly drafted to protect discrete parts of a wetland from specific uses on adjacent lands, or even throughout the watershed. Communities can enact new regulations or amend their existing land-use control laws to include wetland protection goals. While existing local wetland regulations vary greatly in their details, they have some basic common elements: 1. A statement of wetland protection goals; 2. A definition of a wetland; 3. A list of prohibited and permitted uses or performance standards; and 7. A section on penalties. Regulations generally take the form of zoning or subdivi- sion controls or a combination of both. Regulations may be adopted as separate ordinances designed solely for the pur- pose of protecting wetland values or as part of a more com- prehensive program regulating a number of activities and areas in addition to wetlands and adjacent buffer zones. APA's recent survey of 1,400 communities i~evealed that the zoning ordinance, particularly in those states with mandatory wetland protection programs, is the most common wetland regulatory technique. Local governments adopt wetland regulations both as part of comprehensive zoning or- dinances and as special ordinances. Zoning ordinances often include wetland boundary maps and written texts setting forth protection standards. ZONING FOR WETLAND PROTECTION Wetland protection through zoning regulations may apply to: 1. Specific wetland protection districts; 2. Sensitive areas, conservation, or natural resource pro- tection districts; and 3. Combined floodplain/wetland districts. Specific wetland protection district regulations provide the most suitable framework for a comprehensive and 29 detailed statement of regulatory purpose, findings of fact, and protection standards. Wetlands are complex ecosystems in which a number of beneficial natural functions are tak- ing place. Often, specific scientific information is available relative to the particular values of wetlands in a local jurisdiction. This information can be incorporated into a detailed ordinance to legally strengthen the document and to focus it locally. It can also improve public awareness about the need to protect wetlands. In local jurisdictions where land values are high and numerous or significant wetland systems exist, land-use con- flicts are intense and wetland losses may be inevitable. The establishment of a specific wetland protection district or or- dinance is a logical way to address such issues as the possi- ble restoration or replacement of wetlands and to provide the procedures or data that are necessary to determine if a proposed use may adversely affect a wetland. The establishment of a sensitive area or a conservation or natural resource protection district is another zoning ap- proach used to manage wetlands. Typically, wetlands are a subset of various landscape features controlled within such a district. Other features commonly covered include: areas of steep slopes; areas with soil limitations; streams, lakes, ponds, shoreline areas, and riparian zones; geologic hazard areas; significant plant and wildlife resource areas; and sce- nic resource areas. Sensitive areas zoning has become an in- creasingly popular approach among local governments. Planners, however, must consider various local factors that may result in successful or unsuccessful wetland manage- ment when using this approach (for example, availability of alternative building sites; location of existing roads and water/wastewater systems; land values; and development pressures). One situation in which establishing a conservation district can be particularly effective occurs when a number of con- straints to development, along with wetland systems, are operating within a sensitive areas zone. For example, if a ma- jority of a local government's wetland systems are situated within narrow floodplains adjacent to streams at the base of steep, geologically unstable hillsides, the chances are prob- ably quite high that development would not be permitted, nor would it usually occur in these areas. On the other hand, if the wetland element within the sen- sitive areas ordinance is not a well-defined component in and of itself, the ordinance may not provide sufficient standards or legislative weight to protect wetlands. Sensitive areas districts often are created out of the practical need to steer development away from hazardous areas with building limitations. Increasingly sophisticated construction and engineering practices may pose a challenge to this basic assumption. If the majority of reasons for denial of a peti- tion for a variance to build in a sensitive areas zone can, within the economics of a project, be overcome through "engineered" solutions (slope stabilization, floodproofing, self-contained water/wastewater systems, etc.), a sensitive areas zoning approach may not provide sufficient justifica- tion or protection to prevent wetland destruction. Combined floodplain and wetland zoning can be an effec- tive method for wetland protection, but there are certain limitations. Land-use zoning doctrine is based upon the ex- ercise of the basic power of the state and its political subdivi- 30 An Alaskan wetland. Estimates of Alaska's wetland resources vary, but about 200 million acres probably exist. sions to enact legislation protecting the public health, safety, and general welfare of its citizens. Zoning laws are chal- lenged when they do not bear a reasonable and substantial relationship to these, basic police powers or are found in violation of "due process" clauses of state and federal con- stitutions. Thus, combining wetland protection with floodplain zoning reinforces the legislative basis for withstanding legal challenges. Isolated wetlands and those not contained within the regulated floodplain would, how- ever, not be protected under this approach. It is also important to note that permitted uses on wetlands within the regulated floodplain should have greater restrictions placed on them. Many floodplain ordinances typically permit agricultural practices and placement of structures and roads that impair or destroy wetland func- tions. Any combined ordinance must avoid conflicting or counterproductive situations. Mapping needs should also be considered in combined ordinances. Different scales and base mapping requirements may exist for delineation of floodplain/wetland boundaries. U.S. Fish and Wildlife Service ELEMENTS OF A WETLAND PROTECTION ORDINANCE As noted above, a wetlands protection ordinance has four basic elements--a statement of wetland protection goals; a definition of wetland; a list of permitted and prohibited uses; and a section on penalties. But an ordinance is also the best vehicle for addressing other aspects of wetland protection. The following sections cover the four basic elements but also provide a discussion of standards for protection and use (in- cluding a subsection on the controversial topic of mitiga- tion); performance standards; wetland set-asides; permit-processing fees; and insurance bonds. Each section highlights language taken from local ordinances sent in re- sponse to APA's survey of PAS subscribers. Wetland Protection Goals Wetland protection goals may be stated in one of several sections of an ordinance--preamble statements, goals, legislative purposes/intent, findings of fact, or objectives. Goal statements should justify wetland regulations as a means of executing specifically mandated state statutes where they exist or the general mandate of protecting the public health, safety, and welfare. Citing specific functions and values of wetlands and addressing the natural hazards associated with building in wetland environments can make the necessary linkage to public health, safety, and welfare issues. A section of the preamble portion of a 198,5 Hillsborough County, Florida, ordinance stresses a state re- quirement to control water pollution: · . . Whereas, wetland hydrological systems, which may seasonally appear to be dry, function as a vital part of the waters of Hillsborough County and constitute a productive and valuable public resource; and Whereas, the destruction or alteration of wetlands may reasonably be expected to cause water pollution . . .; and Whereas, reasonable control and regulation of activities that cause or may be expected to cause pollution, are necessary for the protection and p~servation of the public health, safety, and welfare .... A combined floodplain and wetland protection ordinance adopted by West Bloomfield Township in Oakland County, Michigan, incorporates additional wetland values and hazard issues in its purposes section. Therefore, the purposes of this ordinance are to provide for: A. The protection, preservation, proper maintenance, and use of township watercourses and wetlands in order to minimize disturbance to them and prevent: damage from erosion, turbidity, or siltation; a loss of fish or other beneficial aquatic organisms; a loss of wildlife and vegetation; and/or the destruction of the natural habi- tat thereof; B. The protection of the township's potable fresh water supplies from the dangers of drought, overdraft, pollu- tion, or mismanagement; ~r C. The use of controls and regulations to secure safety from floods; to prevent loss of life, property damage, and other losses and risks associated with flood condi- tions; to ,'x~du c e the financial burdens imposed upon the community through rescue and relief efforts occasioned by the occupancy or use of areas subject to periodic flooding; to protect individual and community riparian rights; and to preserve the location, character, and ex- tent of natural drainage courses. When information specific to the wetlands within the local jurisdiction is known to exist, local ordinances may be strengthened through a specific reference to that informa- tion. For example, the San Diego County Vernal Pool Area Regulations purpose clause states: The purpose of these provisions is to protect and preserve ver- nal pools, which are rare, unique, and of limited distribution, by regulating development within or adjacent to these areas. Since an ent ire ecosystem is associated with vernal pool areas, these regulations are intended to protect the various rare, threatened, or endangered species of plants and animals. A typical example of the type of resource to be protected by these regulations is the mesa mint (Pogognye abramsi). A similar reference strengthens the Sanibel, Florida, "find- ings of fact" section contained in its ordinance under the regulations governing the Interior Wetland Conservation District: 31 · . . Few barrier islands in the world have an interior freshwater system such as the Sanibel River, which includes adjacent low-lying interior wetlands draining into the river. This interior system is one of the most unique and important of the island's natural resources. It supports over 40 species of vertebrate animals, countless invertebrates, and hundreds of valuable native plant forms. Wetland Definition Criteria Most wetland ordinances include criteria for identifying regulated wetlands. They may also include wetland maps to specifically define wetlands subject to the ordinance. It used to be that wetland protection ordinances contained more narrowly focused wetland definition criteria that tended to emphasize the identification of plant species as key deter- minants to wetland boundaries. In contrast, local govern- ment ordinances in Connecticut emphasized soil characteristics as a determining factor. Since the U.S. Fish and Wildlife Service's wetland classification system has become a widely known standard, more recent ordinances use all three wetland identification criteria (the presence of wetland plants or hydrophytes, hydric soils, and flooding, ponding, or saturation) as a means of defining a wetland. (See Chapter 1 for more discus- sion of these definition criteria.) Definitional criteria that make use of all three wetland characteristics provide an improved basis for resolving boundary disputes in vegetated areas. Including at least some minimal procedures for undertaking wetland field delineations is also advisable to supplement and update maps. Wetland plant lists, plant and animal community characterizations, and hydric soil lists and definitions all work together to improve accuracy in identifying and pro- tecting wetlands. An ordinance adopted by Gloucester Township in Camden County, New Jersey, includes a wetland definition section based upon multiple criteria. Wetlands are those lands that are inundated or saturated by water at a magnitude, duration, and frequency sufficient to support the growth of hydrophytes. Wetlands include lands with poorly drained or very poorly drained soils as designated by the National Cooperative Soils Survey of the Soil Conser- vation Service of the United States Department of Agriculture and as designated by the National Wetlands Inventory, United States Department of Interior. The definition goes on to name several wetland types and their associated plant community descriptions, including a plant list with common and scientific names. A Lee County, Florida, ordinance qualifies a three-part wetland definition with time-value criteria: Wetland means an area that is subject to permanent or pro- longed periods of inundation or saturation (i.e., water is at the soil surface at least two to seven months, seven out of 10 years) and does or would support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps and marshes and may include similar areas such as sloughs, wet meadows, and natural ponds. The Hillsborough County, Florida, ordinance contains provisions to identify wetlands based upon field characteristics. 1. Under normal circumstances, wetlands will be identified 32 by the existence of communities of identifiable wetland vegetation in an ecosystem, excepting beaches, mud flats, and salt barrens. 2. Under normal circumstances, the landward extent of waters of the county shall be delineated by a dominance of wetland vegetatiun .... Other indicators of regular and periodic inundation, such as soils, swollen buttresses, and lichen lines may be conside~-,d to support a determination, but hydric soils alone shall not be sufficient. 3. In circumstances where the natural boundary of dominant wetland vegetation is unclear and when both parties agree, the line of demarcation inay be approximated at a surveyed elevation measured at a location on the same wetland where the natural line is clear. 4. In the event an undeveloped area has been recently cleared of all vegetation, the landward extent of the waters of the county may be determined by a study of the soils, aerial mapping, photography, hydrology, and other historical information, as appropriate. Filling and draining wetlands increases the potential for damaging floods. Wetlands not only store water, but they help to slow the velocity of water and lower wave heights. 5. Areas where the forest canopy consists of less than 50 per- cent cover of submerged and transitional species, and where the subcanopy and ground cover collectively con- sist of 80 percent or more vegetative cover of submerged and transitional species, shall be determined wet]ands if the commission establishes by competent, substantial evidence using such factors as hydrology, soils, swollen buttresses, lichen lines, or other indicators that the area is subject to regular and periodic inundation. In addition to criteria for identifying regulated wetlands, ordinances often adopt maps to help define wetlands sub~ ject to the ordinance. Although maps can help identify wetland boundaries and provide other information about a particular wetland, maps typically provide only a portion of the data needed for evaluating permit applications. Field surveys should be conducted on a case-by-case basis to delineate boundaries using specific criteria and to assess wetland values. A discussion of the most common data sources for mapping wetlands, summarized in Table 6, follows. National Wetlands Inventory (NINI) Maps. Produced by the U.S. Fish and Wildlife Service, these l:24,000-scale maps identify the size, shape, and type of wetlands and deepwater habitats in accordance with NWI specifications. More than 50 percent of the continental U.S. has been mapped. The minimum NWI mapping unit for wetlands is approx- imately one acre for much of the country. Maps are com- piled using a combination of photo interpretation, field studies, review of existing information, and interagency re- view of draft maps. High-altitude aerial photography (l:58,000-scale, color infrared) serves as the primary remote imagery source in most areas. NWI maps are particularly useful as they use standard l:24,000-scale topographic maps as base maps to depict wetland data. State environmental agencies or the U.S. Fish and Wildlife Service's Regional NWl coordinator can provide information on wetland map- ping and inventories. Soil Maps. U.S. Department of Agriculture, Soil Conser- vation Service (SCS), soil surveys may also be used to help identify wetlands, but should not be used as the sole criterion for depicting wetland boundaries. In Connecticut, wetlands have been defined to include poorly drained, alluvial, and floodplain soils shown on soil maps. Soil maps have proven useful in administering pro- grams to indicate flooding, areas inappropriate for on-site waste disposal, and areas with inadequate structural support. Flood-Hazard Maps. Some communities in Rhode Island and Massachusetts have defined wetlands to include the 1013- year floodplain or have indicated wetlands on flood maps. The Federal Emergency Management Agency (FEMA) has flood maps for most communities participating in the Na- tional Flood Insurance Program. These maps, however, also include land that is not technically considered wetland, but which is subject to occasional flooding (e.g., once every 100 years). Aerial Photos. Wetland boundaries may be drawn on a~l-ial photos. Boundaries are located through identification oiewetland characteristics, such as flooded or saturated soils and wetland vegetati6n. While many people can easily learn to recognize the existence of obvious wetlands through aerial photos, considerable technical expertise is needed to iden- tify wetland boundaries and the variety of wetlands occur- ring across the landscape. Wet soils can be identified in black and white, color, or color infrared photos. Aerial photos are used in preparing most wetland maps. Aerial photo inter- pretation results may vary substantially, depending upon the time of year that the photos were taken and their scale and resolution. Satellite Imagery. Satellites equipped with multispectral scanners--such as LANDSAT and the French equivalent SPOT--have been used in various research studies to detect wetlands. As the resolution of these satellite images im- proves and scanner devices become more sophisticated, this type of imagery may provide reliable data for identifying nontidal wet]ands, but current technology is not sufficient to accurately identify most wetlands. Wetlands character- ized by frequent flooding or continually wet conditions are most readily detected, while temporarily or seasonally flooded areas (particularly forested types) are difficult to distinguish from upland areas. Tax Maps. In some instances, communities place wetland boundaries on tax maps, topographic maps, and other types of maps and use them as wetland maps. Wetland boundaries 33 TABLE 6. SOME PRINCIPAL WETLAND DATA SOURCES Title of Information Suggested Data Source Displayed Scale Wetland Uses Source National Wetlands Inventory A wide variety of infor- 1:24,000 1. Regulatory mapping. U.S. Fish and Maps marion pertaining to 1:100,000 2. Aid in processing Wildlife Service vegetation, water regime, permits, and the Geological and other parameters. 3. Acquisition. Survey USGS topographic maps (71/2' and 15' ) 4. Siting. 1:24,000 1. Enlarged for use as U.S. Geological wetland base map. Survey 2. Interim wetland map. 3. Watershed boundaries. 4. Source of topographic information. SCS Soil Survey State Wetland Maps Flood Hazard Boundary Maps: USGS, HUD Floodplain Information Reports. Army Corps of Engineers USGS, Hydrologic Investiga- tions, Atlas, Hydrology & Water Resources Subdivision Maps Air Photos Topographic contours, major roads, railroads, utility lines, contours, water bodies, houses, town names, county and town boundaries, vegetated and nonvegetated wetlands. Soil Types Range from 1. Interim wetland map. USDA Soil 1' =600' 2. Determination of soil Conservation to suitability for onsite Service 4 ' = 1 mile waste disposal. 3. Determination of soil structural bearing capacity. Wetland vegetation boun- 1:2,400 1. Interimwefland State wetland pro- daries. Varied (depending to regulation maps. grams. onstate). 1:24,000 2. Permanent wetland maps (depends on scale). Flood-prone areas Approx. 1. Interim mapping of Federal Emergency 3.: 24,000 wetlands. Management 2. Assess flood-hazard Agency potential at wetland (FEMA) sites. Also, consult state Standard project Range from floodplain, 100-year flood 1' = 500' evaluation wetland boun- to daries (some maps). 1' = 3.,000' Each map differs and may 1:24,000 contain: wells, test holes, bedrock, groundwater quality information. Dimensions of property, 1 ' = 40' size, and location of 1 ' ~ 60' house, width of 1' = 100' easements. Wetland and floodplain boundaries (some circumstances). Existing uses, vegetation, Range from water resources, roads 1:7,200 (black and white to stereoscope). 1:58,000 Assess flood hazard potential at wetland sites. 1. Determine ground- water flow systems. 2. Determine acquifer recharge areas. 1. Determine precise wetland boundaries (some instances). 2. Evaluate individual de- velopments. agency responsible for flood management Army Corps of Engineers Flood- Plain Management Services U.S. Geological Survey Distribu- tion Office Municipal offices 1. Define wetland boun- USGS daries based upon USDA vegetation. ASCS 2. Use as base maps. States 3. Evaluate individual Private proposed uses. 34 C discovered through field studies, aerial photo interpretation, and other approaches can be transferred to these maps. Several considerations may aid a community in determin- ing what type of maps to use and whether to create new ones: · Large-scale wetland maps (1:24,000 and larger) are usually essential for wetland regulatory efforts to help identify the location of boundaries on particular parcels. Small-scale maps generally make such correla- tion difficult except where they can be enlarged with a satisfactory degree of accuracy. However, small-scale wetland maps (1:50,000 to 1:100,000) are useful for comprehensive land-use planning and facilities plan- ning, and to identify regional surface drainage systems. · Existing wetland maps may reflect wetland definition criteria and requirements contained in local ordinances or regulations. New maps are required if ordinances specify particular vegetative or other criteria not incor- porated on existing maps. · The availability of funds, technical expertise, and equipment must be considered. Preparation of new, large-scale maps is expensive. Often, existing maps must be used as a matter of economic necessity. · The degree of urbanization and the threat to wetland areas influence mapping needs. For rural areas with lit- tle development pressure, l:24,000-scale maps are generally adequate. Legal and political challenges to the maps are less common in these areas, and in- dividual field inspections may be used to resolve wetland boundary disputes. In contrast, detailed, ac- curate maps are needed for urban and developing areas where land values are high. Although mapping is important, there are practical limits to map scale and accuracy. Wetland boundaries may be dif- ficult to determine since saturated soils often grade slightly into upland soils and wetland vegetation gradually inter- mixes with upland vegetation. Fluctuating water levels over a period of years may complicate the problem of boundary delineation. Vegetation may often be used to help locate map boundaries and to resolve boundary disputes, but, in problem areas, vegetation alone is often an inconclusive means of identifying a wetland. In these problem areas, soils are often more useful than vegetation for determining the wetland boundary. Other sources of information useful for wetland mapping include: State Fish and Game Inventories. Such inventories may contain field notes about locations of wetland habitats im- portant to many wildlife species. State Natural Heritage Programs. These are programs de- veloped in cooperation with the Nature Conservancy to gather information on the location and status of vulnerable plant and animal species and biotic com- munities. Often these vulnerable plant and animal com- munities are dependent upon or located in wetlands. State Coastal Zone Management Programs. Many coastal and inland lake states maintain coastal zone pro- grams in accordance with the Federal Coastal Zone Management Act. Under the program, states must iden- tify and manage "Geographical Areas of Particular Con- cern" (GAPCs). These GAPCs include ecologically valuable or sensitive areas like nontidal wetlands. States with coastal zone programs may have inventories of these areas or may be able to fund mapping of nontidal wetlands under the GAPC mandate. Local planners should investigate this potential technical and financial assistance source. Substantial amounts of federal coastal zone dollars have been used to fund nontidal wetlands protection efforts in Maryland and nontidal wetland mapping in Pennsylvania and other states. When using large-scale maps, such as NWl l:24,000-scale maps, there will be certain limitations in specifying which wetlands are regulated under the ordinance. For example, in compiling NWI maps, the U. S. Fish and Wildlife Service uses aerial photo imagery that varies in scale and resolution. Unless a particular wetland type possesses a very dis- tinct "signature" on an aerial photograph, it may not be mapped unless it is greater than one acre in size. Recognition will also depend on such variables as wet- land type, geographic area, and the scale of the photo- graph. Therefore, planners may want to specify how small a wetland area is covered under the regulations based upon the technical limitations of the base map used. Even though a wetland unit may be too small to map, standards can be developed to protect particular areas that exhibit specific characteristics. This approach is strongly recom- mended. Maryland's recently adopted Chesapeake Bay Critical Area Commission takes this approach and directs local governments to protect certain types and a minimum size of nontidal wetlands within 1,000 feet of the tidal waters of Chesapeake Bay. Nontidal wetlands that are protected under commission criteria include: ~) Nontidal wetlands of one acre or larger classified as Palustrine Aquatic Bed, Palustrine Emergent, Palustrine Forested, and Palustrine Scrub-shrub as defined in "Classification of Wetlands and Deepwater Habitats of the United States" (Publication FWS/OBS-?9/1, December 1979, Fish and Wildlife Service, U.S. Depart- ment of the Interior) and as identified on the National Wetlands Inventory Maps; ii) Nontidal wetlands, not mapped on the National Wetlands Inventory, which may be found by site survey or other means at the time of application for a develop- ment activity to be hydrologically connected, through surface or subsurface flow, to streams, tidal wetlands, or tidal waters; or are determined to be of special impor- tance to fish, wildlife, or plant habitat .... Wetland zones often "overlay" and supplement other zon- ing and mapping efforts. For example, Lincoln, Massachu- setts, has a Wetland and Watershed Protection District that is an overlay district. The district can be superimposed on other districts. The land within the district is subject to the development and use regulations of the underlying district, but "only to the extent not inconsistent with the regulations for the Wetland and Watershed Protection District." Standards for Protection and Use Regulations generally list uses permitted as of right and those requiring a case-by-case review before an individual 35 permit (also called special permit, special exception, or con- ditional use) is issued. Individual permits are issued if pro- posed activities meet specified standards. Specifying what activities will or will not be allowed, and under what con- ditions, constitutes the essence of a wetland protection or- dinance. Fort unately, a broad assortment of approaches and regulatory techniques is available to planners. There are no "right" methods that apply across the board. Instead, each jurisdiction's decision makers must evaluate what makes sense for their locality. Whether a locality uses general or specific performance standards, limits uses by activity types or density restrictions, or employs some combination of these and other techniques, certain objectives should be con- sidered requisite for a successful protection program. Regardless of the activity to be controlled, protection and use standards should include provisions for: Eliminating or avoiding impacts to wetlands at the outset; Ensuring that approving a wetland use will not cause, or make worse, natural hazards; Protecting the natural functions of wetlands; Achieving consistency with other broader plans and regulations; and Minimizing impacts and restoring or replacing wetlands (mitigation) as necessary. Eliminating or avoiding impacts. At the outset, an appli- cant can be required to demonstrate the need to locate a pro- posed use in a wetland site and to prove that an alternative site was unavailable. The application of the "water- dependency test" presumes that a proposed use must, by definition, require access to or through water or a wetland to function and that it should not receive approval for such a location unless no other site is suitable or available. Federal policies regarding wetland protection apply this standard. For example, the U.S. Fish and Wildlife Service (the Service) t981 Mitigation Policy states, in part, the following: The Service may recommend support of projects or other pro- posals when the following criteria are met: The Soil Conseroation Service worked with a local group in Bentonville, North Carolina, to develop a conservation plan for this wetland--a shallow duck pond--that included a small floodgate and dam. 1. They are ecologically sound; 2. The least environmentally damaging reasonable alter- native is selected; 3. Every reasonable effort is made to avoid or minimize dam- age or loss of fish and wildlife resources and uses; 4. All important recommended means and measures have been adopted with guaranteed implementation to satisfac- torily compensate for unavoidable damage or loss consis- tent with the appropriate mitigation goal; and 5. Forwetlandandshallowwaterhabitats, the proposed ac- tivity is clearly water dependent and there is a demon- strated public need. Furthermore, the U.S. Environmental Protection Agency (EPA), under Section 404(b)(1) of the Clean Water Act, sets .environmental standards that proposed projects affecting wetlands must meet to receive a permit under the U.S. Army Corps 404 program. These standards, called the 404(b)(1) guidelines, assume that, if an activity is not water depen- dent, a less damaging alternative can be fotmd, unless the ap- plicant demonstrates otherwise. While this may not seem relevant to local governments, it should be recalled that U. S. Army Corps wetland-permitting authority under Sec- tion 404 of the Clean Water Act is implemented in conjunc- tion with an EPA overview that considers these environmental standards when commenting on Corps per- mits. It is therefore prudent for local governments to establish standards in harmony with federal permitting policies to avoid approving uses that do not require a wetland location and may not gain approval at the federal level. Planners may include standards that are similar to federal project review criteria that stress avoiding negative impacts on wetlands. Simsbury, Connecticut, includes criteria to avoid wetland impacts and to ensure that proposed uses are suitable for wetland sites in its "Decision Procedure" section. 6.1--The commission shall consider the following in making its final decision on a permit application and shall state upon the record the reasons for its decision. 6.1.4--AI1 relevant facts and circumstances, including, but not limited to, the following: a. The environmental impact of the proposed action; b. The alternatives to the proposed action: f. The suitability or unsuitability of such activity to the area for which it is proposed; 6.1.5--The availability of preferable alternative locations on the subject parcel, or, in the case of activity of sufficient magnitude, the availability of other reasonable locations. 6.1.7--The possibility of avoiding further reduction of the wetland's or watercourse's natural capacity to support desirable biological life, prevent flooding, supply water, con- trol sedimentation and/or prevent erosion, assimilate wastes, facilitate drainage, and .provide recreation and open space. Ensuring no increase in hazard. A proposed use in a wetland must not increase natural hazards injurious to public health, safety, and welfare. This can be done by re- quiring applicants to provide appropriate technical informa- tion needed to determine potential impacts. Locating a use within a wetland may reduce flood storage capacity and contribute to higher peak flood flows that could result in changing natural flow patterns, damaging property, and causing loss of life. Similarly, contaminating wetland water sources may contribute to pollution of public drinking water supplies and enter the human food chain through the con- sumption of contaminated fish and wildlife species in- habiting wetlands and contiguous waterways. In addition, building on the saturated soils of a wetland may/x, sult in dif- ficulties later--foundations and roads might shift and buried storage tanks could rise to the surface. Requiring hydrological, soils, and geological information or studies to be submitted in appropriate circumstances can help deter- mine or verify the potential for producing natural hazards and point out solutions, if any. As mentioned previously, the purpose section of an ordinance can set forth legislative intention to prevent hazards. Consider this purpose state- ment from the Schaumburg, Illinois, zoning ordinance· The purpose of this district shall be to protect persons and property within and adjacent to wetlands from potentially hazardous geological and hydrological conditiom; prevent en- vironmental degradation of the land and water; and ensure that development enhances rather than detracts from or ig- no~s the natural topography, resources, amenities, and frag~Ie environment of wetlands within the village. The Schaumburg ordinance requires detailed technical in- formation that is useful in evaluating the potential of hazards. For instance, the village requires soils and hydrology studies. 8.4-1 Geological and Soil Characteristics The site proposed for development shall be investigated to c~termine the soil and geological characteristics. A report, prepared by a licensed professional engineer experienced in the practice of geological and soils mechanics, shall be submitted with every application for land within the Wetland Preserva- tion District. This report shall include a description of soil type, stability of surface, and subsurface hydrological conditions. Any area that the investigation indicates as subject to geological or soil hazards or subsurface seepage shall not be subjected to development unless the engineer can demonstrate conclusively that these hazards to wetlands can be overcome. Protecting natural functions· Protection of essential wetland functions should be the ultimate objective of any wetland management program. The decision to grant a per- mit for a wetland use should be considered in light of the potential impact on a specific wetland's functional at- tributes. Determining a wetland's functional attributes, however, is a complex and expensive task that may produce uncertain results· Several wetland functional assessment methods have been developed, but few, if any, assessment models can be reliably used to indicate the complete spec- trum of functions inherent in a given wetland. Because of this, before granting a permit, many planning agencies may hire consultants to broadly characterize wetland types or systems in their jurisdiction according to general functional characteristics and attendant values to the community. These broad assessments may not be adequate to render a permit decision for a specific activity occurring at a par- 37 A vegetative buffer can protect wetlands from some of the negative impacts related to adjacent development. In this wetland, however, ditches have been dug to reduce mosquito breeding. Such ditchin~g can counteract the effectiveness of the buffer by changing the hydrology, which may adversely affect the wetland'$ functio~Is. ticular site. Under these circumstances, the community may undertake a site-specific evaluation or require an applicant to perform a comprehensive functional assessment of a potentially impacted wetland area using specified pro- cedures. Assessments can provide the information needed to render decisions in complex cases by helping permit reviewers to determine if a wetland may be serving a par- ticularly significant ecological role; to determine the degree of impairment that may affect the wetland resource should the use be allowed; to darify benefits or losses that could ac- crue as a result of granting the permit~ to identify those con- ditions that may be attached to the permit to mitigate potential impacts; and to provide baseline information for use in wetland replacement/restoration efforts. An inland wetland protection ordinance from Ledyard, Connecticut, directs the regulatory agency to consider several factors that stress a wetland's functional characteristics in evaluating its importance. The existing or potential use of the area as a surface-water or groundwater supply. The extent to which the area serves as a recharge area or purifier of surface water or groundwater. The function of the area as pa rt of the natural drainage system 38 for the watershed. The importance of the area as a natural wildlife feeding or breeding area. The existence of rare or unusual concentrations of botanical species. The existing and potential use of the area for recreation pur- The availability of other open spaces in the surrounding area. The size of the wetland and its relationship to other wetlands or watercourses that may be affected by the proposed activity. The importance of the area in preventing leaching or siltation or otherwise affecting water quality. Without performing a wetland functional assessment, many of these considerations cannot be evaluated. Consistency with other plans. Ensuring that a proposed wetland use is consistent with broader plans and regulations affecting the local jurisdiction is largely a procedural mat- ter that can be readily addressed. Planners may employ detailed administrative procedures that supplement or- dinances or include measures such as interagency review procedures to facilitate coordination with agencies having particular interests in a permit review. Sometimes an overlap C among jurisdictional authorities may exist. For example, the U.S. Army Corps of Engineers Section 404 program requires permits for proposed fill activities that may also be covered under a local government wetland protection ordinance. Formal and informal review procedures help both Iocal governments and applicants share technical information and keep abreast of potential concerns that may arise in obtain- ing a permit. The quality of technical reviews conducted in accordance with a multiagency, multidisciplinary approach is superior to an in-house review. Furthermore, coordinated reviews help to identify and reinforce adherence to relevant state, regional, and federal policies, and to laws or plans that explicitly direct local governments to protect wetlands or that indirectly require wetland protection (e.g., mandates for safeguarding water quality or conserving wildlife ha- bitat). Harford County, Maryland, has developed a set of ad- ministrative procedures that helps ensure that applicants comply with related state and federal laws. Assistance in determining wetland boundaries is also guaranteed in the procedures. [Applicant must[ file an application for an Army Corps of Engineers permit, even if the development has been designed in- itially to avoid sensitive environmental features. The Corps will determine whether a permit is required. If a permit is required, the Corps may conduct a field visit to determine the extent and significance of the wetland. Failure to apply for a permit may re- sult in an enforcement action if the development is found later to have filled a water area or wetland. Application should also be made to the state for a Waterway Construction Permit. At the time of plan submission to this department, the engineer should notify the department of intention to apply for any state or federal permit or certification. Upon receipt of a plan and field report delineating a floodplain or nontidal wetland, staff of this department will verify the delineation by field visit. In cases of dispute, the department may request the assistance of state Coastal Resources Division (Tidewater Administration) staff. Wetland mitigation. The term "mitigation" encompasses a broad array of activities when applied to wetland manage- ment. Mitigation has been defined in the National Environ- mental Policy Act of 1969 regulations to include, in sequential order, the following: a. Avoiding the impact altogether by not taking a certain ac- tion or parts of an action; b. Minimizing impacts by limiting the degree or magnitude of the action and its implementation; c. Rectifying t he impact by repairing, rehabilitating, or restor. lng the affected environment; d. Reducing or eliminating the impact over time by preserva- tion and maintenance operations during the life of the ac- tion; and e. Compensating for the impact by replacing or providing substitute resources or environments. The use of buffer strips, setbacks, limitations on vegetation clearing, erosion and sediment control practices, and other common mitigation measures can be incorporated into or- dinances to successfully minimize impacts. (See box.) Avoidance and minimization of impacts is the primary objective of wetlands management. Local jurisdictions should institute whatever measures possible to ensure that wetland mitigation/replacement projects are a last resort and not used as a means of rationalizing the destruction of these resources. Restoration and total replacement of wetland systems is a challenging task. Many scientists, with good reason, doubt that any wetland system can be totally "replaced" with a man-made wetland. The primary focus in undertaking a proposed mitigation replacement project should be the replication of the affected wetland's functional characteristics, such as nutrient uptake, sediment trapping, and hydrology, etc. Generally, the ob- jective of replicating a destroyed or altered wetland is to reestablish an area of equal or greater acreage with the same type, mix, and density of plant species as had existed in the impacted wetland. This type of "in-kind" mitigation requires the creation of specific soil, elevation, and hydrologic characteristics that will allow, in time, the artificial wetland to resemble the natural wetland. This can be facilitated by restoring previously drained wetlands rather than trying to construct new ones. If restoring a wetland on its previous site is impossible, the new wetland should be constructed nearby within the immediate watershed drainage basin. Oftentimes, creating an artificial wetland of the same type is impossible. Thus, for example, where mature wooded wetlands are destroyed, a different wetland type must be substituted. A newly constructed wetland that is off site and Typical Mitigation Measures 1. Limit wetland uses to those with minimal impact on natural values (e.g., parks, growing of natural crops) 2. Limit development densities (e.g., require large lot sizes) 3. Cluster development on upland sites to protect 11- sensfive and hazardous areas 4. Elevate structures on pilings or other open works 6. Where appropriate, fence Wetlands and floodplains to protect natural vegetation and water quality and to reduce erosion , 7. Replant wetland and other vegetation where destruction of vegetation cannot be avoided 8. Reduce erosion in exposed areas through riP'rap or 9. Construct fish pools in channelization projects; install fish ladders at dams 10. Manage game to enhance and reestablish SPeCies 11. Use silt fences and similar measures to control runoff from construction sites; construct detention ponds to trap sediments 12. Operate dams to provide sufficient flows for downstream fish and wildlife and to periodically flush wetlands 13. Construct new wetlands and other wildlife areas by d/k- ing, land acquisition, or other means to compensate for unavoidable losses 39 of a different kind than the original wetland, however, is likely to fall short of providing benefits equivalent to the original. When successful replication is unlikely or prob- lematic, or losses of mature forest vegetation or unique or otherwise valuable wetland features are involved, more stringent standards that specify replacement of lost wetlands at a greater than one-to-one ratio are justifiable and should be required. Replacement standards must also take into account technical details concerning planting requirements and "suc- cess'' criteria for determining when a replacement proje~:t is deemed satisfactory and complete. The latter standard may include requirements for maintaining the wetland in a healthy condition for a specified period of time by remov- ing undesirable invader plant species or replacing dead plants. The Hillsborough County, Florida, ordinance provides the minimum requirements of a mitigation plan: 1-11.08 2. Where all or part of a wetland is destroyed or substantially altered by development, an acceptable mitigation plan shall include at least: a) Acre-for-acre replacement of the same or better type of wetland providing the environmental benefits Iost by reason of the proposed development; b) Specific design requirements based upon conditions of the site and the type of wetland to be created or restored; c) Periodic monitoring to remove exotic and nuisance vegetation; d) Monitoring and replacement to ensure a specified sur- vival rate of wetland vegetation for a reasonable period of time; e) Recorded designation as a permanent Conservation Area. 3. An acceptable mitigation plan [according to the Environ- mental Protection Commission] shall be reasonably and technically feasible. The Lee County, Florida, ordinance provides specific standards for wetland restoration: 13.01--The court or the Code Enforcement Board or any other appropriate body shall order a restoration plan pursuant to the standards contained in Section 13.02. Such a restoration plan shall set forth replacement of the same species or any species approved by consent of the parties or, if appropriate, in accordance with the direction of the court or the Code En- forcement Board. The wetlands that were destroyed due to fill- ing, excavation, drainage, and/or clearing shall be restored to natural ground elevation prior to commencement of plan- ting. Natural surface-water flow Jn terms of rate, quality, and hydroperiod shall be restored to conditions existing prior to activities of this ordinance. 13.02--The restoration plan shall include the following minimum planting standards: A. The planting plan for forested Resource Protection Areas or Transition Zones shall be in co mpliance with the restoration standards set forth in the Lee County Tree Protection Ordinance and Mangrove Protection Ordinance. 40 Four major threats to wetlands: dredge-and-fill operations (upper left); surface mining (upper right); development (lower left); and channelization (lower right). B. The planting plan for nonforested Resource Protection Areas or Transition Zones shall provide for replace- ment stock to be nursery grown, containerized, and planted at no less than three feet on center in the area wherein wetland vegetation was destroyed. C. Massing of replacement stock shall be subject to agree- ment by the parties or, if appropriate, by the court or Code Enforcement Board as long as the minimum number of trees, plants, and/or seedlings are provided. Replacement stock shall have a guaranteed 80 percent survivability for a period of no less than three years. A maintenance provision of no less than three years must be provided to control invasion of exotic vegetation. Prohibited Uses Some ordinances may list prohibited uses in a special sec- tion of the text. A Lexington, Massachusetts, ordinance directs that, within wetland areas, the following activities are not to occur: No landfill or dumping or excavation of any kind. No drainage work other than by an authorized public agency. No damming or relocation of any watercourse except as part of an overall drainage basin plan. No building or structure. No permanent storage of materials or equipment. Qualifications are also in effect on prohibited uses listed in the development regulations of Baltimore County, Maryland: No construction in or alteration of any floodplain may be per- mitted, except the installation of any culvert, bridge, street, or drainage facility that the county finds necessary and not detrimental to floodplain management programs. No dredg- ing, filling, or construction in any wetland shall be permitted. Any wetland must be adequately protected from contamina- tion. It is the purpose of this section to reduce losses to life and property from flooding, to obviate the need for public expen- ditures for flood protection, and to protect or enhance the en- vironmental quality of watersheds. Permitted Uses Many ordinances contain a section listing uses that are permitted as of right. These mainly include the "soft" or so- called "conservation uses." Variations may appear in the de- gree to which additional performance standards further define what conditions must be adhered to when allowing a use by right within a wetland. An Eau Claire County, Wisconsin, ordinance contains a comprehensive list of per- mitted uses divided between those that either can or cannot be conducted without filling, draining, or dredging: Permitted Uses. The following uses shall be allowed, subject to general provisions of this subtitle, the provisions of other applicable codes of the County Code of General Ordinances, the provisions of Chapters 30 and 31, Stats., and the provi- sions of other state and federal laws: 1. Activities and uses that do not require the issuance of a zon- ing permit under this chapter, but that must be carried out without filling, flooding, draining, dredging, ditching, till- ing, or excavating: a. Hiking, fishing, trapping, hunting, swimming, and boating; b. The harvesting of wild crops, such as marsh hay, ferns, moss, wild rice, berries, tree fruits, and tree seeds, in a manner that is not injurious to the natural reproduc- tion of such crops; c. The practice of silviculture, including the planting, thinning, and harvesting of timber; d. The pasturing of livestock; e. The cultivation of agricultural crops; f. The construction and maintenance of duck blinds. 21. Uses that do no t require the issuance of a zoning permit and that may involve filling, flooding, draining, dredging, dit- ching, tilling, or excavating to the extent specifically pro- vided below: a. Temporary water-level stabilization measures, in the practice of silviculture, that are necessary to alleviate abnormally wet or dry conditions that would have an adverse impact on the conduct of silviculture activities if not corrected; b. Flooding, dike and dam construction, and ditching for the purpose of growing and harvesting cranberries; c. Ditching, tilling, dredging, excavating, or filling done to maintain or repair existing drainage systems neces- sary for the cultivation of agricultural crops; d. Limited excavating and filling necessary for the con- struction and maintenance of fences for the pasturing of livestock; and e. Limited excavating and filling necessary for the con- struction and maintenance of piers, docks, and walkways built on pilings. A similar list of permitted uses, somewhat qualified by ad- ditional conditions, is contained in the Gloucester Township, New Jersey, ordinance: Permitted Uses. The following development shall be author- ized within a wetland: 41 A snowy egret. 1. Horticulture of native plant species and berry agriculture. 2. Low-intensity uses, such as hunting, fishing, trapping, hik- ing, boating, and swimming, provided that such uses do not involve any structure other than docks, piers, moor- ings, and boat launches. Such structures may be permit- ted, provided that there is no significant adverse impact on the wetland, as set forth in Subsection B hereof. 3. Fish and wildlife management activities, provided that the activity conforms to all applicable state and federal regula- tions and that the activity does not have a significant adverse impact on the wetland, as set forth in Subsection C hereof. On a case-by-case basis, proposals shall be evaluated relative to the scientific research value of the pro- posal. 4. Public improvements such as bridges, roads, trails, and utility transmission and distribution facilities, provided that: a) There is no feasible alternative route or site for the facility that does not involve development in a wetland. b) The public need cannot be met by existing facilities or modification thereof. c) There is no significant adverse impact on the wetland, as set forth in Subsection C hereof. Special Uses As discussed above, ordinances contain lists of "special permit" uses that are neither prohibited nor permitted outright. These uses must be reviewed on a case-by-case basis by a board of adjustment, planning commission, or other local board. Special permit uses are generally those that may or may not have serious wetland impact, depend- ing upon circumstances. The Eau Claire, Wisconsin, or- 42 dinance goes on to list special permit uses that require local approval. 3. Uses that are allowed upon the approval of a conditional use permit by the committee: A. The const vaction and maintenance of roads that are nec- essary to conduct silvicultural activities or are necessary for agricultural cultivation, provided that: i) The road cannot as a practical matter be located out- side the wetland; ii) The road is designed and constructed t o minimize the adverse impact upon the natural functions of the wetland and meets the following standards: a. The road shall be designated and constructed as a single-lane roadway with only such depth and width to accommodate the machinery required to conduct agricultural and silvicultural ac- tivities; b. Road coristruction activities are to be carried out in the immediate area of the roadbed only; c. Any filling, flooding, draining, dredging, ditch- ing, tilling, or excavating that is to be done must be necessary for the construction or maintenance of the road; B. The construction and maintenance of nonresidential buildings used solely in conjunction with raising of waterfowl, minnows, or other wetland or aquatic animals or used solely for some other purpose that is compatible with wetland preservation, if such building cannot as a practical matter be located outside the wetland, provided that: i) Any such building does not exceed 500 square feet in area; ~.ii) No filling, flooding, draining, dredging, ditching, tilling, or excavating is to be done. C. The establishment and development of public and private parks and recreation areas, boat access sites, nat- ural and outdoor education areas, historic and scientific areas, wildlife refuges, game preserves, and private wildlife habitat areas, provided that: i) Any private recreation or wildlife habitat area must be used exclusively for that purpose; ii) No filling is to be done; iii) Ditching, excavating, dredging, dike and dam con- struction may be done in wildlife refuges, game preserves, and private wildlife habitat areas, but only for the purpose of improving wildlife habitat or to otherwise enhance wetland values. D. The construction and maintenance of electric, gas, telephone, water and sewer transmission and distribu- tion lines, and related facilities by public utilities and cooperative associations organized for the purpose of producing or furnishing heat, light, power, or water to their members, provided that: i) The transmission and distribution lines and related facilities cannot as a practical matter belocated out- side the wetland; ii) Any filling, excavating, ditching, or drainthg that is to be done must be necessary for such ~onstruction or maintenance and must be done in a manner designed to minimize flooding and other adverse im- pacts upon the natural functions of the wetland. E. The const ruction and maintenance of railroad lines, pro- vided that: i) Any filling, excavating, ditching, or draining that is to be done must be necessary for such construction or maintenance and must be done in a manner designed to minimize flooding and other adverse im- pacts upon the natural functions of the wetland. F. The maintenance, repair, replacement, and reconstruc- tion of existing town and county highways and bridges. Performance Standards Sanibel, Florida, has an innovative ordinance that was one of the first to stress specific performance standards for the protection of wetlands. A few of the many criteria stated in the ordinance are outlined below: c) Fill shall not be placed within 20 feet of an open body of water, d) Slopes resulting from the placement of fill shall be no steeper than a three to one (horizontal to vertical) ratio and must be stabilized with vegetation to prevent erosion and sedimentation. The stabilization must be completed at least 30 days prior to the issuance of a certificate of occupancy. The vegetation used for fill stabilization must be main- rained in a living condition for the life of the development. e) Disturbance of native vegetation shall be limited to the minimum necessary for each building site or development activity. f) Wastewater, fertilizers-pesticides, other potential pollutants, and sediments must be prevented from enter- ing directly, via surface-water and groundwater flow or outfall structures, into lakes, canals, and open bodies of g) Filling shall consist of only the minimum amount necessary to achieve the permitted purpose. h) Where vehicle and driveway access is permitted, the hydrological connection will not be disrupted. i) When the use of fill is permit ted, it shall be clean and not garbage refuse, toxic or contaminated material, or any extra material that through the action of soil leaching may cause the degradation of surface- or groundwater quality. j) During development, every precaution shall be taken to prevent the disruption of adjacent wetlands and open bodies of water. During construction, turbidity screens and any other best-management practices shall be used at all times to minimize siltation, sedimentation, and erosion. k) To ensure that sediment remains on the site and is not transported into other wetlands or into open bodies of water, erosion and sediment controls shall be left in place until filled areas are stabilized with permanent vegetation that will prevent the transport of sediment off the site. Ordinances may not establish detailed performance stan- dards for protecting wetlands but, instead, may contain general performance guidelines. The Ledyard, Connecticut, ordinance directs the regulatory agency to consider the following environmental impacts of the proposed activity: · The ability of the regulated area to continue to absorb and A limpkin, relative of the ibi~. purify water, or prevent flooding. · Increased erosion problems resulting from changes in grades, ground cover, or drainage features. · The extent of additional siltation or leaching and its effect on water quality and aquatic life. · ~[The influence of toxic materials on water supplies, aquatic organisms, or wildlife. · Changes in thevolume, velocity, temperature, or course of a waterway, and their resulting effects on plant, animal, or aquatic life. Many ordinances establish performance standards for evaluating special permit requests. These criteria are par- ticularly useful because they require that certain issues be considered and favorably resolved prior to issuance of any permit. They, therefore, help prevent arbitrary and capricious decisions regarding permit approvals or denials. A Chanhassen, Minnesota, ordinance provides detailed guidance and performance standards for special permit review: Wetland A Iteration Permit Guidelines. No wetland alteration permit shall be issued unless the council determines that the proposed development complies with the following guidelines, as well as the intent and purpose of this ordinance. In review- ing wetland alteration proposals, reference shall be made to United States Department of Agriculture Soil Conservation Service under Runoff, Erosion, and Sediment Control Hand- book and Technical Field Guide. If the dty council determines th~.t the required calculations in a particular instance are needlessly burdensome because of the area and nature of a pro- posal, it may agree to a substitute analysis. 1. Filling. Aminimumamountofflllingwillbea]lowedwhen necessary for the use of property, but only when it will not 43 Pickerelweed--commonly found on the borders of lakes, ponds, sluggish rivers, in mud, or in shallow water. have a net adverse effect upon the ecological and hydrological characteristics of the wetland. In determin- ing whether a proposed development will have a net adverse effect on the ecological and hydrological characteristics of the wetland, the council shall consider, but not limit its consideration to, the following factors: a) Any filling shall not cause total natural flood-storage capacity of the wetland to fall below, or fall below fur- ther, the projected volume of runoff from the water- shed generated by a 5.9-inch rainfall in 24 hours. Since the total amount of filling that can be permitted is limited, apportionment of fill opportunities for other properties abutting the wetland shall be considered. b) Any filling shall not cause the total natural nutrient- stripping capacity of the wetland to be diminished to an extent that is detrimental to any area river, lake, or stream. c) Only fill fr~e of chemical pollutants and organic wastes may be used. d) Filling shall be carried out so as to minimize the impact on vegetation. e) Filling in wetland areas will not be permitted during waterfowl breeding season or fish spawning season, unless it is determined by the city that the wetland is not used for waterfowl breeding or fish spawning. 2. Dredging. Dredgingwillbeallowedonlywhenit willnot have a net adverse effect on the ecological and hydrological characteristics of the wetland. Dredging, when allowed, shall be limited as follows: a-) It shall be located as to minimize the impact on vegetation. b) It shalJ not adversely change water flow. c) The size of the dredged area shall be limited to the 44 Tussock Sedge--commonly found in wet meadows, marshes, shrub swamps, and wooded swamps. minimum required for the proposed action. c~ Disposal of the dredged material is prohibited within the wetland district unless specifically authorized in the wetland alteration permit. e) Disposal of any dredged material shall include proper erosion control and nutrient retention measures. f) Dredging in any wetland area is prohibited during waterfowl breeding season or fish spawning season, unless it is determined by the city that the wetland is not used for waterfowl breeding or fish spawning. 3. Discharges. a) SoiI loss from a construction site, any part of which is in a wetland or within 200 feet of the wetland that is within the wetland watershed, shall not exceed a rate of more than two tons per acre per year. b) Projected soil loss from a completed construction proj- ect shall not exceed 0.5 tons per year if any part of it is in a wetland or within 200 feet of a wetland that is within the wetland watershed. 4. Stormwater Runoff. A minimum increase in volume of stormwater runoff to a wetland from a development over the natural volume of runoff may be allowed when nec- essary for use of property, but only when it will not have a net adverse effect upon the ecological and hydrological characteristics of the wetland. In no case shall the restric- tion on runoff set out below be exceeded. Since the total increase of runoff that can be permitted is limited, the council, when considering permit applicatioris, shall con- sider, in addition to the roi]owing, apportionment of creased runoff opportunity to ail wetland property within the surrounding wetland area. a) Stormwater runoff from a development may be directed to the wetland only when free of debris and substantially free of chemical pollutants and silt, and only at rates that do r~ot disturb vegetation or increase turbidity. Sheet flow and other overland drainage of runoff shall be encouraged. b) The proposed action shall not cause stormwater run- off on the wetland to take place at a rate that would materially exceed the natural rate. c) The allowed total increased runoff, in combination with the total fill allowed, shall not cause total natural flood-storage capacity of the wetland to fall below, or fall below further, the projected volume of runoff on the whole developed wetland watershed generated by a 5.9-inch rainfall in 24 hours. d) The allowed total increase in runoff, in combination with the total fill allowed, shall not cause total natural nutrient-stripping capacity of the wetland to fall below, or fall below further, the projected nutrient production from the whole developed wetland watershed. Specifying performance criteria may be particularly useful when frequent and repeated wetland encroachments are anticipated, unavoidable, or, in the case of stormwater management practices (or other uses of wetlands), allowed under certain circumstances. A model ordinance prepared for the Board of County Commissioners of Seminole County, Florida, by the Center for Wetlands at the Univer- sity of Florida in Gainesville contains an extensive list of per- formance criteria. The ordinance specifies criteria covering a number of development activities, including production of agricultural or horticultural crops; harvesting of timber and wood products; timber catwalks and docks greater than four feet wide; mosquito control and drainage ditches; dredging; filling; buIkheading; stormwater management; pesticide application; utility installations; and other ac- tivities. Examples of performance criteria for pesticides/her- bicides and stormwater retention basins are given below. Note how the criteria limit permitted uses to certain wetland types that are peculiar to the region. Use of any pesticides or herbicides. The use of any pesticide or herbicide is incompatible within deep marshes, mixed hard- wood swamps, cypress domes, bayheads, hydric hammocks, and shallow marshes. The use of any pesticide or herbicide within wet prairies is compatible subject to the issuance of a wetland development permit and must meet the following per- formance criteria: 1. Performance Criteria A red maple forest. This is one of several types of wetlands for which mitigation will almost certainly not be a viable option. 45 a. Application of pesticides or herbicides shall occur only during the normal dry season (usually from October through May). b. Equipment for the application of the pesticide or her- bicide shall be chosen so that it best directs the chemical to the target organism. c. Every care shall be taken to avoid direct contamination 9f surface water during application and during the mix- ing and preparation of the chemical. d. Aerial application or mist blowing of pesticides or her, bicides shall be avoided whenever possible. Installation of stormwater retention basins. The construction of stormwater retention basins within a wetland is incompati- ble with deep marshes, mixed hardwood swamps, cypress domes, bayheads, hydric hammocks, and shallow marshes and is compatible subject to the issuance of a wetland develop- ment permit within wet prairies. The permitted activity must meet the following performance criteria: 1. Performance Criteria a. The size of the retention basin shall be limited to 10 per- cent of the wetland area or area of wetlands within the property boundary. b. If the retention basin is part of a larger development area, the combined area of improved area, structures, roads, etc., and the retention basin shall be no larger than 10 percent of the wetland area or area of wetlands within the property boundary. c. The retention basin shall not be dug any deeper than is necessary within the wetland, but rather constructed using a combination of excavation and berms. Deep excavations for the purposes of retention basins shall be discouraged. d. The discharge of waters from a retention basin into surface-water bodies and open-water streams shall be discouraged and minimized. Discharge into existing, compatible wetlands whenever possible shall be en- couraged. e. The retention basin shall be vegetated, and the use of herbicides and/or pesticides within the retention basin for vegetation and insect control shall be discouraged. Instead, mechanical vegetation removal, when neces~ sary, shall be used whenever possible. The installation of stormwater retention balms in areas adjacent to wetlands is compatible with ali wetland types. Another type of performance standard included within some wetland ordinances is the establishment of minimum lot-size requirements of one to 15 acres for structures or buildings in wetland zones. The intent is simply to require large lot sizes for development in wetlands. Wetland Set-Asides Sometimes, formulas are established for the amount of wetland area that can be developed based upon specific wetland resource types. For example, in New Hanover County, North Carolina, a conservation overlay district specifies minimal protection for some wetland types by re- quiring that, if a parcel contains a swamp forest of at least 46 2.5 acres in size, at least half of the area cannot be developed. Other wetland types in the county have different "conser- vation space factors" (amount of undevelopable area on a particular parcel) that mandate more restrictive set-asides. For example, the ordinance directs that a fresh marsh area with a minimum area of one acre has a conservation space factor of .8, and a natural pond must be completely preserved (conservation factor of 1.0). Queen Anne's County, Maryland, has taken a similar approach in using "open space ratios" within its zoning ordinance. However, instead of establishing the set-aside formula based upon wetland type, the location of the wetlands within three broad regions defined by the county (coastal, upland, and agricultural) is the determining factor. The county assigned a 1.0 ratio for nontidal wetlands in coastal and upland areas and a .8 ratio for wetlands in agricultural areas. Often the applicant is required to submit detailed infor- mation to help the regulatory authority evaluate a proposed wetland use. This information is very important for conducting a thorough analysis of project impacts. The Lee County, Florida, ordinance directs project sponsors to pro- vide the following information: A. A general project description that must include: 1. The names, addresses, and telephone numbers of all owners, planners, architects, engineers, environmen- tal consultants, surveyors, the developer, and all other consultants involved in the application; 2. The existing zoning classification of the property; and 3. The total square footage of the property and the per- centage proposed to be covered by fill and/or cleared of native vegetation; B. A legal description of the site and a map showing the loca- tion of the site with reference to existing roads; C. A map showing any proposed alteration of the site, in- duding proposed excavations, grading, filling, or clearing; D. A detailed description of the existing environmental and hydrologic conditions on the site, including: 1. Topography mapped to one-foot contour intervals with elevations referenced to mean sea-level datum (NGVD); 2. Soils according to the USDA/Soils Conservation Ser* vice Soil Survey of Lee County; and 3. Vegetation maps according to the Florida Land-Use, Cover, and Forms Classification System; E. A detailed description of proposed alterations to existing conditions, including: 1. Changes in topography by grading, filling, or ex- cavating; 2. Areas where vegetation will be cleared or trimmed; and 3. Areas where impervious surfaces will be constructed; F. A description of any proposed water management system; and G. A proposed landscaping plan. The appropriately named "Prairie Pothole Region" in the Dakotas contains wetlands that are the nation's most valuable waterfowl production areas. Permit-Processing Fees and Performance Bonds Processing permits can often require a considerable amount of staff time and expertise. Local governments may lack the necessary resources to implement an otherwise well- intentioned ordinance. A Dartmouth, Massachusetts, Wetlands Protection By-Law ensures that at least a portion of these costs will be borne by the applicant: At the time of an application or request, the applicant shall pay a filing fee specified in regulations of the Commission. · . . In addition, the Commission is authorized to require the applicant to pay the costs and expenses of any expert con- sultant deemed necessary by the Commission to review the ap- plication or request up to a maximum of $2,500. The Commission may waive the filing fee and costs and expenses for an application or request filed by a government agency. Generally, the regulatory agency is authorized to attach conditions to permits to minimize development impacts such as restrictions on the amount and location of fill. Some or- dinances authorize the regulatory agency to require a per- mit processing fee and to require a performance bond from an applicant to ensure that these conditions are carried out. The Simsbury, Connecticut, ordinance illustrates this pro- vision. SECTION 9--BOND AND INSURANCE 9.1--The applicant, upon the granting of a permit, and at the discretion of the commission, may be required to file a perfor- mance bond in an amount not to exceed $5,000 and with sureties and in a form approved by the commission. 9.2--The bond and sureties shall be conditioned on com- pliance with all provisions of these regulations and conditions imposed on permit approval. 9.3--The applicant may be requi~d to certify public insurance against hability that might result from proposed operation or ~se covering any and all damage that might occur within two years of completion of such operations. Amount of liability insurance coverage shall be a minimum of $$00,000 for all ac- cidents resulting in bodily injury or death, and $100,000 for property damage. Penalties Most ordinances can provide a combination of fines and possible jail sentences for violations. Many require that, whenever possible, the affected wetland area be restored or other mitigation measures be instituted. This should be an integral part of any local wetland ordinance. Generally, or- dinances include only civil penalties. The threat of a jail sentence for a violation is a more serious threat but may raise opposition to the ordinance without providing much ben- efit. Judges and juries are often reluctant to levy jail sentences for violations of zoning ordinances and other land-use laws. The Ledyard, Connecticut, ordinance provides an example of a penalty provision. Any person who commits, takes part in, or assists in any 'dola- tion of any provision of these regulations shall be fined not more than $1,000 for each offense. Each violation shall be a separate and distinct offense, and, in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense. The Superior Court, in any action brought by the commission, the town of Ledyard, or any person, shall have jurisdiction to restrain a continuing violation of these regulations or to issue orders directing that 47 Filling or draining wetlands can cause a change in the local water table that can have some startling results, like a gas tank rising through the station's paved surface. the violation be corrected or removed. All costs, fees, and ex- penses in connection with such action shall be assessed as' damages against the violator. The monies collected pursuant to this section shall be used to restore the affected wetland and/or watercourse to its condition prior to the violation, where possible. It may be worth considering minimum as well as maximum fines. Considerable minimum fees could serve as a deterrent for those who might consider illegal filling or other work in the absence of such penalty. The administering authority of the regulations may wish to take more immediate action to stop a violation while waiting for a court order to cease and desist. The Lee County, Florida, ordinance includes a stop-work order that provides for immediate action; it also allows activities to resume under specified conditions: Upon notice from the Administrator, work being done con- trary to the provisions of this ordinance or in a dangerous or unsafe manner, shall be immediately stopped. Such notice shall be given to the owner of the property, or to his agent, or to the person doing the work, or shall be posted on the prop- erty, and shall state the conditions under which work may be resumed. Where an emergency exists, written notice shall not be required to be given by the Administrator. Enforcement is, of course, the key to wetland protection. Failure to prosecute violators breeds disrespect for an or- dinanc~ in addition to the degradation of the wetland. Re- quiring restoration of disturbed wetlands can be an effective enforcement mechanism because it ensures that damage to the wetland will be minimized and that developers will not fill wetlands, considering a monetary fine as merely an ad- ditional development cost. ADMINISTRATION OF REGULATIONS Drafting and adopting a new ordinance or amending an existing one is only a first step in regulating nontidal wetland areas. Effective administration and enforcement of the or- dinance is necessary. Development permits must be evaluated and monitored. Violators must be notified and fined, as appropriate. Lack of staff or expertise may be a serious limitation on a jurisdictinn's ability to adopt and administer a wetland protection program. "Field-oriented" aspects of manage- ment, such as monitoring mitigation projects, can prove to be especially difficult and often require considerable technical expertise. Addressing the problem of mitigation is one of the most difficult and demanding aspects of im- plementing a successful wetland protection program. Depending on the level of activity, it may be necessary to develop new administrative mechanisms solely for the pur- pose of overseeing mitigation actions. Many planning agen- cies typically lack the manpower and expertise to face complex, controversial, and potentially precedent-setting 48 (- mitigation projects that may take months or even years to complete. The pressure from development interests may even lead to undesirable concessions that soon become an expected part of the resolution to wetland development disputes. Responsibility for overseeing mitigation implementation could be placed in the hands of a commission, resource agency, or specialized team with experience in designing wetland mitigation projects and administrative authority to implement innovative solutions. This resource agency could be given the responsibility for maintaining an inven- tory of potential wetland creation, restoration, or acquisi- tion sites and monitoring completed projects. Two types of monitoring are needed. First, "compliance" monitoring is needed to ensure that mitigation efforts are in- corporated into permit conditions and are properly executed by the responsible parties. Second, "success" monitoring is needed to determine if mitigation plans actually result in habitats that replace or restore lost wetland habitats, func- tions, and values. Monitoring activities provides the neces- sary feedback mechanism to make the mitigation plan requirements for a current project and future projects realistic, cost effective, and successful. For other aspects of a wetland protection program, local governments may compensate for a lack of professional staff by securing the assistance of state and federal agencies and experts within the community, if available. Local science teachers, architects, engineers, botanists, ecologists, bird- watchers, and interested citizens may be of help. In addition, communities should approach their local conservation organizations such as The Nature Conservancy and the Audubon Society. A community may choose to set up a conservation commission made up of local volunteers to help map wetlands, adopt regulations, and evaluate in- dividual development permits. This approach has been taken by many communities in New England. Several federal agencies can provide technical assistance. The USDA Soil Conservation Service (SCS) can show com- munities how to use soil maps to identify wetlands and evaluate the impact of proposed development. SCS person- nel may also assist in the field delineation of wetlands by identifying hydric soils. The U.S. Fish and Wildlife Service may help in providing information on wetland mapping and the status and recent trends of wetlands; offering training courses on wetlands classification and identification; and evaluating development proposals that are of federal con- cern. The U.S. Army Corps of Engineers can provide infor- mation on wetland sites undergoing permit evaluations and status of wetland permit actions. The U.S. Environmental Protection Agency may be able to provide technical assistance to local governments, especially for projects re- quiring federal permits. And the Federal Emergency Management Agency can provide information concerning the National Flood Insurance Program and floodplain regulations. Financial Considerations Limited budgets also often constrain a community's ability to properly administer regulations. Those counties and municipalities concerned about the costs of administer- ing a wetland regulation can reduce costs by: · Using existing wetland and resource maps to reduce the cost of new map preparation. Data gathering on a case- by-case basis can also be used to deal with map inac- curacies and to resolve wetland boundary disputes. · Giving priority to wetland planning, data gathering, regulations, acquisition, and other management efforts according to the degree that wetland areas are threat- ened by development or according to their relative · Encouraging interested citizens and conservation organizations to assist in data gathering, formulation of policies and plans, evaluation of individual develop- ments, monitoring of development, and the detection of violations. · Requiring developers to prepare impact assessments and field delineations of wetlands to reduce costs. · Charging developers fees so that the municipality can hire an environmental consultant to review wetland boundary delineations, mitigation plans, or other aspects of the proposed development, as necessary. This allows the municipality to supplement its own staff resources to ensure proper review of the proposed activity. · Relying on personnel employed by other local pro- grams, such as land-use planners, municipal engineers, zoning administrators, and sanitary engineers as much as possible for day-to-day implementation. Planning agencies may be particularly ill-equipped to establish the financial framework needed to implement mitigation activities. Planning and zoning organizations with established protection programs are typically confined to [he role of overseeing the efforts of others who are re- quired to identify, acquire, and enhance an area to replace a wetland. This is most often a cumbersome and ineffective process. Developers and/or their consultant team may have little or no experience in wetland replacement and, more often than not, are interested only in completing the proj- ect expeditiously at the least cost. A "partnership" approach may be the best way to imple- ment mitigation projects. Partnerships between government agencies (local, state, and federal) and private or nonprofit interests can be forged to divide responsibilities for project planning and design and site acquisition, easements, monitoring, and long-term management. For example, applicants, through a consultant team, are typically responsible for providing comprehensive assessments of a wetland area. They must also submit detailed plans for management, construction, and monitor- ing of the mitigation project. Fish and game agencies may provide review and evaluation assistance with project design components pertaining to wetland wildlife habitat values. Nonprofit groups, such as the Nature Conservancy or the Isaak Walton League, may help with long-term manage- ment and monitoring of sites. The local government could act as the overall coordinating agency providing support functions commensurate with available resources. Wetland losses are often too small to warrant replacement on an individual basis, or mitigation is not possible or feasi- 49 ble through a partnership. In these instances, the odds of suc- cessfully compensating for wetland losses are greatly increased through the establishment of a mitigation bank sponsored by a special administrative team that has the authority and wherewithal to seize opportunities for land trades, purchases, or easements to secure potential wetland creation or restoration sites. A bank is established when a resource agency purchases drained wetlands or degraded wetland areas for restoration, or areas in which artificial wetlands may be created. The wetland at the bank site.is "improved" in advance of wetland losses caused by devel- opment. A methodology like the U.S. Fish and Wildlife Service's "Habitat Evaluation Procedure" or U.S. Army Corps of Engineers' Wetland Evaluation Technique (WET) is used to quantify the increase in wetland value. This in- crease is tallied as mitigation "credits" that developers can purchase by compensating the agency that bought and im- proved the new wetland site. Mitigation banks, however, must not facilitate further losses of wetland habitat. They should not be used to justify destruction of natural wetlands. They are used principally: · To mitigate unavoidable wetland losses that are the re- sult of projects in the public interest; · -To provide mitigation for small development projects that cause limited habitat losses too small to justify replacement; · To mitigate wetland losses that occur in areas zoned for appropriate development; or · To restore important wetlands to achieve regional restoration goals and provide mitigation "credits." Continuing Program Review A review of the changing status and trends in wetland preservation or losses is paramount to a successful wetland protection program. Two basic types of wetland program reviews should be considered: an administrative review and field reviews to monitor compliance. A review of the administrative elements of the program encompasses both qualitative and quantitative assessments of administrative performance. An analysis of significant shifts in any of the following categories may signal impor- rant new trends, indicate potential problems, or document improvements: 1. Average permit-processing time; 2. Number of backlogged cases; 3. Geographic distribution of permits; 4. Permit category (i.e., is the permit for a fill, timber harvesting, etc.'/); 5. Number of e~orcement actions from outside reports and/or internal inspections; 6. Number of penalty assessments levied or the civil/ criminal conviction rate; 7. Number of wetland acres converted or impacted by wetland type, region, etc.; 8. Number and type of required mitigation actions; 9. Number and character of public correspondence items; and 10. Amount and character of news media coverage. The other type of program review involves going into the field to determine the rate of compliance with permit re- quirements. An independent agency might be retained to perform a survey of sites. A planning agency should periodically monitor wetland conversions. This can be ac- complished through complete field investigations or inven- tories (derived through remote sensing or sample surveys) that quantify wetland types, acreages, and geographic distribution. Improvements in the resolution of commer- cially available satellite imagery and microcomputer-based image processing are making possible more efficient metho0~s of mapping and monitoring nontidal wetlands and other n~.tural resources. A close watch should be kept on individual mitigation projects. If possible, each mitigation project should be evaluated for "success," using published criteria and proj- ect objectives. As more is learned about the success of dif- ferent mitigation techniques and procedures, appropriate refinements should be made to both technical criteria and the local community's mitigation policy. A Northeastern sedge meadow adjacent to a farm. The draining of wetlands for agricultural purposes continues to pose the greatest threat to their preservation. Chapter 4. Other Types of Regulations and Protection Techniques Wetland regulations can be contained in other codes in addition to the zoning ordinance to provide comprehensive wetland protection. Floodplain ordinances can be amended by adding standards to prevent fill and drainage of wetland portions of the floodplain. Subdivision and planned unit development codes can be used to encourage clustering of buildings on upland sites and to require dedication or per- manent preservation of wetland areas. Building codes can be used to control development on hydric soils and in flood- hazard areas. Sanitary codes can prohibit septic tank systems in high groundwater areas or in o~:her hydric soil areas. Stormwater management ordinances can be used to protect wetlands as a means of reducing nonpoint-source pollutants and to create artificial wetlands for the treatment of surface runoff. Pollution controls may be used to prohibit discharges into wetlands. FLOODPLAIN REGULATIONS Many communities and counties have adopted regula- tions controlling activities in the 100-year floodplain. Many nontidal wetlands are found within this area. Some floodplain regulations are overlaid in comprehensive zon- ing ordinances or subdivision regulations, while others are incorporated as part of the building permit review, and a few are developed as separate ordinances. Some of these incor- porate provisions or policies that afford nontidal wetlands some protection. Often, however, floodplain regulations permit some filling, draining, dredging, grading, and con- struction within the outer floodplain areas, which may con- tain nontidal wetlands, so long as structures are elevated to the 100-year flood elevation and flood heights and velocities are not increased. Modest amendments to an existing floodplain ordinance may provide local government officials with a less con- troversial, more immediate, and feasible alternative to pro- tecting many nontidal wetlands. Talbot County, Maryland, amended a floodplain management ordinance (originally based upon a model ordinance drafted by the Federal Emergency Management Agency [FEMA] as a requisite for participation in the National Flood Insurance Program) to include nontidal wetlands protection. The standard FEMA- type model ordinance familiar to many community planners required only minimum alterations. First, a definition of wetland was added to the definitions section. Second, within the floodplain district, one additional subdistrict was established and defined as follows: Wetlands Floodplain (WF6)--Those portions of land within the Floodplain District subject to inundation by the 100-year flood and determined to support wetlands as defined in this ordinance. Third, additional procedural requirements and land-use restrictions were added to the "Development Regulations" portion of the ordinance. In the Wetlands Floodplain (WF6), the following regulations shall apply in addition to the regulations cited in Section 20-5B of this subtitle: 1. The Talbot County Department of Public Works shall ob- tain, review, and reasonably utilize any wetland classifica- tion data provided by federal, state, or other sources in the enforcement of this subtitle within the Wetlands Floodplain. 2. When the wetland boundary is unknown, obscure, or undefined, the Talbot County Department of Public Works acting in cooperation with and with assistance from the Maryland Department of Natural Resources, shall evaluate each site and attempt to define the boundary. 3. Except where specifically allowed by the Talbot County Council and the Department of Natural Resources, the following shall be prohibited: a ) filling, dumping, or excavation of any kind; b) drainage or alteration to the natural drainage and cir_ culation of surface water or groundwater. 4. All buildings and structures shall be prohibited with the ex- ception of catwalks, piers, boathouses, boat shelters, fences, duck blinds, wildlife management shelters, foot- bridges, observation decks and shelters, and other similar water-related structures, including structures that are con- structed on pilings to permit the unobstructed flow of 51 This "pond" is actually the basement of a unit to be built in a housing development in Macomb County, Michigan. Development in wetlands may result in serious problems for human habitats as well as animal habitats. waters and preserve the natural contour of the wetland area. 5. To the maximum extent possible, activities in the Wetland Floodplain will be limited to those that: a) require access to water or wetlands, or are water- dependent; b) have no prudent or feasible alternative site that does not involve wetland areas; and c) will result in minimurn feasible alteration or impairment of the natural contour, natural vegetation, fish and wildlife resources, or the natural aquatic circulation of the wetland area. Often, local floodplain regulations require only minimal amendments to substantially increase wetlands protection. lla areas where terrain and topographic features character- istically confine wetlands to drainageways and streams, a simple amendment similar to the sort presented above can protect most wetland complexes. 52 SUBDIVISION REGULATIONS Subdivision plat review procedures are used to govern the process of converting undeveloped land into building sites by controlling the location of structures, streets, lots, utilities, and community facilities. While most subdivision regulations do not specifically regulate wetlands, nearly all contain prohibitions against building in areas in which soil, subsoil, or flooding conditions would create public health or safety hazards if development took place. Furthermore, subdivision ordinances and related planned unit develop- ment ordinances include a cluster option. This allows developers to group buildings in nonsensitive areas so that other areas can be maintained as open space without chang- ing the overall density of the subdivision. Generally, these ordinances also prohibit the subdivision of land with inade- quate on-site sewage disposal capabilities in areas without sewer hookups (typical of wetland areas). Subdivision ordinances often contain clauses requiring developers to dedicate a portion of their land to the local C government for recreational or open space purposes. Similarly, easement agreements and restrictive covenants may be' required by the reviewing authority whereby development in sensitive areas is prohibited but ownership rights remain and with the title holder. A pass proposal recemly under consideration in Delaware would have created a special caveat to be included within the deeds of land containing wetlands that warned property owners that both federal and state restrictions on development may apply to the property under consideration. This approach is patterned after similar caveats on deeds to flood-prone properties. Construction standards and criteria are often contained within subdivision ordinances or are referenced as separate technical codes that must be met when submit ting plats for review. These technical standards can be expanded to cover wetland management considerations. Technical codes offer an opportunity for planners to specify what construction practices are necessary to maintain wetland functions. In this way, wetland protection standards are translated from policy considerations into performance practices that builders and engineers can relate to and that allow them to prepare specific plans for substantive technical review. Greenwood Village, Colorado, has formulated such stan- dards in their Storm Drainage Design and Technical Code. One subelement of the code is referenced here as an example. 7.4.2.5--Channels. Channels planned through existing wetlands shall consider potential impacts on the wetlands' vegetation. Velocity criteria for.grass-lined channels are given in Section 6.2.3.2. Impacts of channel configuration (cross- section, depth, slope) shall be considered in planning the drainageway in order to minimize adverse impacts and replicate wetland functions. Additional flow ~-esistance shaI1 be considered when sizing channels that may contain wetlands with shrubs and trees .... If these are dominant species, ad- ditional flow area would be provided. However, many species of native plants are flattened as the flow velocity and depth increase, resulting in decreasing roughness factors with in- creasing hydraulic radius. Trickle channels are an important component in the mainte- nance of wetlands and low-flow water quality. [Trickle chan- nels are small drainage channels within a larger drainageway that evacuate surface water under normal conditions. They can provide a source of water for wetland maintenance and should be designed to avoid draining wetlands.] InClusion of a trickle channel in a developed drainageway that includes wetlands shall consider potential impacts on the wetlands. Use of concrete-lined trickle channels is not recommended in grass- lined channels unless sl~ecific conditions warrant their con- sideration. Concrete troughs interrupt the normal sur- face/groundwater pattern that is found in wetlafid areas. Where gradient/erosion control is required in the trickle chan- nel, it is recommended that riprap or concrete sills (perpen- dicular to flow direction) be used. It should be remembered that protection of nontidal wetlands through subdivision regulations alone can only maintain wetlands in newly developed areas. Infill develop- ment, accessory structures, and plats approved prior to up- dated regulations can proceed with potentially adverse impacts to wetlands. Likewise, many local jurisdiction regulations permit "minor" subdivision developments of threff to four lots or less to submit plats or plans that may not be required to meet technical requirements as stringent as those for major subdivisions or that are subject to less rig- orous review. Again, the probability of further adverse im- pacts on wetlands increases in these situations. Nevertheless, communities without wetland protection provisions could easily adopt minor amendments to their subdivision or- dinances to help protect wetlands from further filling, dredg- ing, drainage, or development. SANITARY CODES AND OTHER REGULATIONS Frequently, local jurisdictions are charged with the responsibility of implementing sanitary laws governing the location and operation of private wastewater treatment and septic/leach field systems. Local governments are also often empowered to adopt more stringent measures than required by the state. For example, jurisdictions can restrict the is- suance of building permits or refuse to approve subdivision plats that will place individual septic systems in high ground- water areas that are often associated with nontidal wetlands. Communities can use other special ordinances to protect wetlands, including regulations for sand and gravel extrac- tion, tree-cutting regulations, building codes, and special "site plan" review regulations for industry and commercial development. Building codes can prohibit development in flood-prone areas or on unstable soils (a characteristic of many wetlands). Site plan review requirements can be used to augment existing zoning and subdivision ordinances to assess the impact of development on wetlands and reduce this impact. Often it takes only minor amendments to the purpose section of such special ordinances to extend their ap- plication to wetland areas. OTHER PROTECTION TECHNIQUES C~mmunities undertaking a wetland protection program must be willing to make a long-term commitment that in- cludes not only regulatory approaches but other means of reaching the program's objectives. While regulation is a critical part of the protection program, additional techniques can make the program more comprehensive. These other techniques include acquisition, education, tax incentives, participation in state and federal efforts, and action by citi- zen advocates. In the absence of local wetland regulation, these techniques may form the basis of an effective protec- tive approach for local wetland resources. Public Acquisition Local governments can protect wetlands on a permanent basis through acquisition with public funds orby encourag- ing private donation of wetlands. Where endangered species are involved or the wetlands are otherwise highly sensitive and valuable, acquisition is particularly appropriate. How- ever, acquisition often requires significant public expen- ditures. Public acquisition may take several forms: · Acquisition may be in "fee simple"; that is, the full title and interest of the property may be conveyed by the property owner to a public agency. · Acquisition may be in fee with retention of a life estate; that is, the entire property may be conveyed by a private landowner to a public agency, but the land- owner retains the right to remain on and use the prop- 53 erty for his or her life (or the life of some other named beneficiaries). The public takes full possession only upon the cessation of the life estate. · Theacquisitionmaybeaneasement. A partial interest in the property is conveyed to a public agency, generally in perpetuity (although some legislative schemes permit shorter periods). This interest is used to protect a public conservation interest (for example, restricting the landowner's and any subsequent owner's right to develop a wetland area). A public agency may acquire wetlands in any of these forms in partnership with a private group, with state or federal agencies, or through a multiparty arrangement of ownership and management. Many communities have ac- quired wetlands through "bargain sales" from private land- owners. By selling a property to a public agency or "qualified" nonprofit organization at below-market price, a taxpayer can claim the difference between appraised market value and the bargain price as a tax-deductible donation. Tax savings can motivate many landowners to consider selling or donating their wetland property to local govern- ments and their conservation partners. However, such tran- sactions generally require considerable negotiation and careful tax planning to satisfy all parties. The 1986 Tax Reform Act instituted a number of complex changes to the federal Internal Revenue Code. Among the alterations were changes to the alternative minimum tax rules that apply to charitable gifts of appreciated property. Certain high-income taxpayers with other tax "preferred" items might not gain maximum tax benefits. The calculation is a complicated one; however, even in the most extreme case, taxpayers will have a tax benefit of at least 21 percent of the cost basis of appreciated property gifts. Those not sub- ject to the alternative minimum tax would get a tax benefit of 28 percent of the current full faii:-market value of the ap- preciated property. The deduction for gifts of easements and full title to property for conservation purposes remains in- tact in the current federal income tax law. (See discussion below under "Easements and Income Tax Incentives.") Some states have created autonomous or quasi-public land conservancies to encourage and receive donations of easements and fee simple properties for conservation pur- poses. Several of these state-chartered agencies (for exam- ple, the Maryland Environmental Trust and California Coastal Conservancy) receive public funds for purchase of conservation lands or easements. Funding for public acquisitions can be derived from a va- riety of sources. Special state taxes, hunting and fishing license fees, conservation bond sales, and appropriations out of general revenues are used individually or in combinations by states and, in some cases, by local governments. Increas- ingly popular are income tax "checkoffs" (usually found on state income tax forms) for protection of nongame species; these funds are used by state resource agencies to acquire ha- bitat, often wetlands, for nongame species. For example, North Carolina recently used a combination of funding sources--proceeds from the state's nongame tax checkoff, sales of stamps and waterfowl prints by the state's Wildlife Resources Commission, and interest from the state's Wildlife 54 Endowment Fund--to acquire a number of wetland areas for preservation and to mitigate wetland losses due to public road projects. The state also used direct appropriation as an- other means to acquire wetlands. Other states and local governments have found ways to finance wetland acquisition. Maryland's Program Open Space, administered by that state's Department of Natural Resources and designed to help communities acquire park and other natural area lands, is funded both by state bond issues and a state real estate transfer tax. Minnesota has created an innovative program, Reinvest in Minnesota, to acquire critical wildlife habitat. Some localities, as author- ized by state law, have acted on their own to generate funds to acquire wetlands. Suffolk County, New York, has passed a $60 million bond issue, and Block Island, Rhode Island, has established a local real estate transfer tax and a $1 million bond issue to fund purchases of open space conservation lands, particularly wetlands. The primary federal acquisition program was amended recently by the Emergency Wetlands Resources Act of 1986. Both the Land and Water Conservation Fund (LWCF) and the Migratory Bird Conservation Fund were amended to promote intensified wetland conservation through federal and state government acquisition. Federal acquisition of migratory waterfowl areas by the U.S. Fish and Wildlife Ser- vice is now specifically authorized for the LWCF. State com- prehensive outdoor recreation plans must now include a wetland acquisition component; namely, the acquisition of wetland areas must be listed as a specially authorized proj- ect purpose under the state grant program. Another section of the Act directs the Secretary of the Interior, in consulta- tion with other federal and state agencies, to develop a na- tional wetlands priority conservation plan th~it identifies the types of wetlands and wetland interests that should be given prio~ty in future acquisitions. Actual funds made available to states through the LWCF are subject to annual appropria- tion, but, in recent years, those appropriations have been substantially reduced from previous levels. Typical steps followed in public acquisition decisions are: · Survey Potential Sites. The community evaluates potential sites with the assistance of an environmental commission, a special task force, or the local planning agency, often with the aid of the state's national re- source agency. Factors taken into account may include location, plant and animal species present, values, costs, uniqueness, and threats from development. · EstablishPriovities. Afterpreliminarysitesurveys, ac- quisition priorities are determined based on relative values, available funds, landowner cooperation, and other factors. · IdentifyFundingSources. Fundingsourcesmayinclude general revenues, private funds, and help from other governmental units. Typically, wetlands are acquired with help from state or federal funding sources. · ObtainPrel[minar~/Approvals. Afteraspecificsitehas been selected for acquisition, the negotiating agency in- itiates discussion with the landowners, any interested private organizations that may assist in the acquisition effort, and state and local agencies that may provide funding. · Appraise the Land. Usually, real property must beap- praised before negotiations begin. Factors considered in assessing value include soil structure, productivity of the land, amount and type of water on the land, potential for development of the area, and the value of other similar lands in the area. · ConducttheFinaINegotiations. Onlyafter thesesteps have been completed is an actual purchase contract drawn up. Usually purchase is by voluntary agreement between the landowner and the local government. Al- though local governments do have eminent domain powers, they are rarely exercised in such instances. · ClosetheTransaction. Ifanagreementonthesaleofthe land is reached, steps are taken to prepare for the transfer of title, including a properly drawn and ex- ecuted deed and mortgage note, if applicable; a site survey that has been described in.the ~teed and subse- quently certified; and the estimation of real property taxes. Title is transferred at the closing. Private or Quasi-Private Acquisition In recent years, private conservation organizations, in ad- dition to the public sector, have assumed a prominent role in protecting wetland areas. Organizations such as The Nature Conservancy, Conservation Law Foundation, Chesapeake Bay Foundation, Ducks Unlimited, Trust for Public Land, and National Audubon Society have acquired a number of wetland areas for permanent protection. Many other land trust organizations exist at the regional, state, and local level. The Land Trust Exchange, a national network and service center for local and regional land trusts, has Top: A sharp-shinned hawk. Below: Pintail ducks feeding in a wetland. Top: Private landowners can help public efforts to preserve wetlands and the wildlife that call the wetlands home. Below: A beaver dam. about 700 participating member organizations across the country. Lands acquired by private conservation organizations and nonprofit land trusts are sometimes held and managed by the trust itself through paid managers or volunteers. In other cases, lands purchased by or donated to these land trusts are reconveyed to public resource agencies in local, state, or federal government. As available dollars for public acquisition of wildlife refuges and parks have declined in re- cent years, the importance of private acquisition and con- servation has grown. Private organizations can often move more quickly than public agencies to purchase key wetlands threatened by development and, when needed, are able to act anonymously. Some states have acted to charter non- profit land trusts to encourage the donation of wetlands and other natural areas by conveyance in fee or easement--for example, the Maryland Environmental Trust and the Cali- fornia State Coastal Conservancy. One of the best-known private land conservation organizations is The Nature Conservancy. Founded in 1951, the Conservancy is a national nonprofit organization seek- ing to preserve sensitive critical natural areas and natural diversity through acquisition. Its activities are carried out through a network of regional and field offices and state chapters throughout the country. Areas for site selection are identified through Natural Heritage Programs, which iden- tify endangered habitat or rare plant and animal species. Many of the heritage programs are now operated by state 56 C Krey agencies. Criteria for assessing the importance of an area in- clude: relative ecosystem endangerment; condition, quality, viability, and defensibility of the site; feasibility of protec- tion; and comparative threats of destruction. In early 3.983, the Richard King Mellon Foundation com- mitted $25 million in grant funds to initiate the Conser- vancy's National Wetlands Conservation Project. Recognizing the need for cooperation between the federal government, private sector, states, local governments, foun- dations, business, conservation groups, and interested citizens, the Mellon Foundation required the Conservancy :to secure at least $50 million from other sources. In the four years following the Mellon grant, the National Wetlands Conservation Project has attracted more than $86 million to match the Foundation's commitment. These funds have come from individual donations; other foundation grants; corporate gifts of land or funds; a revolving fund which, in part, is replenished by subsequent land sales of protected properties to public agencies; and other sources. The result of the Conservancy's Wetlands Project and an earlier related acquisition program, Rivers of the Deep South, has been the Norton Wetlands are home to familiar animals--[ike raccoons and bullfrogs--as well as animals that you might not be able to see elsewhere--the American avocet turning her eggs (top left), the Virginia real (top right), and the orchard oriole feeding her chick (below). 57 acquisition and preservation of tens of thousands of acres of wetlands. Acquired lands are either managed by the Con- servancy (currently over 900 separate preserves) or trans- ferred for management to other conservation groups or public agencies. Easements and Income Tax Incentives Both private and publicly chartered organizations accept donations of permanent conservation easements. An ease- ment for a wetland area would restrict the donor's rights !n perpetuity to develop the wetland area. Gifts of easements are recorded on the deed of title as permanent covenants, and, typically, those covenants are enforceable by the donee conservation group or other affected parties. Easement ac- quisitions can play an important role in protecting critical nontidal wetlands in many U.S. communities. A strong incentive for a landowner to make such a dona- tion is the substantial federal tax benefit that may be realized by the donor of a conservation easement. Land trusts and other conservation groups interested in protecting critical land areas and aquatic ecosystems can take advantage of the opportunities provided by these tax benefits to encourage voluntary land conservation by private property owners. Although the Tax Reform Act of 1986 has changed a number of the provisions of the Internal Revenue Code, the deduc- tion under Section 170(h) for gifts of conservation easements (and, of course, for full fee simple donations of land) remains intact. As discussed above, however, changes in the alter- native minimum tax enacted in 1987 reduce the tax incentive to donate highly appreciated properties and reduce the financial benefit for certain taxpayers with both high income and other deductions. The specific rules on federal income tax deductions can be found in Section 170 of the Internal Revenue Code. Until tax reform in 1986, landowners could deduct the full value of the capital gain on the property donated to a government or qualifying charitable organization, provided that the total amount of the contribution did not exceed 30 percent of the landowner's adjusted gross income in the year of the dona- tion. If the amoffnt exceeded 30 percent of the taxpayer's ad- justed gross income, the excess could be carried over in the five succeeding tax years. Or a taxpayer could deduct up to 50 percent of adjusted gross income if the capital gains tax was fully paid. However, tax reform imposes an alternative minimum tax on some taxpayers making donations of ap- preciated property. Under a complicated formula that comes into play with some high-income taxpayers who also have other deductions, the allowable tax benefit will be reduced from prior levels. In no case, however, will the benefit to the taxpayer covered by the alternative minimum tax be less than: 21 percent of the taxpayer's interest in the donated property. Thus, there is still a significant tax adv~ntage that can be realized by an individual (or estate) for gifts of real property for conservation purposes. As noted above, deductions are available for "bargain sales" as well as outright donations. Often taxpayers can net the same total income through tax savings by selling a wetland area to a local government for conservation pur- poses at a reduced price as they can by selling the land at fair- market value to another party. There are some restrictions on the use of charitable deduc- tions for gifts of partial interests in property, such as conser- vation easements. In addition to being restricted to gifts to qualified organizations, a taxpayer can claim a deduction Gifts of land for conservation purposes, including wetlands that are given thru. ugh a will, may also have substantial tax benefits. C Okefenokee swamp, home of the recently resurrected Pogo, is a southern bottomland hardwood swamp. only for easements or restrictions that qualify as contribu- tions "exclusively for conservation purposes" in perpetuity. To qualify for "conservation purposes," the donation must serve one of the four objectives set out in Section 170(h) of the Internal Revenue Code. 1. Preserve land areas for outdoor recreation or education of the general public; 2. Protect a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem; 3. Preserve open space for scenic enjoyment of the public or for some governmental conservation policy; or 4. Preserve a historically important land area or structure. The Internal Revenue Service has recently promulgated regulations detailing the requirements of meeting these con- servation purposes for gifts of partial interests like conser- vation easements. (26CFR, pts. 1,20,25,602.) Gifts of land for conservation purposes, including wetlands, that are given through a will may also ha~'e substantial tax benefits. Such gifts will reduce the overall value of the estate and will not cause a gift or estate tax to become due on the transfer to a qualifying nonprofit group or government agency (including local governments). In addition to federal tax incentives, most states have enacted specific enabling legislation regarding conservation easements. As of late 1986, 44 states have such legislation. In 1981, the National Conference of Comm'msioners on Uniform State Laws approved a Uniform Conservation Easement Act that has subsequently been used by a number of states. Such state legislation provides not only additional financial incentives for gifts of conservation easements but also provides evidence of clear governmental intent to pro- tect wetlands and other critical areas that may help to establish the "clearly delineated . . . governmental con- servation policy" required for gifts of land or easements for "open space" purposes. Communities can also help protect wetlands by ensuring that wetlands are taxed for local real estate tax purposes at a minimal rate (generally a maximum of $20 to $25 per acre). This will help prevent sale or subdivision due to tax pressures and reduce the burden of regulation. For example, Mary- land's property tax statutes afford preferential tax assessments to agricultural lands, wood lots, and areas used for recreation if landowners agree to maintain these lands in an undeveloped condition. A landowner who owns wetlands or buffer areas assessed at a high value can reduce this value by selling or giving an easement to the county or to the state. Public Education For any program to be effective, public support must be 59 cultivated. Public education, although less direct than regulation and acquisition, is vital to the establishment of a wetland protection program in the long run. Until recently, wetland values were poorly understood by many citizens. It is only through the persistent work of a group of dedicated public and private agencies that public awareness has grown to the point that important new legislation has been able to be passed at the federal, state, and local level and that the future of wetland protection appears to be positive. Private conservation groups and academic institutions are actively involved in developing public awareness of'the preservation of wetlands. Research on wetland values and functions has helped make dear the many reasons to protect nontidal wetlands and has led to efforts by citizens and public officials to improve the protection afforded under state and local law. Organizations such as the Environmental Law Institute and Environmental Defense Fund have undertaken a number of st udies on protecting wetlands. For example, the Environmental Law Institute has undertaken several studies of nontidal wetland protection, described various protective "tools,' and drafted model statutes and ordinances. The Na- tional Wetlands Technical Council, a group of prominent wetland scientists, is completing a series of regional wetland assessment workshops to ascertain baseline data on wetland functions, values, and types on a region-by-region basis. The Environmental Defense Fund has completed an am- bitious study of bottomland hardwood wetlands in the Lower Mississippi Valley. Academic institutions, including the University of Massachusetts, Connecticut College, University of Florida, Louisiana State University, Univer- sity of Georgia, University of Maryland, University of Virginia, and Butler University have added significantly to scientific understanding of wetland functions and values. Other groups, such as the Chesapeake Wildlife Heritage, work to educate landowners on best management practices and habitat conservation. Conservation groups, such as the Sierra Club, Audubon Society, and Chesapeake Bay Foundation, conduct educa- tional outings and programs for school children that increase the appreciation and understanding of wetland values. The National Wildlife Federation, through its Corporate Con- servation Program, has taken the lead in educating the busi- ness community about wetlands and has issued a broadly endorsed statement encouraging wetland conservation by business, government, and citizens. The Environmental Law Institute's National Wetlands Newsletter has covered wetland developments at the local, regional, state, and na- tional level since 1979. Groups such as the Association of State Wetland Managers and Society of Wetland Scientists plan and conduct educational workshops and conferences for a variety of professional and lay audiences. Hands-on Experience. One excellent educational ap- proach is to allow the general public to "get in touch" with the resource. An example of this approach is the annual Day on the River event sponsored by the Missouri Department of Conservation. Held on the banks of an Ozark stream, this program is designed to increase public awareness of stream vfilues. The program features guided nature walks through the forest, as well as special talks about Missouri rivers and the surrounding areas and wildlife. Similarly, in Maryland, the Water Resources Administration concentrates much of its public information efforts on events like Chesapeake Bay Appreciation Day, in which state and local agencies par- ticipate. The program includes a tour of a wetland inter- pretation area. Public participation and education is one of the tools being used by the Commonwealth of Kentucky to protect and manage its water resources, including nontidal wetlands. In 1985, the Division of Water instituted a Water Watch program to allow interested citizens to "adopt" lakes, streams, and wetlands. The program's goals include educating Kentucky's citizens about the functions and values of wetland ecosystems. Water Watch has three basic components--awareness, education, and action. Awareness activities focus on reaching and enlisting participants. The Water Watch coor- dinator provides interested groups with an introductory kit explaining the program and an adoption form on which to identify the water body to be adopted. Once mapping efforts are completed, the state plans to identify important wetland; areas and to work with groups interested in adopting such wetlands. After a group is formed, educational activities begin. The Division of Water provides the group with program manuals, field guides, and personal assistance. The manual covers watershed education, provides information on work- ing with the media, suggests Water Watch projects, and summarizes relevant state and federal regulations. The two field guides, Kentucky Lakes and Wetlands and Kentucky Rivers and Streams, explain water body types, processes, and values; aquatic life identification; and water-quality monitoring techniques. In-the-field training sessions educate group members about water-quality indicators, macro- invertebrate identification, and sampling procedures. Once a group is comfortable with the background knowl- edge c~f its adopted wetland and surrounding watershed, the next stage is action. Initial[y, the Water Watch coordinator asked groups to establish goals and timetables, perform an initial watershed study, and enlist additional people into the program. Groups are then asked to identify problems associated with their adopted wetland and to undertake periodic surveys to detect water-quality changes. The Water Watch program is playing an important role in promoting wetland protection in Kentucky. More generally, this program and similar public participation ef- forts foster individual responsibility for a common resource; enhance citizen understanding and support; and com- municate the importance of environmental quality in at- tracting industry and tourism. Use of Print and Broadcast Media. Local governments should make a special effort to target educational materials to the media. Informed and inte~sted newspaper, magazine, radio, and TV reporters can play a major role in promoting wetland protection. In Florida, the Department of Envirnn- mental Regulation used newspapers and magazines to help generate public support for strengthened wetland protection legislation. Months before the legislature considered the bill, high-level state officials visited newspaper editorial boards. Armed with briefing materials, they met with editorial writers and editors and explained the inadequacies of the state's existing wetland regulatory program and the benefits of the proposed legislative changes. The result was positive editorials, as well as in-depth articles, in many of Florida's newspapers. The broadcast media, including public televi- sion and radio stations, can be used to air public service an- nouncements explaining the importance of nontidal wetlands and the adverse consequences resulting from their destruction and degradation. Educating School Children. Children who understand the importance of wetlands and the need to protect them may grow up to become adults who care about the environment. Several private sector organizations have developed wetland education materials aimed at school children. An issue of Ranger Rick's Nature Scope, prepared by the Na- tior/al Wildlife Federation, entitled '~Vading Into Wetlands," contains background information and suggests activities that illustrate the characteristics and types of wetlands, the causes of wetland losses, and what measures that can be taken to protect them. Additionally, Project Wild--a joint project of the Western Association of Fish and Wildlife Agencies and the Western Regional Environmental Educa- tion Council--is an interdisciplinary environmental and conservation education program for educators of kindergarten through high school students. Although its programs, activities, and materials originally emphasized wildlife, they were recently expanded to cover aquatic habitats. Thirty-seven states are Project Wild sponsors. Turning to the public sector, Kansas and Missouri have their own conservation education programs. Kansas's Fish and Game Department operates a Wildlife Education Ser- vice available free to all state public and private schools. The service is currently oriented to teaching students about wildlife, but the state is developing an aquatic habitat pro- gram. Resources include curriculum materials consisting of booklets for children and corresponding teacher guides. The program is now available for children in preschool through the sixth grade. The materials include information about Providing a means so that people can literally walk through wetlands helps educate them about the beauty of what people might otherwise think of as simply a "swamp. "It is especially important to educate children so that future generations provide the political support to make wetlands preservation a reality. 61 wildlife along with worksheets, suggestions for supplemen- tary activities, and a list of resources for teachers. Materials for grades seven through 12 are currently being developed. The Missouri Department of Conservation has a conser- vation education unit that offers three programs: · Conversation Seeds--a comprehensive conservation awareness program designed for three- to five-year olds; · LearningWithOtis--whichprovidesteachersofgrades one through six with an activity book, posters, and a conservation education newspaper; and · The Conservation Education Series--through which junior and senior high school teachers can order in- structional units on conservation topics. In Florida, the Department of Education's Office of Envi- ronmental Education at one time awarded small grants to local governments for development of environmental education curriculum materials. At least two counties-- Hillsborough and Seminole--used the grants to develop a wetlands curriculum. Information Materials and Technical Assistance. Local governments can develop brochures to convey information about wetlands to target audiences. General brochures can explain the characteristics, functions, and values of wetlands, the activities that threaten the resource, and ex- isting public and private sector protection mechanisms. Alternatively, localities may want to develop brochures geared to one particular audience (for example, farmers) or one specific message (for example, the additional costs associated with using a wetland as development property). Instead of trying to reinvent the wheel, local governments should consider developing some type of resource informa- tion catalog that encourages the exchange of existing Wetlands like these are sometimes acquired by nonprofit land trusts or volunteers. resources and information. The catalog can take a variety of forms; for example, it can be aimed at a particular au- dience, such as teachers, and provide them with information on a variety of conservation education materials, including audiovisual resources, learning kits, computer software, books, and pictures and posters. Alternatively, a catalog can include information on only one type of resource (for exam- pl~, audiovisual materials, available from both public and private sector organizations). Localities can provide technical assistance to both public and private sector officials. In Maryland, the Department of Natural Resources offers training sessions to consultants, local government officials, and other state agency officials on hydric soils identification, wetland plant identification, and wetland classification. The department, in cooperation with the U.S. Fish and Wildlife Service, has also prepared a field guide for identifying nontidal wetlands. (See Tiner 1988.) Citizen Activism. Citizen action can provide important back-up to regulatory and nonregulatory efforts by local governments. Protecting nontidal wetlands at the local level involves the participation of individuals and conservation groups in a variety of actions, including court suits. The En- vironmental Defense Fund, for instance, filed suit to protect bottomland hardwood forests from being converted to dryland soybean farms, and the National Wildlife Federa- tion sued to establish coverage of isolated inland wetlands under the federal Clean Water Act dredge-and-fill permit program. Stream, lake, and wetland "adoption" programs (such as those of the Izaak Walton League and Citizens Pro- gram for the Chesapeake Bay) provide a means for active monitoring of wetland preservation. And U.S. Corps of Engineers permit hearings and local zoning and planning board proceedings can have significant impacts on the qualit4, and degree of protection afforded wetlands, par- ticula~'ly in nontidal areas. or private conservation groups and then managed by paid staff Chapter 5. A Model Nontidal Wetland Protection Ordinance This model ordinance is designed to help local govern- ments draft their own nontidal wetland protection or- dinance. All the essential elements that a community would need to adopt a freestanding ordinance are included in the model. The entire ordinance should be carefully read and tailored to meet local needs. Specific recommendations, such as the definition of a nontidal wetland, the list of permitted uses, and permit review and approval procedures, may not fit all circumstances. An effective ordinance must be clear and simple. It must identify wetland boundaries with some certainty and establish standards for permitted, prohibited, and special permit uses. It must be legally sound and meet both statutory and constitutional requirements. It is worth noting that wetland and floodplain regulations have been overwhelm- ingly supported by the courts in recent years against claims of taking and unreasonableness. (See Chapter 2.) State nat- ural resource, planning, and regulatory agencies can provide advice to communities about amending existing regulations or adopting new regulations consistent with statutory and constitutional requirements. Communities can adapt and incorporate various portions of the model to create their own ordinance or to amend ex- isting regulations. Chapter 3 of the report should be con- sulted for additional regulatory language and explanations that may be helpful in developing a custom-tailored or- dinance. The model cites the name of an agency or authority whenever an insert is required; underlining is used to mark these places (e.g., the Office of Planning and Zoning). No special significance should be given to the specific sample language since a multitude of workable variations are possi- ble. Planners should consider creating a special Wetlands Commission or other single purpose entity to administer the regulations. Special entities (e.g., Conservation Commis- sions) have been established in Massachusetts and Connect- icut to administer wetland regulations. These organizations have developed expertise and competence in implementing such regulations. Comparable performance may be difficult to achieve through a more general regulatory board, such as a planning commission or board of county commissioners. COMMENTARY The following commentary briefly explains the contents and purpose of each section of the model ordinance. Section 1. Findings of Fact and Purpose This section helps the public and the courts understand the rationale for protecting nontidal wetlands. Both the values and natural resources found in wetlands are emphasized. Section 2. Definitions Key terms in the ordinance are defined here. A definition of nontidal wetlands has been included. This particular definition is a modification of th~ federal wetland definition that~ontains references to the three universally recognized criteria for defining a wetland. To achieve greater specificity in defining wetland, lists containing locally designated hydric soils and examples of hydrophytes could be inserted here. It should be noted that the definition cited regulates only vegetated wetlands. Local governments may also wish to control nonvegetated wetlands, perennial and intermit- tent streams, and other water bodies. "Regulated activity" means an activity with a significant impact on nontidal wetlands. A comprehensive listing of ac- tivities virtually ensures that any activity that might harm wetlands is covered and will require a permit under Section 4 (permit requirements) of the ordinance. The "regulated activity" definition works in tandem with Section 4 and actually controls activities in a wetland or within 25 feet of a wetland. Local governments may'wish to make this minimal buffer area larger for all or certain types of wetlands. An additional clause in the model could be added to allow for variable buffers based upon the sen- sitivity of the wetland, adjacent development intensity, de- gree of slope, and soil constraints. If this approach is chosen, consideration should be given to allowing certain uses witt~in the buffer, provided they are generally compatible. As cur- rently structured, the model defines regulated activity too narrowly to be reasonable if, for example, a 300-foot buf- fer were required. So that applicants will know if a given activity may re- 63 quire a permit, the model directs the governing body to ren- der, when requested, a determination as to whether a particular activity or area is governed by the ordinance. The determination process is covered under Section 6.2. Section 3. Lands to Which This Ordinance Applies This section allows for the incorporation of wetland maps into the zoning ordinance. It also extends the jurisdiction of the ordinance to include protection of wetlands not shown on the maps. Procedures are included for defining wetl~ind boundaries--boundaries often disputed by property owners and developers. The ordinance requires the applicant to show the Wetland District boundary on a scale drawing, with other information, submitted as part of the permit ap- plication. Ordinarily, this must be done by the applicant, based upon an actual field survey of the wetland using pro- cedures specified in a manual adopted or developed by the local jurisdiction. The adoption of detailed wetland delinea- tion procedures is highly recommended and can help avoid problems as to what constitutes a wetland or a wetland boundary in the field. For applicants who may not have the means to perform a delineation, the local government can perform the delineation for the applicant. When done in this manner, the determination performed by the local govern- ment is considered final. Local governments have the authority to adjust a delinea- tion performed by an applicant. If the applicant contests this, an attempt at a mutually agreeable solution can be made. If this process is unsuccessful, an outside expert is brought in to resolve the matter at the applicant's expense. Section 4. Permit Requirements, Enforcement This section specifies that a permit is required for all regulated activities conducted in a nontidal wetland or within 25 feet of a wetland. It also provides for emergency permits and sanctions for violations of the ordinance. The local government is authorized to restore the wetland in the event a violator fails to do so. Violators may also be ordered to develop a plan for the restoration action. Section 5. Uses by Right and Special Permit Uses in a Nontidal Wetland Exemptions to the permit requirement are enumerated here. Under specified conditions, certain uses that may otherwise require a permit are allowed by fight. All other ac- tivities require a permit. Local governments may wish to enlarge or limit the list of exempted uses or provide guidelines for best management practices for protecting non- tidal wetlands. This may be particularly relevant for forestry and agricultural operations and routine utility and road re- pair work. Section 6. Standards and Procedures for Spedal Permit Uses Applicants are required to provide a substantial portion of the information needed to evaluate the permit. The regulatory authority gathers whatever else is necessary but reserves the right to request other data if such data are needed to make a thorough evaluation. A listing of addi- tional information that may be required, including a com- plete wetland functional assessment, is also contained in this section. Filing fees, which may include the costs of retaining expert assistance in evaluating the application, are also provided for by the ordinance. Note that, in Section 6.2, a blank has been left for the local government to set a maximum filing fee. Using consultants to perform wetland delineation or assessment surveys can be quite expensive, depending on the level of activity required and the complexity of the wetland under consideration. Local governments should take into ac- count the use of consultants when setting the filing fee as well as the administrative costs that they want to recover. A review and comment period is mandated along with a public hearing. The hearing may be waived, however, if the local government determines that the activity will have lit- tle effect upon the wetland. Eight standards must be met to approve any permit. Regulated activities must be in the public interest; be water dependent or have no practicable alternative; result in min- imal feasible impact to the wetland; not threaten the ex- istence of an endangered species; not significantly reduce water quality; comply with all other laws; be conducted out- side of a 25-foot buffer unless otherwise necessary; and com- ply with creation or restoration requirements and other standards in the ordinance. Regulated activities must also pass a "practicable alter- natl e test and a publ c interest test outhned later in the sectio~r The tests are similar to those included in the Corps' 404 regulations and in EPA's 404 (b)(1) guidelines. The economic and public benefit of the project, the wetland's ecological value, and the quality and the amount of disturb- ance of the wetland are some of the factors considered in the public interest test. Conditions may be attached to the permit, such as re- quirements for on-site mitigation measures, performance bonds, and the creation of new wetlands according to an al>- proved plan. The planning elements that must be addressed by the applicant are identified in the ordinance. The local government may require creation or restoration in order to offset losses. It is important to note that no specific ratio for replace- ment wetlands has been set in the model (e.g., requiring that, for every acre of wetland lost, two must be created). Instead, the local government is directed to consider several factors in rendering a determination on appropriate compensation. A recent trend has been to require fixed compensation ratios in recognition that created wetlands are often unproductive compared to the systems they replace. There may be some outstanding questions concerning the legal defensibility of setting fixed ratios larger than 1:1 unless it can be clearly shown that such ratios must be used to equate the loss. High fixed ratios have also been used in an attempt to meet a goal of no further net loss of wetlands in a given area. From political and scientific perspectives, this is one of the most controversial aspects of wetlands manage- ment. Wetland creation projects can be extremely costly, complex, and time consuming. Nevertheless, the prestigious National Wetlands Policy Forum has recommended a na- tional goal of no net loss of wetland area and function. It is strongly advised that the issue of wetland creation, restora- tion, monetary compensation, and the degree of local gov- ernment hands-on involvement be addressed in a way that takes into account specific local needs. The model ordinance specifies that creation or restoration of wetlands shall not be used as a means of circumventing or ignoring the basic concept of preventing avoidable losses and minimizing unavoidable impacts. This concept is fun- damental to current wetland management practices. The or- dinance provides for the replacement of a wetland with the same type of wetland as close as possible to the location in which the loss occurred. If certain conditions are met, the ap- plicant can propose an alternative wetland type or location, or monetary compensation. The local government can ac- cept or require monetary compensation in lieu of direct ac- tion by the applicant, but only for the purpose of carrying out wetland creation or restoration. This section also provides the authority to suspend or revoke a permit for noncompliance. Section 7. Nonconforming Activities To avoid potentially strong political opposition in the adoption of the ordinance, existing uses are allowed under a "grandfather" clause. The enlargement of existing uses, major alterations, additions exceeding 50 percent of the value or size of the use, and reestablishment of discontinued or destroyed uses are regulated. A stronger approach that local governments may wish to consider is the gradual elimination of nonconforming uses over a specified period of time. Section 8. Judicial Review The ordinat~ce provides a special judicial review pro- cedure for the granting or denial of'special permits. Often, zoning and other land-use control enabling acts specify the court to which appeals of regulations must be made. This or- dinance authorizes the regulatory authority to purchase or condemn an interest in lands, based on a decision of the court, or to approve a permit with lesser restrictions. Local governments may wish to provide for an administrative ap- peals process to a zoning board of appeals or a similar authority of the local government. This ordinance does not provide such language, as circumstances may vary greatly from jurisdiction to jurisdiction. Section 9. Amendments Circumstances under which ordinances can be amended are normally contained in zoning enabling acts or other enabling statutes. This section supplements such standards by authorizing changes when new maps or other informa- tion become available. Section 10. Assessment Relief This section of the ordinance directs tax assessors to con- sider wetland regulations in determining the fair market. value of land. MODEL NONTIDAL WETLAND PROTECTION ORDINANCE Section 1. Findings of Fact and Purpose 1.1. Findings of Fact The nontidal wetlands of local unit of government are indispensible and fragile natural resources with significant development constraints due to flooding, erosion, and soil limitations. In their natural state, nontidal wetlands serve man and nature. They provide habitat areas for fish, wildlife, and vegetation; water-quality maintenance and pollution control; flood control; shoreline erosion control; natural resource education; scientific study; open space; and recreation opportunities. ¢ A coflsiderable number of these important natural resources have been lost or impaired by draining, dredging, filling, ex- cavating, building, pollution, and other acts. Piecemeal or cumulative losses may, over time, destroy remaining wetlands. Damaging or destroying nontidal wetlands threatens public safety and the general welfare. It is therefore necessary for local unit of government to ensure maximum protection for nontidal wetlands by discouraging development activities in nontidal wetlands and those activities at adjacent upland sites that may adversely affect nontidal wetlands and to encourage rt, stora- tion of already degraded or destroyed systems. 1.2. Purpose It is the policy of local unit of ,government to encourage or require planning to avoid or minimize damage to nontidal 65 wetlands wherever prudent or feasible; to require that ac- tivities not dependent upon a nontidal wetland location be located at upland sites; to allow nontidal wetland losses only where all practicable measures have been applied to reduce those losses that are unavoidable and in the public interest; to provide for compensation in the form of nontidal wetland restoration or creation to offset further losses; and to pro- vide for the protection of wetlands under additional or- dinances already adopted by local unit of government, including building codes, pollution and ~ediment control ordinances, groundwater management regulations, storm- water management regulations, floodplain zoning, and other pertinent regulations. Furthermore, such activities must not threaten public safety or cause nuisances by: 1) Blocking flood flows, destroying flood storage areas, or destroying storm barriers, thereby raising flood heights or velocities on other land and increasing flood damages; 2) Causing water pollution through any means, in- cluding location of wastewater disposal systems in wet soils; unauthorized application of pesticides, her- bicides, and algacides; disposal of solid wastes or stormwater runoff at inappropriate sites; or the crea- tion of unstabilized fills; 3 ) Increasing erosion; or 4 ) Increasing runoff of sediment and stormwater. In addition, it is the policy of local unit of government that activities in or affecting nontidal wetlands do not de- stroy natural wetland functions important to the general welfare by: 1) Decreasing breeding, spawning, nesting, wintering, feeding, or other critical habitat for fish and wildlife, including rare, threatened, and endangered plant and animal species and commercially and recreationally important wildlife; 2 ) Interfering with the exchange of nutrients needed by fish and other forms of wildlife; 3 ) Decreasing groundwater recharge; 4 ) Destroying sites needed for education and scientific re- search as outdoor biophysical laboratories, living classrooms, and training areas; 5 ) Interfering with public rights in waters and the recrea- tion opportunities for hunting, fishing, boating, hik- ing, birdwatching, photography, camping, and other activities in nontidal wetlands; or 6 ) Destroying aesthetic and property values. Section 2. Definitions Words and phrases used in this ordinance shall be inter- preted as defined below, and, where ambiguity exists, words or phrases shall be interpreted so as to give this ordinance its most reasonable application in carrying out its regulatory purpose. "Buffer" means a naturally vegetated area or vegetated area established or managed to protect nontidal wetlands from human disturbances. "Creation" means a human activity bringing a wetland into existence at a site in which it did not formerly exist. "Functions" means the beneficial roles nontidal wetlands serve, including storage, conveyance, and attenuation of floodwaters and stormwaters; groundwater recharge and discharge; protection of water quality and reduction of sedi- ment and erosion; production of waterfowl, game and nongame birds, mammals, and other living resources; pro- tection of habitat for rare, threatened, and endangered species; food chain support for a broad range of wildlife and fisheries; educational, historical, and archeological value protection; and scenic, aesthetic, and recreational amenities. "Hydrophytic vegetation" means macrophytic plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. "In-kind" means the restoration or creation of a wetland with v~getation and other characteristics closely approx- imating those of a specified wetland. 'Nontidal wetland" means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, com- monly known as hydrophytic vegetation. "Off site" means restoration or creation of a wetland at a location not adjacent to (or within __ feet of) a previous, specified wetland. "On site" means restoration or creation of a wetland adja- cent to (or within __ feet of) a previous, specified wetland. 66 "Out-of-kind" means the restoration or creation of a wetland with vegetation or other characteristics not resembling those of a specified wetland. "Practicable alternative" means an alternative to the pro- posed project that would accomplish the basic purpose of the project and avoid or have less adverse impact on a nontidaI wetland. "Regulated activity" means an activity with a significant im- pact on nontidal wetlands, including: 1 ) The removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind; 2) The changing of existing drainage characteristics, sedimentation patterns, flow patterns, or flood reten- tion characteristics; 3 ) The disturbance of the nontidal wetland water level or water table by drainage, impoundment, or other means; 4) The dumping or discharging of material, or tbe filling of a nontidal wetland with material; 5) The placing of fill or the grading or removal of mate- rial that would alter existing topography; 6 ) The driving of piles, placement of obstructions, and erection or repair of buildings or structures of any kind; 7) The destruction or removal of plant life that would alter the character of a nontidal wetland; and 8) The conduct of an activity that results in a significant change of water temperature, a significant change of physical or chemical characteristics of nontidal wetland water sources, or the introduction of pollutants. "Restoration" means a human activity that returns a wetland or former wetland from a disturbed or altered condition with lesser acreage or functions to a previous condition with greater wet]and acreage or functions. Section 3. Lands to Which This Ordinance Applies 3.1. Wet]and District This ordinance shall apply to all lands in or within 25 feet of a nontidal wetland located within the jurisdiction of local unit of .government. Areas shown on the Official Zoning Map as being located within the Wetland District are presumed to be nontidal wetlands consistent with the defini- tion thereof. Nontida] wetlands not shown in the Wetland District are presumed to exist in local unit of government and are hereby designated to be within the Wetland District and protected under ail of the terms and provisions of this ordinance. The Official Zoning Map (Wetland District) shows only the general location of nontidal wetlands and should be consulted by persons contemplating activities in or near nontidal wetlands before engaging in a regulated ac- tivity. The Official Zoning Map, together with all ex- planatory matter thereon and attached thereto, is hereby adopted by reference and declared to be a part of this or- dinance. The Official Zoning Map shall be on file in the of- fice of the county/city clerk. 3.2. Rules for Interpretation of Wetland District Boundaries The boundaries of the Wetland District shall ordinarily be determined by the applicant through the performance of a field survey applying the nontidal wetland definition. The Official Zoning Map is to be used as a guide to the general location of nontidal wetlands. The applicant is required under Section 6.2 of this ordinance to show a Wetland District boundary on a scaled drawing submitted as part of the permit application. Nontidal wetland delineations shall be performed in accordance with the procedures specified in the Federal Manual for Identifying and Delineating Jurisdic- tional Wetlands and any subsequent amendments thereto. Evidence documenting the results of the boundary survey may be required by the Office of Planning and Zoning. The Office of Planning and Zoning, when requested by the applicant, may waive the delineation and, in lieu of di- rect action by the applicant, perform the delineation. The Office of Planning and Zoning may use remote sensing, hydrology, soils, plant species, and other data, and consult with biologists, hydrologists, soil scientists, or other experts as needed to perform the delineation. The applicant may be charged for costs incurred in accordance with the provisions of Section 6.2 of this ordinance. Where the Office of Planning and Zoning performs a Wetland District determination at the request of the appli- cant, it shall be considered a final determination. Where the applicant has provided a determination of the Wetland District boundary, the Office of Planning and Zoning shall verify the accuracy of, and may render adjustments to, the boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the Office of Planning and Zoning may attempt to set mutually agreeable boundaries; or, when such an attempt 67 4) $) ferns, moss, wild rice, berries, tree fruits, and seeds in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not re- quire alteration of the nontidal wetland by changing existing nontidal wetland water conditions or sources, tilling of soil, or planting of crops; Forestry practices limited to the thinning and harvesting of native timber in accordance with a for- est management plan that incorporates best manage- ment practices approved by the State For- ester or local unit of government pursuant to regula- tions or guidelines. The continued cultivation of agricultural crops, pro- vided no nontidal wetlands are subject to cultivation where no such use existed five years prior to the effec- tive date of application; The occasional pasturing of livestock; Commercial fishing, shellfishing, and trapping; and Education, scientific research, and nature trails; Uses by right that do not require a special permit and that may involve filling, flooding, draining, dredging, ditching, or excavating to the extent specifically pro- vided below: a) Maintenance or repair of lawfully located roads or structures and of facilities used in the service of the public to provide transportation, electric, gas, water, telephone, telegraph, telecommunication, or other services, provided that such roads, struc- tures, or facilities are not materially changed or enlarged and written notice prior to the com- mencement of work has been given to the Office of Planning and Zoning and provided that the work is conducted using best management prac- tices to ensure that flow and circulation patterns, and chemical and biological characteristics of the wetland, are not impaired and that any adverse ef- fect on the aquatic environment will be minimized; b) Temporary water-level stabilization measures associated with silvicultural operations, provided a complete reversion to previous hydrological conditions is accomplished subsequent to com- pleted operations; c) Limited ditching, tiling, dredging, excavating, or filling done solely for the purpose of maintaining or repairing existing drainage systems necessary for the cultivation of agricultural crops, provided that the maintenance or repair activity does not d) result in the impairment, alteration, or loss of nontidal wetlands not previously subject to agricultural use under the terms and provisions of Section 5.1.5; Limited excavating and filling necessary for the re- pair and maintenance of piers, walkways, obser- vation decks, duck blinds, wildlife management shelters, boathouses, and other similar water- related structures, provided that they are built on pilings to allow unobstructed flow of water and preserve the natural contour of the nontidal wetland, except as authorized by special permit. 5.2. Special Permit Uses Regulated activities other than those specified in Section 5.1 may not be conducted except upon application to the Office of Planning and Zoning and issuance of a special permit. Section 6. Standards and Procedures for Special Use Permits 6.1. Special Permits Application for a special permit to conduct a regulated ac- tivity shall be made in duplicate to the Office of Planning and Zoning on forms furnished by that office. Permits shall ordinarily be valid for a period of three years from the date of issue and shall expire at the end of that time unless a longer period is specified by the Office of Planning and Zoning upon issuance of the permit. An extension of an original per- mit may be granted upon written requdst to the Office of Planning and Zoning by the original permit holder or the successor in title. The Zoning Administrator may require additional hearings if, in its judgment, the original intent of the permit is altered or extended by the renewal or if the ap- plicant failed to abide by the terms of the original permit. The request for renewal of a permit shall follow the same form and procedure as the original application except that the Zoning Administrator shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way. 6.2. Permit Applications Unless the Office of Planning and Zoning waives one or more of the following information requirements, applica- tions for a special permit for a regulated activity shall in- clude: 1) The purposes of the project and an explanation of why the proposed activity requires a wetland location or access to wetlands, or cannot be located at other sites; 2) A site plan drawn to scale showing the Wetland District Boundary and the nontidal wetland boundary as determined by field survey; the width, depth, and length of all existing and proposed structures, roads, watercourses, and drainageways; water, wastewater, and stormwater facilities; utility installations within 200 feet of a nontidal wetland; and the relationship of the proposed activity and any potentially affected, nontidal wetland to the entire parcel of land owned by the applicant; 3) A description of the wetland or wetlands that will be affected by the regulated activity, including a sketch plan at the scale of for the entire wetland; the area that may be filled or impacted; vegetation type; wetland water sources; and a general characterization of the habitat, wildlife, and common plants; 4) Soil types on the site and the exact locations and specifications for all proposed draining, filling, grading, dredging, and vegetation removal, including the amounts and methods; 5) Adjacent land use; and 6) Elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than five feet. The Office of Planning and Zoning may require additional information, including, but not limited to, documentation and evidence of a wetland boundary determination by field survey; an assessment of wetland functional characteristics; documentation of the ecological, aesthetic, economic, or other values of a wetland; a study of flood, erosion, or other hazards at the site; evidence of any protective measures that might be taken to reduce such hazards; and any other infor- mation deemed necessary to verify compliance with the pro- visions of this ordinance or to evaluate the proposed use in terms of the purposes of this ordinance. Any person who wants to know whether a proposed activity or an area is subject to this ordinance may request in writing a determination from the Office of Planning and Zoning. Such a request for determination shall contain plans, data, and other information as may be specified by the Office of Planning and Zoning. At the time of an application or request for determination, the applicant shall pay a filing fee specified by the Office of Planning and Zoning. Filing fees of up to a maximum of $2,500 may be required to evaluate the application or re- quest for determination. These fees may be used to retain ex~ pert consultants who will provide services pertaining to wetland boundary determinations, functional assessment, and mitigation measures, as deemed necessary by the Office of Planning and Zoning. Upon receipt of the completed application, the Office of Planning and Zoning shall notify the individuals and agen- cies, including federal and state agencies, having jurisdiction over or an interest in the matter to provide such individuals and agencies an opportunity to comment. The Office of Planning and Zoning shall establish a mailing list of all interested persons and agencies who wish to be notified of such applications. 6.3. Public Hearing and Recommendations No later than 60 days after receipt of the permit application and after at least 15 days advance notice that the application has been published in one newspaper having general circula- tion in the area, the Zoning Administrator shall hold a pub- lic hearing on the application, unless the Office of Planning and Zoning finds that the activity is so minor as to not affect the nontidal wetland and the Zoning Administrator concurs. Ali hearings shall be open to the public. A record of the hear- ing shall be made. The Office of Planning and Zoning shall make recommendations to the Zoning Administrator on all special permit applications. Any person may present evidence and testimony at the hear- ing. At the hearing, the applicant shall have the burden of demonstrating that the proposed activity will be in accor- dance with the purposes of this ordinance and the standards set forth below. ! 6.4. Standards for Special Permits 6.4.1. Zoning Administrator The Zoning Administrator, after according consideration to the comments of the general public, other affected municipalities and counties, and federal and state agencies with jurisdiction over the area in question, shall issue a non- tidal wetland permit only if it is found that the regulated ac- tivity is determined to be in the public interest in accordance with Section 6.4.3 below and that the applicant has demon- strated by a preponderance of the evidence that the regulated activity: 1) Is water-dependent or requires access to the nontidal wetland as a central element of its basic function, or is not water-dependent but has no practicable alter- native; 70 2) Will result in minimum feasible alteration or impair- ment to the nontidal wetland's functional characteristics and its existing contour, vegetation, fish and wildlife resources, and hydrological condi- tions; 3) Will not jeopardize the continued existence of species that appear on federal or state endangered species lists; 4) Will not cause significant degradation of groundwater or surface-water quality; 5) Complies with all applicable state, local, and federal laws, including those related to sediment control, pollution control, floodplain zoning, and on-site wastewater disposal; 6) Will provide a nontidal wetland buffer area of not less than 25 feet between the nontidal wetland and upland activities for those portions of a regulated activity that need not be conducted in the wetland; and 7) Complies with other standards contained in this or- dinance, including those pertaining to nontidal wetland creation and restoration as required. 6.4.2. Practicable Alternative Test For all permit applications, an alternative site for the pro- posed activity shall be considered practicable if it is available and the proposed activity can be carried out on that site after taking into consideration costs, existing technology, in- frastructure, and logistics, in light of overall project pur- poses. There is no practicable alternative if the applicant demonstrates all of the following to the satisfaction of the Zoning Administrator: 1) The basic purpose of the project cannot reasonably be accomplished using one or more other sites in the general region that would avoid or result in less adverse impact on a nontidal wetland; 2) The basic purpose of the project cannot be ac- complished by a reduction in the size, scope, con- figuration, or density of the project as proposed or by changing the design of the project in a way that would avoid or result in fewer adverse effects on the nontidal wetland; and 3) In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure, or parcel size, the applicant has made reasonable attempts to remove or accommodate such constraints. 6.4.3. Public Interest Test In determining whether a proposed regulated activity in any wetland is in the public interest, the _Zoning Administrator shall consider the following: 1) The extent of the public need for the proposed activity; 2) The extent and permanence of the beneficial or detrimental effects that the proposed regulated activity may have on the public and private uses for which the property is suited; 3) The quality of the wetland that may be affected and the amount of wetland to be disturbed; 4) The economic value of the proposed regulated activity to the general area; and 5) The ecological value of the wetland and probable im- pact on public health and safety, fish, plants, and wildlife. 6.5. Acting on the Application 6.5.1. Special Use Permit Conditions The Zoning HearingOffic~ may attach such conditions to the granting of a special use permit as deemed necessary to carry out the purposes of this ordinance. Such conditions may include but are not limited to: 1) Limitations on minimum lot size for any regulated activity; 2) Requirements that structures be elevated on piles and otherwise protected against natural hazards; 3) Modification of waste disposal and water supply facilities; 4) Imposition of operational control, sureties, and deed ~ restrictions concerning future use and subdivision of lands, such as flood warnings, preservation of unde- veloped areas in open space use, and limitation of vegetation removal; 5) Dedication of easements to protect wetlands; 6) Establishment of vegetated buffer zones separating and protecting the nontidal wetland from proposed activities; 7) Erosion control and stormwater management 8) Setbacks for structures and restrictions on fill, de- posit of soil, and other activities in the nontidal wetland; 9) Modification in project design to ensure continued 71 water supply to the nontidal wetland and circulation of water; 10) Creation or restoration of an area of nontidal wetland; and 11) Development of a plan to guide actions involving the creation of a new wetland or the restoration of a damaged or degraded wetland. The Office of Planning and Zoning may require a bond in an amount and with surety and conditions sufficient to sec~ure compliance with the conditions and limitations set forth in the permit. The particular amount and the conditions of the bond shall be consistent with the purposes of this ordinance. In the event of a breach of any condition of any such bond, the Office of Planning and Zoning may institute an action in a court of competent jurisdiction upon such bond and pro- secute the same to judgment and execution. 6.5.2. Nontidal Wetland Restoration and Creation As a condition of a permit issued or as an enforcement ac- tion under this ordinance, the Office of Planing and Zoning may require that the applicant engage in the restoration or creation of nontidal wetlands in order to offset, in whole or in part, the losses resulting from an applicant's or violator's actions. In making a determination of whether such a re- quirement will be imposed, and, if so, the degree to which it would be required, the Office of Planning and Zoning will consider the following: 1 ) The long- and short-term effects of the action upon the nontidal wetland and associated aquatic eco- system, and the reversible or irreversible nature of the impairment or loss; 2) The type and benefit of the wetland functions and associated resources lost; 3) The type, size, and location of the wetland altered, and the effect it may have upon the remaining system or watershed of which the wetland is a part; 4) Observed or predicted trends with regard to the gains or losses of this type of wetland in the watershed, in light of natural and human processes: 5) The cost and likely success of the possible compensa_ tion measures in relation to the magnitude of the pro- posed project or violation; and 6) The degree to which the applicant has demonstrated a good-faith effort to incorporate measures to mini- miz~ and avoid wetland impacts within the proposed prolect. The applicant or violator may prepare or be required by the Office of Planning and Zoning to develop a nontidal wet- land restoration or creation plan for review and approval of the Office of Planning and Zoning. The creation or restora- tion of wetlands shall not be an alternative to the standards set forth in Section 6.4.1 but shall be used only to compen- sate for unavoidable losses. The plan should state the location, by metes and bounds description, of the proposed site; ownership; size, type, and complete ecological assessment (flora, fauna, hydrology, wetland functions, etc.) of the wetland being restored or the area where a new wetland will be created; and the natural suitability of the proposed site for establishing the replace- ment wetland (i.e., water source and drainage patterns, topographic position, wildlife habitat opportunities, value of the existing area to be converted, etc.). In addition, plane view and cross-sectional, scaled drawings; topographic survey data, including slope percentage and final grade elevations; and other technical information are required in sufficient detail to explain, illustrate, and provide for: 1) Soil and substrate conditions; topographic elevations; grading and excavation; erosion and sediment control needed for wetland construction and long-term sur- vival; 2) Planting plans specifying plant species types, quan- tities, locations, size, spacing, or density; source of plant materials, propagules, or seeds; timing, season, water, and nutrient requirements for planting; and, where appropriate, measures to protect plants from predation; 3) Water-quality parameters, water source, water depths, water-control structures, and water-level ~naintenance practices needed to achieve the necessary ambient water conditions and hydrocy- cle/hydroperiod characteristics; 4) Mid-course corrections and a three-year monitoring and replacement plan establishing responsibility for removal of exotic and nuisance vegetation and perma- nent establishment of the wetland system and ail its component parts; and 5) A demonstration of fiscal, administrative, and technical competence of sufficient standing to suc- cessfully execute the overall project. 6.5.3. Wetland Restoration and Creation Alternatives Ordinarily, the applicant or violator shall undertake restora- tion or creation efforts on or adjacent to the site where per- manent losses have been sustained or where restoration of 72 a former wetland is possible. Replication "in-kind" of the im- pacted wetland will be the preferred alternative for creation or restoration efforts. Where the applicant has demonstrated to the satisfaction of the Zoning Administrator that this approach is infeasible due to technical constraints, such as parcel or wetland size or wetland type, or that a nontidal wetland of a different type or location is strongly justified based on regional needs or the functional value of the im- pacted wetland, the Zoning Administrator may accept or recommend an alternative proposal. Such proposal may in- volve monetary compensation as provided for in this section or the creation or restoration "out of kind" and "off site." The Office of Planning and Zoning shall set reasonable fees for compensation of wetland losses based upon the amount that would be required to perform on-site, in-kind restora- tion or creation. Where the Zoning Administrator deter- mines that the public interest is better served, the Zoning Ad- ministrator may require a fee in lieu of direct action on be- half of the applicant or violator to initiate restoration or creation projects. Such fees shall be held in escrow for the express use of wetland creation and restoration projects and shall not be commingled with other funds. 6.5.4. Suspension, Revocation The Office of Planning and Zoning may suspend or revoke a permit if it finds that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work set forth in the permit. The Office of Planning and Zoning shall cause notice of its denial, issuance, conditional issuance, revocation, or suspension of a permit to be published in a daily newspaper having a broad circulation in the area wherein the wetland lies. Section 7. Nonconforming Activities A regulated activity that was lawful before the passage of this ordinance, but which is not in conformity with the pro- visions of this ordinance, may be continued subject to the following: 1) No such activity shall be expanded, changed, enlarged, or altered in any way that increases its value at the time of its becoming a nonconforming structure, unless the structure is permanently changed to a con- forming use. 2) No structural alteration or addition to any nonconfor- ming structure over the life of the structure shall exceed 50 percent of all its value at the time of its becoming a nonconforming structure, unless the structure is per- manently changed to a conforming use. 3) If a nonconforming use or activity is discontinued for 12 consecutive months, any resumption of the activity shall conform to this ordinance. 4) If any nonconforming use or activity is destroyed by human activity or an act of God, it shall not be resumed except in conformity with the provisions of the ordinance. 5) Activities or adjuncts thereof that are or become nuisances shall be not entitled to continue as noncon- forming activities. Section 8. Judicial Review Ail final decisions of the Zoning Administrator concerning denial, approval, or conditional approval of a special per- mit shall be reviewable in the Circuit Court. Based on these proceedings and the decision of the court, the Zoning Administrator may, within the time specified by the court, elect to: 1) Institute negotiated purchase or condemnation pro- ceedings to acquire an easement or fee interest in the applicant's land; 2 ) Approve the permit application with lesser restrictions or conditions; or 3 ) Institute other appropriate actions ordered by .~he court that fall within the jurisdiction of the Zoning Administrator. Section 9. Amendments These regulations and the Official Zoning Map may from time to time be amended in accordance with procedures and requirements in the general statutes and as new information concffrning wetland locations, soils, hydrology, flooding, or botanical species peculiar to wetlands become available. Section 10. Assessment Relief Assessors and boards of assessors shaI1 consider wetland regulations in determining the fair market value of land. Any owner of an undeveloped wetland who has dedicated an easement or entered into a perpetual conservation restric- tion with the Office of Planning and Zoning or a nonprofit organization to permanently control some or all regulated activities in the wetland shall have that portion of land assessed consistent with those restrictions. Such landowner shall also be exempted from special assessment on the con- trolled wetland to defray the cost of municipal im- provements such as sanitary sewers, storm sewers, and water mains. 73 BIBLIOGRAPHY American Littoral Society. Protecting Wetlands: What You Should Know. Highlands, N.J.: American Littoral Society, 1981. Bishop, R. A. "Iowa's Wetlands." Proceedings of the Iowa Academy of Sciences 88, no. 1 (1981): 11-16. Bunker, S. "The Maryland Critical Area Program: A Com- prehensive Land Management Approach." National Wetlands Newsletter 9, no. 1 (January/February 1987). Carpenter, J. M., and G. T. Farmer. Peat Mining: An Initial Assessment of Wetland Impacts and Measures to Mitigate Adverse Effects. Washington, D.C.: U.S. Environmen- tal Protection Agency, 1981. Council on Environmental Quality. Our Wetland Heritage. Washington, D.C.: The Council, 1979. Cowardin, L.M., et al. Classification of Wetlands and Deep- water Habitats of the United States. FWS/OBS-79-31. Washington, D.C.: U.S. Fish and Wildlife Service, 1979. Farrar, J. The Rainwater Basin: Nebraska's Vanishing Wetlands. Lincoln: Nebraska Games and Park Commis- sion, 1982. Federal Interagency Committee for Wetland Delineation. FederaI Manual for ldentifying and Delineating Jurisdic- tional Wetlands, 1989. Prepared for U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, and U.S. Department of Agriculture, Soil Conservation Service. Washington, D.C.: GPO, in Press. 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Fish and Wildlife Service, February 23, 1983. Kleir~ S. Select State Inland Wetland Protection Laws: A Re- view of State Programs and Their Natural Resource Data Requirements. Washington, D.C.: National Conference of State Legislatures, 1980. Klopatek, J. M. "Nutrient Dynamics of Freshwater Riverine Marshes and the Role of Emergent Macrophytes.' In Freshwater Wetlands: Ecological Processes and Manage- ment Potential, edited by R.E. Good et al. New York: Academic Press, 1978, 195-216. Kusler, J.A. Our National Wetland Heritage: A Protection Guidebook. Washington, D.C.: The Environmental Law Institute, 1983. .. Strengthening State Wetland Regulations. Washing- ton, D.C.: U.S. Fish and Wildlife Service, 1979. ....... , and Richard Hamann. eds. Wetland Protection: Strengthening the Role of the States. Gainesville, Fla.: Association of State Wetland Managers/Center for Gov- ernmental Responsibility, University of Florida College of Law, 1985. MacDonald, P.O. et al. Documentation, Chronology, and Future Projections of Bottomland Hardwood Habitat Loss in the Lower Mississippi Alluvial Plain. vol. 1. Vicksburg, Miss.: U.S. Fish and Wildlife Service, Ecolog- ical Services, 1979. Magee, D.W. Freshwater Wetlands. Amherst, Mass.: University of Massachusetts Press, 1981. Michigan Department of Natural Resources. Michigan's 75 Wetlands. Lansing: Michigan Department of Natural Resources, 1982. Niering, W.A. Statement before the House Committee on Merchant Marine and Fisheries, August 10, 1982. Novitsky, R.P. Hydrology of the Nevin Wetland Near Madison, Wisconsin. Water Resources Investigations 78-48. Washington, D.C.: U.S. Geological Survey, 1978. O'Connor, R., and O.W. Terry. The Marine Wetlands of Nassau and Suffolk Counties, New York. Stony Brook: State University of New York, Marine Sciences Research Center, 1972. Redelfs, A. E. Wetlands Values and Losses in the United States. M.S. Thesis. Oklahoma State University, Stillwater, 1980. Richardson, C. J., et al. "Pocosins: An Ecosystem in Tran- sition.'' In Pocosin Wetlands, edited by C. J. Richardson. Stroudsburg, Penn: Hutchinson Ross Publishing Co., 1981, 3-19. Roe, H. B., and Q.C. Ayres. Engineering for Agricultural Drainage. New York: McGraw-Hill, 1954. Sigafoos, R.S. "Botanical Evidence of Floods and Floodplain Deposition, Vegation, and Hydrologic Phenomena." U.S. Geological Survey Professional Paper 485-A. Wash- ington, D.C.: USGS, 1964. Sloey, W.E., et al. "Management of Freshwater Wetlands for N~trient Assimilation." In Freshwater Wetlands, edited by R. E. Good et al. New York: Academic Press, 1978, 321-40. Tabachnik, J. The Protection of Inland Wetlands. Mend- ham, N.J.: The Association of New Jersey Environmen- tal Commissions, 1980. Thibodeau, F.R., and B.D. Ostro. "Economic Analysis of Wetland Protection." Journal of Environmental Manage- ment 12 (1981): 19-30. Thurow, C., W. Toner, and D. Erley. Performance Con- trols for Sensitive Lands. PAS Report Nos. 307-308. Chicago: American Planning Association, July 1975. Tiner, R.W., Jr. Field Guide to Nontidal Wetland Identifica- tion. Annapolis: Maryland Department of Natural Resources; Newton Comer, Mass.: U.S. Fish and Wildlife Service, Region 5, 1988. · A Field Guide to Coastal Wetland Plants of the North- eastern United States. Amherst: University of Massachu- setts Press, 1987. · Wetlands of the United States: Current Status and Re- cent Trends. Washington, D.C.: U.S. Fish and Wildlife Service, March 1984. , and P.L.M. Veneman. Hydric Soils of New England, Bulletin C-183. Amherst: University of Massachusetts, Cooperative Extension, May 1987. U.S. Department of Agriculture. Forest Service. Mitigation Symposium: A National Workshop on Mitigating Loss of Fish and Wildlife Habitats. Proceedings of the workshop, July 16-20, 1979, Colorado State University, Fort Collins, Colo. Washington, D.C: Government Printing Office, 1979. U.S. Department of the Interior. "The Value of Wetlands to Modern Society.' In Proceedings of Project MAR Con- ference, November 12-16, 1962. International Union for the Conservancy of Nature Publication, New Series No. 3, 57 63. -, and Department of Commerce. I980 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation. Washington, D.C.: U.S. Fish and Wildlife Service and Bu- reau of the Census, 1982. U.S. Fish and Wildlife Service. Concept Plan for Waterfowl Wintering Habitat Preservation. Central Valley Califor- nia. Portland, Ore.: The Service, Region 1, 1977. ----. Agricultural Resources and Wetland Changes, 1972- 1980, Palm Beach County, Florida. National Wetlands In- ventory, St. Petersburg, Florida. 1982. Unpublished mimeo. ....... , Report of the Waterfowl Habitat Strategy Team. Draft, 1984. U.S. Water Resources Council. The Nation's Water Resources, 1975-2000. vol. 1. Washington, D.C.: U.S. Water Resources Council, 1978. ...... . "Nationwide Analysis Report." In Estimated Flood Damages. Washington, D.C.: Water Resources Council, 1977, Appendix B. University of Massachusetts. Ecological Effects of Highway Fills on Wetlands. Washington, D.C.: National Cooperative Highway Research Program, National Academy of Science, Transportation Research Board, 1980. University of Minnesota, Center for Urban and Regional Af- fairs. Thematic Maps: Presettlement Wetlands of Min- nesota and Available Wetlands for Bioenergy Purposes. Prepared for Minnesota Energy Agency. 1981. Weller, M. W. Freshwater Marshes: Ecology and Wildlife Management. Minneapolis: University of Minnesota Press, 1981. ...... , and C. E. Spatcher. Role of Habitat in the Distribu- tion and Abundance of Marsh Birds. Species Report No. 43. Ames: Iowa Agricultural Experiment Station, 1965. Winter, T.C., and M.R. Carr. Hydrologic Setting of Wetlands in the Cottonwood Lake Area, Stutsman County, North Dakota. Water Resources Investigations 80-99. Washington, D.C.: U.S. Geological Survey, 1980. Wisconsin Department of Natural Resources. Wetland Use in Wisconsin: Historical Perspective and Present Picture. Madison, Wisc.: Wisconsin Department of Natural Resources, Division of Environmental Standards, Water Quality Planning Section, 1976. '/6 364 365 366 367 RECENT PLANNING ADVISORY SERVICE REPORTS Linking Plans and Regulations: Local Responses to Consistency Laws in California and Florida. September 1981.26 pp. $16; PAS subscribers $8. Reducing Earthquake Risks: A Planner's Guide. October 1981.82 pp. $18; PAS subscribers $9. Accessory Apartments: Using Surplus Space in Single-Family Houses. December 1981.24 pp. $16; PAS subscribers $8. Planners' Salaries and Employment Trends, 1981. January 1982.22 pp. $16 (photocopy). Zero Lot Line Development. March 1982.22 pp. $16; PAS subscribers $8. 368 Designing Effective Pedestrian Improvements in Busi- ness Districts. May 1982.60 pp. $16; PAS subscribers $8. 369 A Planner's Guide to Low-Level Radioactive Waste Disposal. 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Determining Potential Gains and Losses of TIF. December 1984.19 pp. $16; PAS subscribers $8. 390 Infrastructure Support for Economic Development. September 1985.38 pp. $16; PAS subscribers $8. 391 Home Occupation Ordinances. October 1985.38 pp. $16; PAS subscribers $8. 392 Innovative Capital Financing. December 1985. 38 pp. $16; PAS subscribers $8. *393 Managing Municipal Information Needs Using Microcomputers. April 1986.22 pp. PAS subscribers Ss. 394 Regulating Satellite Dish Antennas. May 1986.30 pp. $16; PAS subscribers $8. *395 Planners' Salaries and Employment Trends, 1985. June 1986.18 pp. PAS subscribers $8. *396 Standards for Self-Service Storage Facilities. September 1986.22 pp. PAS subscribers $8. 397 Siting Group Homes for Developmentally Disabled Persons. October 1986.46 pp. $16; PAS subscribers $8. 398 Regulating Manufactured Housing. December 1986. 38 pp. $16; PAS subscribers $8. 399 Aesthetics and Land-Use Controls. December 1986. 46 pp. $16; PAS subscribers $8. *400 T~e Planning Commission: Its Composition and Fdnction, 1987. May 1987. 11 pp. PAS subscribers $8. '401 Transferable Development Rights Programs: TDRs and the Real Estate Marketplace. May 1987. 38 pp. $16; PAS subscribers $8. Seven Methods for Calculating Land Capability/ Suitability. July 1987.22 pp. PAS subscribers $10. Computer Applications in Economic Development. August 1987. 38 pp. $20; PAS subscribers $10. How to Conduct a Citizen Survey. November 1987. 24 pp. PAS subscribers $10. New Standards for Nonresidential Uses. December 1987.26 pp. $20; PAS subscribers $10. Housing Trust Funds. December 1987. 25 pp. $20; PAS subscribers $10. Planners' Salaries and Employment Trends, 1987. December 1987. 15 pp. PAS subscribers $10. The Calculation of Proportionate-Share Impact Fees. July 1988.38 pp. $20; PAS subscribers $10. Enforcing Zoning and Land-Use Controls. August 1988.30 pp. PAS subscribers $10. Zoning Bonuses in Central Cities. September 1988. 30 pp. PAS subscribers $10. The Aesthetics of Parking. November 1988.34 pp. $20; PAS subscribers $10. 412/413 Protecting Nontidal Wetlands. December 1988. 76 pp. $36; PAS subscribers $18. *402 4O3 *404 405 406 *407 408 *409 '410 411