Wetland Laws

 

1.  There is no specific national wetland law.

 

2.  Wetlands have been managed under regulations related to both land use and water quality.

 

Important Laws

 

Rivers and Harbors Act, Section 10, 1899, gave the U.S. Army Corps of Engineers the responsibility to control dredge and fill operations in “waters of the United States”.

 

Federal Water Pollution Control Act as amended (Clean Water Act) 1972, 1977, 1982.

 

          Section 404 Dredge and fill permit (Corps)

         

          Section 208 Areawide Water Quality Planning (EPA)

 

          Section 303 Water Quality Standards (EPA)

 

          Section 401 Water Quality Certification (EPA)

 

          Section 402 National Pollutant Discharge Elimination  (EPA)

 

Executive Order 11990, 11988 (Jimmy Carter), 1977, protecting wetlands and floodplains.

 

“No net loss”.  Set as a goal by National Wetlands Policy Forum, 1988.  President Bush directed federal agencies to implement this goal.  It was not anticipated that there would be a complete halt to wetland loss, so restoration and construction was implied.

 

Clean Water Act Section 404 Program

 

Primary vehicle for wetland protection in U.S.

 

An extension of 1899 Rivers and Harbors Act, it requires anyone dredging or filling in the “waters of the United States  to request a permit from the Corps of Engineers.

 

Wetlands are not even mentioned in the original wording, but court interpretations and later executive orders have required the Corps to assume their protection.

 

Obtaining a permit is a complex process (Fig 18-1).

 

No dredging or filling can occur if a practicable alternative exists.  The sequence of evaluation and the terms of the permit require the following:

 

          1.  Avoidance (avoid impacts where practicable)

          2.  Minimization (minimize the potential impacts to wetlands)

3.  Mitigation (provide compensation for any remaining, unavoidable impacts through the restoration or creation of wetlands.)

 

The EPA has veto power over the Corps’ decisions.

 

Swampbuster provision of  1985 Food Security Act

 

Eliminated the cross purposes of  Federal agencies.

 

SCS had been promoting wetland drainage while other agencies were mandated to protect wetlands.  This act withdrew any Federal support from farmers who filled wetlands.  This included all crop subsidies.

 

Wetland delineation

 

In 1987, the Corps published a wetland delineation manual requiring that three mandatory technical criteria be met (wetland soils, hydrology and vegetation) for declaring  a parcel a wetland.

 

In 1989, a four agency manual came out that allowed the delineator to infer some wetland features from others. 

 

Heavy lobbying resulted in the release of a modified manual in 1991, one that would have favored the needs of developers and would have resulted in fewer acres of wetland being delineated.   After public review, it was characterized as “unscientific” and was abandoned.  The 1987 manual is the version that is used.

 

National Academy of Science Study

 

The NRC study was published in 2001:  “Compensating for Wetland Losses Under the Clean Water Act”.  

 

It portrays a less than complementary picture of the effectiveness of the governmental apparatus for protecting the Nation’s wetlands.