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Introduction
Wetlands are ecosystems that have both aquatic and terrestrial characteristics. Wetlands provide a variety of important functions in the environment. Numerous species of birds, mammals, reptiles, amphibians, fish, and crustaceans, some of them rare or endangered, depend upon wetlands habitats. These ecosystems may also contain unique plant species that cannot survive outside such areas.
Wetlands may serve as a source of flood control by attenuating or storing storm and flood waters. They also can function as a source of water reclamation, accumulation of sediment discharge, and groundwater recharge. Wetlands have many diverse economic and recreational functions. There are numerous types of wetlands, including, but not limited to, bogs, marshes, swamps, prairie potholes, riparian greenways, and tundra.
Background and Objectives
Because of these diverse and unique functions, wetlands are protected from development or destruction by a host of national, state, and local laws. The primary national law that regulates wetlands is Section 404 of the Clean Water Act. Section 404 requires parties who wish to discharge dredged or fill material into the navigable waters of the United States to obtain a permit from the U.S. Army Corps of Engineers (Corps). Regulatory agencies and the courts have interpreted "navigable waters" to include wetlands. The U.S. Environmental Protection Agency (EPA) has the authority to veto a Corps-approved permit under Section 404.
The national government has taken a particularly active role on behalf of wetlands protection since the mid-1980s. In 1987, EPA initiated the National Wetlands Policy Forum to gain insight into wetlands protection issues. The Forum comprised state and local elected officials, regulatory agency representatives, representatives of business, agriculture, and environmental groups, and academic experts. In 1988, the Forum recommended adoption of a national goal of "no net loss" for wetlands and suggested an action plan for reaching this goal. President Bush pledged the Administration's commitment to this goal and charged task force of the Domestic Policy Council to prepare a plan for defining and achieving no net loss of wetlands.
In 1989, four federal agencies with jurisdiction over wetlands--the Corps, EPA, Fish and Wildlife Service (FWS), and Soil Conservation Service (SCS)--developed a common set of guidelines for identifying wetlands, the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (Manual). Previously, each agency had operated with its own identification system. The Manual determines that a property must meet certain criteria in all three areas pertaining to hydrology, hydrophytic vegetation, and hydric soil in order to be identified as a wetland. Congress prohibited the agencies from implementing the 1989 revision, as well as a 1991 revision, because of the perception that it defined first too many, then too few, properties as wetlands. Instead Congress requested the National Academy of Sciences to study wetland identification and delineation and instructed the agencies to use the 1987 version of the Manual. In May 1995, the Academy released its study, which made recommendations for the improvement of the Manual. The Administration is incorporating these recommendations in a future version.
In another regulatory development, the Corps and EPA signed a Memorandum of Agreement in 1990 that specifies the type and level of mitigation necessary to demonstrate compliance with Section 404. The Memorandum establishes a "sequencing" process whereby permit applicants must first attempt to avoid wetlands destruction, then minimize damage, and only after those options have been exhausted, provide for compensatory mitigation to offset the wetlands loss.
In August 1993, the Clinton Administration unveiled a package of wetland program reforms. Among the policies advocated are the establishment of an administrative appeals process for contesting wetland permitting decisions, establishment of deadlines for permitting decisions, increased use of general permits, use of identical procedures for wetland delineation across the federal agencies, and guidance for the establishment of mitigation banks.
On the legislative side, Congress is considering reform of the wetlands regulatory program in response to numerous concerns expressed by the agricultural and public and private development communities.
The Problem
Historically, wetlands have been considered "wastelands" open to modification or destruction. The U.S. Department of the Interior's Fish and Wildlife Service has estimated that over a 200-year period the United States had lost 53 percent of its original wetlands.1 Further, many activities that adversely impact wetlands proceed unregulated because the Section 404 program pertains to dredge and fill material only. Only recently has consensus emerged on the importance of protecting wetlands.
To ensure wetlands protection, national, state, and local governments have developed regulatory programs for the issuance of development permits. These programs have imposed cumbersome burdens on private and public parties seeking permits. Furthermore, the classification system defined in the Manual has been criticized for going too far, resulting in excessive delays, expense, and requirements for permitting development of property not commonly considered to be a wetland. In addition, the sequencing requirements imposed by the Corps-EPA Memorandum of Agreement further delay the permitting process. This regulatory quagmire delays and oftentimes prevents essential economic and infrastructure development.
Advocacy of NSPE
The National Society of Professional Engineers (NSPE) urges Congress and the Administration to develop a national policy on wetlands protection that respects the need to protect these environmentally sensitive and valued lands and to develop land use practice compatible and appropriate with the value of the wetland, while balancing these needs with equally necessary economic and infrastructure development.
No Net Loss Goal
We endorse the goal of no net loss of the value of wetlands, recognizing the importance of identifying critical wetlands of strategic importance to the maintenance of a balanced ecosystem. We urge the linkage of this goal to a value-based wetlands classification system so that no net loss of wetlands of significant value is achieved. The "no net loss" approach to wetlands needs to be defined within a working system of guidelines that recognizes the significance of the values inherent in the wetland.
We urge the national government to provide for the delegation of authority to state and local governments for ensuring implementation of the no net loss goal, and provide incentives for their doing so. It is at the local level that wetlands protection can be ensured, while giving the economic and infrastructure needs of the various impacted communities proper consideration.
Identification of Wetlands
We support efforts by the four federal agencies to develop a consensus identification system of wetlands, as articulated in the Manual. The Manual makes significant progress toward clarifying a previously disorganized regulatory process. However, certain sections of the Manual are flawed. We encourage revisions to the Manual that make water the primary factor for identifying wetlands (with soil and plant factors secondary considerations).
While we acknowledge the necessity of national government leadership in providing a broad consensus for the identification of wetlands, we urge Congress and the agencies to delegate authority for adjusting and implementing the identification and delineation activities to the states. In doing so, the national government should permit each state the flexibility to include or exclude certain features as may be necessary for particular ecosystems and their associated values. States, not the federal government, are better positioned to make these regional adjustments. Greater state authority in wetlands identification and classification would avoid many situations where overly broad national definitions may inhibit any economic development. If the goal of the Manual is to be realized, it must be understood by those who use it. Therefore, we urge the national government to provide greater resources for outreach and training activities to federal, state, and local regulatory agency personnel, consulting professionals, and the regulated community on the use of the Manual. By doing so, considerable misunderstanding and lost energy may be avoided.
Inventory, Classification, and Indexing of Wetlands
We support a regulated system that includes the inventory, classification, and indexing of wetlands according to their functions and values. Wetlands may provide single or multiple functions such as flood protection, erosion control, or habitat protection, to list a few. "Value" should be considered from both a regional and a national standpoint. We recognize that all wetlands, like any other ecosystem, have some intrinsic value. Clearly, however, some wetlands are more important ecologically than others. An inventory, classification, and indexing system provides assurances that the most valued wetlands have been identified before development has been proposed. We recommend a multilevel classification system that would designate certain wetlands to be of such strategic importance that the underlying critical values must be preserved, others that could be developed if some form of compensatory mitigation were required, and others that could be developed with only limited regulation. The system should be well integrated with the no net loss goal.
Such a system would encompass biological, scientific, and engineering principles or processes that the national government should coordinate in cooperation with the academic, engineering, and scientific communities.
Enhancement, Restoration, and Creation
Wetlands enhancement, restoration, and creation are technical solutions to wetlands losses that deserve further attention. The merits of artificial wetlands have been demonstrated for some types of ecosystems. Accordingly, the enhancement, restoration, or creation of certain types of wetlands may provide sufficient "value" to offset the loss of certain types of less significant wetlands that are of a lower classification. In addition, wetlands continue to be designed and built specifically as mechanisms for wastewater effluent polishing. Constructing wetlands for the purpose of water reclamation meets public health and water quality goals while also replacing other values and functions of wetlands ecosystems, including habitat. We strongly encourage activities that provide technically sound solutions that compensate for adverse environmental impacts.
Compensation, Mitigation Banking, and Funding
The classification of wetlands in the category of "highest value" could in effect constitute a "taking" for which just compensation should be made. As an alternative mitigation measure where less valued wetlands are proposed for development, payments could be made to a wetlands fund for their replacement with more valued wetlands in lieu of other mitigation measures. Banking of enhanced, restored, and created wetlands for offsetting losses is a potentially effective means of replacement of wetlands values before they are destroyed and of improving the regulatory process. These funds should be managed by states that choose to implement such funds, with the national government's role limited to guidance on fund establishment and operation.
To assist in the purchasing of wetlands and other environmentally sensitive property, funds could be established to provide for the purchase of large tracts of such ecosystems.
Research Activities
We urge that greater resources be dedicated to scientific research into the ecological functions of wetlands. Significant levels of scientific investigation must be supported in order to fully understand wetlands ecosystems. Establishment of a truly objective system for identification, inventory, classification, and indexing requires such investment if it is to be successful.
In addition, the government should commit greater resources to scientific and technical inquiry as to the effectiveness of restoration and creation activities. Currently, research into the long-term success of restored and created wetlands is limited. Studies must begin now if restoration and creation are to succeed as long-term contributors to the wetlands issue.
Role of Government
Criticism from both environmental groups and regulated parties indicates that the current regulatory process is not working sufficiently. As a result, we urge a substantial shift in regulatory responsibilities to the state and local governments so that they may incorporate wetlands preservation with their land-use planning.
National Government Role—The national government should maintain responsibility for the development of a standard for the wetlands identification, inventory, classification, and indexing system, certification of state wetlands conservation and management plans, and the funding of research, education, and outreach activities. The national government should also be prepared to retain permitting authority in situations where states do not meet national minimum guidelines. To coordinate the transition from national to state and local primacy, we urge the federal executive branch to select a lead agency, which would then have the sole responsibility for wetland-related decisions. State and local governments and public and private development groups should not be subjected to diverse interpretations or requirements.
State Government Role—The state level of government should have primary responsibility for overall coordination of wetlands protection in the state, and should be required to develop a state wetlands management plan that meets the no net loss objectives. Also included among the state's responsibilities should be implementation and adjustment of the federally designed identification, inventory, classification, and indexing system, management of mitigation banks, and coordination of development activities that cross local boundaries (such as major highways). States should also have limited permitting authority for situations in which local levels of government are unable to operate the program.
Local Government Role—The regulation of wetlands protection and development should be administered at the local level of government through the development of wetlands conservation plans or the incorporation of such planning in already existing land use planning activities. Local units of government should have the primary responsibility for issuing wetlands land use permits. These permits could be issued at the time that other zoning or land development permits or deeds of property transfer are issued. By coordinating land use planning at the local level, both the environmental and regulated communities would be in closer contact to the regulatory agency, thus improving case management and limiting delays.
Impact on Related Issues
Our plan for restructured wetlands protection policy will not come easily. As a result, numerous turf battles among the different interests may develop. Furthermore, state and local governments may be unwilling to assume greater responsibility for this politically charged program without some guarantee that substantial divestment from wetlands management is forthcoming from the national government. National support will probably be necessary to encourage states and localities to adopt greater supervision.
We recognize that because many of the proposed solutions will require a lengthy period for debate and implementation, they will not immediately solve the frustrations within the regulated community. We urge the national government to carefully implement its current policy decisions in a manner that minimizes the adverse impact on the regulated community while debate continues on future wetlands protection policy.
We also recognize that reorganization of the wetlands management program so that state and local governments assume greater implementation and enforcement functions could result in the establishment of an additional regulatory layer. This is not our intention. Rather, we recommend that state and local government assume current national responsibilities, not add to them. To accomplish this without undue burden on the regulated community, we encourage a carefully defined shift to greater state and local responsibility while decreasing the national government's regulatory duties.
Citations
Dahl, T.E., 1990. Wetlands Losses in the United States 1780s to 1980s. U.S. Department of the Interior, Fish and Wildlife Service, Washington, DC, 21 pp.
