| Report 35 |
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R35: Wetlands: The Land-use Issue of the '90s
Page: Cover | Discussion
Questions |
Page 1-3 |
4-10 | Positions and
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Glossary |
References
INTRODUCTIONThis month's units are designed to provide information on and stimulate discussion of the urban wetlands of Lane County: where they are located, how they are regulated and protected, and what this means for city governments and landowners. A short history of wetlands in the U.S. is included. Although no consensus will be taken, discussion questions will help the committee and the Board to ascertain major issues of concern to the members. U.S. Wetland History and Values "Since the time of Colonial America, wetlands have been regarded as a hindrance to productive land use. Swamplands, bogs, sloughs, and other wetland areas were considered wastelands to be drained, filled, or manipulated to 'produce' other than natural services or commodities. Recently we have begun to recognize that wetlands are vital areas that constitute a productive and invaluable public resource. Wetlands are important because they are one of the most productive environments in the world."2 "More plant lIfe per acre Is present in wetlands than anywhere else. Since wetlands are so productive, they provide valuable habitat for wildlife and plants, and improve water quality by filtering the water passing through. They control flooding by providing an outlet for floodwaters. Wetlands also serve as an educational and recreational resource for biologists, birdwatchers, hunters, and others."3 "At the time of Colonial America, the area that now constitutes the 50 United States contained an estimated 392 million acres of wetlands. Of this total, 221 million acres were located in the lower 48 states. Another 170 million acres occurred in Alaska. Hawaii contained an estimated 59,000 acres."2 Following George Bush's 1988 campaign promise to allow "no net loss of wetlands," the 1989 Congress amended Section 401(a) of the Emergency Wetlands Resources Act of 1988. These amendments required the Secretary of the Interior to assess the status of wetlands in the US and in each state in terms of loss over the last 200 years. This assessment indicated that the lower 48 states had lost 53% of their original wetlands. Alaska has lost a fraction of 1% while Hawaii has lost an estimated 12% of its original wetland areas. On average, the lower 48 states have lost over 60 acres of wetlands for every hour in the two centuries following 1780. Ten states have lost 70% or more. Overall, 22 states have lost 50% or more. Exclusive of Alaska, Hawaii and New Hampshire, no state has lost less than 20% of its wetlands. California has lost the most - 91%. Oregon has lost 38% of its original wetland area.2 Wetland RegulationWetlands are regulated under the federal Clean Water Act of 1972 (as amended) and other federal and state laws. Many governmental agencies are involved in implementing these laws and administering regulations. The many definitions promulgated by the various agencies have resulted in confusion as to just what constitutes "wetlands." In 1989, the Environmental Protection Agency (EPA), Army Corps of Engineers (CE); Department of Agricuiture Soil Conservation Service (SCS); and Department of Interior Fish and Wildlife Service (FWS) jointly issued a "Federal Manual for identifying and Delineating Jurisdictional Wetlands." Many states, including Oregon's Division of State Lands, adopted this manual also. This jointly-established definition of wetlands simplified permitting procedures for state and local governments. In the 1989 manual, the characteristics of wetlands - hydrology, vegetation, and soils - remained the same, but the method of determining and applying those criteria resulted in more restriction of wetland development. When application of the new standards and President Bush's declaration to permit "no net loss" of wetlands resuited in denial and/or delay of many development permits, the Administration in 1991 proposed revisions to the 1989 manual. These narrowed the wetlands criteria so that, among other things, a wetland must have all three components - wetlands hydrology, hydric soil, and hydrophytic vegetation, and that the soil be flooded for 15 days a year rather than the previously-required 7 days, or saturated to the surface for 21 days during the growing season. Moreover, the redefined growing season is shorter and reduces the variety of plants that qualify an area as wetland. This change in criteria diminishes wetlands by one-third to one-half compared to the 1989 manual. Agencies were directed to use caution in applying the 1989 standards pending public comment and official adoption of the revised manual. The Corps of Engineers was ordered by an Act of Congress not to use either standard, but to return to its own less restrictive 1987 procedures in issuing permits under Section 404 of the Clean Water Act.(See below under "Administration of Wetland Regulations."). Presumably, after the comment period, the new manual, as reviewed and revised, will become law either under the Administrative Procedure Act or by an Act of Congress. Several bills are now in the Congressional pipeline, most of which would lessen protection for US wetlands. H.R. 1330 (Hayes) and S.1463 (Breaux) are most apt to see action. They would rank wetlands high, medium and low and require payment for limiting development as well as reducing the EPA's involvement in wetland protection. The proposed revisions are expected to result in an additional 30 to 50 percent loss of wetlands in the United States. Oregon would probably lose 50% and Washington 80% of lands now eligible for protection under Section 404 of the Clean Water Act. However, that section allows states to assume responsibility for regulation of their wetlands. Oregon's Division of State Lands has elected to retain the rules, regulations, and definitions found in the 1989 "Federal Manual for Identifying and Delineating Jurisdictional Wetlands "4ADMINISTRATION OF WETLAND REGULATIONSFederal Regulations - The Clean Water Act5 Although there are various federal laws that affect wetlands, the Clean Water Act is the main regulatory tool. The Environmental Protection Agency (EPA) oversees or implements enforcement of Section 404 of the Clean Water Act. Wetlands law requires the EPA to "restore and maintain the chemical, physical, and biological integrity of the nation's waters," by regulating the discharge of dredged or fill material into waters of the United States, including wetlands. The Army Corps of Engineers (CE) administers federal wetlands law under Section 404 of the Clean Water Act, passed by Congress in 1972. This law requires a permit to discharge dredged or fill material into waters of the United States. The CE may grant outright, grant with modifications, or deny a dredge or fill permit. Wetland modifications may require mitigation (alleviation or abatement by restoration or replacement of wetlands elsewhere). The EPA has power to veto the issuance of a CE permit. Penalties for violation include fines up to $50,000 and up to two years in prison. The CE is authorized to delegate its authority by issuing permits on a state, regional or nationwide basis. Most proposals to modify wetlands require an individual permit. Permit-exempted activities include normal existing farming, forestry, and ranching activities including cultivation, soil conservation practices, farm ponds, irrigation ditches, roads used strictly for farming or forestry operations, regular maintenance, and emergency reconstruction. Other Federal Laws The CE is obligated by the Fish and Wildlife Coordination Act to solicit comments from the Secretary of Interior on any water projects that would have a potential impact on wildlife resources. A 1977 amendment to the Clean Water Act designates the Department of Interior Fish and Wildlife Service (FWS) as a review agency, but FWS recommendations are not binding on the CE. The National Environmental Policy Act of 1969 (NEPA) requires an environmental impact statement (EIS) on any federal action that would cause significant adverse environmental impact. Projects found to have no significant impact must prepare a "finding of no significant impact" document to guard against omission of environmental impact studies. The Emergency Wetlands Act of 1985 promotes the conservation of wetlands in order to maintain the public benefit and to fulfill international obligations contained in various treaties pertaining to migratory birds. It also provides for wetland acquisition and a national wetlands inventory which was done by the FWS between 1983 and 1988 using aerial photograph techniques. Any person producing an agricultural commodity on wetlands after December 23,1985, becomes ineligible for most federal agricultural subsidies, as provided in the "swampbuster provision" of the Food Security Act of 1985. Oregon Regulations The Oregon Division of State Lands (DSL) administers permits to conserve, protect and manage Oregon's water resources. Oregon's Removal-Fill Law requires a state permit to fill, remove, drain or alter more than 50 cubic yards of material within the bed or banks of Oregon waters. "Oregon waters" includes wetlands as now defined by the CE. Although changes to the federal definition of wetlands are being considered (see Introduction), DSL has indicated its preference to stay with the more restrictive 1989 definition. The Removal-Fill Law under DSL and Oregon's Land Use Act under LCDC are the state's two main regulatory tools for wetlands. Removal-Fill Law. As stated above, the Removal-Fill Law provides for a state permitting system. However, wetlands often fall under the jurisdiction of both the federal CE and the state DSL, in which case permits are required from both agencies. Violators of the law may be fined from $100 to $10,000 per day of violation. Federal, state and local jurisdictions have overlapping permitting authority, which has led to delays and other difficulties. To help streamline the system, federal and state law allow a local jurisdiction to issue permits when: (a) the wetland is in an area covered by a locally-adopted wetlands conservation plan, and (b) the city or county has obtalned a regional permit for the plan area from the CE with DSL concurrence. The 1989 Legislature enacted a major "wetlands" law. it amended the Removal-Fill Law to further promote wetlands protection, to require a statewide wetlands inventory, to provide for a public information program on wetlands, to establish criteria for filling or removing material in wetlands, and to coordinate wetlands management with local comprehensive plan activities. The 1989 law also adopted federal mitigation standards for Oregon and requires that the state maintain a stable base of wetlands through mitigation of wetland losses. Development of wetlands is to be permitted only if public need is demonstrated through the comprehensive plan for the area, less damaging alternatives are not available, and wetland losses will be mitigated. Land Use Act Under Oregon's Land Use Act of 1973, LCDC adopted a number of planning goals, which local jurisdictions were to meet when developing comprehensive land use plans. Goal 5 requires the conservation and protection of natural and scenic resources, including wetlands. A jurisdiction's first step in meeting this goal was to inventory its various resources, determine both the significance of each resource and any present or potential conflicting uses that might damage or destroy the resource and, given this information, develop a program to protect the resource or decide the resource is not worth protecting. In the case of wetlands, no definitive or statewide inventory of wetlands existed, so each city or county was left to fend for itself in determining what to do about "wetlands." In their eagerness to finish their comprehensive plans and get them acknowledged by LCDC, most jurisdictions ignored all but the most obvious wetlands (and some even ignored them!) while LCDC, pressured by the Legislature and equally eager to finish the acknowledgement process, put off more careful analysis of Goal 5 resources until future periodic reviews of local comprehensive plans. Thus the state land use program has not been as effective as it could be in managing wetland resources. Reasons for this include: (1) lack of a statewide inventory and method for evaluating wetlands; (2) too much discretion at the local level in determining significant sites; (3) not enough coordination with other state and federal regulatory programs; (4) low priority for wetland management at the local level; and (5) as stated above, acknowledgement of local plans before inventory information and recognition of the importance of wetlands existed. All of these have been exacerbated by lack of definitional clarity and lack of resources to conduct inventories. Footnotes 1. Friends of the Earth, "The Crisis in Wetlands Protection," Washington, DC, September 1991 (fund raising brochure). 2. DahI, T. E. 1990, Wetlands Losses in the United States 1780's to 1980's. U.S. Department of the Interior, Fish and Wildlife Service, Washington, DC, pp.1, 2, 5. 3. Lane Council of Governments. "Why Are Wetlands Important?" April 1989. 4 Register-Guard, October 6,1991. 5. Federal Regulations Section based on: LCOG. West Eugene Wetlands Special Area Study: Draft Technical Report. City of Eugene, LCOG and EPA, May 30, 1990. Source: Scanned from original document.
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