WETLANDS their
USE AND REGULATION
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CONGRESS OF THE UNITED STATES
Office of Technology Assessment
Washington, D C 20510
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Office of Technology Assessment
Congressional Board of the 98th Congress
MORRIS K. UDALL, Arizona, Chairman
TED STEVENS, Alaska, Vice Chairman
Senate
ORRIN G. HATCH
Utah
CHARLES McC. MATHIAS, JR.
Maryland
EDWARD M. KENNEDY
Massachusetts
ERNEST F. HOLLINGS
South Carolina
CLAIBORNE PELL
Rhode Island
JOHN H. GIBBONS
(Nonvoting)
Advisory Council
House
GEORGE E. BROWN, JR.
California
JOHN D. DINGELL
Michigan
LARRY WINN, JR.
Kansas
CLARENCE E. MILLER
Ohio
COOPER EVANS
Iowa
CHARLES N. KIMBALL, Chairman
Midwest Research Institute
EARL BEISTLINE
University of Alaska
CHARLES A. BOWSHER
General Accounting Office
CLAIRE T. DEDRICK
California Land Commission
JAMES C. FLETCHER
University of Pittsburgh
S. DAVID FREEMAN
Tennessee Valley Authority
GILBERT GUDE
Congressional Resectrch Service
CARL N. HODGES
University of Arizona
RACHEL McCULLOCH
University of Wisconsin
WILLIAM J. PERRY
Hambrecht & Quist
DAVID S. POTTER
General Motors Corp.
LEWIS THOMAS
Memorial SIoan-Kettering
Cancer Center
Director
JOHN H. GIBBONS
The Technology Assessment Board approves the release of this report. The views expressed in this report are not
necessarily those of the Board, OTA Advisory Council, or of individual members thereof.
WETLANDStheir
use and regulation
OTA Reports are the principal documentation of formal assessment projects. These
projects are approved in advance by the Technology Assessment Board. At the conclu-
sion of a project, the Board has the opportunity to review the report, but its release
does not necessarily imply endorsement of the results by the Board or its individual
members.
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Recommended Citation:
Wetlands: Their Use and Regulation (Washington, D.C.: U.S. Congress, Office of Tech-
nology Assessment, OTA-O-206, March 1984).
Library of Congress Catalog Card Number 84-601014
For sale by the Superintendent of Documents
U.S. Government Printing Office, Washington, D.C. 20402
Foreword
This report presents the findings and conclusions of OTA's analysis of approaches
to wetlands use. Historically, wetlands were considered wastelands and conversion to other
uses was actively encouraged. Two trends in recent decades, however, have altered this
perception. First, there has been a growing appreciation for the esthetic and recreational
qualities of wetlands; and second, there is now a general recognition of the hydrological
and ecological services that wetlands provide. In spite of this increased awareness of the
esthetic, recreational, and ecological values of wetlands, pressure to convert wetlands to
cropland, commercial development sites, and other uses is still significant in certain regions
of the country. This presents a conflict between those who want to convert wetlands to
other uses and those who feel they should be left in their natural state.
Section 404 of the Federal Water Pollution Control Act (1972), now referred to as
the Clean Water Act, authorizes the U.S. Army Corps of Engineers (Corps) to regulate
the disposal of dredged or fill material into "the waters of the United States," which in-
cludes many wetlands. Because this act opened the way for Federal regulation of many
development activities that occur in wetlands, the 404 program has been the center of con-
siderable controversy. Federal regulation of privately owned wedands through 404 is viewed
by some as land-use control, traditionally the legal domain of State and local governments.
Others, who view wetlands as a national water resource, argue that the Federal Govern-
ment has an obligation to protect those wetlands that are important to the public.
OTA undertook this study at the request of the Senate Committee on Environment
and Public Works and its Subcommittee on Environmental Pollution. It describes the eco-
logical values of wetlands, trends in wedands use, and the effect of Federal and State wedand
programs on wetlands. In addition, OTA reviewed the existing scientific literature to pro-
vide background information on the ecological services provided by wetlands. Although
this report deals broadly with wetlands and their use, many of its findings relate directly
to the Corps' 404 program, which is the major avenue for Federal involvement in regulating
some activities that use wetlands. Furthermore, because agricultural drainage and clear-
ing have been responsible for the vast majority of wetlemd conversions since the mid-1950's,
OTA examined in some detail the policies that encourage the conversion of wetlands to
agricultural uses.
The data available to resolve these issues proved scanty and of highly mixed quality.
For example, good data on wedand trends is only available for the 20-year period prior
to implementation of the 404 program. Thus, generalizations about the values of wetlands
or the effects of Federal programs, while valid to broad policymaking, are often misleading
if applied to site-specific situations. However, within the limitations of this uncertainty,
this OTA report provides a policy perspective that could lead to more coherent and ration-
al policies for managing the competing uses of wetlands.
OTA is grateful for the support, assistance, and cooperation received in this assess-
ment from many people representing a great diversity of viewpoints on wetland issues.
JOHN H. GIBBONS
Director
Wetlands Advisory Panel
William H. Patrick, Jr., Chairman
Director, Laboratory for Wetland Soils and Sediment, Louisiana State University
Hope M. Babcock
National Audubon Society
Earl H. Beistline
Dean, School of Mineral Industry
University of Alaska
Charles E. Eraser
President
Sea Pines Co.
Donald W. Oilman
Alaska State Senator
Laurence R. Jahn
Vice President
Wildlife Management Institute
Joseph S. Larson
Chairman, Department of Forestry and
Wildlife Management
University of Massachusetts
Stanley L. Lattin
Director of Planning and Economic Development
Port of Grays Harbor
Jay A. Leitch
Department of Agricultural Economics
North Dakota State University
Ralph Manna, Jr.
Division of Regulatory Affairs
New York Department of Environmental Conservation
William Manning
Louisiana Land & Exploration Co.
Eric Metz
California Coastal Commission
Mark Rey
National Forest Products Association
Laurence Simns
President
Maryland Waterman's Association
Hobart G. Truesdell, II
President
First Colony Farms
Daniel E. WUlard
School of Public and Environmental Affairs
Indiana University
Iv
OTA Project Staff — Wetlands Assessment
John Andelin, Assistant Director, OTA
Science, Information, and Natural Resources Division
Robert Niblock, Oceans and Environment Program Manager
William Barnard, Project Director
Joan Harn, Analyst Daniel Kevin, Analyst
Christopher Ansell, Research Analyst
Administrative Staff
Kathleen Beil Jacquelynne Mulder Kay Senn
Principal Contractors and Other Contributors
Center for Environmental Studies, North Dakota State University
Center for Governmental Responsibility, University of Florida
Center for Great Plains Studies, University of Nebraska
Center for Wetland Resources, Louisiana State University
John R. Clark
Ken Cook
William E. Davis*
ESA/Madrone
Warren E. Frayer
JACA Corp.
Jon A. Kusler
Orie L. Loucks
National Wetlands Technical Council, Environmental Law Institute
R. Wayne Nelson & Associates
School of Forestry and Environmental Studies, Duke University
Leonard Shabman
Shapiro & Associates, Inc.
Water Resources Research Center, University of Massachusetts
Kathryn M. White, Writer/Editor
OTA Publishing Staff
John C. Holmes, Publishing Officer
John Bergling Kathie S. Boss Debra M. Datcher Joe Henson
Glenda Lawing Linda A. Leahy Cheryl J. Manning
•OTA staff
Contents
Chapter Page
1 . Summary 3
2. Wetland Types 25
3. Wetland Values and the Importance of Wetlands to Man 37
4. Wetland Programs That Affect the Use of Wetlands 69
5. Wetland Trends 87
6. Impacts and Mitigation 117
7. The Effects of the 404 Program 141
8. Limitations of the 404 Program for Protecting Wetlands 167
9. Capabilities of the States in Managing the Use of Wetlands 187
Appendix — List of Acronyms and Glossary 199
Index 205
VII
Photo credit: U.S. F(s/i and Wildlife Service— L. Ctiilders
Photo credit: U.S. F/s/i artd Wildlife Service— E. Laveme Smith
Contents
Page
Introduction 3
Values and Uses of Wetlands 5
The Intrinsic Qualities and Ecological Services Associated With Wetlands 5
Wedand Conversions 5
Trends in Wetland Use 6
Programs and Policies Affecting Wetland Use 7
Federal Programs Discouraging Wetland Conversions 10
Federal Programs Encouraging Wedand Conversions 12
Administration Policies 13
State Wetland Programs 13
Local Wetland Programs 13
Private Initiatives 13
Policy Considerations and Options 13
Policy Considerations 13
Policy Issues 14
Policy Options 14
TABLES
Table No. Page
1. Wetland Conversions From Mid-1950's to Mid-1970's 7
2. Major Federal Programs Affecting the Use of Wetlands 9
FIGURES
Figure No. Page
A. Actual Wetland Conversions 8
B. 404 Permit Statistics, 1981 12
Chapter 1
Summary
INTRODUCTION
The use of wetlands — the marshes, swamps,
bogs, bottom lands, and tundra that comprise about
5 percent of the contiguous United States and about
60 percent of Alaska — is a source of controversy
between those who want to convert these areas to
other uses and those who want them left in their
natural state. Some wetlands can provide natural
ecological services such as floodwater storage, ero-
sion control, improved water quality, habitat for
fish and wildlife, and food chain support. In addi-
tion, many wetlands are esthetically pleasing and
offer varied recreational and educational opportu-
nities. At the same time, these wetlands may pro-
vide sites for housing, agriculture, or commercial
development.
Wetlands are usually characterized by emergent
plants growing in soils that are periodically or nor-
mally saturated with water.* They occur along
gradually sloping areas between uplands and deep-
water environments, such as rivers, or form in ba-
sins that are isolated from larger water bodies. Of
the 90 million acres of vegetated wetlands in the
lower 48 States, 95 percent are located in inland,
freshwater areas; the rest are coastal, saltwater wet-
lands. In addition, it is estimated that nearly 60
percent of the State of Alaska — or over 200 million
acres — is covered by wedands.
Within the last 200 years, 30 to 50 percent of the
wedands in the lower 48 States have been converted
'The Fish and Wildlife Service (FWS) used the term "wedand"
in 1952 to describe a number of diverse environments that shared char-
acteristics of both aquatic and terrestrial habitats — i.e., lands at least
temporarily inundated, but with "emergent" vegetation adapted to
saturated soil conditions. Presendy, there are two major Federal defini-
tions. One definition was established by FWS for purposes of map-
ping and classification of wedands; the second, more restrictive, defini-
tion was developed by the U.S Army Corps of Engineers and the En-
vironmental Protection Agency for the purpose of regulation. As a
result, FWS has estimated that in the mid-1970's there were 99 million
acres of vegetated and nonvegetated wetlands in the lower 48 States.
In comparison, the Corps estimates that its jurisdiction extends over
approximately 64 million acres of wedands. The differences in the
interpretation of what constitutes a wetland have led to considerable
confusion and a great deal of controversy. Disagreement exists, for
example, over whether parts of the Alaskan tundra and drier sections
of bottom land hardwoods should be considered wedands.
to Other uses by activities such as agriculture, min-
ing, forestry, oil and gas extraction, and urbaniza-
tion. According to the most recent Federal survey,
a net amount of approximately 1 1 million acres of
wetlands in the lower 48 States were converted
to such other uses between the mid- 1 950 's and mid-
1970's.* This amount was equivalent to a net loss
each year of about 550,000 acres, or about 0.5
percent of remaining wetlands. The vast majori-
ty of actual losses — about 80 percent — involved
draining and clearing of inland wetlands for ag-
ricultxiral purposes. Although some wedand losses
were due to naturad causes such as erosion, sedi-
mentation, subsidence, and sea level rise, at least
95 percent of actual wetland losses over the last
25 years were due to man's activities. The best
available information indicates that present national
wetland-conversion rates are about half of those
measured in the 1950's and 1960's or about 300,000
acres per year. This reduction is due primarily to
declining rates of agricultural drainage, and sec-
ondarily to government programs that regulate wet-
lands use.
At this time. Federal policies and programs do
not deal consistently with wetlands use. In fact,
they affect wetland use in opposing ways. Some
policies encourage conversions: tax deductions and
credits can significantly reduce wetland conversion
costs for farmers. On the other hand, regulatory
and acquisition programs discourage conversions.
The U.S. Army Corps of Engineers' regulatory
program established by section 404 of the Clean
Water Act, provides the major avenue of Federal
involvement in controlling the use of wetlands
by regulating discharges of dredged or fill ma-
terial into wetlands.
For those activities that come under regulation
by the Corps, annual conversions are reduced na-
*The analyses presented in this study apply only to vegetated wet-
lands. If unvegetated habitats, such as mud fiats, were included, the
quantitative estimates describing wedand trends coiJd change by as
much as 10 to 20 percent. However, the overall wedand trends in
the lower 48 States and the policy options discussed later are not sig-
nificandy affected by differences in wedand definitions.
4 • Wetlands: Their Use and Regulation
tionwide by about 50 percent, or 50,000 acres of
wetlands per year, primarily through project mod-
ifications. Because most activities that occur in
coastal wetlands are regulated by the Corps and/or
State wetland programs, coastal wetlands are
reasonably well protected. However, many ac-
tivities, such as excavation and traditional clear-
ing and drainage for farming and other uses, are
not regulated by either the Corps or by most State
wetland programs. These activities were responsi-
ble for the vast majority of past conversions, espe-
cially in inland areas, where 95 percent of the Na-
tion's wetlands are located. Inland, freshwater
wetlands are generally poorly protected.
The current rates of wetland loss are not likely
to have catastrophic enviromental impacts in the
next few years, but the continued incremental con-
version of wedands, especially in certain inland re-
gions of the country, could have significant adverse
ecological effects over the next few decades. To ad-
dress this situation, the Federal Government could
play an important role in integrating ongoing ef-
forts to manage the Nation's wetlands.
Over the next decade existing wedand programs
can be integrated in a few successive steps. First,
the Federal Government could complete its ongo-
ing mapping of wetlands; high priority could be
assigned to those areas where development pres-
sures are high. Next, the wetlands in different
regions of the country could be categorized accord-
ing to their relative values. This would enable ex-
isting wetland programs to be tailored in a consist-
ent and integrated manner to the broad categories
of wetlands and to prospective development activ-
ities. If deemed necessary, the Government could
broaden the scope of different wetland programs
(e.g., regulation, acquisition, leasing, etc.) to
include the full range of wedand values, rather than
continuing to focus on individual values, such as
wildlife habitat. By taking these steps, higher value
wetlands would receive more protection than wet-
lands of lower value. Developers also would have
prior knowledge about standards and requirements
for converting specific wetland areas, thus simpli-
fying the regulatory process.
For such an integrated approach to wetlands
management, further efforts also would be needed
to reduce uncertainties about: recent wetland
trends, the ecological significance of additional
wetland conversions, and the effect of major pol-
icies and programs on wetlands use. A detailed
work plan developed by an interagency working
group would help to ensure that all required activ-
ities are accomplished in a timely manner.
Finally, while this plan is being developed. Con-
gress may wish to provide additional protection for
wedands, especially higher value wedands that may
be subject to agricultural conversion. This could
be done through acquisition or easements from the
Department of the Interior's Fish and Wildlife Serv-
ice, or through leases from the Department of Agri-
culture's (USDA) Water Bank Program. All of
these options can provide comparable levels of pro-
tection. For a given level of funding, many more
wetlands can be protected with leases than with
easements or acquisition; however, leases only pro-
vide short-term protection.
During the course of this study, data were col-
lected from the scientific literature. Government
reports, and responses to questionnaires about wet-
lands use from 37 out of 38 Corps districts, from
48 States, and from 1 1 out of 20 trade associations
surveyed. The Office of Technology Assessment
(OTA) also conducted case studies of wetland
trends in 13 States and minor studies in 8 States,*
and interviewed many Federal and State person-
nel and industry representatives. Because agricul-
tural activities were responsible for the vast majority
of past wetland conversions, agricultural policies
were surveyed in somewhat greater detail than were
most other Federal policies.
As a result of its studies, OTA has identified
three issues related to wedands management. First,
should Federal involvement in protecting wedands
be increased or decreased? Second, should the Fed-
eral Government improve its policymaking capabil-
ity through a systematic collection and analysis of
additional information about wetlands? Finally,
should the Federal Government develop a more in-
tegrated approach for managing the use of wet-
lands? More detailed analyses of the technical and
institutional information that relates to these policy
options are presented in later chapters of this report.
'Case studies were conducted for Alaska, California, Florida, Loui-
siana, Massachusetts, Minnesota, Nebraska, New Jersey, North Car-
olina, North Dakota, Rhode Island, South Carolina, and Washington.
Minor studies were conducted in Connecticut, Maine, Maryland, Mis-
sissippi, New Hampshire, South Dakota, Texas, and Vermont.
Ch. 1— Summary • 5
The results of the study are presented in this sum-
mary in three sections: values amd uses of wedands,
programs and policies affecting wetland use, and
policy considerations and options.
VALUES AND USES OF WETLANDS
The Intrinsic Qualities and Ecological
Services Associated With Wetlands
Some people value v^etlands for their intrinsic
qualities. Their primary motivation for protecting
wedands is simply a desire to preserve natural areas
for future generations, or because they are often
the last areas to be developed. Others value the
varied and abundant flora and fauna found in wet-
lands and the opportunities for hunting, fishing,
boating, and other recreational activities. While rec-
reational benefits can be quantified to some extent,
the other intrinsic values of wetlands are, for the
most part, intangible. For this reason, the justifica-
tion for protecting wetlands has often focused on
the importance of the ecological services or re-
source values that wedands provide, which are more
scientificailly and economically demonstrable than
intrinsic qualities (box A).
The intrinsic qualities and ecological services pro-
vided by wetlands can vary significandy from one
wedand to another and from one region of the coun-
try to another. For example, mangrove swamps,
while only of marginal importance to waterfowl,
are very important for erosion control along the
Florida coast. Some wedands provide benefits that
are primarily local or regional in nature; other ben-
efits may be national or even international in scope.
Because of the many differences between indi-
vidual wetlands, the significance of their ecolog-
ical services and intrinsic qualities must be de-
termined on an individual or regional basis.
In making such a determination, the dollar value
of the ecological services that wedands provide can
sometimes be quantified. The Corps, for instance,
estimated that the loss of the entire 8,422 acres of
wedands within the Charles River Basin in Massa-
chusetts would result in average annual flood dam-
ages of over $17 million. However, because the
many intrinsic qualities of wedands carmot be quan-
tified, it is usually difficult to place generally ac-
cepted dollar values on wetlands.
Wetland Conversions
Wetlands can provide important sites for devel-
opment activities such as agriculture, forestry, port
and harbor development, oil and gas extraction,
housing and urban growth, mining, and water re-
source development. Wedand drainage for agricul-
tural purposes is particularly widespread in the
Lower Mississippi River Valley and in some areas
of the Southeast. Some activities, such as peat min-
ing and cranberry production, can take place only
in wetlands or in former wetlands; other activities
may achieve cost savings by using wetlands rather
than upland areas. Some wedands lie over natural
resources such as oil, gas, and phosphate ore de-
posits. For example, unprocessed phosphate ore
underlying wedands in coastal areas of North Car-
olina may be worth several hundred thousand dol-
lars per acre. Although development activities
that affect wetlands are probably worth billions
of dollars annually, data were not available for
OTA to estimate the total net monetary values
of these activities as they relate to wetlands.
Development activities that involve excava-
tion (or dredging), filling, clearing, draining,
or flooding of wetlands generally have the most
significant and permanent impacts on wetlands
and the ecological services they provide. The ex-
tent of these impacts varies aunong projects, depend-
ing on the scale and timing of the project, the type
of wetland affected, and many other variables. In
many cases, project impacts can be reduced by re-
designing the project or ^y modifying construction
timetables.
The ability to restore significantly degraded wet-
lands or converted areas to their original condition
depends on the type of wetland and on the degree
to which it has been affected by natural processes
or by particular development activities. For exam-
ple, former San Francisco Bay wetlands that were
formerly used for ^riculture are now being restored
by removing manmade dikes that once separated
them from the Bay. It is also possible to create new
6 • Wetlands: Their Use and Regulation
Box A. — Ecological Services of Wetlands
Floodpeak Reduction. — Isolated and flood plain wetlands may temporarily store runoff, and flood
plain wetlands may slow the downstream flow of water and provide additional capacity for conveying flood-
waters, thus reducing floodpeaks and the frequency of flooding in downstream areas. For example, the
swampland in the Cache River watershed in southern Illinois retains about 8.4 percent of the watershed's
total runoff during flooding.
Water-Quality Improvement. — By temporarily or permanendy retaining pollutants, such as suspended
material, excess nutrients, toxic chemicals, and disease-causing micro-organisms, wetlands can improve,
to varying degrees, the quality of the water that flows over and through them. Some poUutants that are
trapped in wedands may be converted by biochemical processes to less harmful forms. Some pollutants
may remain buried; others may be taken up by wedand plants and either recycled within the wetland or
transported from it. By temporarily delaying the release of nutrients until the fall, wedands may help pre-
vent excessive algal growth in open-water areas in the spring, when nutrient availability from other sources
is typically high. Wetlands can retain nutrients on a net annual basis and have been used successfully for
secondary treatment of sewage effluents.
Food and Habitat. — Wedands provide food and habitat for many game and non-game animals. For
some species, wetlands are essential for survival. For instance, many species of waterfowl and freshwater
and saltwater fish require wetlands for breeding and nesting. Approximately 20 percent of all plant and
animal species listed by the Federal Government as threatened or endangered depend heavUy on wetlands.
For other species, wedands serve more general needs. Coastal marshes and certain types of inland, freshwater
wetlands achieve some of the highest rates of plant productivity of any natural ecosystem. This high pro-
ductivity often supports varied and abundant animal populations within a complex food chain. During
the growing season, less than 15 percent of the plant biomass in saltwater marshes is consumed directly
by foraging animals. After the plants die, up to 70 percent of the plamt material is broken down into small
particles and flushed into adjacent waters, where it becomes a potential food source for estuarine-dependent
fish and shellfish.
Shoreline Stabilization. — Some vegetated saltwater and freshwater wedands significandy reduce
shoreline erosion caused by large waves and major coastal and riverine flooding. For exaunple, in a com-
parative study, an unvegetated shoreline retreated at a rate of more than twice that observed for a similar
shoreline fringed by a marsh.
Ground Water Recharge. — Some wetlands that are hydrologically connected to a ground water system
supplement local or regional ground water supplies through infiltration/percolation of surface water. However,
the potential for most wetlands to recharge ground water is limited. In general, uplands are more effective
recharge areas than wetlands.
Trends in Wetland Use
Wetland conversion rates, which averaged
about 550,000 acres per year for the Nation be-
tween the mid-1950's and inid-1970's, vary sig-
nificantly throughout the country. On the one
hand, conversion rates in the Lower Mississippi
River Valley were nearly three times the national
average; on the other hand, wetland conversions
occurred in coastal areas at rates that were about
25 percent less than inland conversion rates (table
wetlands in areas that are not subject to a high de-
gree of wave action or swift currents. Most expe-
rience at creating new wetlands has been in rela-
tively calm coastal environments, where costs range
from as little as $250 to over $6,000 per acre.
The ability to construct new wetlands or to
restore converted ones should not be used as sole
justification for converting wetlands to other
uses: manmade wetlands do not necessarily pro-
vide the same values as natural ones. In addition,
it is probably not possible to create new wetlands
or to restore them at the rate they have been con-
verted to other uses in the past.
Ch. 1— Summary • 7
M'-- " ■--•-■^'' - .
^ ^
'^^' ^ --.*"*
•
k» U)iii \A\\h ^^ ^ ^
P/io(o cred/(. US. Fish and Wildlife Service
Wetlands provide food and habitat for many species of fish and wildlife. Waterfowl, in particular, often require wetland
habitats for breeding and nesting.
Table 1.— Wetland Conversions From Mid-1950's
to Mid-1 970's
Original acreage
nnid-1950's
(million acres) Million acres Conversion rate
Net loss^
Coastal .
Inland . .
4.8
100.0
0.4
11.0
8.3%
11.0%
^Net losses are calculated by subtracting the gains in wetlands (from man-
induced and natural causes) from the actual losses of wetlands.
SOURCE: Original data from FWS National Wetland Trends Study, 1983.
Ninety-seven percent of actual wetland losses
(or conversions from wetland to nonwetland areas)
occurred in inland, freshwater areas during this 20-
year period (fig. A). Agricultural conversions in-
volving drainage, clearing, land leveling, ground
water pumping, and surface water diversion were
responsible for 80 percent of these conversions. Of
the remainder, 8 percent resulted from the con-
struction of impoundments and large reservoirs, 6
percent from urbanization, and 6 percent from
other causes, such as mining, forestry, and road
construction. Fifty-three percent of these conver-
sions occurred in forested areas, such as bottom
lands. Of the actual losses of coastal wetlands, ap-
proximately 56 percent resulted from dredging for
marinas, canals, and port development, and to a
lesser extent from shoreline erosion; 22 percent re-
sulted from urbanization; 14 percent from dispos-
ing of dredged material or from creating beaches;
6 percent from natural or man-induced transition
of saltwater wetlands to freshwater wetlands; and
2 percent from agriculture.
Wetland conversions have adversely impacted
the environment in some regions of the country.
For example, reductions in Pacific-flyway migra-
tory waterfowl have been directly correlated to the
conversion of about 90 percent of California's wet-
lands. While the ecological significance for the Na-
tion of wetland conversions over the last several
decades is uncertsdn, the environment will undoubt-
edly be negatively affected if conversions continue.
PROGRAMS AND POLICIES AFFECTING WETLAND USE
Wetland use is directly and indirectly affected
by a variety of Federal (table 2), State, local, and
private programs that were developed, for the most
part, during the past two decades. These programs
affect wedand use through regulation, acquisition,
leasing, easements, and general policy guidance.
8 • Wetlands: Their Use and Regulation
Figure A.— Actual Wetland Conversions (mid-l950's to mld-l970's)
Freshwater wetlands
(in thousands of acres)
Saltwater wetlands
(in thousands of acres)
Urban
Agriculture
9
Ottier
Open water
areas
(canals, port
and marina
development,
erosion, etc.)
Total saltwater wetland Total freshwater wetland
loss (actual): 482,000 acres loss (actual): 14,677,000 acres
SOURCE: US. Fish and Wildlife Service National Wetland Trends Study. 1982
Pholo credit: OTA Slatt
Wetlands are often attractive sites for real estate development because of their waterside location.
This Louisiana housing development near New Orleans, for Instance, is constructed
on filled wetlands
Ch. 1— Summary • 9
Table 2.— Major Federal Programs Affecting the Use of Wetlands
Program or act
Primary implementing agency
Effect of program
/. Discouraging or Preventing
Wetlands Conversions
A. Regulation:
Section 404 of the
Clean Water Act (1972) ...
U.S. Army Corps of Engineers,
Department of Defense
B. Acquisition:
Migratory Bird Hunting and Fish and Wildlife Service (FWS),
Conservation Stamps (1934) Department of the Interior (DOI)
Federal Aid to Wildlife
Restoration Act (1937) FWS
Wetlands Loan Act (1961) FWS
Land and Water
Conservation Fund (1955) FWS, National Park Service (DOI)
Water Bank Program (1970) Agriculture Stabilization
and Conservation Service,
Department of Agriculture (USDA)
U.S. Tax Code Internal Revenue Service (IRS)
C. Other general policies or programs:
Executive Order 11990,
Protection of Wetlands (1977) All Federal agencies
Coastal Zone Management
Act (1972) National Oceanic and
Atmospheric Administration,
Department of Commerce
//. Encouraging Wetlands Conversion
U.S. Tax Code IRS
Payment-in-Kind (PIK) Program USDA
Regulates many activities that involve
disposal of dredged or fill material
in waters of the United States, includ-
ing many w/etlands
Acquires or purchases easements on
wetlands from revenue from fees paid
by hunters for duck stamps
Provides grants to States for acquisi-
tion, restoration, and maintenance of
wildlife areas
Provides interest-free Federal loans for
wetland acquisitions and easements
Acquires wildlife areas
Leases wetlands and adjacent upland
habitat from farmers for waterfowl
habitat over 10-year period
Provides deductions for donors of
wetlands and to some not-ior-profit
organizations
Minimizes impacts on wetlands from
Federal activities
Provides Federal funding for wetland
programs in most coastal States
Encourages farmers to drain and clear
wetlands by providing tax deductions
and credits for all types of general
development activities
Indirectly encourages farmers to place
previously unfarmed areas, including
wetlands, into production
SOURCE: Office of Technology Assessment, 1983.
10 • Wetlands: Their Use and Regulation
Federal Programs Discouraging
Wetland Conversions
Federal Regulation — The 404 Program
Under the River and Harbor Act of 1899, the
Corps regulates all activities that could directly af-
fect the navigability of rivers and coastal waters used
for interstate commerce. In 1972, Congress gave
the Corps the responsibility of regulating the dis-
charge of dredged or fill material in the Nation's
waters under section 404 of the Clean Water Act
(CWA). Through this program, the Corps evalu-
ates the impacts of proposed development projects
on wetlands in light of its review and comments
from the Environmental Protection Agency (EPA),
the Fish and Wildlife Service (FWS), the National
Marine Fisheries Service (NMFS), and the States.
If a project's impact on the environment is judged
to be significant, the permit application can be
denied, the project can be modified to minimize
impacts, or the permit applicant can purchase or
restore other wetlands to compensate for project im-
pacts. EPA also has veto authority over any pro-
posed sites for disposing of dredged or fill material.
In this way, the 404 program provides broad reg-
ulatory authority over wetland use by many types
of development activities.
The Corps initially interpreted the geographic
scope of its new authority to include only tradi-
tionally navigable waters. However, after a 1975
decision by the District Court for the District of Co-
lumbia in National Resources Defense Council,
Inc. V. Callaway, the scope of the 404 program was
expanded to encompass "all waters of the United
States." The issue of the Corps' expanded jurisdic-
tion was hody debated, but left unchanged in a close
vote, when CWA was amended in 1977. Many
view this broad authority as a significant extension
of the Federal Government's constitutional powers
that borders on land-use control; others view it as
necessary to protect the public's interests in the
quality of the Nation's waters.
There are fundamental differences in the way
Federal agencies and various special interest
groups interpret the intent of section 404, which,
as stated in the preface to CWA, is to "restore
and maintain the chemical, physical, and bio-
logical integrity of the Nation's waters" (sec.
101 [a]). The Corps views its primary function
in carrying out the law as protecting the quali-
ty of water. Although wetland values are consid-
ered in project reviews, the Corps does not feel
that section 404 was designed specifically to pro-
tect wetlands. FWS, EPA, NMFS, and environ-
mental groups feel that the mandate of CWA
obliges the Corps to protect the integrity of wet-
lands, including their habitat values.
LIMITATIONS OF THE 404 PROGRAM
The Corps' 404 program now provides the
major avenue for Federal involvement in regu-
lating activities that use wetlands; however, in
terms of comprehensive wetland management,
it has major limitations.
First, in accordance with CWA, the 404 program
regulates only the discharge of dredged or fill
material onto wetlands. Projects involving excava-
tion, drainage, clearing, and flooding of wetlands
are not explicitly covered by section 404 and are
not usually regulated by the Corps.* Yet such ac-
tivities were responsible for the vast majority of in-
land wetland conversions between the mid- 1 950 's
and the mid-1970's. Rarely have these activities
been halted or slowed because of Federal, State,
or local wedand regulations. Without more direct
government involvement, the conversion of
most inland wetlands is likely to continue
unabated.
Second, the Corps does not have adequate re-
sources to regulate activities effectively in all waters
of the United States. Instead of case-by-case review,
it uses general permits for isolated waters and head-
*The regulation of wetland draining and/or clearing operations for
agricultural purposes is highly contentious and variable among Corps
districts. Some conversions involving the discharge of fill material from
ditching operations onto wedands are regulated either individually
or under general permits. Individual permits are usually issued with
few modifications because of difl'iculties in demonstrating adverse water
quality and/or cumulative impacts. Some conversions do not involve
the discharge of fill material onto wetlands. Others are not regulated
due to failure of the Corps' administration and lax enforcement or
because the Corps and EPA may use a narrower definition of wetlands
than scientists or environmental groups. Alternatively, farmers may
convert potential "wedands" in dry years when wedand vegetation
is not present or they may drain wedands through ditches on non-
wedand areas. In accordance with present Corps policy, the clearing
of bottom lands is not generally regulated by most districts, except
in a portion of Louisiana as a direct result of a ruling by the Fifth
Circuit Court. However, one Corps district has significantly slowed
some large-scale clearing operations, although the extent of its jurisdic-
tion is controversial.
Ch. 1 — Summary * 11
water areas. Because there are few application or
reporting requirements for activities within areas
covered by general permits, the Corps has limited
regulatory control over these areas.
Third, several administrative problems presendy
limit the program's effectiveness, including signifi-
cant variations in the way different districts imple-
ment key elements of the 404 program, the lack of
coordination between some districts and other Fed-
eral and State agencies, inadequate public aware-
ness efforts, and the low priority given monitoring
and enforcement.
EFFECTS OF THE 404 PROGRAM ON WETLANDS
Estimates made by OTA based on the best avail-
able information suggest that present conversion
rates are probably about 300,000 acres per
year.* Approximately 250,000 acres per year result
from the unregulated conversion of inland wet-
lands, primarily for agricultural use, while 50,000
acres per year result from conversions regulated by
the 404 program and State regulatory programs.
Of this latter figure, about 5,000 acres are located
in coastal areas.
According to their own estimates for 1980-81,
the Corps authorized projects that, if completed in
accordance with the conditions of the permits, re-
sulted in the conversion of about 50 percent of the
acreage applied for. Data from NMFS for the coast-
al wetlands (in the lower 48 States) indicate that
the 404 program, in combination with State regu-
latory programs, reduced the conversion of coastal
saltwater wetlands by 70 to 85 percent in 1981.
In addition, some conversions may be deterred sim-
ply by the existence of the regulatory programs, and
other conversions may be avoided through preap-
plication consultations with the Corps.
Finally, each year about 5,000 acres of vegetated
wetlands are either created or restored for mitiga-
tion purposes as a direct result of the "condition-
ing" of 404 permits.
* Because of uncertainties and variability associated with available
data and the extrapolations that were made from these data, these
estimates may be off by 10 to 20 percent.
EFFECTS OF THE 404 PROGRAM
ON DEVELOPMENT ACTIVITIES
Developers' objections to the 404 program fo-
cus mainly on the delays and costs imposed by the
regulatory process. There are probably numerous
cases where the regulatory costs to developers have
been substantial — in some cases, millions of dollars.
But little verifiable data are available to docu-
ment the overall impacts of the 404 program on
development activities, especially as they relate
to costs imposed by other programs and policies
(e.g., sec. 10 of the River and Harbor Act, Na-
tional Environmental Policy Act requirements.
State programs, £md locad ordinances) and general
economic conditions.
Some developers question the need for a Federal
program to protect all wetlands; the congressional
intent of section 404 relative to wedand protection;
inadequate consideration by regulatory agencies of
the value of development activities; inconsistencies
in the program implementation by Corps districts;
and possible inefficiencies or inequities in program
administration, including duplication of State wet-
land programs. Many also believe that the market
value of wetland areas decreases when they fall
within the jurisdiction of the Corps' regulatory pro-
gram.
All permit applicants bear at least some 404-
related costs resulting from permit denials, mod-
ifications of projects, permit processing, and
processing delays. Of approximately 1 1,000 proj-
ect applications per year, slightly less than 3 per-
cent are denied; about one-third are significantly
modified; and about 14 percent are withdrawn by
applicants (fig. B). About half are approved without
significant modifications. In 1980 approximately
one-third of all issued permits took longer than 120
days to process; in 1983 the average processing time
was about 70 days. Less than 1 percent of all per-
mitted projects require an Environmental Impact
Statement (EIS), which may take several years to
complete. Delays in processing permit applica-
tions for a relatively few large-scale projects (that
represent the bulk of the economic value of all pro-
posed development activities) probably account for
a substantial portion of the total costs to industry
associated with the 404 program.
12 • Wetlands: Their Use and Regulation
Figure B.— 404 Permit Statistics, 1981
Permits approved
without signifi
modification
Permits modified
substantially to reduce
project impacts
rmits denied
Permits witfidrawn by applicant
Total number of permit applications: 11,000/year
SOURCES: U.S. Army Corps of Engineers and Office of Tecfinology Assessment.
Federal Economic Measures
Since Federal outlays for wetland acquisi-
tions, easements, and leases total only a few mil-
lion dollars a year, economic measures can be
used to protect wetlands only on a highly selec-
tive basis. An estimated 10 million acres of
wetlands in the lower 48 States are protected
through Federal ownership, easements, and leases.
Federal wildlife refuges also protect about 29 million
acres of wetlands in Alaska.
Full ownership or easements provide the Govern-
ment with the most effective mechanism for directly
controlling the use of wetlands. Full ownership is
probably most suited for situations where manage-
ment of a wetland as part of the system of national
refuges, parks, and forests is desired or where the
goal is to preserve the wetland in perpetuity, re-
gardless of the benefits of potential development ac-
tivities. Perpetual easements provide almost the
same level of control as full ownership, while the
wetlands remain in private hands. Recent Federal
costs of wedand purchases by FWS range from $600
to as much as $l,200/acre for some bottom lands.
Easements typically cost the Government about
$200/acre. Federal funding for wedand acquisition
and easements is provided through sale of Migra-
tory Bird Hunting and Conservation Stamps (duck
stamps) and through the Wedands Loan Act of
1961 and the Land and Water Conservation Act
of 1965.
Leases can provide a high degree of Federal con-
trol for the period of the lease. Through the Depart-
ment of Agriculture (USDA) Water Bank Program,
authorized by the Water Bank Act of 1970, private
landowners or operators generally receive, through
lO-year leases, annucd payments of $5 to $10/acre
for most designated wetlands and up to $55/acre
for adjacent upland areas.
Tax writeoffs are given to owners who donate
wedands to Government or conservation agencies.
Federal Programs Encouraging
Wetland Conversions
Tax deductions and credits for all types of
general development activities provide the most
significant Federal incentive for farmers to clear
and drain wetlands. They also shift a significant
portion of the conversion costs to the general tax-
payer. The dollar value of these tax incentives is
greater at higher income levels. They include:
• first-year tax deductions of up to 25 percent
of gross farm income for draining expenses
(expenses in excess of this limit may be
deducted in subsequent years);
• tax deductions for depreciation on all capital
investments necessary for draining or clear-
ing activities;
• tax deductions for interest payments related
to draining and clearing activities; and
• investment tax credits equal to 10 percent of
the installation cost of the drainage tile.
Price supports and target prices for commod-
ities may have encouraged some wedand conver-
sion by setting guaranteed floor prices for some
crops grown on converted wedands, but few farm-
ers have been enrolled in these programs over the
past decade. Other USDA policies that may pro-
vide assistance for wedamd conversions take the
form of technical assistance and cost-sharing for
the construction of a wide variety of conservation
projects, loans from the Farmers Home Adminis-
tration to finance conversions, and Federal com-
pensation through crop insurance for crop losses
from flooding in wedand areas. These forms of as-
sistance are probably of limited significance in in-
fluencing a farmer's decision to convert wedands
to cropland.
Ch. 1— Summary • 13
Administration Policies
The administration's goals with respect to wet-
lands are unclear. On the one hand, the Corps has
revised its administrative procedures for the 404
program to reduce the regulatory burden on indus-
try and to increase the role of the States. Some of
these changes may have reduced the level of wet-
lands protection provided by 404, although there
will never be quantitative data to support this or
any other statement made about the effects of these
programmatic changes on wetlands. Administra-
tion support for State coastal management pro-
grams also has been reduced significantly, and no
funds have been requested in the past 3 years for
wedand acquisition. On the other hand, the Depart-
ment of the Interior proposed a bill. Protect Our
Wetlands and Duck Resources Act (POWDR), to
eliminate some Federal expenditures for some wet-
land activities, increase funding to States for wet-
land conservation, extend the Wetlands Loan Act
for 10 years, and increase revenues for wedand ac-
quisition through additional fees for duck stamps
and wildlife refuge visitation permits.
State Wetland Programs
Almost all 30 coastal States (including those
bordering the Great Lakes) have programs that
directly or indirectly regulate the use of their
coastal wetlands. Most inland States do not have
specific wetland programs. Through a combina-
tion of the 404 program and State programs,
most coastal wetlands are regulated reasonably
well; inland wetlands, which comprise 95 per-
cent of the Nation's wetlands, generally are not
regulated by States.
Developers often object to the apparent duplica-
tion between the 404 prograun and State regulatory
programs. However, representatives from most
States with wetland programs believe that the
404 program and State regulatory programs
complement one another. Corps districts often let
State agencies take the lead in protecting wedands,
using the 404 program to support their efforts. If
certain EPA requirements are met, States can as-
sume the legal responsibility for administering that
portion of the 404 program covering waters that
are not traditionally navigable. Twelve States have
evaluated or are evaluating this possibility, and four
are administering pilot programs to gain practical
experience prior to possible program assumption.
Michigan is the only State that has applied for 404
program assumption. In general, most States have
neither the capability nor the desire to assume
sole responsibility for regulating wetland use
without additional resources from the Federal
Government; some States would be reluctant to
do so even with government support.
Local Wetland Programs
In some areas of the country, the principal means
of wetland protection outside of the 404 program
comes from local regulations (including zoning con-
trols) and acquisition programs.
Private Initiatives
Private organizations, such as the Nature Con-
servancy, the Audubon Society, and Ducks Unlim-
ited, have protected thousands of acres of wetlands
through direct acquisition, partial interest, and
other means. For example, the Richard King Mel-
lon Foundation recently gave the Nature Conser-
vancy a $25 million grant toward its efforts to con-
serve wetland ecosystems in the United States.
Other national environmental organizations and
hundreds of local or regional organizations, includ-
ing fish and game clubs, have also been active in
protecting wetlands.
POLICY CONSIDERATIONS AND OPTIONS
Policy Considerations
Controversy over the 404 program has led to
much discussion of different ways of changing the
Federal involvement in controlling the use of wet-
lands. Decisions about the use of wetlands are not
usually simple and straightforward, but involve
judgments about:
14 • Wetlands: Their Use and Regulation
• the importance of wetlands to society relative
to the benefits associated with wetland devel-
opment;
• the relative significance of current rates of wet-
land conversion;
• the desirability of temporarily deferring the im-
mediate benefits from wetland conversion to
avoid the loss of potentially valuable resources;
• the adequacy of existing programs and the
costs imposed by these programs on Govern-
ment, development activities, and society at
large; and
• the appropriate role of the Federal Govern-
ment relative to the role of other levels of gov-
ernment and of private organizations.
In general, the greater the Federal involvement in
controlling the use of wedands, the greater the costs
for wetland programs and for developers.
Policy Issues
OTA has identified three issues related to wet-
lands management:
1 . Should Federal involvement in protecting wet-
lands be increased or decreased?
2. Should the Federal Government improve its
policymaking capability through a systematic
collection and analysis of additional informa-
tion about wetlands?
3. Should the Federal Government develop a
more integrated approach for managing the
use of wetlands?
These issues are interrelated. For example, if
Congress determines that the existing data are ade-
quate to resolve issue 1 , it would not be necessary
to pursue any policy options addressing issue 2 . On
the other hand, Congress may decide to adopt op-
tions under issue 2 before attempting to make any
changes in the level of Federal involvement as dis-
cussed under issue 1 . Developing an integrated sys-
tem for managing wedands use, as described under
issue 3, would require collecting more data about
wetlands, as outlined in options under issue 2.
Policy Options
Issue 1: Should Federal involvement in protecting
wetlands be increased or decreased?
Arguments about the desired degree of Federal
involvement in managing the use of wetlands can
be made from three different positions. First, in
favor of increasing the level of Federal involvement,
it can be argued that wetlands provide many valu-
able natural benefits to the public. Yet, from 30
to 50 percent of this resource has been converted
to other uses, and conversions continue. Because
most States generally do not seem inclined to fill
any gaps in the current Federal regulatory program,
a stronger Federal presence at least in those States
with weak programs may be indicated.
Others argue that wetlands have been converted
to other uses at rates of only 0.5 percent a year,
while present rates are probably even lower. Con-
sidering the great benefits that can derive from wet-
land conversions, regulatory costs stemming from
delays and permit denials are a high price to pay
for preserving a small percentage of the Nation's
wetlands. Thus, the level of Federal involvement
should be reduced even though wedand conversions
might increase as a result of decreased regulation.
Third, it could be argued that existing Federal
programs, including the 404 program, provide the
appropriate level of wedands management and pro-
tection overall. To some, existing data might not
indicate an urgency to halt all wedand conversions,
but wetlands (especially high-value wetlands) de-
serve some protection to avoid possible incremental
losses over the long term. In addition, the scanty
data on recent trends may provide little basis for
changing existing policies until more information
has been collected. Court decisions about the scope
of the 404 program and its implementation by the
Corps are also pending.
The use of privately owned wetlands is now con-
trolled, to varying degrees, through a mix of eco-
nomic measures and regulation. Numerous options
exist for modifying policy to increase or decrease
the present level of Federal involvement in manag-
ing and protecting wetlands.
Ch. 1— Summary • 75
Issue lA: Options to increase Federal involvement
in managing wetlands
Federal involvement could be increased by
adopting any or all of the following options, which
are listed roughly in order of decreasing Federal
control over wedands use, program costs, and costs
to developers. How significant these changes would
be is unknown. A single new wedands statute could
be developed to combine existing policies with any
of the following options; however, if changes are
desired, it would likely be easier to modify existing
statutes individually.
Option 1 : Broaden the scope of section 404 through
legislation.
Increase the types of activities covered by sec-
tion 404. — Projects responsible for the vast ma-
jority of past wetland conversions (excavation,
drainage, clearing, and flooding of wetlands) are
not explicitly covered by section 404 or regulated
by most Corps districts. Increasing the types of ac-
tivities covered by section 404 could reduce wet-
land conversions resulting from nonagricultural ac-
tivities. Agricultural activities are so numerous that
it would be impractical to regulate all of them; how-
ever, it is probably possible to regulate large-scale
conversions. At present, not all clearing operations
are regulated and few modifications or denials are
made, even on those that are.
Explicitly address wetland values in section
404. — Because the term "wetland" is used only
once in section 404 and is not defined, the objec-
tives of C WA with regard to wetlands are open to
interpretation. The regulation of wetland-clearing
operations, particularly in bottom land areas, has
been the subject of constant controversy. If wet-
land values were addressed explicidy in section 404,
the Corps would have a clear mandate to consider
and protect the integrity of wedands (including hab-
itat values) as well as water quality. If this were
done, many wetland-clearing operations falling
within the Corps' jurisdiction could be controlled.
Option 2: Remove the incentive for agricultural
conversions.
Eliminate tax incentives for agricultural con-
versions.— The cost of agricultural conversions to
a farmer can be reduced through tax credits and
deductions for costs associated with clearing and
draining activities. Tax incentives could be reduced
or eliminated for these activities if they occurred
on wetlands. However, the effect of this change on
wetland use would probably vary. In some areas
of the country, wetland conversions could become
unprofitable; in other areas, conversions probably
would still be profitable even without Federal tax
incentives.
The effects of eliminating these tax incentives
would be insignificant to the vast majority of
farmers and on the farm economy. For example,
deductions for wetland conversions were less than
0.3 percent of all farming deductions in 1980. In
addition, because of the relatively large acreage
of available cropland (i.e., 365 million acres),
neither commodity prices nor farm production
as a whole would be noticeably affected over the
near term if agricidtural conversion of wetlands
were curtailed or eliminated. Nonetheless, elim-
inating tax benefits to farmers for wetland conver-
sions will never be popular.
Increase appropriations for the Water Bank
Program. — The Water Bank Program, funded at
$8.8 million in 1982 and 1983, preserves wetlands
and adjacent uplands covered by the program for
10-year lease periods. Because the program is ap-
parently popular with the agricultural communi-
ty, additional appropriations would allow increased
enrollment and greater coverage of wedands in agri-
cultural areas. The program might also be more
attractive if payments were increased or adjusted
annually in response to changing pressures to con-
vert wedands rather than every 5 years, as it is now.
Encourage wetland preservation through the
Payment-in-Kind Program.— In 1983, USDA in-
stituted its Payment-in-Kind (PIK) Program,
wherein farmers withdrew cropland from produc-
tion in exchange for commodities that would have
been produced on the cropland. In fiscal year 1983,
approximately 82 million acres of cropland were
taken out of production as a result of the PIK Pro-
gram. However, many farmers are apparently si-
multaneously putting other land, which could in-
clude wetlands, into production. If the PIK Pro-
gram is used in future years, it may be possible to
include special provisions that would encourage the
preservation of wetlands.
16 • Wetlands: Their Use and Regulation
Option 3: Increase appropriations for acquisition
and easement programs.
The National Wildlife Refuge System contains
over 33 million wetland acres: 4 million are in the
lower 48 States and 29 million are in Alaska. The
National Park System contains untabulated but
substantial wetland acreage. Federal funding for
these programs could be increased, and greater pri-
ority could be given to wedands in purchasing deci-
sions. Federal wedand-related income, such as the
fee charged for duck stamps, could be increased to
support these programs.
Option 4: Increase tax benefits for wetland preser-
vation through legislation.
Congress could alter Federal taxation policies to
increase the attractiveness of donating wetlands or
of selling conservation easements to Government
agencies or to private conservation groups for the
purpose of preservation. While the acreage of wet-
lands being protected might increase, the ecologiceJ
value of the wedands donated would probably vary.
Option 5: Reverse the Corps' 1982 administrative
changes to the 404 program.
The Corps' recent administrative changes to the
404 program have been designed to streamline the
permit process. For example, average processing
time for individual permits has been reduced from
over 120 to about 70 days. Although the Army con-
tends that the level of wetlands protection actually
achieved has been unchanged by the administrative
measures, anecdotal and qualitative evidence sug-
gests that these changes, such as the expanded use
of general permits, have generally reduced the
amount of potential control over wetland use.
However, existing data do not allow quantification
of the effects of these administrative changes on
wedand trends. Reversing these changes would re-
establish the administrative framework for regulat-
ing wetland use at levels that existed before the ad-
ministration's 1982 regulatory reform initiatives.
Option 6: Improve the Corps' administration of the
existing 404 program.
The efficiency and effectiveness of the 404 pro-
gram could be improved by implementing the
following measures, which may require modest
increases in program funding and personnel. Con-
gressional oversight may also be required to deter-
mine the extent to which these options are imple-
mented by the Corps.
Standardize Corps' district procedures. — The
Corps' 404 program is implemented by 38 semi-
autonomous district offices that often differ great-
ly in how they interpret and implement the 404
program. Some inconsistencies could be avoided
through continued and increased use of regulatory-
guidance letters on presently vague policies, such
as those on the mitigation of project impacts. Dis-
tricts also could exchange information about suc-
cessful solutions to common problems.
Improve coordination among Federal agen-
cies and between the 404 and State regulatory
programs. — Improved coordination, increased use
of single public notices, and joint processing of per-
mit applications could provide "one-stop shop-
ping" for permit applicants and reduce procedural
duplication and delays. Procedures of this sort al-
ready have been successfully implemented in a few
Corps districts.
Increase program publicity. — Many people
planning development activities on wetlands are
unaware of the 404 progrcim and its permit require-
ments. Greater public understanding could lead to
better planning and result in fewer violations, less
damage to wetlands, and reduced costs to devel-
opers stemming from delays and fines.
Improve monitoring and enforcement. —
Many districts make inadequate efforts to monitor
for permit violations, particularly in inland wedand
areas. Action is often taken only in response to
reported violations. This situation could be im-
proved by increasing district funding, using per-
sonnel specifically for this purpose, and by provid-
ing equipment (e.g., observation planes) as needed.
A congressional mandate may also be required.
Establish reporting requirements for general
permits. — The Corps does not monitor activities
covered by general permits or the impacts of such
activities on wetlands. More complete reporting
could be required so that individual and cumula-
tive impacts associated with individual projects
could be assessed. If reports indicated unaccept-
able impacts, permit requirements could be
strengthened.
Ch. 1— Summary * 17
Issue IB: Options to decrease Federal involvement
in managing wetlands
If Federal involvement in protecting wetlands ap-
pears to Congress to be too great, a number of op-
tions could be adopted. Some options reduce fund-
ing for Federal programs; others reduce the scope
of the 404 program. Legislative action is desired
by some who favor extensive and permanent re-
forms in the program. The following options for
decreasing the level of Federal involvement will also
decrease wetlands protection, costs for the Federal
Government, and regulatory costs to developers.
How great these decreases will be is unknown.
Option 1: Amend section 404.
In a February 10, 1983, letter to EPA, the As-
sistant Secretary of the Army (Civil Works) outlined
several possible legislative changes to section 404,
including the options below. OTA analysis indicates
that any combination of these options that includes
either of the first two changes probably would pro-
vide a level of Federal wedand regulation and 404-
related costs to industry similar to those that
existed prior to full implementation of the 404
program.
Transfer the 404 program to the States. — Most
coastal wetlands are reasonably well regulated by
404 and State programs; most inland wetlands are
not. In those coastal States with strong wedand pro-
grams, transfer of the 404 program to the States
probably would not affect wedand use in a major
way. In States with relatively weak or no programs,
such an option would reduce control over wedands,
especially inland wetlands, unless the Federal Gov-
ernment provided large amounts of financial and
technical assistance to strengthen State programs.
Even with assistance, some States still might not
effectively regulate wetland use.
Expand the use of general permits to include
all projects other than those occurring in tradi-
tionally navigable waters. — Since monitoring and
enforcement requirements for general permits are
usually not a high priority in most Corps districts,
development of most wetlands would, for all prac-
tical purposes, be uncontrolled by the Federal Gov-
ernment. Instead, States would have primary re-
sponsibility for regulating the use of most wedands.
Eliminate permitting requirements for any in-
cidental discharges. — If section 404(f)2 were elim-
inated, it would be very unclear whether or not the
Corps would be required to regulate discharges of
dredged or fill material that are incidental to ac-
tivities that convert waters of the United States to
a new use. Thus, the clearing of wedands, such as
the bottom land hardwoods, would probably be-
come less stringendy regulated than it is at present.
Make 404(b) 1 guidelines only advisory in na-
ture.— Section 404(b)l guidelines are developed by
EPA in conjunction with the Corps. Through this
change, EPA's role in the 404 program would be
significandy reduced and nonenvironmental factors
could be used by the Corps to override environmen-
tal concerns.
Give the Corps sole authority to define
"dredged material" and "fill material" and ac-
tivities that constitute a discharge. — This pro-
vision would eliminate EPA's current legal involve-
ment in Corps decisions about what activities and
types of fill material, such as garbage, would be
regulated.
Option 2: Decrease appropriations for acquisition,
easement, and leasing programs.
The Federal Government spends several million
dollars each year for wetland acquisition, ease-
ments, or leases. Federal funding for these pro-
grams could be decreased; similarly, lower priori-
ty could be given to wetland purchases. Either ac-
tion would have little effect on industry.
Option 3: Rescind Executive Order 11990.
Regulations developed by many Federal agen-
cies in response to Executive Order 1 1990, Protec-
tion of Wetlands, could be rescinded. This would
allow, for instance. Federal assistance to farmers
for wetland drainage.
Issue 2: Should the Federal Government improve its
policymaking capability through a system-
atic collection and analysis of additional in-
formation about wedands?
At this time there is uncertainty about current
trends in wetland use, the environmental
significance of further wedand conversions, and
18 • Wetlands: Their Use and Regulation
the current effects of major policies and programs
on wetlands. Whether or not additional informa-
tion should be collected depends on a judgment
about its potential contribution to Congress' poli-
cymaking capability and its value to Federal pro-
gram administrators. For some people, the avail-
able information may be adequate for setting pres-
ent and future wedand policy. Further information,
while perhaps useful in fine-tuning policies, may
seem unwarranted given the cost. In this case, op-
tion 1 might be selected. On the other hand, exist-
ing uncertainties may make it difficult to isolate
realistic policy choices and to determine the effect
of these options. For instance, it may be difficult
for some to decide what changes, if any, should be
made to section 404 without better knowing how
the current program has affected trends in wetland
use. In this latter case, option 2 could be selected.
Option 1: No, current information is adequate.
For some policymakers, existing information
may be adequate to make present and future deci-
sions about wedand policies and programs. Some
new information will be collected as the result of
existing Federal programs. In particular, FWS is
planning to update its analysis of national trends
to cover the 10-year period following the mid-
1970's. Also, EPA, FWS, NMFS, and the Corps
will continue to conduct research on wedand values.
Option 2: Yes, collect additional information.
For other policymakers, making decisions about
wetland policies and programs may be difficult at
this time because of major gaps in technical infor-
mation. Past efforts have primarily supported the
missions of the agencies conducting the research,
rather than the policymaking process. Congress'
policymaking capability could be significantly im-
proved if the three concurrent research elements
described below were undertaken. To ensure that
the results produced by these efforts are brought
to bear on the overall policymaking process, an in-
tegrated plan (with budgets and schedules) for con-
ducting and coordinating all these policy-related ac-
tivities could be developed by an interagency
working group headed by a Federal agency. This
information would not necessarily be available un-
less Congress takes steps to ensure its collection.
Element 1: Determine recent trends of wet-
land use. — The FWS's recently completed statis-
tical analysis of wetland trends provides informa-
tion on wetland use only between the mid- 1 950' s
and the mid-1970's. As currently planned, FWS
will update its analysis of national trends to cover
the 10-year period following the mid-1970's. How-
ever, better information on regional trends could
be collected to determine where wedand-conversion
rates are most critical and where development pres-
sures are greatest. Such regional analyses would en-
tail an increase in the number of sites surveyed.
Element 2: Evaluate the significance of addi-
tional wetland conversions. — The extent to which
the environment will be degraded by additional
conversions of wedands is known only in a few
cases. For example, if all the prairie potholes in the
upper Midwest were lost, we know that North
American duck populations would decrease by
about half. On the other hand, we do not know the
importance of wedand-derived detritus for estuarine
fish and shellfish populations relative to other
sources of food, such as algae and detritus from up-
land areas. Yet this type of information provides
a technical basis for changing levels of protection
for specific types of wetlands. A detailed under-
standing of all wedand systems in the United States
is not necessary; much could be learned from a
small number of long-term studies of wetland sys-
tems within specific physiographic regions, river
basins, or estuaries.
Element 3: Further analyze the effect of ma-
jor policies and programs on wetlands use. — Ad-
ditional analysis by an interagency working group
on the effects of Federal and State wedand programs
on wetland trends could provide a basis for modi-
fying existing programs, especially in light of the
results of the two options just discussed. For ex-
ample, the Corps could compile more thorough in-
formation on project acreages and types of wedands
impacted. In addition, a detailed evaluation of the
capabilities and limitations of State programs, in-
dividually and in combination with the 404 pro-
gram, could indicate possible ways of improving
the efficency and effectiveness of different programs
that have a major effect on wetlands.
Ch. 1— Summary • 19
Issue 3: Should the Federal Government develop a
more integrated approach for managing
wetlands?
About 5 percent of the lower 48 States, or about
90 million acres, is covered by wetlands. These wet-
lands are geographically dispersed and their relative
abundance varies from region to region. In some
regions, wedands provide important ecological serv-
ices; in other regions, their values are primarily in-
trinsic (e.g., wilderness, esthetic, recreation, etc.).
Wetlands of widely different value can be found
in the same regions. Due to the inherent variabili-
ty among wetland values, their wide and variable
distribution, and the large number of conversion
activities (i.e., a few tens of thousands) that are pro-
posed each year, the use of wetlands is difficult
to manage. ,
Federal wetland programs generally deal with
wetlands in a piecemeal manner; that is, each
program generally focuses on certain ecological
services, wetland types, and/or geographic areas.
For example, FWS acquisition and easement pro-
grams focus mainly on protecting wedands (and up-
land areas) that are important for wildlife. How-
ever, many wetlands that provide other ecological
services, such as flood control, might also warrant
acquisition. USDA's Water Bank Program leases
valuable waterfowl nesting and breeding habitat in
prime agricultural areas of the country. Leasing of
nonagricultural areas to protect other ecological
services is not within the scope of this program.
An integrated approach for managing wetlands
could be considered.
Option 1: Yes, an integrated approach for manag-
ing wetlands use should be developed.
This integrated approach would involve "tailor-
ing" or adjusting existing acquisition, leasing, or
regulatory policies on a regional basis to wetlands
of different values and to different development ac-
tivities prior to possible wedand conversion.
Developing an integrated approach to wetlands
management would involve four sequential steps.
First, the FWS's ongoing inventory of wetlands
would be continued or accelerated. Second, the wet-
lands in an inventoried region would be categorized
according to their relative values. Third, existing
wedand policies and programs would be "tailored"
or adjusted according to their category and specific
characteristics. For example, higher value wetlands
covered by 404 could be stringently regulated
through individual permits; lower value wetlands
could be covered by less stringent general permits.
Fourth, different Federal, State, or local programs
could be applied to different wedand categories and
types of development activities in a more integrated
fashion .
This approach has several advantages. High-val-
ue wetlands with different ecological services could
be given an appropriate level of protection. Agen-
cy funding and personnel could be focused on high-
value wetlands in different regions of the country
rather than all wetlands in general or wetlands that
provide a single ecological service. Regulators, de-
velopers, and the public would be aware of the sta-
tus of the wetlands in their particular areas prior
to any proposals to convert them to other uses. De-
velopers also would have prior knowledge about
standards and requirements for converting specific
wetland areas. The time required for processing
most 404 permits would be significantly reduced.
Finally, decisions about wedand use would be more
predictable and consistent.
The four steps involved in this approach are de-
scribed in more detail in the following discussion.
Step 1: Continue or accelerate the ongoing
mapping of wetlands by FWS. — At this time, a
detailed inventory of 30 percent of the wetlands in
the lower 48 States and 4 percent in Alaska has been
completed. An additional 5 percent of the lower 48
States and 2 percent of Alaska can be mapped each
year at an annual cost of $3.5 million per year. With
greater funding, this inventory effort could be
accelerated .
Step 2: Categorize wetlands. — Once invento-
ried, wedands would then be placed in three to five
broad categories based on the combined importance
of their ecologicEil services and intrinsic values. In
about a dozen areas in the United States, wetlands
have been inventoried and broadly categorized in
this manner. One case, the Anchorage (Alaska)
Wetland Plan, places wetlands in four categories:
preservation, which precludes any development
activities; conservation, which allows limited con-
versions with measures to mitigate impacts; devel-
opable, which allows complete draining and fill-
ing without a permit; and special study, which re-
quires collecting additional environmental data to
20 • Wetlands: Their Use and Regulation
determine wetland status. Local authorities use this
plan to control the conversion of wetlands under
a genercd permit from the Corps.
Categorizing wetlands would involve weighing
and integrating the values of different ecological
services within a political rather than strictly scien-
tific framework. Therefore, categorization could
best be accomplished by Federal policymakers from
an interagency working group in cooperation with
regional groups composed of State and local offi-
cials, wedand scientists, developers, and the general
public who would be familiar with wetland values
in their respective physiographic regions or river
basins. This process also would involve regional
public hearings.
Step 3: Tailor existing policies and pro-
grams.— After categorizing the wetlands in a cer-
tain region. Federal, State, or local wedand policies
and programs would then be selectively applied by
program administrators according to the relative
values of different wetlands, as well as the values
£ind impacts of potential development activities. For
example, wedands covered by the 404 program, de-
pending on their natural values, could be individ-
u£illy regulated, covered by general permits, or left
unregulated. For wetlands that are individually reg-
ulated, the procedures used to review permits and
mitigate impacts could reflect the relative values
of the wetlands, as well as the type, size, and ben-
efits associated with development activities. Acqui-
sition and leasing programs could be easily focused
on high- value wedands identified by the inventory.
The tailoring process would not be designed to
disallow all further wetland conversions. Instead,
the inventory zuid categorization of wedands would
provide a management tool for program adminis-
trators, developers, and policymakers in making
decisions about the use of wetlands based on their
relative values. All wetlands in the United States
would not have to be mapped prior to the tailor-
ing of policies; tailoring would be accomplished as
the different regions are mapped. The highest pri-
ority could be placed on those areas where many
important wetlands are located and/or where con-
version pressures are greatest.
Step 4: Integrate wetland policies and pro-
grams.— Step four would first involve increasing
the scope of existing wedand policies and programs
to include the fuU range of natural wetland values.
For example, acquisition and leasing programs,
which now focus primarily on protecting habitats
with high wildlife values, could be given program-
matic flexibility by Congress to consider all wedsuid
values. USDA's Water Bank Program for leasing
waterfowl habitat in agricultural regions could be
broadened to allow leasing of inland wedands with
a range of ecological values in both agricultural and
nonagricultural areas.
If Congress increased the scope of different
wetland programs, the interagency and regional
groups organized in step 2 could select the most
appropriate policies or programs for managing dif-
ferent wedand areas — whether through acquisition,
easements, or regulation. For example, unde-
graded, high-value wedands could be given a higher
level of protection than they now have through di-
rect acquisition or easements rather than regula-
tion. Combinations of different policies might also
be used for some wetlands. For example, if certain
kinds of development activities on a privately owned
wetland were prohibited within the framework of
Federal or State regulations, the owner might be
given the option to sell the wetland or an easement
to the Federal or State Government.
If Congress wished to develop such an integrated
approach, the gaps in policy-related information
(discussed under issue 2) must be filled. Also, to
ensure that all ongoing activities are relevant both
to the missions of the involved Federal agencies £ind
to the policymaking process in general, an inte-
grated and detailed work plan could be developed
by the interagency working group. In this way, the
Federal Government could take advantage of the
collective expertise and interests of the different
Federal agencies that deal with wedands. This plan
should include a description of ongoing and planned
activities, agency responsibilities, coordination pro-
cedures, funding requirements, and opportunities
for congressional oversight. Above all, the plan
would describe in detail the processes that would
be used to tailor and integrate wetland policies and
programs. This plan, which could be developed
over a 2-year period at a cost this study estimates
to be about $1 million, could provide an overall
framework for wedzuid policymaking that would be
stable over several administrations. The develop-
ment and implementation of such a plan would re-
Ch. 1— Summary • 21
quire a congressioned mandate with accompanying
appropriations.
Option 2: No. The existing approach for managing
wetlands is adequate.
Some wetland scientists and many environmen-
talists have serious reservations about this in-
tegrated approach. While they agree that some wet-
lands are more valuable than others, they believe
that all wedands should be stringently protected;
tailoring would only weaken the protection that wet-
lands now have. There is also concern about yet-to-
be-developed procedures for implementing the con-
cept. For example, wedamds can be ramked accord-
ing to their relative importance for single ecological
services; however, it is not clear how the multiple
ecological services and intrinsic values of each wet-
land would be considered and weighed during the
categorization process. Important or yet-to-be-
discovered services could be overlooked. Also, the
relative values of wedands may change over time.
Therefore, some wedands, especially those that fall
outside the framework of State and Federal regula-
tions, might not receive an adequate level of pro-
tection. Other institutional concerns focus on the
uncertainties about the administration of the tailor-
ing process, the potential for controversy and for
the use of political influence, and the possible high
costs associated with implementing such an
approach.
OTA recognizes that there are uncertainties
about developing an integrated approach for
managing wedands. However, if the tailoring con-
cept is politically acceptable, it should be possible
to establish acceptable procedures for implement-
ing the tailoring process effectively. In light of ex-
isting uncertainties and concerns about tailoring,
it may be desirable first to test the viability of pro-
cedures in several regions of the country on a pilot
scale prior to making a decision about the desirabili-
ty of full-scale implementation.
Chapter 2
Wetland Types
»-v*»-'»a;*»!
•.»-'^0n.>»- «.
!^£i./f^'V-"
Phofo cred/f; t/.S. Fish and Wildlife Service, Urban C. Nelson
Contents
Page
Chapter Summary 25
Origins of Wetlands 25
Glaciation 25
Erosion and Sedimentation 25
Beaver Dams 26
Freezing and Thawing 26
Activities of Man 27
Miscellaneous Processes 27
Hydrologic Characteristics of Wetlands 28
Wetland Vegetation 28
Major Types of Wetlands and Closely Related Habitats 29
Inland Freshwater Marshes 29
Inland Saline Marshes 30
Bogs 30
Tundra 30
Shrub Swamp 30
Wooded Swamps 30
Bottom Lands and Other Riparian Habitats 30
Coastal Salt Marshes 31
Mangrove Swamps 31
Tidal Freshwater Marshes 32
Geographic Distribution of Wetland Types 32
Chapter 2 References 33
TABLE
Table No. Page
3. Locations of Various Wetland Types in the United States 32
FIGURES
Figure No. Page
1 . General Distribution of Wetlands of the United States 26
2. Cross-Sectional Diagram of New England-Type Salt Marsh 29
3. Physical Subdivisions 33
Chapter 2
Wetland Types
CHAPTER SUMMARY
Wetlands, including marshes, swamps, bogs,
bottom lands, and tundra, occur along sloping areas
between upland and deepwater environments, such
as rivers, or form in basins that are isolated from
larger water bodies. Wetlands are either periodically
or continually inundated by water and genersdly
covered by vegetation adapted to saturated soil con-
ditions that emerges through any standing water.
Most wetlands have formed as a result of past gla-
ciation, erosion and sedimentation, beaver activi-
ty, freezing and thawing in arctic areas, activities
of man, and other processes.
ORIGINS OF WETLANDS
The U.S. Fish and WUdlife Service (FWS) used
the term "wetland" in 1952 to describe a number
of diverse environments, typically of high produc-
tivity, that share characteristics of both aquatic and
terrestrial habitats — i.e. , they are at least temporari-
ly inundated and have "emergent" vegetation
adapted to saturated soil conditions. While a wide
range of environmental conditions exist within this
categorization — from salt marshes flooded and ex-
posed daily to bottom land forests inundated only
during spring flooding — wedands also share similar
hydrologic and habitat characteristics. These char-
acteristics primarily stem from three interrelated
factors: the wetland's origin, hydrology, and vege-
tation.
Six basic processes are responsible for wetland
formation: glaciation, erosion and sedimentation,
beaver dams, freezing and thawing, activities of
man, and miscellaneous processes (6).
Glaciation
A principal band of wetiands (fig. 1) — lying along
the northern tier of the United States, including
Alaska, Maine, New York, Michigan, Wisconsin,
Minnesota, North Dakota, and Washington — was
formed in three ways as glaciers melted 9,000 to
12,000 years ago. First, the melting of large blocks
of ice left by receding glaciers created pits and de-
pressions in glacial moraines, till, and outwash.
Lakes and wetlands formed where the depressions
intersected the ground water table or where fine
clay and organics sealed their bottoms and per-
mitted the coUection of runoff waters. The majority
of wetlands in the Northern United States were
formed in this manner. Second, glaciers dammed
rivers, often creating glacial lakes, sometimes
thousands of square, miles in area. Once the ice
retreated, the lakes were drained partially, resulting
in extensive low-lying areas with peat deposits.
These areas form some of the large wetlands in the
once glaciated Northern States. Third, glaciers
scooped out and scoured river valleys and soft bed-
rock deposits, creating large and deep lakes such
as the Great Lakes, and shallow depressions and
wetland areas, such as the prairie potholes.
Erosion and Sedimentation
Another principal band of wedands is found (fig.
1) along the gulf and Atlantic coasts, where sedi-
ment has been deposited in the still waters be-
hind barrier islands or reefs and in bays and
estuaries. Wetland formation is favored by low-
elevation topography along the Atlantic and gulf
coasts. The sediment deposited behind Georgia
coastal marshes, for instance, may be up to 10
meters in thickness and has formed extensive flat
or gently sloping topography conducive to growth
of wetland plants.
25
26 • Wetlands: Their Use and Regulation
Figure 1.— General Distribution of Wetlands of tfie United States
Note: Shaded portions incorporate generai wetiand areas. Each dot represents about 10,000 acres.
SOURCE: Adapted from Samuel P. Stiaw and C. Gordon Fredine, "Wetlands of the United States: Their Extent and Their Value to Waterfowl and Other Wildlife.'
Fish and Wildlife Service, U.S. Department of the Interior, Circular 39, 1956.
Major wetlands also are located along the flood
plains of low-gradient rivers such as the Mississip-
pi. River flood plains are created by the deposition
of river alluvium on adjacent lands during floods.
Rivers may cut new channels, abandoning old
water courses, which may then become lakes or wet-
lands. Extensive wetland areas, such as the Mis-
sissippi Delta, are found where sediment is de-
posited at the mouths of rivers and streams. The
deposition of sand, gravel, or silt also can create
wetlands along the shores of, or adjacent to, lakes.
Vast marshes of this type form along the Great
Lakes.
Beaver Dams
At one time, beaver dams played a major role
in forming smaller inland wetlands in the forested
areas of the Nation. While beaver populations fluc-
tuate due to variability in trapping pressure, their
presence can be a major factor in increasing wedand
acreage in some regions of the country. For exam-
ple, in an analysis of wetland trends in 15 Massa-
chusetts towns between 1951 and the 1970's, beaver
activity was the third most important cause of in-
creases in wetland acreage out of 1 1 identified fac-
tors (9).
Freezing and Thawing
In the Arctic, wedands are created when the Sun
melts the surface of frozen organic soils while the
underlying soil remains permanently frozen. In ad-
dition, frost action segregates rock and soil particles
of various sizes and shifts them in such a way that
shallow, water-filled basins are formed.
Ch. 2— Wetland Types • 27
>*^ .i''^*^
Photo credit: Bob Friedman, OTA staff
Waubesa marsh near Madison, Wis., began its development approximately 6,000 years ago with the filling in of a shallow
lake created by a retreating glacier. The majority of wetlands in the Northern United States were created
by similar processes
Activities of Man
Wetlands may develop naturally adjacent to
resei-voirs, farm ponds, irrigation canals, and in pits
and depressions created by mining. Poor drainage
due to construction of highways, levees, and build-
ings also can lead to the development of wetlands.
Finally, manmade wetlands can be created inten-
tionally by Federal, State, and local resource agen-
cies and by conservation groups in shallow, pro-
tected waters.
Miscellaneous Processes
Wetlands may be formed by other special proc-
esses. In the Sandhills of Nebraska and in other
areas of the arid West, depressions have been
formed by wind action. The Everglades exist
because of a flow of ground water and surface water
over bedrock at and directly below the surface. In
Kentucky, Indiana, and several other States, wet-
lands are also found in sink holes and other areas
where bedrock has been dissolved by percolating
28 • Wetlands: Their Use and Regulation
water. Geologic movements have shaped still other
wetlands. Reelfoot Lake in Tennessee, for exam-
ple, was formed by the sudden sinking of the earth
from earthquakes. Similarly, San Francisco Bay
was formed by movement along the San Andreas
Fault.
HYDROLOGIC CHARACTERISTICS OF WETLANDS
Wedands may be located on the transitional slop-
ing areas between upland and deepwater environ-
ments where the water is shallow and calm enough
for emergent vegetation to grow. Wetlands also
may form in basins that generally are isolated from
larger water bodies. These basins: 1) are either at
or below the ground water table, or 2) because of
poor drainage, retain much of the water that flows
into them. The interaction among the hydrologic
regime, the wetland topography, and its underly-
ing substrata (e.g. , soU) largely controls the general
characteristics of a wetland and most, if not all, of
the ecological services that it performs.
The two hydrologic characteristics that have the
greatest influence in ultimately determining the
habitat values of a wetland are the depth of the
water and the paf fern of fluctuation of water depth
(8). The average depth of water varies greatly
among wetlands. Bogs, for instance, typically are
saturated to their surfaces, but rarely have stand-
ing water. In contrast, a wooded swamp or deep
marsh may have standing water several feet deep.
Annual fluctuations in water level also vary wide-
ly, ranging from those that are wet year-round, to
those inundated irregularly for only a fraction of
the year, to those flooded and exposed daily by tidal
action. One of the most important factors influenc-
ing average water depth and patterns of fluctua-
tion is the source of water, whether from direct sur-
face runoff of snowmelt, from a river during spring
flooding, or from tidal action in coastal areas.
Climate, in addition to influencing the source of
water — precipitation, snowmelt, and flooding —
also determines seasonal patterns of drying. In the
prairie-pothole region of the United States, for in-
stance, shallow wetlands may dry out completely
in some years.
WETLAND VEGETATION
A diversity of plant forms is found in wetlands,
ranging from deciduous trees to rooted floating
plants, such as water lilies. Depending on the soil
type, water availability, water quality, and temper-
ature patterns, the dominant plants in wedand areas
may be mosses, grasses, sedges, bulrushes, cattails,
shrubs, trees, or any combination of these. A com-
mon distinction among wetland types is the vege-
tation type: trees or shrubs dominate swamps;
grasses, sedges, cattails, and bulrushes dominate
marshes; and mosses and lichens dominate bogs.
With the exception of the severe, limiting effect
of high salinity on plant type, water depth and fluc-
tuation are perhaps the dominant physical factors
influencing the type and distribution of plants.
Plants often have a narrowly defined tolerance for
hydrologic conditions. In a typical New England
salt marsh, for instance, Spartina alterniflora (salt
marsh cordgrass) dominates the water's edge; as
the marsh gains elevation, Spartina patens (salt-
meadow cordgrass), and then Juncus (rushes) dom-
inate the marsh (see fig. 2). In a freshwater marsh,
a typical progression from deep to shallow water
would include hard-stemmed bulrush, narrowleaf
cattail, and broadleaf cattail. Bald cypress, black
willow, willow oak, and swamp chestnut oak are
representative species found in a bottom land hard-
wood forest, from the areas most regularly flooded
to those irregularly inundated.
Ch. 2— Wetland Types • 29
Figure 2.— Cross-Sectional Diagram of New England-Type Salt Marsh
(from Miller and Egler, 1950)
Tidal marsh ■
Spartina Alterniflora
lower border
Normal
high tide
Normal
low tide
Diagrammatic cross-section of the upland-to-bay sequence, showing the characteristics of the major vegetational units. Vertical scale much
exaggerated.
SOURCE: H, T. Odum, B J. Copeland, and E. A. McMahan, Coastal Ecological Systems of ttte United Stales, vol. 2 (Wastiington, D.C.: The Conservation Foundation, 1974).
MAJOR TYPES OF WETLANDS AND
CLOSELY RELATED HABITATS
Although FWS has developed a comprehensive
system for classifying wetlands, for the purposes of
this general discussion, OTA has distinguished be-
tween very broad types of wetlands using more ver-
nacular terms. The primary factors distinguishing
these types of wetlands are:
1. location (coastal or inland),
2. salinity (freshwater or saltwater), and
3. dominant vegetation (marsh, swamp, or bog).
Inland Freshwater Marshes
Inland freshwater marshes may occur at any lati-
tude but are not common at very high altitudes.
Their water depths generally range from 6 inches
to 3 feet. Marsh vegetation is characterized by soft-
stemmed plants, grasses, sedges, and rushes that
emerge above the surface of the marsh. They in-
clude such common plants as water lilies, cattails,
reeds, arrowheads, pickerel weed, smartweed, and
wild rice (3).
30 • Wetlands: Their Use and Regulation
Inland Saline Marshes
Inland saline wetlands occur primarily in shallow
lake basins in the Western United States. They are
usually saturated during the growing season and
often covered with as much as 2 or 3 feet of water.
Vegetation is mainly alkali or hard-stemmed bul-
rushes, often with widgeon grass or sago pondweed
in more open areas (13).
Bogs
Bogs occur mosdy in shallow lake basins, on flat
uplands, and along sluggish streams. The soil, often
consisting of thick peat deposits, usually is saturated
and supports a spongy covering of mosses. Woody
or herbaceous vegetation, or both, also may grow
in bogs. In the North, leather-leaf, Labrador tea,
cranberries, and cotton grass often are present.
Cyrilla, persea, gordonia, sweetbay, pond pine,
Virginia chain fern, and pitcher plants grow in
southern bogs, which are found on the Southeast-
ern Coastal Plain. These bogs are more common-
ly known as "pocosins" (13).
Tundra
Tundra is essentially a wet arctic grassland
dominated by lichens (reindeer moss), sphagnum
mosses, grasses, sedges, and dwarf woody plants.
It is characterized by a thick, spongy mat of living
and undecayed vegetation that often is saturated
with water. Its deeper soil layer or permafrost re-
mains frozen throughout the year; the surface of
the tundra is dotted with ponds when not complete-
ly frozen. In Alaska, wet tundra occurs at lower
elevation, often in conjunction with standing water;
moist tundra occurs on slightly higher ground. An
alpine tundra or meadow, similar to the arctic
tundra, occurs in high mountains of the temperate
zone (10).
Shrub Swamp
Shrub swamps occur mostly along sluggish
streams and occasionally on flood plains (13). The
soil usually is saturated during the growing season
and often is covered with as much as 6 inches of
water. Vegetation includes alder, willows, button
bush, dogwoods, and swamp privet.
Wooded Swamps
Wooded swamps occur mostly along sluggish
streams, on flood plains, on flat uplands, and in
very shallow lake basins. The soil is saturated at
least to within a few inches of its surface during the
growing season and often is covered with as much
as 1 or 2 feet of water. In the North, trees include
tamarack, white cedar, black spruce, balsam, red
maple, and black ash. In the South, water oak,
overcup oak, tupelo gum, swamp black gum, and
cypress are dominant. In the Northwest, western
hemlock, red alder, and willows are common.
Northern evergreen swamps usually have a thick
ground covering of mosses. Deciduous swamps fre-
quently support beds of duckweeds, smartweeds,
and other herbs (13).
Bottom Lands and Other
Riparian Habitats
Riparian habitats, those areas adjacent to rivers
and streams, are most commonly recognized as bot-
tom land hardwood and flood plain forests in the
Eastern and Central United States and as stream-
bank vegetation in the arid West. Riparian ecosys-
tems are unique, owing to their high species diver-
sity, high species densities, and high productivity
relative to adjacent areas (1).
Bottom lands occur throughout the riverine flood
plains of the Southeastern United States, where
over 100 woody species occur. Bottom lands vary
from being permanently saturated or inundated
throughout the growing season at the river's edge
to being inundated for short periods at a frequen-
cy of only 1 to 10 years per 100 years at the uplands
edge (7). On the lowest sites that are flooded the
longest, most frequently, and to the greatest depths,
bald cypress, tupelo gum, button bush, water elm,
and swamp privet are most abundant. As eleva-
tion increases (and flooding frequency and depth
decrease), overcup oak, red maple, water locust,
and bitter pecan occur. Nuttall oak, pin oak, sweet
gum, and willow oak appear where flooding occurs
regularly during the dormant season but where
water rarely is present at midsummer. Sites nearest
the high-water mark, which are flooded only occa-
sionally, have shagbark hickory, swamp chestnut
oak, and post oak (4).
Ch. 2— Wetland Types • 31
Photo credit: U.S. Fish and Wildlife Service
Bottom lands occur throughout the riverine flood plains of the Southeastern United States. They vary from being
permanently inundated at the river's edge to being inundated for only short periods at a frequency of 1 to 10 years
per 100 years at higher elevations
Riparian habitats in the arid West are scattered
widely along ephemeral, intermittent, and perma-
nent streams that commonly flow through arid or
semiarid terrain. Woody vegetation associated with
these wedands includes willows and alders at higher
elevations; cottonwoods, willows, and salt cedar at
intermediate vegetations; and salt cedar, mesquite,
cottonwoods, and willows at lower elevations (5).
Coastal Salt Marshes
Salt marshes alternately are inundated and
drained by the rise and fall of the tide. Because the
plants and animals of the marsh must be able to
adjust to the rapid changes in water level, salinity,
and temperature caused by tides, only a relatively
small number of plants and animals are able to
tolerate these conditions. Thus, there is a high
degree of similarity in the kinds of species present.
Plants of the genus Spartina and the species J^un-
ctis and Salicornia are edmost universal in their
occurrence in U.S. salt marshes (12).
Mangrove Swamps
Mangrove is a term denoting any salt-tolerant,
intertidal tree species. In the United States, man-
groves are limited primarily to Florida coastal areas.
Large mangrove-swamp forests are found only in
south Florida and are especially extensive along the
protected southwestern coast (2). On the northwest
Florida coast, black mangrove occurs mostly as scat-
32 • Wetlands: Their Use and Regulation
tered scrublands. On the eastern shore of Florida
and along the Louisiana coast, mangroves are
found behind barrier islands and on the shores of
protected coastlines.
Tidal Freshwater Marshes
Tidal freshwater marshes occur in virtually every
coastal State but are most abundant in the estuaries
of the mid- Atlantic coast and along the coasts of
Louisiana and Texas. Dominant intertidal plants
include a mixture of grasses and broadleaf species,
such as arrow arum, spatterdock, pickerel weed,
and arrowhead, which form rather complex multi-
layered plant zones. The upper marsh may have
from 20 to 50 species of grasses, shrubs, ferns, and
herbaceous plants (11).
GEOGRAPHIC DISTRIBUTION OF WETLAND TYPES
The various wetland types described in the pre-
vious section are distributed unevenly across the
United States. The regions of the United States with
high concentrations of the various types are iden-
tified in table 3. The regions described are based
on Hammond's Physical Subdivisions (fig. 3),
which are the same as those used in Chapter 5:
Wetland Trends.
Table 3.— Locations of Various Wetland Types in the United States
Wetland type Primary regions States
Inland freshwater marsh Dakota-Minnesota drift and lake bed (8); North Dakota, South Dakota, Nebraska,
Upper Midwest (9); and Gulf Coastal Minnesota, Florida
Flats (4)
Inland saline marshes Intermontane (12); Pacific Mountains (13) Oregon, Nevada, Utah, California
Bogs Upper Midwest (9); Gulf-Atlantic Rolling Wisconsin, Minnesota, Michigan, Maine,
Plain (5); Gulf Coastal Flat (4); and Florida, North Carolina
Atlantic Coastal Flats (3)
Tundra Central Highland and Basin; Arctic Alaska
Lowland; and Pacific Mountains
Shrub swamps Upper Midwest (9); Gulf Coastal Flats (4) Minnesota, Wisconsin, Michigan, Florida,
Georgia, South Carolina, North Carolina,
Louisiana
Wooded swamps Upper Midwest (9); Gulf Coastal Flats (4); Minnesota, Wisconsin, Michigan, Florida,
Atlantic Coastal Flats (3); and Lower Georgia, South Carolina, North Carolina,
Mississippi Alluvial Plain (6) Louisiana
Bottom land hardwood Lower Mississippi Alluvial Plain (6); Louisiana, Mississippi, Arkansas,
Atlantic Coastal Flats (3); Gulf-Atlantic Missouri, Tennessee, Alabama, Florida,
Rolling Plain (5); and Gulf Coastal Georgia, South Carolina, North Carolina,
Flats (4) Texas
Coastal salt marshes Atlantic Coastal Zone (1); Gulf Coastal All Coastal States, but particularly the
Zone (2); Eastern Highlands (7); Pacific Mid- and South Atlantic and Gulf Coast
Moutains (13) States
Mangrove swamps Gulf Coastal Zone (2) Florida and Louisiana
Tidal freshwater wetlands Atlantic Coastal Zone (1) and Flats (3); Louisiana, Texas, North Carolina, Virginia,
Gulf Coastal Zone (2) and Flats (4) Maryland, Delaware, New Jersey,
Georgia, South Carolina
SOURCE: This table is based on maps from Samuel P, Shaw and C. Gordon Fredine, "Wetlands of the United States: Their Extent and Their Value to Waterfowl and
other Wildlife, " Fish and Wildlife Service, US Department of the Interior, Circular 39, 1956.
Ch. 2— Wetland Types • 33
Figure 3.— Physical Subdivisions
Atlantic Coastal Zone
Gulf Coastal Zone
Atlantic Coastal Flats
Gulf Coastal Flats
Gulf-Atlantic Rolling Plain
Lower Mississippi Alluvial Plain
Eastern Highlands
8 Dakota ■ fylinnesota Drift and Lake-bed Flats
9 Upper Midwest
10 Central Hills and Plains
11 Rocky Mountains
12 Intermontane
13 Pacific Mountains
Scale 1-17,000.000
100 200 300 400 Miles
CHAPTER 2 REFERENCES
Brown, Sandra, Brinson, Mark M., and Lugo,
Ariel E., "Structure and Function of Riparian Wet-
lands," Strategies for Protection and Management
ofFloodplain Wedands and Other Riparian Ecosys-
tems, proceedings of a symposium sponsored by the
U.S. Forest Service, in Callaway Gardens, N.J.,
Dec. 11-13, 1978.
Clark, J. R., "Coastal Ecosystem Management"
(New York: John Wiley & Sons, Inc., 1970), pp.
660-665.
CouncU on Environmental Quality, "Our Nation's
Wetlands," an Interagency Task Force Report,
1978, p. 70.
Frederickson, L. H., "Lowland Hardwood Wet-
lands: Current Status and Habitat Values for Wild-
life," Wetland Functions and Values: The State of
Our Understanding, proceedings of the National
Symposium on Wetlands, P. E. Greeson, J. R.
Clark, and J. E. Clark (eds.), Nov. 7-10, 1978.
Johnson, Roy R., "The Lower Colorado River: A
Western System," Strategies for Protection and
Management of Floodplain Wetlands and Other
Riparian Ecosystems, proceedings of a symposium
sponsored by the U.S. Forest Service, in Callaway
Gardens, N.J., Dec. 11-13, 1978.
Kusler, J., "Our Wetland Heritage: A Protection
Guidebook" (Washington, D.C.: Environmental
Law Institute, 1983).
National Wetlands Technical Council, Workshop
Report on Bottomland Hardwood Wetlands, held
at Lake Lanier, Ga., June 1-5, 1980.
National Wetlands Technical CouncU, "Scientists'
34 • Wetlands: Their Use and Regulation
10
11
Report," National Symposium on Wetlands, Lake
Buena Vista, Fla., Nov. 6-9, 1978, p. 32.
New England/Massachusetts Case Study, OTA
contractor: Water Resources Research Center,
University of Massachusetts, Amherst, 1983.
Odum, E. P., Fundamentals of Ecology, 3d ed.
(Philadelphia: W. B. Saunders Co., 1971), pp.
380-383.
Odum, W. E., Dunn, M. L., and Smith, T. J., Ill,
"Habitat Value of Tidal Freshwater Wetlands,"
Wetland Functions and Values: The State of Our
Understanding, proceedings of the National Sym-
posium on Wetlands, P. E. Greeson, J. R. Clark,
and J. E. Clark (eds.), Nov. 7-10, 1978.
12. Odum, H. T., Copeland, B. J., and McMahan,
E. A. (eds.). Coastal Ecological Systems of the
United States, vol. 2 (Washington, D.C.: The Con-
servation Foundation, 1974).
13. Shaw, Samuel P., and Fredine, C. Gordon, "Wet-
lands of the United States: Their Extent and Their
Value to Waterfowl and Other Wildlife," Fish and
Wildlife Service, U.S. Department of the Interior,
Circular 39, 1956.
Chapter 3
Wetland Values and the Importance
of Wetlands to Man
Illustration credit: US- Fisti and Wildlife Service, Alderson Magee
Contents
Page
Chapter Summary 37
Attitudes Toward Wetlands 37
Intrinsic Values of Wetlands 39
Wetlands as Natural Areas 39
Wetlands for Recreation and Education 41
Other Intrinsic Values 42
Ecological Services or Resource Values of Wetlands 43
Floodpeak Reduction 43
Shoreline Erosion Control 46
Ground Water Recharge 47
Water Quality Improvement 48
Fish and Wildlife Values 52
Climatic and Atmospheric Functions 60
Chapter 3 References 61
TABLES
Table No. Page
4. Summary of Input-Output Studies 51
5. Selected Commercial or Sport Fish and Shellfish UtULzing
Coastal Marshes as Nurseries 56
6. Endangered Wetland Species on the Federal
Endangered and Threatened Species List 57
7. Game and Fur AnimeJs Identified by State Game Managers as Found in Wetlands ■; . 58
8. The 10 Most Recreationally Important Marine Fish in the United States
in 1979 Ranked by Number of Fish Landed 58
9. The 15 Most Important Fish and Shellfish Harvested by U.S. Fisheries in 1980 59
10. Wetland Plant Productivity 59
FIGURES
Figure No. Page
4. Relationship Between Wetland Processes and Values 44
5. General Pattern of Duck Distribution in North America 53
Chapter 3
Wetland Values and the Importance
of Wetlands to Man
CHAPTER SUMMARY
Some people value wetlands for their intrinsic
qualities. They may wish to protect wetlands simply
out of a desire to preserve natural areas for future
generations or because they are often the last areas
to be developed. Others value the varied and abun-
dant flora and fauna that may be found in wetlands,
and the opportunities for hunting, fishing, and
boating and other recreational activities. While
these recreational benefits can be quantified to some
extent, the other intrinsic values of wetlands are,
for the most part, intangible. For this reason, the
justification for protecting wetlands has often fo-
cused on the importance of the ecological services
or resource values that wetlands provide, which are
more scientifically and economically demonstrable
than intrinsic qualities. These ecological services
include floodpeak reduction, ground water re-
charge, water quality improvement, food and hab-
itat, food-chain support, and shoreline stabilization.
The intrinsic values and ecological services pro-
vided by wetlands can vary significantly from one
wedand to another and from one region of the coun-
try to another. Some wedands provide benefits that
primarily are local or regional in nature; other ben-
efits may be national or even international in scope.
Because of the wide variation among individual
wetlands, the significance of their ecological serv-
ices and intrinsic values must be determined on an
individual or regional basis.
The dollar value of the ecological services that
wedands provide sometimes can be quantified. The
U.S. Army Corps of Engineers, for instance, esti-
mated that the loss of the entire 8,422 acres of wet-
lands within the Charles River Basin, Mass., would
produce average annual flood damage of over $17
million. However, because the many intrinsic qual-
ities of wedands cannot be quantified, it is difficult
to place generally accepted dollar values on wet-
lands.
ATTITUDES TOWARD WETLANDS
The use of wetlands has become a public policy
issue because of conflicts between those who wish
to develop them and those who wish to preserve
them. Developers, for instance, regard wetlands as
prime locations for development because of their
typical proximity to open water. Farmers drain or
clear wetlands to plant crops in their rich organic
soil. While there also are private gains involved,
the creation of new jobs or the production of food
that results from the development of wetlands di-
rectly benefits society.
On the other hand, undeveloped wedands have
important intrinsic qualities that are esthetically
pleasing and provide numerous ecological services.
such as flood control, that benefit society. The con-
flict between developers and conservationists over
wetlands often is viewed as an issue that "involves
questions of public good as opposed to private gain"
(21). However, the issue is not simply a matter of
public versus private interests but of conflicting
public interests.
The values associated with wetlands were not
always widely recognized. For example, in the 19th
century when a national priority was placed on set-
tling the country, wetlands were considered a men-
ace, the cause of malaria, and a hindrance to land
development. Through the Swamp Land Acts of
1849, 1850, and 1860, Congress granted to States
37
38 • Wetlands: Their Use and Regulation
all swamps and overflow lands for reclamation to
reduce the destruction caused by flooding and elim-
inate mosquito-breeding swamps. A total of 65 mil-
lion acres of wetlands were granted to 15 States for
reclamation (81).
With increasing concerns about preserving dif-
ferent ecosystems, the public's perception of and
attitude toward wetlands has changed gradually
over the last half century. An inventory of wedands
conducted by the U.S. Fish and Wildhfe Service
(FWS) in the mid- 1 950' s perhaps did the most to
change attitudes about wetlands over the past three
decades (81). The introduction to the inventory
stated: "So long as this belief prevails (that wedands
are wastelands), wetlands will continue to be
drained, filled, diked, impounded, or otherwise
altered, and thus will lose their identity as wetlands
and their value as wildlife habitat. " The inventory
created the lasting perception that wetlands rapid-
ly were disappearing — a perception that galvanized
certain groups to preserve wetlands.
Since the intrinsic values — recreation and a sense
of the need to preserve the unique flora and fauna
of scenic, natural areas — that motivated wetland
protection at the outset were not appreciated uni-
versally, proponents began to investigate more tan-
gible, ecological services provided by wedands. Ini-
tially, these other services were suggested in the
FWS wetland inventory report:
. . . the storage of ground water, the retention of
surface water for farm uses, the stabilization of run-
off, the reduction or prevention of erosion, the pro-
duction of timber, the creation of firebreaks, the
provision of an outdoor laboratory for students and
scientists, and the production of cash crops, such
as minnows (for bait), marsh hay, wild rice, black-
berries, cranberries and peat moss (81).
In his 1977 environmental message, President
Carter conveyed an attitude about wetlands that
stood in sharp contrast to the attitude of the early
1900's:
The Nation's coastal and inland wetlands are vi-
tal natural resources of critical importance to the
people of this country. Wetlands are areas of great
natural productivity, hydrological utility, and en-
vironmental diversity, providing natural flood con-
trol, improved water quality, recharge of aquifers,
flow stabilization of streams and rivers, and habitat
for fish and wildlife resources. Wedands contribute
to the production of agricultural products and tim-
ber and provide recreational, scientific, and esthetic
resources of national interest.'
Knowledge of the importance of the ecological
services provided by wetlands has increased steadi-
ly, especially over the past two decades. As wedands
research continues, knowledge about the values of
individual and different types of wetlands will, in
all likelihood, improve. For example, some wedand
services, such as ground water recharge, have been
found to be less significant than once thought. On
the other hand, the ecological services of inland
freshwater wetlands with the exception of wildlife
habitat are not widely recognized by the general
public. It is quite possible that some wetlands may
provide ecological services that are as yet unknown
or poorly documented. In addition, the overall sig-
nificance of continuing, incremental losses of wet-
lands is well known only in a few cases. Waterfowl
managers, for example, use the number of prairie
potholes in the Midwest to predict fall duck popula-
tions; without these wetlands. North American
duck populations would decrease by about half. On
the other hand, the importance of wedand-derived
detritus for estuarine fish and shellfish populations
relative to other sources of food, such as algae and
detritus from upland areas, is not well known. Fu-
ture research may resolve many of these uncertain-
ties.
'Statement by the President accompanying E.xecutive Order 1 1990;
42 FR 26961 (1977).
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 39
INTRINSIC VALUES OF WETLANDS
In recent years, the case for preserving wetlands
has been based more and more on the ecological
services provided by wetlands^ and on the avail-
ability of scientific evidence documenting these ser-
vices. For example, in a recent paper, William Reil-
ly stated:
Every bit of evidence that does exist suggests that
our interior wetlands are vital elements of national
estate. But there are many challenging voices —
questioning voices. These will become stronger in
future years. They will demand to be shown the
scientific evidence behind wetland conservation
decisions (81).
This situation perhaps has obscured one funda-
mental motivation of some for preserving wet-
lands— the desire to preserve, intact and unspoiled,
unique natural ecosystems. For many personal rea-
sons, whether ethical, religious, esthetic, or recrea-
tional in nature, people value wedands for their in-
trinsic qualities. Because these intrinsic values are
intangible and thus difficult to express in quanti-
tative and economic terms, they are often over-
looked in a society where decisions are based on
numerical cost-benefit analyses. Although there
have been attempts to quantify these values, this
discussion simply identifies those characteristics of
wetlands that people value.
Wetlands as Natural Areas
Some people are attracted to an environment that
essentially is untouched by man's presence,^ which
is an attraction akin to the lure of wilderness. One
scientist, for instance, writes in the preface to a wet-
land study:
The river swamps are, for many of us in the
Southeast, the last wilderness. True, they are nar-
row, even the mighty Altamaha swamp scarcely ex-
^Massachusetts, for instance, the first State to enact a wetland law,
recognizes seven wetland values: flood control, prevention of pollu-
tion, prevention of storm damage, protection of the public and private
drinking water supply, protection of ground water supply, protection
of fisheries 1978-79; Act of Mar. 25, 1965; ch. 220, 1965;
Massachusetts Acts 116; Act of May 22, 1963; ch. 426, 1963;
Massachusetts Acts 240.
'In the following discussion, examples illustrating these character-
istics of wetlands are presented. Unless otherwise noted, these exam-
ples are taken fromj. Perry andj. G- Perry, Guide to Nawraj Areas
of the Eastern United States (New York: Random House Publishers).
ceeds 5 miles in width; yet in length they are large
indeed, often stretching more than half the length
of the state. Narrow as they are, many provide a
true wilderness experience. Where else in this
mechanized, modern world can we so quickly lose
ourselves in wildness without evidence of the mas-
sive civUization that surrounds us? (97).
Part of the reason that marshes, swamps, bogs,
and other wetlands are associated with natural, un-
disturbed environments is that they are often the
last areas to be developed. The difficulty and ex-
pense of draining wetlands for development have
encouraged people to develop other areas first.
Various studies have found that wetlands rank
high in esthetic quality in comparison to other land-
scape types (82). One particular value of wetlands
is the attraction of the land-water interface. Many
people find the edge between land and sea, lake,
or stream scenically appealing, and such areas often
include wetlands as well as beaches and banks.
Small wetlands are capable of being surveyed in
a glance or traversed in a few minutes and offer
a contrast to the adjoining land or water. Seen from
a passing car or hiking trail, wetland edges buffer
commercially or agriculturally developed lands,
providing scenic variety. Small wetlands also con-
trast with other types of natural areas, such as
upland forests or open water.
Large wetlands have a similar "variety" value
along their edges but may have other esthetic at-
tributes as well. Of all natural areas, the most mys-
terious and haunting in appearance are the large
cypress swamps draped with Spanish moss. Less
exotic are wooded swamps, which are full of dif-
ferent shapes, textures, plants, and animals. Ac-
cess and visibility are important factors; for exam-
ple, pleasing wooded swamps should not be choked
with underbrush that greatly impedes passage by
foot or canoe. A large, open, grassy marsh can pre-
sent quite an esthetic contrast and a feeling of open
space.
In addition to the esthetic qualities of wetlands
themselves, wetland flora and fauna lend a special
esthetic attraction to wetlands. Waterbirds are a
good example: herons, egrets, storks, terns, peli-
cans, and cranes all are found commonly or pri-
40 * Wetlands: Their Use and Regulation
Photo credit: U.S. Fist^ and Wildlife Service. C. Ker^neth Dodd. Jr.
Draped with Spanish moss, the haunting Santee-Cooper River Swamp in South Carolina provides
an uncommon wilderness experience
Photo credit US Fish and Wildlife Service
A number of distinctive and unusual plants grow In
wetlands. Five genera of insectivorous plants, for
instance, including this Venus fly trap, are found in
North Carolina pocosins
marily in wetland habitats. Other species are more
unusual. Five genera of insectivorous plants can
be found in a North Carolina pocosin, including
round-leaved sundew, butterworts, Venus fly traps,
bladderworts, and two species of pitcher plants. In
addition, wetlands, particularly those whose origins
were glacial, often provide habitat for "relict"
plants and animals, that is, those that were once,
but are no longer, endemic to an area. Cranesville
Swamp in West Virginia has a number of relict spe-
cies, including Tamarack, Swainson's, and hermit
thrushes; Nashville and mourning warblers; and
purple finch, that typically are found much farther
north.
Overall, wedands are characterized by many dif-
ferent kinds of flora and fauna relative to other
ecosystems. For example, approximately 5,000 spe-
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 41
cies of plants, 190 species of amphibians, and ap-
proximately one-third of alJ bird species are thought
to occur in wetlands across the United States (18,
22,45). A single, freshwater tidal marsh may have
from 20 to 50 plant species. Over 100 woody plant
species may inhabit bottom lands. (19). This diver-
sity of plant types creates, in turn, a diversity of
habitats for animals. Living in the Okefenokee
Swamp in Georgia are over 200 species of birds,
41 species of mammals, 54 species of amphibians
and reptiles, and all duck species found along the
Atlantic flyway. In the Bombay Hook National
Wildlife Refuge in Delaware, an area of 12,000
acres of brackish tidal marsh, over 300 bird species
have been recorded. Tinicum Marsh, a national
environmental education center outside of Phila-
delphia, has more than 300 plant species and over
250 bird species.
In addition to the many different kinds of flora
and fauna, abundant populations of wildlife, espe-
cially waterfowl and waterbirds, make wetlands
even more attractive as natural areas. The Merrit
Island National Wildlife Refuge in Florida, an area
with over 34,000 acres of freshwater and saltwater
marshes and swamps, has a wintering waterfowl
population of nearly 70,000 ducks and 120,000
coots. Hundreds of thousands of robins arrive at
the Okefenokee Swamp each year. Mass nestings
of wood storks — as many as 6,000 pairs — occur at
the Corkscrew Swamp Sanctuary in Florida.
Wetlands for Recreation and
Education
Wetlands provide direct enjoyment to inhabi-
tants, visitors, and passers-by in many ways. Rec-
reational activities in or around wetlands, including
hiking, boating, fishing, hunting, and the obser-
vation of wildlife are pursued by millions of peo-
ple and amount to billions of dollars in expendi-
tures each year. For example, 19 of the 25 most
visited National Wildlife Refuges (out of 309 refuge
Pholo credit: US Fish ana '.Vildlife service. Lawrence S- Smith
A Youth Conservation Corps group is instructed In marsh ecology at a National Wildlife Refuge. Environmental education
is a major theme in many parks and public areas established around vi/etland areas
42 • Wetlands: Their Use and Regulation
units) have substantial wetland components (90).
These 19 refuges represent approximately 50 per-
cent of the total visitation to all U.S. National
Wildlife Refuge units. Several of these refuges are
predominantly wetland environments: J. N. Ding
Darling Refuge in Florida, considered one of the
best birdwatching sites in the United States, had
671,000 visitors in 1981 (8th overall); Loxahatchee
Refuge in Florida had 333,329 visitors (19th); Oke-
fenokee Refuge, one of the oldest, largest, and wild-
est swamps in the United States, had 257,927 visit-
ors (21st); the Great Swamp Refuge, more than
half of which is wilderness within the New York
City Metropolitan Area, had 250,756 visitors (23d).
Recreational use of the Everglades National Park
in Florida averaged 675,000 from 1979 to 1981 (60).
Wetlands also may provide learning opportuni-
ties for the general public or sites for educational
and scientific purposes. Research on such subjects
as botany, ornithology, and anthropology frequent-
ly is carried out in wetland areas. Environmental
education is a major theme in many parks and pub-
lic areas established around wetlands. For exam-
ple, the environmental center at Tinicum Marsh
on the outskirts of Philadelphia coordinates numer-
ous public education programs. In 1981 it had
32,730 visitors (60).
From a purely scientific standpoint, the concept
of the ecosystem has played an important role in
environmental research and in the formal teaching
of ecology. Because of the importance of water to
the biosphere, most ecosystem study areas are se-
lected to include water bodies such as streams,
lakes, and wetlands. Wharton, (97) for instance,
describes the scientific opportunities available
through the Alcovy River Swamp:
The Alcovy River is ideally suited for educational
uses: it is essentially unpolluted, it is located within
easy driving distance of a large metropolitan area
but is unaffected by it; and it contains a unique
swamp ecosystem found nowhere else in the Geor-
gia Piedmont.
The river swamp has a diversity of habitats and
a corresponding diversity of plants and animals.
It offers aquatic communities of all types of water,
both flowing and still. The periodically high bio-
mass of certain plant and animal groups offers an
approach to community ecology and productivity.
The drying up of bodies of water imitates both Pa-
leozoic and monsoonal climatic effects on life and
can illustrate the evolutionary transition from water
to land. The swamp shows rapid changes in physio-
chemical conditions.
The yearly import of decomposed mineral mat-
ter can involve both geological and cultural (agri-
cultural) concepts. The processes of photosynthesis
and decomposition can be readily demonstrated.
Both the aquatic and the terrestrial segments of this
ecosystem are subject to an annual series of plant
and animal communities (succession), rapidly en-
forced by the regimen of the hydrocycle. Inverte-
brates such as clams, snails, leeches, adult aquatic
insects, and larvae of aerial forms are extremely
abundant — some of the species are "indicators"
of the degree of pollution present.
Much of the swamp fauna (invertebrates, fish,
salamanders, mammals, birds) are present in mid-
winter, when other habitats are barren. Many of
the vertebrate groups are yearly renewable by in-
undation (fish), are fossorial (salmanders), or are
extremely plentiful (frogs). Thus, the animal com-
munity is not easily damaged or overcollected.
There are few subsurface runways to crush, or
delicate layers of litter and humus to compress, as
in a terrestrial forest. Most of the mammals are
renewable by migration from the river corridor if
accidentally killed; the tracks, droppings, or other
evidence of most are readily observable on the bare
swamp floor (raccoon, otter, mink, wildcat, beaver,
rodents, shrews). The ecosystem is adjusted to what
might be called "annual catastrophism." Even the
forest floor is changed and renewed to some extent
annually.
Other Intrinsic Values
In addition to those values previously discussed,
there may be other less obvious but just as impor-
tant reasons for preserving natural areas, including
wedands (28). Many plants and animals may have
great potential resource value for food, chemicals,
drugs, and so forth, but are as yet undiscovered
or undeveloped. Some scientists believe that all
species are an integral part of the natural environ-
ment and contribute in some, perhaps unknown,
way to its natural order and stability. The conserv-
ative belief is that excessive manmade impact on
this natural system could cause irreversible changes
in the natural order of the environment that may
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 43
carry an unknown risk of serious damage to hu-
mans and their civiHzation. Natural systems can
provide baseHne conditions that help determine the
extent to which the environment has been affected
by man's activities and pollution. They may pro-
vide models for restoring or replacing habitats that
have been significantly affected or even models of
long-term survival for redesigning gready modified,
man-dominated systems that typically have not
worked reliably over long periods of time.
Many people believe that unaltered natural
areas, including wetlands, are valuable in and of
themselves, regardless of any tangible benefits or
ecological services society may receive from them.
The reassurance that wetlands and other types of
natural areas exist for both present and future gen-
erations can be a strong motivation to preserve
wedands in an undisturbed state. The Nature Con-
servancy, an organization whose goal is "the pres-
ervation of natural diversity by protecting lands
containing the best examples of all components of
the natural world," has devoted 50 percent of its
past preservation efforts to the protection of wet-
lands. In the future, it plans to expand this to ap-
proximately 75 percent (53). Similarly, the North
Carolina Natural Heritage Program gives top pri-
ority to protection of Carolina bays (bog swamps),
bottom land swamps, and peat bogs (80). Under
the South Carolina Heritage Trust Program, 60
percent of the areas preserved are shallow impound-
ments, marshes, flood plains, and wetland depres-
sions (80). In the Wisconsin Scientific Areas Pro-
gram, which inventories unique natural areas, ap-
proximately 50 percent of all inventoried areas are
wetlands (36).
ECOLOGICAL SERVICES OR RESOURCE
VALUES OF WETLANDS
The interaction between the hydrologic regime
and the wetland topography, saturated soil, and
emergent vegetation largely controls the general
characteristics and the significance of the processes
that occur in wetlands. The processes are in turn
responsible for the ecological services the wetland
may perform (fig. 4).
Isolated wetlands may temporarily store runoff,
and flood plain wetlands may provide additional
conveyance capacity for flood waters, thereby re-
ducing floodpeaks in downstream areas. During pe-
riods of inundation, water flows over and through
the wetland, depositing nutrient-rich organic and
inorganic material suspended in the water. This
suspended material is "trapped" along with any
toxic materials that may be bound onto this sus-
pended material. The nutrients and their substances
thus become involved in many complex biochemical
cycles within the wetland system. These nutrients
help fuel the relatively high plant productivity
characteristic of most wetlands during the growing
season. The leaves of plants provide food and hab-
itat for many forms of wildlife and endangered spe-
cies during the growing season. At the end of the
growing season, when the vegetation dies back,
some of the leaf material remains in the wetland
to support future plant growth in the coming sea-
son. Other leaf material is flushed into adjacent
water bodies where it provides a nutrient-rich
source of food for many aquatic organisms in the
food chain. The plant roots anchor the wetland soils
and prevent their erosion in some flood plain and
coastal environiaents. The ecological services of
wetlands are described in more detail below.*
Floodpeak Reduction
The ability of wetlands to store and convey flood-
water is primarily a function of their topography.
Many isolated freshwater and river wetlands are
^Recent reviews of the scientific literature have been completed by:
1) P. R. Adamus and L. T. Stockwell, "A Method tor Wetland Func-
tional Assessment," U.S. Department of Transportation, Federal
Highway Administration, Office of Research, Environmental Divi-
sion, Washington, D.C., 1983, p. 176; and 2) J. H. Sather and
R. P. Smith, "An Overview of Major Wetland Functions," U.S. Fish
and Wildlife Service, Washington, D.C.. 1983.
44 • Wetlands: Their Use and Regulation
Figure 4.— Relationship Between Wetland Processes and Values
Periodic inundation Wetland processes Ecological services
C^^ Food and habitat
!_[]> Food chain support
I ^ Floodpeak reduction
C^^Groundwater recharge
t~~^\Na\p.r quality improvement
r~^ Shoreline erosion control
SOURCE: Office of Technology Assessment
topographic depressions that retain runoff flowing
into them, at least until they are full. Also, during
flooding, the river overflows its banks and spreads
laterally across the flood plain , increasing its cross-
sectional area and conveyance capacity. By tem-
porarily storing storm water and providing capacity
to convey floodwaters, wetlands can reduce flood-
peaks and the frequency of flooding in downstream
areas. Vegetation in flood plain wetlands further
reduces the flow velocity of the river, thereby reduc-
ing potential floodpeaks in downstream areas and
riverbank erosion. If the soil in a wetland is un-
saturated, the soil itself will provide some storage
capacity during periods of flooding. While the value
of some wetlands for flood storage and conveyance
is well known, analytical techniques for predicting
the magnitude of this service still are being devel-
oped. The value of inland wedands to reduce flood-
ing in downstream areas generally depends on the
area of the wetland, its location downstream, the
magnitude of flooding, and the degree of encroach-
ment on the wetland (16,31,67,88).
Inflow-Outflow Measurements
Only two studies were found that actually deter-
mined the storage capacity of a wedand during flood
conditions. One study measured water levels of a
cypress-tupelo swamp adjacent to the Cache River
in southern Illinois before and after flooding to cal-
culate the amount of flood water storage. The 90-
acre swamp, which is separated from the river by
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 45
a natural levee, stored 80,131 cubic meters (m')
of water. If this amount of storage were extrapolated
to the entire area of swampland in the watershed,
total wetland storage would equal 8.4 percent of
the total flood runoff as measured at a downstream
gage (52).
Bernot found that flow was about 5,000 cubic
feet per second (ft'/s) into the Thief Run Wildlife
Management Area and the Agassiz National Wild-
life Refuge, while outflow was approximately 1,400
ft^/s. He calculated that the flood storage capacity
and losses due to the other factors of these two wet-
land areas reduced the floodpeak at Grand Forks,
by about 0.5 foot and at Crookston by about 1.5
feet (8).
Comparison of Floodpeaks From Wetland
and Nonwetland Watersheds
By studying floodpeaks in 15 watersheds, No-
vitzki found that floodpeaks may be as much as 80
percent lower in watersheds with large lake and
wetland areas than in similar basins with little or
none. Watersheds with 40-percent lake and wedand
area have floodpeaks only 20 percent as large as
those with little or no wetland area. While flood-
peaks were found to be lower in watersheds with
a large percentage of wetlands, total streamflow in
the spring was higher in basins with large lake and
wetland areas (63).
Analysis of Flood Hydrographs
Flood hydrographs — graphs of the time distribu-
tion of runoff from a drainage basin — of perched
peat bogs and peadands indicate that these wedands
temporarily store and slowly release storm waters
(5,9). Long-term hydrographs from the Passaic
River, N.J., and the Ipswich River, Mass., showed
that the wetlands adjacent to the rivers play an im-
portant role in delaying runoff (31). Synthetic hy-
drographs (not calculated on historical data) for
eight wetland areas also showed reductions in peak
flows (94).
Actual flood-storage capacity often will depend
on environmental conditions prior to flooding or
on the relationship of a particular wetland to the
regional hydrology. For example, when evapo-
transpiration rates are low and water is ponded in
wetlands, runoff during periods of heavy precipita-
tion may be greater from wetlands than from up-
land areas (because the soil is saturated and the sur-
face storage capacity quickly is exceeded) (51,77,
92). On the other hand, high rates of evapotran-
spiration and low water tables favor storage of flood-
waters. In some cases, wetlands provide no stor-
age capacity for floodwaters. For example, a hy-
drographic analysis of two Massachusetts swamps
indicated that both wetlands contributed signifi-
candy to floodpeaks because of their rapid discharge
of ground water (64).
The Role of Vegetation in Flooding
There have been a few attempts to isolate the ef-
fect of vegetation on flooding. The frictional drag
on runoff flowing through wedand vegetation is rep-
resented by a roughness coefficient called "Man-
ning's 'n.' " The higher the value of "n," the
greater the drag and the slower the flow velocity
of floodwaters. Values of "n" vary widely and are
highly dependent on the type and amount of vege-
tative cover. In general, the value of "n" for a river
wetlands in or adjacent to it can be approximately
twice the value of channels without associated wet-
lands (15).
Impact of Wetland Filling and
Development on Flooding
The Corps has used model-generated hydro-
graphs to estimate the volume of storm water that
could be stored in the basin wetlands of the Charles
River, Mass., and to determine the reduction in
storage, assuming future encroachment (89). Fol-
lowing a storm in 1955, approximately 50,000 acre-
ft of storm water flushed past the Charles River
Village gaging station with a peak flow of 3,220
ft^/s. This amount is equivalent to 5 inches of runoff
from the 184-square-mile drainage basin. On the
adjacent Blackstone River, which has few, if any,
wedands, the storm discharge peaked at 16,900 ft'/s
and the bulk of the storm water was discharged in
a much shorter time period than on the Charles.
Based on this analysis, it was predicted that a 40-
percent reduction in wetland area along the river
would result in a 2- to 4-foot increase in floodpeaks
and would increase flood damages by at least $3
million annually.
Hydrographs of the Neponset River Basin,
Mass., were used to determine the impact of en-
46 • Wetlands: Their Use and Regulation
croaching on the basin's flood plains and wetlands
(1). The study predicted that the basinwide flood
level for the 100-year flood would increase 0.5 feet
if 10 percent of the flood plain/wetland storage
capacity were lost, and 3 feet if 50 percent of the
flood plain/wetland storage capacity were lost. Fill-
ing a wetland will reduce its storage capacity; if the
fill material rises above the level of the flood plain,
flood conveyance value also may be reduced.
The effects of drainage on floodflows are slightly
more complicated. One point of view is that drain-
age increases floodpeaks by synchronizing and
speeding the runoff of water and by eliminating the
potential storage of runoff in wetlands. A contrast-
ing viewpoint is that drainage channels may reduce
floodpeaks by draining away heavy rains that other-
wise would have left the soil saturated through the
winter, reducing the storage available during critical
spring rain and snowmelt. Research to date has not
yet resolved this controversy.^
Shoreline Erosion Control
Shoreline erosion is a natural process caused by
river currents during flooding, tidal currents in the
coastal areas, and wind-generated waves along the
shores of large lakes, broad estuaries, and ocean-
facing barrier islands. Boat wakes also can cause
considerable shoreline damage.
Four characteristics of vegetated wetlands are
responsible for reducing erosion: 1) the low-gradient
shore that absorbs and dissipates wave energy (70);
2) the dampening and absorption of wave energy
by the plants themselves (44,95); 3) the root struc-
ture and peat development in wetlands that bind
and sfabilize the shore (71,76); and 4) the deposi-
tion of suspended sediment that is encouraged by
dense growth of wetland plants.''
'See the following references for reviews of information pertaining
to the impacts of wetlands draining on flooding: 1) L. J. Brunn,
J. L. Richardson, J. W. Enz, and J. K. Larsen, "Slreamflow Changes
in the Southern Red River Valley of North Dakota," North Dakota
Farm Research Bimonthly Bulletin, vol. 38, No. 5, 1981, pp. 11-14;
2) John M. Malcolm, "The Relationship of Wedand Drainage to
Flooding and Water Quality Problems and Its Impact on the J. Clark
Salyer National Wildlife Refuge," FWS, Upham, N. Dak., 1979; and
3) J. E. Miller and D. L. Frink, "Changes in Flood Response of the
Red River of the North Basin, North Dakota-Minnesota," U.S. Geo-
logical Survey, Open File Report 82-774, 1982.
'Recent reviews of the scientific literature have been completed by
P. R. Adamus and L. T. Stockwell, "A Method for Wetland Func-
Vegetated freshwater or saltwater wetlands lo-
cated adjacent to open but usually sheltered bodies
of water significantly reduce shoreline erosion
caused by large waves generated by occasional
storms and boat traffic' Wetlands adjacent to rivers
also may reduce riverbank erosion from strong cur-
rents during major flooding. Although it general-
ly is agreed that wetland vegetation does not nat-
urally establish itself in high-energy environments
where the potential for erosion is greatest, wetland
plants, once established, do help to control erosion,
stabilize the soil, encourage deposition of sediments,
and dampen wave energy. Isolated wetlands not
associated with larger bodies of water will not have
significant value for erosion control.
Potential Economic Importance
Shoreline erosion is a major problem in many
coastal areas. In Virginia, for instance, it has been
estimated that 1,476 hectares of tidal shoreline
eroded away between 1850 and 1950. This amount
represents approximately 20 percent of the 5 million
metric tons of sUt and clay that wash into Virginia's
estuaries annually (39). The impacts of shoreline
erosion include: loss of public and private proper-
ty and the subsequent loss of taxable income for
localities, filling of navigable waters with eroded
sediment, increased turbidity of waters, siltation
offish and wildlife habitat, and loss of recreationally
valuable sand beaches. Millions of dollars are spent
each year to reduce shoreline erosion and main-
tain the navigability of channels.
Ability of Wetlands to Control Shoreline Erosion
Wetlands not only resist erosion themselves, but
also protect the more easily eroded upland areas
shoreward of the wetland. Three studies have com-
tional Assessment," U.S. Department of Transportation, Federal
Highway Administration, Office of Research, Environmental Divi-
sion, Washington, DC, 1983, p. 176.
^Most of the existing literature on this function has been reviewed
in the following: 1) H. H. Allen, "Role of Wetland Plants in Erosion
Control of Riparian Shorelines," Wetlands Functions and Values:
The State of Our Understanding, P. E. Greeson, J. R. Clark, and
J. E. Clark (eds.) (Minneapolis. Minn.: American Water Resources
Association, 1979), pp. 403-414; 2) Carter, et al. (15); 3) R. G. Dean,
"Effects of Vegetation on Shoreline Erosional Processes," Wetland
Functions and Values: The State of Our Understanding, P. E.
Greeson, J. R. Clark, and J. E. Clark (eds.) (Minneapolis, Minn.:
American Water Resources Association, 1979), pp. 415-426; and 4)
Institute for Water Resources (88).
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 47
pared the rate of erosion of uplands buffered by
wetlands to that of unbuffered uplands.
In a study of two similar sites on the Hacken-
sack River in New Jersey, the marsh vegetation at
one site was cut; at the other site, the marsh was
left in its natural condition (26). Both sites were
subjected to waves generated by heavy boat traf-
fic. While the uncut site exhibited only a negligi-
ble retreat of the bank over the year of monitor-
ing, the bank at the second site retreated nearly 2
meters, with most of the change occurring imme-
diately after the marsh was cut.
In a second study, the rate of erosion of upland
areas at three sites on the Chesapeake Bay over a
20-year period was measured with aerial photo-
graphs. Wetlands eroded as fast as adjacent up-
lands; however, erosion of uplands buffered by the
wetlands was negligible (70).
In a third study the retreat/ advance of the shore-
lines of an artificially planted marsh (Juncus roe-
merianus, Phragmkes australis, Typha latifolia,
and Spartina alterniflora) and of an adjacent un-
planted area were measured over a period of 8 years
(7). Initial erosion of the planted area was followed
by a period when the shoreline actively expanded
before it appeared to reach equilibrium. In general,
the volume of sediment eroded from the unplanted
shore averaged 2.3 m^ per lineal meter-year (m'/
lineal m-yr.), nearly four times the average rate
observed in the planted marsh. In addition, the un-
planted shore retreated at a rate that was more than
twice that observed for the marsh-fringed shore.
Limitations of Wetlands to Control Erosion
Natural wetlands are typically found in low-en-
ergy environments, sheltered from extensive wave
action (4,17). Artificial wetlands, however, often are
constructed in higher wave-energy environments
where natural wetlands would not typically occur.
Young rooted plants are used rather than allow-
ing the shoreline to seed itself naturally. In addi-
tion, with many artificial plantings, a "toe" or low
ridge is constructed below the marsh to contain the
marsh soil and to reduce the impact of incoming
waves until the plants are established firmly. Most
of the literature citing the erosion-control functions
of wedands is based on observations of marshes spe-
cifically planted to control erosion. For example.
in a 1981 survey of 86 marshes planted to control
shoreline erosion in 12 coastal States, 33 plantings
were found successful, 25 were partially successful,
and 28 failed (43). Even planted marshes, however,
were more frequently successful under less severe
wave environments.
Ground Water Recharge
Ground water recharge is the ability of a wedand
to supplement ground water through infiltration/
percolation of surface water to the saturated zone
(88) . Some wetlands that are connected hydrolog-
ically to a ground water system do recharge ground
water supplies and assume an important local or
regional role in maintaining ground water levels.
However, owing to the low permeability of organic
soils or the relatively impermeable layers of clay
typically found in wedands, adjacent upland areas
often have a greater potential to recharge ground
water (16). In addition, wetlands may often serve
as discharge rather than recharge areas. ^
Ground water recharge can occur in isolated
(basin) wetlands, such as cypress swamps, prairie
potholes, Midwestern and Northeastern glaciated
wetlands, and flood plain wetlands. Cedarburg
Bog, adjacent to Milwaukee, Wis., is an example
of a high-value recharge area (58). Much of the
precipitation falling on this basin percolates down-
ward through the soil and enters openings in a dolo-
mite aquifer. Since the bog occupies the basin of
a former postglacial lake on a high point in the sur-
rounding topography, the water percolates radial-
ly away from the bog, influencing ground water
supply over an area of 165 mi^.
While some wetlands may recharge ground
water, their recharge value relative to upland areas
may be low. In three watersheds in Minnesota, for
instance, the greatest amount of ground water re-
charge was found to occur on upland sands, and
the least in wetland peats (93). In addition, the
quantity of water recharged may vary widely. For
example, in one wetland studied only 39 gallons
per day (gal/d), or 0.05 percent of the annual water
budget, infiltrated the wetland (12). On the other
hand, the average yearly natural recharge calcu-
lated for Lawrence Swamp in Massachusetts was
'Adamus and Stockwell, op. cit.
48 • Wetlands: Their Use and Regulation
8 million gal/d (assuming 44 inches of precipita-
tion/yr) (56).
The quality of the ground water resource also
determines the value of a particular recharge area.
WhUe Lawrence Swamp recharges large quantities
of water to the shallow aquifer direcdy underneath
it, this aquifer has a high content of fine sands, iron,
and manganese and cannot be used as a water sup-
ply (56).
Water Quality Improvement
By temporarily retaining pollutants, such as sus-
pended material, excess nutrients, toxic chemicals,
and disease-causing micro-organisms, it is generally
believed that wedands improve, to varying degrees,
the quality of the water* that flows over and
through them. Dissolved nutrients (i.e., nitrogen
and phosphorous) may be taken up directly by
plants during the growing season and by chemical
absorption and precipitation at the wedand soil sur-
face. Organic and inorganic suspended material
also tends to setde out and is trapped in the wedand.
Some pollutants associated with this trapped ma-
terial may be converted by biochemical processes
to less harmful forms; some may remain buried.
Others may be taken up by the plants growing in
the wedand and either recycled or transported from
it.
The accumulation of toxic chemicals, such as
heavy metals and petroleum and chlorinated hydro-
carbons by wetlands may be only temporary (from
days to years). On the other hand, some toxic
chemicals have accumulated in many wedands over
a much longer time. With some toxic chemicals,
like degradable pesticides, the fact that these
pollutants are secured in the wetland long enough
to degrade is important. Other toxics either remain
buried or are taken up by the wetland plants.
While wetlands may, under natural circum-
stances, retain nutrients on a net annual basis, the
value of a particular wetland for water quality im-
provement depends on the effect of the nutrient
storage on an adjacent or connected body of water.
However, even if a wetland does not retain large
amounts of nutrients on a net annual basis, it may
influence the timing of nutrient inputs into adja-
cent waters. By retaining nutrients during the grow-
ing season, for instance, and exporting them after
the growing season, wetlands may have a positive
influence on water quality. Freshwater wetlands
have been used successfully for secondary treatment
of sewage effluents.
Trapping Suspended Sediment
Excessively high levels of suspended material in
the water column can be detrimental. By increas-
ing turbidity, suspended sediment can interfere with
fishing, swimming, and the esthetic appeal of water.
Reduction in light penetration due to increased tur-
bidity can kill aquatic plants, and settling of the
suspended sediment can smother bottom-dwelling
invertebrates and impair fish spawning. If sus-
pended sediment has a high organic content, the
dissolved oxygen level in the water column may de-
crease to levels that may adversely affect many or-
ganisms.
One of the major water quality functions of wet-
lands is the removal of suspended sediment. By re-
ducing wave energy and the velocity of water flow-
ing through the wetland, wedand plants encourage
the deposition of suspended sediment. In fact, sedi-
mentation rates are related directly to the density
of marsh vegetation (7). Measurements of sediment
accretion, most of which are for marine or estuarine
environments, range from 0.04 centimeters (cm)
to 1,100 cm/yr.9
The ability of vegetated wetlands to trap sus-
pended sediment more effectively than similar un-
vegetated areas was shown clearly in an 8-year
study on Currituck Sound in North Carolina. Dur-
ing the first 5 years, planted marsh lost an average
of 1 .4 m^/linear m of beach/yr, while an adjacent
unplanted area lost 3.3 m'/yr. Between 1978 and
1979 the planted areas, however, captured an av-
erage of 1 .5 m^ of sediment/yr; the unplanted area
lost an additional 1.3 m'. From 1979 to 1980, the
planted area gained 0.6 m' and the unplanted area
lost 0.4 m'. During the last year of the study, the
planted area appeared relatively stable, while the
unplanted area lost 1.0 m' (7).
*The term "water quality" is defined here as the chemical, physical,
and biological condition of the water itself and not more broadly as
the condition of the wetland and its associated habitat.
'Adamus and Stockwell, op. cit.
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 49
As the elevation of wetlands increases, accretion
of sediment will slow. In one study, for instance,
a Spartina marsh near the mean high-water level
annually accreted from 2.0 to 4.25 millimeters
(mm) of sediment. An area of colonizing Spartina
at a lower elevation, however, accreted sediment
at the rate of 9.5 to 37.0 mm/yr (10). Marshes tend
to trap sediment as long as they are inundated by
sediment-laden waters.
Suspended organic and nonorganic material has
a strong tendency to adsorb other pollutants, in-
cluding nutrients, pathogens, and toxics, such as
heavy metals and chlorinated and petroleum hydro-
carbons, that then are deposited with the sediment
in wetlands (10). The ability of wetlands to "trap"
suspended material greatly influences the fate of
pollutants associated with the suspended material
and the potential ability of a particular wetland to
improve water quality.
Removing Toxic Substances
Heavy metals, chlorinated and petroleum hydro-
carbons, radionuclides, and other potentially harm-
ful toxic substances may persist for many years.
Because they tend to adsorb onto suspended ma-
terial, toxics can be trapped in wedands, either tem-
porarily or permanently. At the sediment surface,
these metals remain immobilized. Once buried and
exposed to the anaerobic conditions that typically
prevail in sediment, metals again can become mo-
bile; however, they will be trapped within the sedi-
ment by the oxygenated zone at the sediment sur-
face (54,55). Heavy-metal-removal efficiencies of
wetlands vary from 20 to 100 percent, depending
on the metals involved and the physical and bio-
logical variations that exist in wedand habitats (85).
For compounds such as heptachlor, lindane, or
enderin, which degrade readily in soils, the trap-
ping of the sediment results in a very efficient and
permanent process for removing these contami-
nants from the water. (Natural or manmade altera-
tions of the wetland caused by lowering the water
table, dredging, and the like, however, could mo-
bilize large quantities of toxic materials.) However,
in general, it is not known yet to what extent wet-
lands processes are capable of removing toxic ma-
teriads over the long term.
Some toxics may be tciken up from the sediment
by wetland plants and transferred through the food
chain to higher trophic levels when the plant ma-
terial is consumed, either directly by herbivores or
as detritus. Food chain transfer will depend on the
toxic chemical and its form as well as the charac-
teristics of the plant species and the chemical's loca-
tion in the plant. For example, food chain transfer
is known to occur with some metals, such as mer-
cury or cadmium, but may not occur with others,
such as lead. Synthetic materials, including chlor-
inated hydrocarbons, are taken up by wetland
plants, but food chain effects are not known. There
probably is some selectivity of uptake of toxics by
particular wetland plant species, but the available
data are insufficient to indicate any universal
trends. In summary, though wedands may remove
toxics from water, it is possible that such removal
of heavy metals eventually may lead to contamina-
tion of higher trophic levels by passage up the food
chain (42).
Influencing Nitrogen and Phosphorus
Nitrogen and phosphorus are two nutrients that
are necessary for the growth of algae. In excess,
however, they can cause "blooms" of algal growth
that can impart an unpleasant taste to drinking
water and can interfere with recreational uses of
water. In addition, the decomposition of algae can
reduce levels of dissolved oxygen in the water col-
umn to levels that may be harmful to other orga-
nisms that need oxygen for survival.
Nutrients are retained in wetland by similar
mechanisms as other pollutants (85). Both nitrogen
and phosphorus readily adsorb to sediment and
thereby tend to become trapped in the anaerobic
sediment of wetlands. As with other toxics, how-
ever, nutrients are not necessarily permanently
trapped; they may, for instance, be rapidly assim-
ilated by rooted wetland plants. In fact, the bulk
of the nitrogen and phosphorus for plant growth
apparently comes from the sediment. At the end
of the growing season, much of the assimilated nu-
trients may be leached from the plants. Boyd, for
instance found that about 50 percent of the phos-
phorus in dead cattail tissue was leached over a
50 • Wetlands: Their Use and Regulation
20-day period.* Another fraction of the nutrients
in the plant is exported from the wetland as detritus;
this fraction is probably highly variable, depending
largely on the hydrology of the wetland. The dead
plant tissue remaining in the wedand is rapidly col-
onized by bacteria and the byproducts of the de-
composition process, including inorganic nutrients,
are released into the water column. Nitrogen stored
in the plant, for example, is converted by these de-
composers to ammonia. Plant material remaining
in the wedand is eventually reincorporated into the
sediment. It has been hypothesized that a signifi-
cant amount of the nitrogen and phosphorus avail-
able from the sediment for plant uptake is recycled
from the plant growth of the previous year (42).
Water Quality Considerations
Aggregate Effect. — Present understanding of the
processes described above is not sophisticated
enough to predict their aggregate effect on water
quality. Nitrogen fixation, for instance, the opposite
process of denitrification (atmospheric nitrogen is
fixed by certain bacteria and algae), can contribute
significant amounts of nitrogen to the wetland ni-
trogen budget and therefore cancel the effects of
denitrification. Some wetland studies have
measured the quantity of all pollutants entering the
wetland from all sources — ground water, surface
water, precipitation, and so forth — and the amount
leaving the wetland. The aggregate effect of all
wetland processes on water quality is reflected by
the difference between the amount of pollutant
entering and leaving the wetland. In this manner,
it can be determined whether wetlands act as a sink
or a source of pollutants.
Thirty-nine input-output studies, focusing for the
most part on nitrogen and phosphorus, were re-
viewed. These studies were screened carefully to
meet a number of stringent criteria. First, since the
behavior of the wetland varies greatly during dif-
*The fate of nitrogen is more complicated than that of other pol-
lutants thus far discussed. Nitrogen occurs in several forms in natural
water; nitrite, nitrate ammonia, and organic nitrogen (proteins and
other large molecules). In addition, the air contains over 78 percent
nitrogen gas, which is exchanged continuously through the surface
waters. Relatively large populations of micro-organisms in wetlands,
under the right circurnstances, can convert nitrogen from one form
to another. Thus, nitrogen can be removed ultimately from water by
microbial conversion to gas through the process of denitrification, or
conversely, fixed from the atmosphere and converted to inorganic ni-
trogen.
ferent seasons, only those studies sampling month-
ly for at least a year were selected. Second, all chem-
ical forms of nitrogen and phosphorus had to be
measured: measurement of both organic and in-
organic forms is necessary since the various forms
are interconvertible. For nitrogen, total nitrogen
(Kjeldahl) must have been measured in unfiltered
samples and in nitrate and nitrite. For phosphorus,
measurement of total phosphorus from unfiltered
samples was required. Third, for studies of undis-
turbed wetlands, all reasonable input and output
sources had to be measured, including intermittent
or temporary sources of surface runoff, ground
water, and precipitation. In the case of an artificial
pollution source, such as a sewage outfall, the
failure to measure natural sources of nutrients was
overlooked on the assumption that such sources
were comparatively trivial. Measurement of all sig-
nificant sources and sinks of water, however, was
required, even if the quantity of naturally occur-
ring nutrients was overlooked.
Freshwater Systems. — Of 30 freshwater input-
output studies reviewed, only seven (12,23,27,52,
62,98,99), met all the criteria listed above. A ma-
jor drawback of these studies is that large quan-
tities of pollutants doubtlessly flow into and out of
wetlands during storms or floods. The chance of
getting a good sample of nutrients flowing into a
wetland during a major flood is small if outflow is
sampled only monthly. One study (52), for in-
stance, found that 99 percent of the nutrient flow
into a flood plain swamp occurred during a single
flood. The swamp floods approximately once every
1.13 years.
Although Crisp (23) found a net export of nitro-
gen and phosphorus in an eroding British peadand,
all other authors found net reductions of nutrients
in freshwater wetlands. Large percentage reduc-
tions generally were observed where sewage was
applied (12,27,98) and small percentage reductions
were observed where nutrient sources were natural
(52,62). One study (99) was unusual in that sewage
and natural water were applied to artificially enclos-
ed marsh plants so that surface outflow was pre-
vented. Water that had filtered through the marsh
sediments was sampled in outside wells. Since the
natural hydrology of the marshes had been altered,
the large percentage reductions in both the natural
and sewage-treated marshes may not be represent-
ative of activity of natural marshes.
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 51
Estuarine Systems. — Input-output studies are
more difficult to conduct in estuarine or marine en-
vironments owing to tidal fluctuations. Nine estua-
rine studies were screened using the same criteria
used for the freshwater studies. Findings from a
single acceptable study (91) are reported in table
4. These results suggest that nitrogen was exported
from a Massachusetts salt marsh.
Evaluating Wetlands for Water Quality. —
To evaluate the value of a wetland for improving
water quality, a number of factors must be con-
sidered. First is the condition of water in the water
body adjacent to the wetlands. In many lakes,
estuaries, and rivers, excessive nutrient concentra-
tions cause undesirable algal blooms. In other
bodies of water, however, desirable levels of
primary productivity may be limited by a lack of
these nutrients. If these waters have phytoplankton-
based food chains, low nutrient concentrations can
result in low productivity at all levels of the food
chain. In this case, nutrients would be considered
beneficial and not pollutants.
The reduction of excess nutrients necessary to
bring about an improvement in water quality is
another consideration. For instance, an evaluation
of a proposal to reconstruct wedands along the Kis-
simmee River in Florida and thereby reduce nutri-
ent loadings to Lake Okeechobee, concluded that
a 50-percent reduction in phosphorous loadings
would improve water quality, but a 10-percent re-
duction would have little effect (41). In another
study, lake-edge wetlands in Wisconsin did retain
nitrogen and phosphorus; however, the levels of nu-
trients flowing out of the wetland still were high
enough to cause excessive algal growth (47).
The timing of nutrient inputs and outputs also
is important. A study of phosphorus inputs and out-
puts from a forested riverine wetland in Illinois
found that while the swamp took in 1 1 times more
phosphorus than was discharged, nearly all of it was
retained during flood periods (52).
Disease-Causing Micro-Organisms
Viruses and bacteria from sewage effluent or run-
off from pastureland may contaminate drinking wa-
ter, recreational water, and commercial fisheries.
Because these micro-organisms are adsorbed onto
particles suspended in the water column, they may
be trapped along with the suspended material by
wetlands. Pathogens can remain for many months
in the soil matrix where they may be exposed to
ultraviolet radiation or attacked by chemicals and
other organisms, or they may naturally die off.
Table 4.— Summary of Input-Output Studies
Artificial/
Reference Wetland type Location natural
Crisp (1966) Peat bog Britain N
tvlitsch, et al. (1977) Flood plain Illinois N
swamp
Boyt, et al. (1977) Riverine Florida A
swannp
Dierberg and Brezonik (1978) . . Cypress Florida A
swamp
Novitzki (1978) Fresh marsfi Wisconsin N
Yonika and Lowry (1979) Fresh marsh Massa- A
shrub swamp chusetts
Zoltek and Bayley (1979) Fresh marsh Florida A/N
Valiela, et al. (1975) Salt marsh Massa- N
chusetts
Including ground water dilution calculated by chloride budget.
SOURCE: References cited in column 1.
Sampling frequency/duration Pollutant
Input Output
(kg/ha/yr)
Percent
change
Weekly/1 year
745
38-57
4,864
71
+ 552
■^ 25 - - 87
Monthly and bimonthly
8,127
7,694
Monthly/1 year
90.0
11.5
-87
Monthly/2 years
144
113
12
-91
-96
Monthly (stream, wells); N 233 183 -21
periodically (runoff)/3 years P 5.0 4.6 -8
Sediment 3,909 735 -81
Monthly and bimonthly/
1 year
4,782
859
1,817
205
-62
-76
Monthly/2 years
3,565
2,284^
-36
P(art.)
4,575
343^
-93
N(an.)
645
315^
-51
P(nat.)
46
16^
-65
Monthly/1 year
N(nat.) 26,252 31,604
+ 20
52 * Wetlands: Their Use and Regulation
There is little published information on the fate of
pathogens in wetland systems (3).
Fish and Wildlife Values
Wetlands are important to many species of fish
and wildlife for food, habitat, and support of the
food chain. The importance of plant productivity
is reflected in the relatively high carrying capacity
of wetlands for certain species. Bottom land hard-
wood forests, for instance, have been found to sup-
port nearly twice as many whitetail deer per unit
area as do upland forests, owing, it is thought, to
the abundance of food. Wetland vegetation also
provides nesting material and sites for numerous
birds and mammals; some freshwater fish rely on
clumps of vegetation for depositing their eggs.
Finally, emergent wetland plants provide the cover
necessary for protection from predators or for stalk-
ing prey for species of birds as well as fish and
shellfish. Some species spend their entire life within
a particular wetland; others are residents only dur-
ing a particular lifecycle or time of year.
Because of their value for food and habitat, wet-
lands often become a focal point for varied wildlife
populations within a particular region. The impor-
tance of wetlands is reflected by the relatively large
proportion of wetland in the National Wildlife Re-
fuge System. While only 5 percent of the Nation's
area (excluding Alaska) is wetland, nearly 40 per-
cent of the area protected under the refuge system
is wetland. In turn, these areas attract hunters,
birdwatchers, and many other wildlife enthusiasts.
Of the top 25 wildlife refuges most visited, 19 have
a significant wetland component. Refuges contain-
ing wetlands attracted nearly 14 million visitors in
1981 , approximately 50 percent of the number visit-
ing all of the national wildlife refuges (90).
Because of their numbers, it is impossible to de-
scribe adequately all the different species that use
wetlands. This section focuses on recreational and
commercial species of prime importance to man and
on endangered species that depend to varying de-
grees on the food and habitat found uniquely in
wetlands. Some species, termed "wetland special-
ists," are heavily dependent on wetlands. They in-
clude migratory waterfowl, mammals, the alligator,
freshwater game fish, crayfish, and 35 endangered
species. Because of the direct link between wetlands
and these species, wetland losses will cause signifi-
cant and adverse impacts on these indigenous pop-
ulations.
This section also identifies other wildlife that
heavily use wetlands as well as other nonwetland
areas. Deer, for instance, browse in bottom land
hardwoods, but they are not limited to these areas.
Wetland resources may, however, be a critical or
limiting factor in their survival. Because these
animals are not linked as strongly to wetlands as
are wetland specialists, wetland losses would ad-
versely affect populations of nonspecialists to a lesser
extent.
Finally, this section discusses the food chain val-
ues of wetlands. Many commercially and recrea-
tionally important species that do not directly use
wetlands for feeding, nesting, or protection may
feed on animals lower in the food chain that do rely
directly either on wetlands or on detritus that floats
from the wedand into adjacent bodies of water. The
most important example of this food chain effect
in terms of commercial and recreational value is
the link between coastal wetlands and estuarine-
dependent fish.
Food and Habitat
Migratory Waterfowl. — Wetlands are vital to
many species of the duck, geese, and swan family
of North America for nesting, food, and cover.
These birds primarily nest in Northern freshwater
wedands in the spring and summer, but use wet-
lands for feeding and cover in all parts of the coun-
try during migration and overwintering. The sur-
vival, return, and successful breeding of many
species, therefore, depend on a wide variety of wet-
land types distributed over a large geographic area
of the country (fig. 5). The major migratory routes,
breeding and nesting areas, and overwintering
areas roughly correspond with regions of greatest
wetland concentration (see fig. 1).
The most important areas for ducks and geese
are the breeding areas of the North, like the prairie-
pothole region, Canada, and Alaska. For over-
wintering, the Chesapeake Bay, the gulf coast, the
central valley of California, and the Mississippi
River stand out (fig. 5). Also essentiad, but not in-
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 53
Figure 5.— General Pattern of Duck Distribution in North America
SOURCE: M. Wellef, Freshwater Marshes: Ecology and Wildlife Managemenf (Minneapolis, Minn.: University of Minnesota Press,
1981).
dicated on figure 5, are coastal saltwater and fresh-
water tidal marshes, inland freshwater marshes, and
bottom land hardwoods that are used as overwinter-
ing and stopover areas by migratory waterfowl dur-
ing their biannual migrations (33). Shrub swamps
are used only to a limited extent by waterfowl, and
bogs and mangroves are used only sparsely (81).
While diets vary with any species and locality,
depending on food preferences, availability, and
the time of year, wedand vegetation generally com-
prises a significant component of the diet of ducks,
geese, and swans. A major distinction between feed-
ing habits can be drawn between "dabbling," or
surface, ducks and "diving" ducks, or pochards.
54 • Wetlands: Their Use and Regulation
The mallard, for instance, the most commonly
hunted waterfowl in the United States, is a dab-
bling duck and feeds on plants and food just under
the surface of the water. Bulrush, smartweed, and
wildrice are the emergent wedand plants, and pond-
weed and wild celer)' are submerged plants favored
by the mallard. In contrast, the canvasback, a div-
ing duck, typically feeds in deeper water. They pre-
fer submerged plants, such as pondweed, wild cel-
ery, and widgeon grass to emergent vegetation but
still may feed on emergents when preferred foods
are not available. Geese and swans, on the other
hand, favor emergent wetland vegetation to sub-
merged plants. Canadian and snow geese, in par-
ticular, feed on the rootstocks of salt marsh cord-
grass as well as on cultivated crops (81).
Waterfowl also depend on wetlands for nesting
sites. Inland freshwater and saltwater marshes and
coastal tundra are the most important wedand types
for waterfowl breeding (96). In general, waterfowl
prefer wetlands where open water and vegetation
are interspersed. Temporarily flooded wetlands
have been known to have high breeding-pair densi-
ties, probably because of plentiful invertebrates,
which breeding waterfowl require for egg produc-
tion (96). Northern freshwater tidal marshes are
used to a more limited extent for breeding, and
wooded swamps and bottom land hardwoods are
used by wood ducks for nesting (66,78).
Of the 44 species of waterfowl that use North
American wetlands, 4 species of geese and 10 to
15 species of ducks are hunted in sizable numbers
(6,59). In the 1980-81 season, for instance, 1.9
million people killed 12.9 million ducks and 1.7
million geese (13). FWS estimated that 50 percent
of all hunters 16 years and older, or 5.3 million
hunters, hunted migratory birds (includes non-
waterfowl) in 1980, spending $638 million, or 11
percent of all hunting expenditures (32). In addi-
tion, FWS estimated that of 100 million Americans
16 years and older who participated in outdoor ac-
tivities related to fish and wildlife, 83.2 million par-
ticipants spent $14.8 billion on observing and
photographing fish and wildlife. Sixty-six percent
of these participants were involved directly with
observing or photographing waterfowl.
Other Birds. — There are several other types of
birds that are found commonly in wetlands (48).
The American coot is physically and ecologically
similar to the duck and is shot in considerable
numbers. Coots have diets similar to those of ducks
but build floating nests in emergent vegetation.
Snipe also inhabit freshwater marshes and wet
meadows and are strictly carnivores, feeding on
aquatic invertebrates they puU from mud with their
long bUls. The four rail species and the gallinules,
which have special adaptations to wetlands, are
commonly found there and are hunted to some ex-
tent. Herons, egrets, cranes, storks, and ibises nest
colonially in wetlands. Herons and egrets feed on
fish, frog, and invertebrates in shallow marsh
waters. Ibises and storks nest over water in pro-
tected sites of deep marshes but feed in wet mead-
ows and uplands.
Mammals. — A number of mammals live in wet-
lands. For example, muskrats may live in bank bur-
rows or "houses" constructed of wetland vegeta-
tion along the banks of freshwater and saltwater
marshes, rivers, and streams.'" In freshwater their
diets may consist of cattail, bulrushes, waterlilies,
'"The following discussion is based on four sources of information:
1) Schamberger, et al. (80); 2) W. H. Burt and R. P. Grossenheider,
A Field Guide to the Mammals, 3d ed. (Boston: Houghton-Mifflin,
1976); 3) F. C. Daibner, Animals of the Tidal Marsh (New York:
Van Nostrand Reinhold, 1982); 4) Odum, et al. (68).
Pholo credit: US Fishi and Wildlife Service, Jim Leupold
A white-faced ibis tends its young in a marsh at Bear
River National Wildlife Refuge. Many water birds
depend on marsh vegetation for nesting sites
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 55
wildrice, and pondweed. In salt marshes, they feed
heavily on cordgrasses. They occasionally eat in-
sects, clams, and crayfish. In coastal areas, musk-
rats reach their highest densities in brackish marshes
dominated by bulrushes and cordgrasses.
Another mammal, the nutria, is a related rodent
that first was introduced from South America into
Louisiana in 1938 for its fur. It is twice the size
of the muskrat but is ecologically similar. Nutria
prefer freshwater marshes, though they also may
be found in low- to high-salinity marshes.
Mink that inhabit wedands usually rely on cray-
fish and frogs in the North-Central States and prey
heavily on muskrats during droughts and periods
of muskrat overpopulation. However, fish are the
most important food for a North Carolina popula-
tion of mink, and crayfish are most important for
mink in Louisiana. Mink appear to use the different
coastal wetlands with equal success. In general,
however, densities of these mammals are higher in
freshwater rather than saltwater marshes.
Nutria are harvested for their fur in Louisiana,
Maryland, the Carolinas, Texas, Oregon, and
Washington. Mink and muskrat are taken in almost
all States, though the majority are trapped in the
wetland-rich States of the upper Midwest, the
Dakotas, and Louisiana (68). In 1979-80, for in-
stance, these species represented 32 percent of the
total mammal-harvest value of approximately $295
million (for unfinished pelts)." This is a significant
"Information on the economic value of wetland furbearers comes
from two souixes; 1) Fur Resources Committee, International Associa-
tion of Fish and Wildlife Agencies, fur harvest chart for the United
Photo credit: U.S. Fish and Wildlife Service
A nutria wading in a nriarsh at Belle Isle, La. These
furbearers reach their greatest density In freshwater
marshes, though they may also be found in low-to-high
salinity marshes
contribution to the fur industry, which recorded
sales of almost $1 billion in 1980.
Number
Average
Total value
harvested'
pelt price
(rounded)
Muskrat
8,634,753
$ 8.63
$74,526,548
Nutria . .
1,344,652
7.25
9,748,727
Mink . . .
394,214
22.42
8,838,277
•1979-1980
season.
While mammals are harvested primarily for their
pelts, they also are valuable for meat and various
byproducts. During the 1979-80 season in Loui-
siana alone, 582,000 lbs of nutria and 18,000
lbs of muskrat, both valued at $0.04/lb, were
harvested for meat; their combined value was
$24,000.
Alligators. — Alligators are found in the wedands
of the Southeast, from North Carolina to Texas,
preying on a variety of vertebrates, including mam-
mals,-birds, fish, and other reptiles. Alligators need
shallow waters and banks for rest and warming in
the sun. They use wetland vegetation for cover,
protection, and nest construction. Controlled har-
vest of wild alligators for their hides and meat is
permitted in some areas of Louisiana. In 1979, over
16,000 alligators worth about $1.7 million were har-
vested in the Louisiana coastal region (40).
States and Canada (27 species), 1979-80. Figures in text for the United
States alone; and 2) Eugene F. Deems, Jr., and Duzme Pursely, "North
American Furbearers, A Contemporary Reference," International
Association of Fish and Wildlife Agenrip<;, 1Q82
./-■ )
i^^
Photo credit: U. S. Fish and Wildlile Service
Alligators need shallow water and banks for rest and
warming in the Sun. They use wetland vegetation for
cover and nest construction
56 • Wetlands: Their Use and Regulation
Crayfish. — Crayfish require the fluctuating
water levels found in wetlands for mating and egg
laying. Crayfish also feed primarily on wetland
vegetation (46). Although there are commercial
crayfish fisheries in Wisconsin and the Pacific
Northwest, the most valuable crop comes from the
Lower Mississippi River Basin, particularly Loui-
siana. Approximately 25 million lbs, representing
revenues of $11 million, are harvested annually.*
Fish and Shellfish. — Many freshwater and salt-
water fish require wetlands at some stage of their
lifecycle.'^ Pike, pickerel, and muskellunge seem
to prefer vegetated shallow water for broadcasting
their eggs and may even spawn on land that is only
temporarily flooded in the spring. '^ Large mouth
bass spawn in the temporarily flooded zones of bot-
tom land hardwoods. An abundant supply of in-
vertebrates in these areas supply necessary food
during a critical period after the fish eggs hatch (38).
The alewife and the blueback herring spawn in
freshwater tidal marshes and flood plain forests
along the east coast (18).
Members of the perch family (including wall-
eyes), the sunfish family (including bluegUl, bass,
and crappie), and the pike family (including pick-
erel and muskellunge) commonly are found in veg-
etated wetlands, owing to the protection from pred-
ators afforded by the vegetation, strong currents,
sunlight, and the fact that the prey of all these fish
often take refuge in the wetland. Grey snapper,
sheepshead, spotted sea trout, and red drum move
into mangroves after spending their first few weeks
in submerged seagrass beds. These fish feed heavily
on either small fishes or amphipods (86).
Juvenile marine fish and shellfish also use coastal
marshes, particularly marshes of intermediate sa-
linity, because this salinity excludes both marine
and freshwater predators (2). (See table 5 for a list
of species.) Pacific coast wetlands probably do not
serve the same nursery function as do the Atlantic
coast and gulf coast wetlands (68).
•Calculation of the crayfish catch ($11 million, 25 million lbs), based
on data supplied by Larry Delabreteonne.
"Adamus and Stocl<well, op. cit.
'^Information comes from two sources: 1) C. L. Hubbs and K. F,
Lagler, "Fishes of the Great Lakes Region," Cranbrook Institute of
Science, Bulletin No. 26, Bloomfield Hills, Mich., 1958; 2) M. B.
Trautman, "The Fishes of Ohio," Ohio State University Press, Col-
umbus, 1957.
Table 5.— Selected Commercial or Sport Fish and
Shellfish Utilizing Coastal IVIarshes as Nurseries
Sand seatrout
Weakfish
Croaker
Spot
Menhaden
Striped mullet
Bay anchovy
Striped bass
White perch
Silver perch
Summer flounder
Brow^n and white shrimp _^__
SOURCE: Odum, et. al., 1979, op. cit., note 68.
Endangered Species. — Approximately 20 per-
cent of all plant and animal species found on the
Federal Government's list of endangered or
threatened species heavily depend on wetlands for
food and/or habitat (table 6). Many other plant and
animal species not included on the Federal list are
found on State lists. A number of endangered
species not listed in table 6 also may use wedand
resources to a greater or lesser extent.'*
Other Wildlife. — While relatively few animals
depend entirely on resources found only in
wetlands, many animals heavily exploit wedand
resources. Foxes and raccoons, for instance, may
prefer den sites in wedands, owing to their close
proximity to the water (72). In fact, the availabili-
ty of wetland resources may determine the health
and survival of many animals during critical times.
Wedands, for instance, are preferred by deer,
pheasants, and other animals as winter cover be-
cause of the presence and availability of food. Cedar
swamps, for example, are the only feeding grounds
that can sustain white-tailed deer through northern
Michigan winters. In Minnesota, white-tailed deer
spend 80 percent of their time in wedands between
December and April (79).
During droughts and dry years, wetlands serve
as reservoirs that are extremely important to re-
gional wildlife stabUity. Southeastern swamps pro-
vide food resources when upland resources are un-
available (57). In a survey conducted by FWS, State
"For a more complete review of the species that use wetlands, see
John Kusler, "Our National Wetland Heritage: A Protection Guide-
book," Environmental Institute, Washington, D.C., 1978, The table
was prepared by the Office of Endangered Species and subjected to
approximately 30 reviews.
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 57
Table 6.— Endangered Wetland Species on the Federal
Endangered and Threatened Species List
Species (including subspecies,
Range groups of similar species, and genera)
Alaska, Northwest California Aleutian Canada goose
California Saltmarsh harvest mouse
California clapper rail
Light-footed clapper rail
San Francisco garter snake
Desert slender salamander
Santa Cruz long-toed salamander
Delta green ground beetle
Truckee barberry
San Diego mesa mint
Crampton's Orcutt grass
Saltmarsh bird's beak (a snapdragon)
California, Arizona Yuma clapper rail
Carolinas to Texas, California Brown pelican
Rocky Mountains east to Carolinas Whooping crane
Iowa Iowa pleistocene snail
Southeast American alligator
Houston toad
Pine barrens tree frog
Carolinas Bunched arrowhead
Florida Everglades kite
Cape Sable seaside sparrow
Dusky seaside sparrow
American crocodile
Atlantic saltmarsh snake
Appalachians Chittenango ovate amber snail
Massachusetts Plymouth red-bellied turtle
Maine Furbish lousewort
Hawaii Hawaiian coot
Hawaiian duck
Laysan duck
Hawaiian gallinule
Hawaiian stilt
Guam, Marianas Islands Marianas mallard
SOURCE: Office of Technology Assessment,
game managers identified the game and fur animals
that use wetlands in their States (table 7). A large
number of nongame species were found to use wet-
lands.
Food Chain Support
The infusion of nutrients that comes with spring
flooding, combined with the nutrients already
stored in wedand soils, results in wedand plant pro-
ductivity that often is significantly higher than the
productivity of adjacent open-water or upland
areas. For instance, the fertility of flood plains,
resulting from the annual deposits of enriched sedi-
ment carried by spring floods, is widely recognized.
Similarly, coastal salt marshes and certain types of
inland freshwater wetlands that receive a regular
supply of nutrients achieve some of the highest rates
of plant productivity of any natural ecosystem.
58 • Wetlands: Their Use and Regulation
Table 7.— Game and Fur Animals Identified by State
Game Managers as Found in Wetlands
Small game:
Grouse, ruffed
Grouse, sage
Grouse, sharp-tailed
Hungarian partridge
Mourning dove
Plieasant
Quail, bobwfiite
Quail, Gambel's
Quail, valley
Rabbit, cottontail
Rabbit, swamp
Snowstioe hare
Snipe
Squirrels (gray and fox)
Woodcock
Big game:
Antelope
Black bear
Black-tailed deer
Elk
Mouse
Mule deer
White-tailed deer
Fur animals:
Beaver
Bobcat
Fox (red and gray)
Opossum
Otter
Raccoons
Skunk
Weasel
SOURCE: S. T. Shaw and G C. Fredine, Wetlands of the United States. U.S. De-
partment of the Interior, Fisfi and WiMlife Service, 1971
Plant material produced by wetlands may be an
important link in the food chain. In bottom land
hardwood areas, decomposing leaves serve as the
base for springtime explosions in populations of in-
vertebrates, which are an important source of pro-
tein for egg-laying waterfowl. Many researchers
also have examined the importance of detritus from
estuarine marshes as food for commercially and rec-
reationally valuable estuarine fish. Wetlands gen-
erally produce a great deal of plant material, some
of which is flushed into the estuary in the form of
detritus. In some estuaries, such as those found
along the Georgia and Louisiana coasts, where the
ratio of marsh to open water is high, detritus is a
major component of the diet of estuarine fish.
Potential Importance of Estuarine Fish and
Shellfish From Wetlands. — Table 8 shows the 10
most recreationally important species of marine
fish, judging by estimated number offish landed.
Table 8.— The 10 Most Recreationally Important
Marine Fish in the United States in 1979
Ranked by Number of Fish Landed
Thousands of fish
Estuarine Nonestuarine
Flounders (summer and winter) 38,649
Bluefish^ 27,332
Seatrout (3 species) 22,440
Sea catfishes 20,727
Spot 18,480
Atlantic croaker 16,505
Pinfish 12,811
Perch (4 species) 9,556
Snappers (Several) 9,363
Grunts (several) 8,606
Total 105,630 (57%) 78,839 (43%)
Disagreement over estuarine dependence.
SOURCE: National Marine Fisheries Service. "Fisheries of the United States,
1980," Current Fishery Statistics No 8100, 1981.
Out of an estimated 2.98 million marine fish caught
by recreational fishermen in the United States in
1979, 5 out of the top 10 species, or 57 percent by
number, were estuarine-dependent. By weight,
they comprised about 62 percent of the total catch
of 438.6 million lbs.
The percentage of estuarine-related fish and
shellfish out of the total U.S. fisheries harvest is
high.* Table 9 shows the 15 most important species
or groups of species commercially harvested by
U.S. fishermen in 1980, ranked by their dockside
value. '^ Eight of these fifteen species commonly are
found in estuaries at least sometime during their
lifecycles. They represent 61 percent of the dock-
side value and 77 percent of the total weight of the
catch of the 15 groups listed. Commercial landings
by U.S. fishermen for fish and shellfish in U.S.
ports totaled 6.48 billion lb in 1980, with a dock-
side value of $2.23 billion. Approximately 4.08 bil-
*It should be noted that there is disagreement on which fish should
be considered "estuarine." This rises partially from different defini-
tions of the term and partially from lack of knowledge regarding many
of the details of marine fish life histories. For this discussion, we have
used Stroud's (1971) survey of 15 fisheries biologists on the estuarine
dependence of nearly 100 fishes.
"Estimated total catch, all regions, from National Marine Fisheries
Service, 1981. Estuarine dependence based on McHugh (1966) and
Stroud (1971). 1) National Marine Fisheries Service. "Fisheries of
the United States, 1980," Current Fishery Statistics No. 8100, 1981;
2) J. L. McHugh, "Management of Estuarine Fisheries," A Sym-
posium on Estuarine Fisheries, American Fisheries, Soc. Spec. Publ.
No. 3, 1966, pp. 133-154; 3) R. H. Stroud, "Introduction to Sym-
posium," A Symposium on the Biological Significance of Estuaries.
P. A. Douglas and R. H. Stroud (eds.) (Washington, DC: Sport
Fishing Institute, 1971).
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 59
Table 9.— The 15 Most Important Fish and Shellfish Harvested by U.S. Fisheries in 1980
Thousands of dollars Thousands of pounds
Nonestuarine Estuarine Nonestuarine Estuarine
Shrimp (several species, all coasts) ... — $ 402,697 — 339,707
Salmon (5 ipecies) — 532,277 — 613,811
Tuna (6 species) $233,125 — 399,432 —
King crab 168,694 — 185,624 —
Menhaden (Atlantic and Gulf) — 112,012 — 2,496,649
Sea scallops 1 10,429 — 28,752 —
Flounders (several species, all coasts) . — 82,488 — 216,920
American lobster 75,233 — 36,952 —
Oyster — 70,075 — 49,081
Snovi/, or tanner crab 55,161 — 121,674 —
Sea herring (Atlantic and Pacific) 44,955 — 291,069 —
Hard clam — 44,068 — 13,370
Blue crab — 55,167 — 163,206
Atlantic cod 31,883 — 118,245 —
Dungeness crab — 21,613 — 38,025
Total $719,480 $1,120,397 1,181,748 3,930,769
Percent 39% 61% 23% 77%
SOURCE: National Marine Fisheries Service, "Fisheries of the United States, 1980," Current Fishery Statistics No. 8100, 1981.
lion lbs of estuarine fish and shellfish species were
landed by U.S. commercial fishermen in 1980. This
represented 63 percent of total U.S. commercial
landings at U.S. ports, with a dockside value of
$1.15 billion, 51.5 percent of the value of the total
catch. The retail value of the estuarine-related catch
is more speculative.
Factors Affecting Production of Plant Mate-
rial.— The production of plant material in wedands
generally is high relative to other upland ecosys-
tems, such as grasslands (table 10), largely because
of the flux of nutrients and water through wetlands
(75). In general, production of plant material will
be greatest in wetlands of flowing or regularly fluc-
tuating water and lowest in Stillwater wetlands (un-
less enriched by nutrients) (14). Approximately 15
percent or less of the annual plant growth of coastal
marshes* is harvested by direct feeding by macro-
invertebrates such as fiddler crabs, snails, amphi-
pods, and polychaete worms (49). After the grow-
ing season, most standing plant m.aterial on
marshes dies.
Up to 70 percent of the net primary productivi-
ty of coastal wetlands may be exported from the
wetland to open-water areas (49). The amount ex-
ported will vary — in the "high marsh," only 10
percent may be exported, while areas adjacent to
the water's edge may export much more. In some
cases, there may be no net export. Any detrital par-
ticles exported from the marsh rapidly are colonized
by bacteria, fungi, and other micro-organisms
which increase the concentration of protein and fat-
ty acid content, enhancing caloric value. These mi-
crobes also adsorb dissolved organic compounds
from the surrounding water. As a result, the orig-
inal plant material is transformed into a nutritious
food source for filter feeders.""
'This discussion pertains to coastal marshes. Limited research in-
dicates that dissolved organic compounds and decaying plant material
are exported from inland wetlands at a greater rate than from uplands
of equivalent area.
"Sather and Smith, op. cit.
Table 10.— Wetland Plant Productivity
(metric tons per hectare per year)
Range
Coastal:
Salt marshes (aboveground only):
Louisiana and Georgia 22
North Atlantic 4-7
Pacific coast 3-19
Freshw/ater tidal wetlands
(above and below ground) 13-16
Inland:
Freshwater marshes (above and below ground):
Sedge-dominated marshes 9-12
Cattail marshes 20-34
Reed 15-27
Bogs (above and below ground) 4-14
Wooded swamps 7-14
SOURCE: Wetland Functions and Values: The State of Our Understanding, P. E.
Greeson, J. R, Clark and J, E Clark (eds.) (Minneapolis, Minn.: American
Water Resources Association. 1979), pp 146-161,
60 • Wetlands: Their Use and Regulation
Analysis of the stomach contents of estuarine fish
and shellfish shows a wide variety of foods. For in-
stance, the stomach contents of menhaden include
primarily algae, but also detritus, small crustaceans,
and even small fish and fish eggs (50). Commer-
cial shrimp seem to have an even broader diet, con-
sisting of single-celled algae, algal filaments, detri-
tus, bacteria, protozoa, and easily captured ani-
mals, including very small worms and crustaceans
(25). Analysis of the stomach contents of oysters
and hard clams often shows both detritus from vas-
cular plants and phytoplankton, probably from the
open estuary. However, there is evidence that most
of the food value comes from the phytoplankton
(37,69,84).
While commercially and recreationally impor-
tant fish may not directly consume detritus as their
major food source, they may feed on invertebrates
that use detritus as a major food source. Newly
hatched Adantic croaker, for instance, eat the small
crustaceans found in the water column, particularly
various copepods commonly found in the tidal
creeks dissecting grassy salt marshes (2). As they
grow, they add larger items to their diets, such as
amphipod crustaceans, mysid shrimp, small crabs,
worms of all sorts, mollusks, and smaller fish (69,
84). Also, opposum shrimp, a common marsh in-
vertebrate, is a major component of the diet of
striped bass on both the east and west coasts. Chi-
ronomid midge larvae were found to account for
over 80 percent of the diet of juvenile chum and
chinook salmon (24).
Most coastal marshes export detritus to adjacent
coastal waters. While estuarine fish and shellfish
may direcdy and indirectly use detritus when avail-
able, the quantitative significance of wetlands-
derived detritus to the food supply of the estuary
relative to contributions of detritus from other ter-
restrial or open-water food sources generally is not
known, but probably varies widely with both species
and estuary. If the estuary has very few marshes
and much open water, such as in the North and
Middle Atlantic States and most areas in the Pacif-
ic, the likelihood is increased that the ultimate
source of organic matter for fish is not the marsh
grass, but the phytoplankton. For example, Chesa-
peake Bay is the source of a great deal of commer-
cially valuable seafood, but its ratio of marsh to
open water is only 0.04; the ratio at Sapelo Island,
Ga., is nearly 2.0. Given what is known about the
phytoplankton production in the Chesapeake Bay,
the annual contribution of salt marshes to total
available energy is only around 2 to 5 percent (61).
In fact, the scientific literature lacks convincing
evidence, at least for Atlantic and Pacific coasts,
supporting the belief that coastal marshes play a
significant role in supporting fish and shellfish pro-
ductivity through the export of detritus (68).
Climatic and Atmospheric Functions
Although there has been little research related
to these functions, some wetland scientists have
hypothesized that large wetlands help to maintain
lower air temperatures in the summer and prevent
extremely low temperatures in the winter. They also
are a source of water to the atmosphere, leading
to the formation of cumulus clouds, thunderstorms,
and precipitation. Finally, wedands, through proc-
esses of microbial decomposition, either may store
or emit gaseous byproducts important to global
atmospheric stability.
Moderation of Local Temperatures
Water warms and cools slowly in comparison
with land areas; thus, wetlands will have a moder-
ating influence on daily atmospheric temperatures.
Drained agricultural areas in Florida, for instance,
were found to be 5° F colder in the winter than
were surrounding, undrained areas (35). It has been
suggested that wetland drainage of the Everglades
may have increased frost action (87). Because
deeper water bodies contain more water than wet-
lands with the same area, lakes will have a more
moderating influence on atmospheric temperature
than will wetlands (35).
Maintaining Regional Precipitation
Wedands contribute to rainfall through processes
of evaporation and the release of water vapor from
plants (evapotranspiration). In a study of Florida
cumulus clouds, for instance, lakes larger than 1
mile in diameter exerted a noticeable effect on
clouds in the area (35). It has been hypothesized
that wetland drainage could reduce summer thun-
derstorm activity in Florida by reducing evapo-
transporation, leading in turn to regional rainfall
deficits (22).
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 61
Maintain Global Atmospheric Stability
There is increasing concern now that increases
in atmospheric nitrous oxide from man's activities
may adversely affect the stratosphere and may
influence the radiative budget of the troposphere.
Studies on tidal salt marshes have shown that
microbial decomposition in wetland soils under
anaerobic conditions can convert nitrous oxide to
other chemical forms. The importance of this proc-
ess on a global scale remains unclear (36).
Terrestrial detritus may form one of the largest
but least accurately known pools of carbon in the
biosphere. It generally is agreed that the world pool
of detrital carbon is several times larger than the
total carbon content of the atmosphere or of the
world biota. A significant fraction of detritus is
found as peat or in the highly organic soils of wet-
lands (34). If left undisturbed, the carbon in these
organic soils remains as reduced organic carbon.
Since the mid-19th century, the conversion of wet-
lands has resulted in the oxidation of organic mat-
ter in the soil and the release of carbon dioxide to
the atmosphere (65). Many scientists feel that in-
creasing levels of carbon dioxide in the atmosphere
will lead to global warming.
Methane, a byproduct of microbial decomposi-
tion of organic material in wetlands, also is thought
to function as a sort of homeostatic regulator for
the ozone layer that protects modern aerobic life
from the deleterious effects of ultraviolet radia-
tion (65).
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The State of Our Understanding, P. E. Greeson,
J. R. Clark, and J. E. Clark (eds.) (Minneapolis,
Minn.: American Water Resources Association,
1979), pp. 16-25.
66. Odum, W. E., Dunn, M. L., and Smith, T. J.,
Ill, "Habitat Value of Tidal Freshwater Wet-
lands," Wetland Functions and Values: The State
of Our Understanding, P. E. Greeson, J. R.
Clark, and J. E. Clark (eds.) (Minneapolis, Minn.:
American Water Resources Association, 1979),
pp. 248-255.
67. Ogawa, H., "Evaluation Methodologies for the
Flood Mitigation Potential of Inland Wetlands,"
Ph. D. dissertation, University of Masachusetts,
Amherst, 1982.
68. Onuf, C. P., Quammen, M. L., Shaffer, G. P.,
Peterson, C. H., Chapman, J. W., Cermak, J.,
and Holmes, R. W., "An Analysis of the Values
of Central and Southern California Coastal Wet-
lands," Wedand Functions and Values: The State
of Our Understanding, P. E. Greeson, J. R.
Clark, and J. E. Clark (eds.) (Minneapolis, Minn.:
American Water Resources Association, 1979),
pp. 186-199.
69. Overstreet, R. M., and Heard, R. W., "Food of
the Atlantic Croker, Micropogonias undulatus,
From Mississippi Sound and the Gulf of Mexico,"
Gulf Res. Rept. 6, 1978, pp. 145-152.
70. Owens, R. E., Ill, "The Economic Value of the
Use of Virginia's Coastal Wetlands as an Erosion
Control Strategy," Virginia Polytechnic Institute
and State University, M.S. thesis, Blacksburg,
Va., 1980.
71 . Pestrong, R., "The Shear Strength of Tidal Marsh
Sediments," NTIS No. AD-765 273, 1973.
72. Porter, B. W., "The Wetland Edge as a Commu-
nity and Its Value to Wildlife," Selected Pro-
ceedings of the Midwest Conference on Wetland
Values and Management, B. Richardson (ed.),
1981.
73. Reilly, W., "Can Science Help Save Interior Wet-
lands?" Wedand Functions and Values: The State
of Our Understanding, P. E. Greeson, J. R.
Clark, and J. E. Clark (eds.) (Minneapolis, Minn.:
American Water Resources Association, 1979),
pp. 26-30.
74. Richardson, C. J., "Pocosin Wetlands" (Strouds-
burg. Pa.: Hutchinson Ross Publishing Co.,
1981).
75. Richardon, C. J., "Primary Productivity Values
in Freshwater Wetlands," Wedand Functions and
Values: The State of Our Understanding, P. E.
Greeson, J. R. Clark, and J. E. Clark (eds.) (Min-
neapolis, Minn.: American Water Resources As-
sociation, 1979), pp. 131-145.
76. Ryan, J. D., and Everitt, T., "Investigations of
the Plant Community-Soil-Soil Strength Micro-
morphology Relationships in Coastal Marshes,"
NTIS No. AD-768 801, 1973.
77. Sander, J. E., "Electric Analog Approach to Bog
Hydrology," Groundwater, vol. 14, No. 1, 1976,
pp. 30-35.
78. Schamberger, M. L., Short, C, and Farmer, A.,
"Evaluating Wetlands as Wildlife Habitat," Wet-
land Functions and Values: The State of Our
Understanding, P. E. Greeson, J. R. Clark, and
J. E. Clark (eds.) (Minneapolis, Minn.: American
Water Resources Association, 1979), pp. 74-83.
79. Schitoskey, F., Jr., and Linder, R. L., "Use of
Wetlands by Upland Wildlife," Wetland Func-
tions and Values: The State of Our Understand-
ing, P. E. Greeson, J. R. Clark, and J. E. Clark
(eds.) (Minneapolis, Minn.: American Water Re-
sources Association, 1979), pp. 307-322.
80. School of Forestry and Environmental Studies,
"Wetlands Trends and Policies in North and
South Carolina," Duke University, OTA contract
study, August 1982.
81. Shaw, S. P., and Fredine, C. G., "Wetlands of
the United States: Their Extent and Their Value
to Waterfowl and Other Wildlife," Fish and Wild-
life Service, U.S. Department of the Interior, Cir-
cular 38, 1956, p. 67.
82. Smardon, R. C, "Visual-Cultural Values of Wet-
Ch. 3— Wetland Values and the Importance of Wetlands to Man • 65
lands," Wetland Functions and Values: The State
of Our Understanding, P. E. Greeson, J. R.
Clark, and J. E. Clark (eds.) (Minneapolis, Minn.:
American Water Resources Association, 1979),
pp. 535-544.
83. Snyder, B. D., and Snyder, J. L., "Feasibility of
Using Oil Shale Wastewater for Waterfowl Wet-
lands," U.S. Fish and Wildlife Service, Office of
Biological Service, contract No. FWS 14-16-009-
82-002, Fort Collins, Colo., 1982.
84. Stickney, R. R., Taylor, G. L., and White, D.
B., "Food Habits of Five Young Southeastern
United States Estuarine Sciaenidae," Chesapeake
Sci., vol. 16, 1975, pp. 104-114.
85. Tchobanoglous, G., and Gulp, G. L., "Wedand
Systems of Wastewater Treatment: An Engineer-
ing Assessment," University of California, Davis,
1980.
86. Thayer, G. W., Stuart, H. H., Kenworthy, W.
J., Ustach, J. F., and Hall, A. B., "Habitat Val-
ues of Salt Marshes, Mangroves, and Seagrasses
for Aquatic Organisms, ' ' Wetland Functions and
Values: The State of Our Understanding, P. E.
Greeson, J. R. Clark, and J. E. Clark (eds.) (Min-
neapolis, Minn.: American Water Resources As-
sociation, 1979), pp. 186-199.
87. Thomas, T., "A Detailed Analysis of Climatolog-
ical and Hydrological Records of South Florida
With Reference to Man's Influence Upon Ecosys-
tem Evolution," report to U.S. National Park
Service, 1970, p. 82.
88. U.S. Army Corps of Engineers, Institute for Water
Resources, "Analysis of Selected Wetlands Func-
tions and Values," unpublished draft report 81D-
01, 1981.
89. U.S Army Corps of Engineers, "Charles River
Watershed, Massachusetts Natural Valley Storage
Project, Design Memorandum No. 1, Hydrologic
Analysis," New England Division, Waltham,
Mass., 1976.
90. U.S. Fish and Wildlife Service, "Refuge Visita-
tion Figures," available from Division of Refuge
Management, Branch of Resource Management,
1981.
91. Valiela, I., Teal, J. M., and Sass, W. J., "Pro-
duction and Dynamics of Salt Marsh Vegetation
and the Effects of Experimental Treatment With
Sewage Sludge," Journa/ of Applied Ecology, vol.
12, No. 3, 1975.
92. Vecchiolo, J., Gill, H. E., and Land, S. M.,
"Hydrologic Role of the Great Swamp and Other
Marshland in the Upper Passaic River Basin,"
Journal of the American Water Works Association,
vol. 54, No. 6, 1962, pp. 695-701.
93. Verry, E. S., and Boelter, D., "Peat and Hydrol-
ogy," Wetland Functions and Values: The State
of Our Understanding, P. E. Greeson, J. R.
Clark, and J. E. Clark (eds.) (Minneapolis, Minn.:
American Water Resources Association, 1979),
pp. 389-402.
94. Wadleigh, R. S., "Effects of Swamp Storage Upon
Storm Peak Flows," M.S. thesis. Department of
Agricultural Engineering, University of Massachu-
setts, Amherst, 1965.
95. Wayne, C. J., "Sea and Marshgrasses: Their Ef-
fect on Wave Energy and Nearshore Transport,"
M.S. thesis, Florida State University, College of
Arts and Sciences, Tallahassee, Fla., 1975.
96. Weller, M., "Freshwater Marshes: Ecology and
Wildlife Management" (Minneapolis, Minn.:
University of Minnesota Press, 1981.
97. Wharton, C. H., "The Southern River Swamp —
A Multiple Use Environment," Bureau of Busi-
ness and Economic Research, School of Business
Administration, Georgia State University, Adanta,
Ga., 1970.
98. Yonika, D., and Lowry, D., "Feasibility Study
of Wetland Disposal of Wastewater Treatment
Plant Effluent," final report. Commonwealth of
Massachusetts Water Resources Commission, Re-
search Project 78-104, 1979.
99. Zohek, J., and Bayley, S. E., "Removal of Nu-
trients From Treated Municipal Wastewater by
Freshwater Marshes," University of Florida
Center for Wetlands, Gainesville, Fla., 1979.
Chapter 4
Wetland Programs That Affect
the Use of Wetlands
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Photo credit: U.S. Fish and Wildlife Service
Contents
Page
Chapter Summary 69
Federal Programs 69
Regulatory Permitting Programs 69
Acquisition and Incentive Programs 72
Other Environmental Programs and Policies 74
Assistance to States and Localities 75
Wetland Research Programs 76
Federal Programs That Affect Agricultural Conversions 77
State Programs 81
Wetland Regulation 81
Acquisition 82
Incentives to Landowners 82
Other Programs 82
State Influence on Federal Activities 82
Local Programs 83
Private Initiatives 84
Chapter 4 References 84
Chapter 4
Wetland Programs That Affect
the Use of Wetlands
CHAPTER SUMMARY
At this time, Federal policies do not deal con-
sistently with wedand use. In fact, they affect
wetland use in opposing ways. On the one hand,
some Federal policies encourage wetland conver-
sion by reducing the cost of converting wetlands
to other uses, especially agriculture. On the other
hand, some wetland use is controlled or managed
through acquisition, easements, leases, regulation,
and policy guidance. The U.S. Army Corps of En-
gineers' program to implement section 404 of the
Clean Water Act (CWA) provides the major ave-
nue for Federal involvement in controlling the use
of wetlands through regulation. However, the 404
program regulates only the discharge of dredged
or fill material; excavation, drainage, clearing, and
flooding of wedands are not covered explicidy. State
and local programs as well as private initiadves also
directly or indirectly affect the use of wedands in
a variety of ways.
The present administration's goals with respect
to wedands are unclear. On the one hand, the U.S.
Army Corps of Engineers (the Corps) has revised
its administrative procedures to reduce the regu-
latory burden on industry and to increase the role
of the States. Some of these changes may have
reduced the level of Federal control over wetlands
use, although there will never be quantitative data
to support this or any other statement made about
the effects of these programmatic changes on wet-
lands. Administration support for State coastal
management programs also has been reduced sig-
nificantly, and no funds have been requested in the
past 3 years for wetland acquisition. On the other
hand, the Department of the Interior proposed a
bill, Protect Our Wedands and Duck Resources Act
(POWDR). This bill proposed eliminating some
Federal expenditures for some wetland activities,
increasing funding to States for wetland conserva-
tion, extending the Wetlands Loan Act (due to ex-
pire in September 1984) for 10 years, and increas-
ing revenues for the Migratory Bird Conservation
Fund through additional fees for duck stamps and
wildlife refuge visitation permits.
FEDERAL PROGRAMS
The use of wetlands in the United States is af-
fected either direcdy or indirecdy by a large number
of Federal, State, local, and private programs. This
section briefly describes these programs, with em-
phasis on the more important Federal programs.
Regulatory Permitting Programs
Section 404
Section 404 of CWA, as amended in 1977 from
the Federal Water Pollution Control Act (FWPCA),
is the primary means of Federal involvement in con-
trolling the use of wetlands. In brief, persons seek-
ing to conduct activities that would result in the
discharge of dredged and fill material into "waters
of the United States" first must apply for and ob-
tain a permit from the local district office of the
Corps. Some activities are specifically exempted;
others are covered by general permits that require
no applications for individual permits.
There are fundamental differences in the way
Federal agencies and various special interest groups
interpret the intent of section 404, which as stated
in the preface to CWA, is to "restore and main-
69
70 • Wetlands: Their Use and Regulation
tain the chemical, physical, and biological integri-
ty of the Nation's waters."' The Corps views its
primary function in carrying out the law as protect-
ing the quality of wafer; habitat and other wedand
values, although considered in Corps decisions
about projects, are usually of secondary concern.
In contrast, Federal resource agencies, such as the
U.S. Fish and Wildlife Service (FWS), the Envi-
ronmental Protection Agency (EPA), the National
Marine Fisheries Service (NMFS), and environ-
mental groups feel that the mandate of CWA
obliges the Corps to protect the integrity of wet-
lands, including their habitat values.
The Corps uses three general criteria for eval-
uating permit applications in a "public interest
review:"
• the relative extent of the public and private
need for the proposed structure or work;
• the desirability of using appropriate alternative
locations and methods to accomplish the ob-
jective of the proposed structure or work; and
• the extent and permanence of the beneficial or
detrimental effects that the proposed structure
or work may have on the public and private
uses to which the area is suited.
It is unclear what consideration would be given
to cumulative impacts under new regulations pro-
mulgated in 1982, which still include language
recognizing that such impacts often result in ma-
jor impairments of wetland resources.^
Until the 1982 changes, regulations stated that
no permit would be granted for activities that in-
volved the alteration of wetlands identified as im-
portant "unless the benefits of the proposed altera-
tion outweigh the damage to the wetlands resource
and the proposed alteration is necessary to realize
those benefits." The district engineer's determina-
tion of the necessity of the alteration must be based
on whether the activity is "primarily dependent on
being located in, or in close proximity to, the aquat-
ic environment or whether practicable alternative
sites" are available. Permit applicants must sup-
ply sufficient information on the need to locate the
project in the wetland and on the availability of
alternate sites.' The 1982 revisions to the Corps
regulations eliminate the clause that the proposed
alteration be necessary to realize benefits.
The assertion of regulatory jurisdiction of the
Corps under the 404 program has changed over
time, and further changes presently are being de-
bated. Originally, jurisdiction was restricted to nav-
igable waters, narrowly defined, and covered rela-
tively few wetlands. A series of court decisions, es-
pecially the 1975 decision in Natural Resources
Defense Council v. Callaway, expanded the scope
of coverage to include virtually all waters of the
United States, including most if not all wedands.*
However, congressional amendments to CWA and
Corps regulations implementing the act have set
limits to the jurisdiction of the 404 program.
The 404 program currently covers activities re-
sulting in dredged and fill material discharges, with
the following exemptions specified in the 1977
amendments to CWA:
• normal farming, silviculture,** and ranching
activities, such as plowing, seeding, and cul-
tivating; minor drainage; harvesting for the
production of food, fiber, and forest products;
or upland soil- and water-conservation prac-
tices;
• maintenance, including emergency reconstruc-
tion of recently damaged parts of currendy
serviceable structures such as dikes, dams,
levees, groins, riprap,*** breakwaters, cause-
ways, bridge abutments or approaches, and
transportation structures;
• construction or maintenance of farm or stock
ponds or irrigation ditches, or the maintenance
of drainage ditches;
• construction of temporary sedimentation basins
on a construction site, but excluding placement
of fill material into navigable waters;
'Clean Water Act, sec. 101(a).
'Clean Water Act, sec. 320.4(b)(3).
'Clean Water Act, sec. 320.4(b)(4).
'On July 25, 1975, the Corps of Engineers published revised regula-
tions redefining "navigable waters" to include; "coastal waters, wet-
lands, mudflats, swamps, and similar areas; freshwater lakes, rivers,
and streams that are used, were used in the past, or are susceptible
to use to transport interstate commerce, including all tributaries to
these waters; interstate waters; certain specified intrastate waters, the
pollution of which would affect interstate commerce; and freshwater
wetlands, including marshes, shallows, swamps and similar areas that
are contiguous or adjacent to the above described lakes, rivers and
streams, and that are periodically inundated and normally character-
ized by the prevalence of vegetation that requires saturated soil con-
ditions for growth and reproduction."
"Tree farming
••'Shoreline protection usually composed of broken stones.
Ch. 4— Wetland Programs That Affect the Use of Wetlands • 71
• construction or maintenance of farm or forest
roads, or temporary roads for moving mining
equipment, where such roads are constructed
and maintained in accordance with best man-
agement practices to assure that flow and cir-
culation patterns and chemical and biologicsd
characteristics of the navigable waters are not
impaired, that the reach of the navigable waters
is not reduced, and that any adverse effect on
the aquatic environment will be otherwise min-
imized;* and
• congressionally approved projects that have
filed an environmental impact statement
(EIS).5
In addition to these exemptions, a large number
of activities fall under general permits. General per-
mits are promulgated to increase the manageabili-
ty of the 404 program at nationwide, regional, and
State levels for activities deemed by the Corps to
have minor impacts on waters of the United States.
Persons conducting such activities need not apply
for individual permits; however, in many cases,
they are expected to follow specified practices to
minimize further the impacts of their actions. As
of late 1981, the Corps had issued 374 general per-
mits, which has reduced the number of permit
applications by an estimated 60,000 to 90,000
annually.
The 404 program also regulates certain geo-
graphic areas with less stringency than other areas.
Prior to the 1982 regulatory changes, activities in
wedands that are not linked to a tributary system,
above the headwaters of tributary streams (above
a point where the mean annual streamflow is less
than 5 cubic feet per second (ft'/s)), or less than
10 acres in surface area did not require individual
permits as long as certain environmental safeguards
were complied with. The 1982 regulations ex-
panded these exempted areas to include any isolated
wetland regardless of size. Subsequent proposals
published on May 12, 1983, reinstated this limita-
tion.
Several Federal agencies besides the Corps have
roles in the implementation of the 404 program.
The Environmental Protection Agency (EPA),
NMFS, and FWS review permit applications and
'Clean Water Act, sec.+04(f)(l)(A)-(D).
^Clean Water Act, sec.404{r).
provide comments and recommendations on wheth-
er permits should be issued by the Corps. EPA has
the authority to veto any application or overrule
any disposal site designated on a permit reviewed
by the Corps if it finds project impacts unaccept-
able. It also develops criteria for discharges and
State assumption of the 404 program.
Under memoranda of agreement (MOA) for-
merly in effect between the Corps, FWS, and
NMFS, either NMFS or FWS representatives could
request "elevation" of a permit for review at up-
per levels in the agency if there is disagreement
about whether or not a permit should be granted
by a district engineer. Though only infrequently
carried out, elevation could greatly lengthen the
permitting process, and resource agencies could use
the threat of elevation to gain concessions from per-
mit applicants. New MOAs signed in mid- 1982
greatly restrict the power of FWS and NMFS to
elevate permits, in particular by making elevation
subject to concurrence by the Assistant Secretary
of the Army (Civil Works), the head of the Corps.
As discussed below, States also have a role in the
404 program. States veto permit applications by
denying certification through section 401 of CWA
and may administer portions of the 404 program
if they meet criteria established by EPA. Twelve
States are evaluating this possibility of assuming
404 responsibilities and four have assumed partial
responsibility for the program on a trial basis. In
general, most States neither have the capability nor
the desire to assume sole responsibiity for regulating
wetland use without additional resources from the
Federal Government; some States would be reluc-
tant to do so even with resources.
In line with administration objectives to reduce
the regulatory burden on industry and to increase
the role of the States, the Corps revised many of
its administrative procedures in 1982. Among other
changes already mentioned, the normal permit-
processing time was limited to 60 days for typical
projects, 90 days for controversial projects. The use
of general permits was expanded to include all (and
not some) isolated waters and headwater areas.
Statewide general permits are being used to transfer
additional permitting responsibility to States. Six-
teen environmental organizations sued the Corps
in December 1982 on the basis of many of these
72 • Wetlands: Their Use and Regulation
changes. Most issues of concern to environmental-
ists were settled out of court in February 1984.
On May 12, 1983, the Corps proposed additional
changes to its 404 regulatory program. Many pro-
posals simply formalize many of the administrative
changes that already have been made to streamline
the permitting process. Other provisions involve
fairly major changes. Two provisions appear to in-
crease the level of wetlands regulation. First, a
limitation of the use of nationwide permits to
isolated waters to water bodies smaller than 10 acres
in size, which was removed on July 22, 1982, was
reinstated. Second, the Corps' authority to condi-
tion permits using either onsite or offsite mitiga-
tion measures was expanded. Three provisions ap-
pear to decrease the level of wedands regulation by
using "letters of permission," rather than permits,
for minor' discharges; by explicidy shifting the
"burden of proof ' to the Federal Government by
presuming that an applicant's proposal is accept-
able unless demonstrated by the Government not
to be; and by expanding the use of nationwide per-
mits in lieu of a case-by-case project 404 review to
all Federal projects and private projects that are ad-
jacent to Corps civil works projects.
Section 10, Rivers and Harbors Act
Under the Rivers and Harbors Act of 1899, per-
mits from the Corps are required for dredge, fill,
and other activities that could obstruct navigable
waterways, defined as those waters below the or-
dinary or mean high- water level or tide level. Prior
to 1968, the Corps considered only potential im-
pacts of such activities on navigation. In 1968, per-
mit criteria were broadened to include evaluation
offish and wildlife, conservation, pollution, esthet-
ics, ecology, and the general public interest, as well
as navigation. These criteria have been broadened
further to include additional factors, including eco-
nomics, historical values, flood damage prevention,
recreation, water supply, water quality, energy
needs, and food production. Some of these criteria
favor wetland protection, while others support de-
velopment.
Often, section 10 and section 404 permitted ac-
tivities are processed concurrendy. Although wet-
lands covered by section 10 also are covered by sec-
tion 404, and although wetland protection is not
a stated goal of section 10 permitting, section 10
has served to protect wedands against some impacts
that are not dealt with by section 404 permitting.
Unlike section 404, section 10 does not exempt any
activities from coverage.
Acquisition and Incentive Programs
As of September 30, 1981, FWS administered,
through ownership, lease, or easement arrange-
ments, close to 89 million acres of land in the Na-
tional Wildlife Refuge System, Waterfowl Produc-
tion Areas, and coordination areas. Of this total,
FWS estimates that approximately 33.4 million
acres are wedands, 28.7 million acres of which are
in Alaska. The National Forest Service is respon-
sible for managing about 190 million acres of land
in the National Forest System, a small percentage
of which is wedand. Aside from some special ap-
propriations, primary funding for the Nation's ac-
quisition and incentive programs comes from four
sources.
Migratory Bird Hunting and
Conservation Stamps
Since 1934, FWS has sold Migratory Bird Hunt-
ing and Conservation Stamps, commonly known
as "duck stamps," which must be purchased by
waterfowl hunters aged 16 and older. Nonhunters
may also purchase stamps. Since 1979, stamps have
cost $7.50 per year; about 2 million are sold annu-
ally. Proceeds are used to acquire habitat for mi-
gratory birds. From the inception of the program
to June 1982, more than 83 million stamps were
sold, worth over $240 million and accounting for
the purchase of more than 2.5 million acres of
waterfowl habitat, a large portion of which is wet-
land.
Wetlands Loan Act
A related source of funding is the Wedands Loan
Act of 1961, which provides for interest-free loan
advances toward wetland acquisition and ease-
ments. A total of $200 million has been authorized
by this program, out of which approximately $147
million has been appropriated through fiscal year
1983. This program is due to expire September 30,
1984, after which appropriations from the loan fund
Ch. 4— Wetland Programs That Affect tlie Use of Wetlands • 73
Photo credit: U.S. Fistt and Wildlife Service, David B. Marshall
Over $240 million worth of "duck stamps" have been
sold to hunters since the program's inception in 1934,
financing the purchase of more than 2.5 million acres
of waterfovi/l habitat
are to be repaid with duck stamp receipts. Bills
pending in Congress seek to extend this act.
The Land and Water Conservation Fund Act
The Land and Water Conservation Fund Act
(LWCF) of 1965 funds the purchase of natural
areas, including wedands. FWS has used this source
of funding to protect endangered species and im-
portant natural resource areas and to extend the
National Wildlife Refuge System. From fiscal years
1967 through 1982, FWS used approximately $182
million of LWCF money to acquire some 221,000
acres of land, an unknown portion of which are wet-
lands. The National Park Service also has used this
source of funding for land purchases: from fiscal
years 1965 through 1982, a total of $1.7 billion in
outlays for 1.4 million acres were made. As with
FWS outlays, information is not available on what
proportions of these outlays and acreage pertain to
wetlands. *
Water Bank Program
The Agriculture Stabilization and Conservation
Service of the U.S. Department of Agriculture
(USDA) administers the Water Bank Program.
Authorized by the Water Bank Act of 1970, the ob-
jectives of the program are:
To preserve, restore, and improve the wetlands
of the Nation, and thereby (1) conserve surface
waters, (2) preserve and improve habitat for mi-
gratory waterfowl and other wildlife resources, (3)
reduce runoff, soil, and wind erosion, (4) contribute
to flood control, (5) contribute to improved water
quality and reduce stream sedimentation, (6) con-
tribute to improved subsurface moisture, (7) reduce
acres of new land coming into production and to
retire lands now in agricultural production, (8)
enhance the natural beauty of the landscape, and
(9) promote comprehensive and total water man-
agement planning.
While agreements have been in effect in 15
States, the program is concentrated in the prairie-
pothole region of Minnesota, North Dakota, and
South Dakota. Through the Water Bank Program,
private landowners or operators receive annucJ
payments in exchange for agreeing not to drain,
fill, level, burn, or otherwise destroy wetlands and
to maintain grassy cover on adjacent upland.
With technical assistance from USDA's Soil
Conservation Service (SCS) landowners and oper-
ators enter into 10-year agreements with the Sec-
retary of Agriculture specifying requirements placed
on land use and rates of compensation. Compen-
sation varies with geographic area. Payments for
wetlands usually range from $5 to $10/acre; such
payments in California can range up to $22/acre.
Payments for adjacent cropland generally range
from $14 to $55/acre.
Payment rates are subject to review after 4 years
and at the time agreements are renewed. For the
first group of contracts coming up for renewal, the
rate of renewal has been 50 to 60 percent. Agree-
ments are transferable when land is sold and may
74 • Wetlands: Their Use and Regulation
be canceled by returning all previous payments. To
be eligible for the program, land must be private-
ly owned inland-wedand areas ot a certain type and
size that "in the absence of inclusion in the pro-
gram, a change in use could reasonably be expected
which would destroy its wetland character. ' ' Other
eligible land includes privately owned land, adja-
cent to eligible wetlands, which is essential for the
nesting, breeding, or feeding of migratory water-
fowl. Normally, in order to be eligible for participa-
tion, landowners must agree to designate a total
of at least 10 acres in a conservation plan developed
in cooperation with the soil and water conserva-
tion district in which the farm is located. Acreage
can be less than 10 acres upon recommendation
from SCS. The designated acreage must contain
sufficient adjacent land for protecting the wetland
and must provide essential habitat for the nesting,
breeding, or feeding of migratory waterfowl.
From program inception in 1972 through 1982,
congressional appropriations totaled over $100 mil-
lion, with a little over 185,000 acres of wedands
and 480,000 acres of adjacent lands being covered
by the 6,000 plus agreements that have been signed.
Appropriations in 1982 were $8.8 million.
Other Environmental Programs
and Policies
Executive Order 11990
Promulgated in May 1977, Executive Order
1 1990, Protection of Wedands, mandates that each
Federal agency in carrying out its individual re-
sponsibilities take action to minimize the destruc-
tion, loss, or degradation of wetlands and to pre-
serve and enhance the natural and beneficial values
of wetlands. This order specifically requires that
agencies avoid undertaking or assisting new con-
struction in wetlands unless no practicable alter-
native exists, that all practical measures to minimize
harm to wetlands are included in the action, and
that agencies consider a proposal's effect on the sur-
vival and quality of wedands. The examples that
follow, while not directed at wetlands per se, have
had some effect in protecting wetlands.
Executive Order 11988
Promulgated in May 1977, Executive Order
11988, Flood Plain Management, requires each
Federal agency to avoid direct or indirect support
of flood plain development wherever there is a prac-
tical alternative. Agencies are charged with the
responsibility of providing leadership in restoring
and preserving the beneficial values of flood plains
and in reducing the risk of flood loss and the im-
pact of floods on human welfare. Insofar as many
wedands are located in flood plains, this order could
influence much wetland development.
Executive Orders 1 1990 and 1 1988 apply to such
Federal activities as construction projects, acquisi-
tion and disposal of lands, and grants in aid and
technical assistance to States and localities for such
activities as land and water planning and the build-
ing of roads, sewers, and water supply systems.
They do not apply to federally permitted or licensed
activities on private property. Most Federal agen-
cies have issued regulations to implement the orders
in interim or final form; however, several sources
believe that they have had litde impact on wetland
losses. However, by helping to educate people to
the values of wetlands, these Executive orders may
indirecdy have influenced Federal Government de-
cisions about wetlands use.
Fish and Wildlife Coordination Act
The Fish and Wildlife Coordination Act, as
amended in 1958, requires that wildlife conserva-
tion be given consideration equal to the concern
for other aspects of the water resource development
projects of the Corps, Bureau of Reclamation, and
other Federal agencies. This act has empowered
FWS and the NMFS to evaluate the impact on fish
and wildlife of all new Federal projects and federally
permitted projects, including projects permitted
under section 404. FWS and NMFS have used their
authority under this act to attempt to limit adverse
impacts of projects on wetlauids.
Endangered Species Act
The Endangered Species Act of 1972 prohibits
any Federal agency from undertaking or funding
a project that will threaten a rare or endangered
Ch. 4— Wetland Programs That Affect ttie Use of Wetlands • 75
species. As many such species depend on various
wetlands, some wetland development is restricted
de facto by this statute.
National Environmental Policy Act
The National Environmental Policy Act (NEPA)
of 1969 provides that EISs be prepared for Federal
activities and federally permitted activities that
would have significant environmental impacts. EISs
must address such things as the environmental im-
pact of the proposed action, any adverse environ-
mental effects that cannot be avoided if the action
is implemented, and alternatives to the proposed
action. While NEPA does not prohibit or other-
wise constrain Federal actions once an EIS has been
prepared, the process of EIS preparation makes it
more likely that project impacts and ways of lessen-
ing impacts will be considered. NEPA reviews have
been applied to many projects suspected of posing
substantial impacts to wetlands.
National Pollution Discharge Elimination
System (NPDES)
Section 402 of CWA authorizes a national system
for the regulation of point sources of pollutants into
the waters of the United States, with regulation by
either EPA or through approved State programs.
Some discharges into wedands have been controlled
through NPDES permitting.
Assistance to States and Localities
Development and Operation of
Regulatory Programs
Several sources of Federal funding have been
available to assist States, and in some cases locali-
ties, to develop and administer regulatory programs
that may include wetland protection features.
The Coastal Zone Management (CZM) program
is an example of a program not directed primarily
at wetlands in which the Federal Government and
the States mutually influence one another's wet-
land-related activities. Pursuant to the Coastal Zone
Management Act of 1972, the Federal Office of
Coastal Zone Management (OCZM) sets guide-
lines and provides funding for States to prepare
CZM programs. Approval of a State CZM pro-
gram after review by OCZM enables a State to re-
ceive further funding for program implementation.
States have used such funding to hire personnel,
monitor and enforce CZM regulations, and pro-
vide technical assistance to localities, among other
purposes. Federal guidelines for State programs in-
clude provisions that impacts on wetlands be con-
sidered. Annual reviews of State programs are car-
ried out by OCZM and include review of how wet-
lands are being treated in programs. Federal influ-
ence is exercised through the granting or withhold-
ing of program approval and the concommitant dis-
bursement of funds. States, of course, may forego
Federal guidelines, review, and funding and design
and/or implement their own CZM programs. State
influence through CZM programs over Federal ac-
tivities, such as the granting of 404 permits, is dis-
cussed later in this section.
Technical Assistance and Grants in Aid
Federal funding and technical assistance to States
and localities may be used for purposes direcdy pro-
tecting wetlands. Conditions attached to Federal
aid used for other purposes may indirecdy support
wetlands protection. For example, through the
Federal Aid to Wildlife Restoration Act of 1937
(Pittman-Robertson Act), FWS provides grants to
States for up to 75 percent of the cost of projects
for the acquisition, restoration, and maintenance
of wUdlife areas, including wetlands. Grants are
drawn from an 1 1 -percent Federal excise tax on the
sale of firearms and ammunition. Close to $1 billion
has been given to States, which have acquired over
3.5 million acres, over 1.5 million of which are
waterfowl areas.
The Federal Aid in Fish Restoration Act (1950)
commonly known as the Dingell-Johnson Act, pro-
vides Federal assistance to States for projects per-
taining to fish. The provisions of the Dingell-John-
son Act are parallel to those of the Pittman-Robert-
son Act. Funds derived from the Federal excise tax
on fishing equipment and bait are apportioned an-
nually among the States — 40 percent on the basis
of geographical area and 60 percent on the basis
of the number of persons holding paid licenses to
fish for sport or recreation. Funds so apportioned
to the States are available for use by them for "fish
restoration and management projects" or, since
1970, "comprehensive fish and wildlife resource
management plans." The Federal share in the cost
of such projects or plans is not to exceed 75 percent.
76 • Wetlands: Their Use and Regulation
Through the Land and Water Conservation
Fund, matching grants are given to States, coun-
ties, and localities for outdoor recreation purchases.
From 1965 through the end of 1982, 137 projects
involving 61 ,585 acres of wetlands were given $40.7
million from this funding source.
Other Federal Assistance
The National Flood Insurance Program (NFIP)
has indirectly encouraged the destruction or deg-
radation of wetlands, especially in the past, by par-
tially underwriting the risks of building in flood-
prone areas, some of which may also be wetlands.
However, this program now has rules in force that
discourage building in areas of known flood risk
and that lessen the impacts of development that does
take place. For example, communities with man-
groves that act as coastal flood-protective barriers
must adopt regulations protecting the mangroves
in order to qualify for insurance under the program.
Fills are prohibited in some settings, and the use
of piles or columns where the elevation of struc-
tures is necessary is encouraged. Although the Fed-
eral Emergency Management Agency does not itself
regulate flood plain use, localities wishing to qualify
for federally subsidized flood insurance must agree
to adopt regulations meeting Federal standards.
More than 17,000 communities have adopted or
have indicated an intent to adopt flood plain regula-
tions, and more than $35 billion in policies have
been issued. Many communities now regulating
wedand development do so through flood plain reg-
ulations designed not only to reduce flood problems
but also to protect wetland functions. The NFIP
very recently has begun acquiring areas that fre-
quently are flooded.
Wetland Research Programs *
WhUe NMFS, EPA, FWS, the National Science
Foundation (NSF), amd other Federal agencies con-
*Informalion for this section of tfie report was collected through
personal communication with:
1 . Ted Laroe— FWS Office of Biological Services (Mar, 23, 1983);
2. Herb Quinn — EPA's Office of Research and Development (Mar.
23, 1983);
3. Dr. Dean Parsons — National Marine Fisheries Service (Mar. 23,
1983);
4. Dr. Gary Barret — NSF's Biotic Systems Program (Mar. 25,
1983); and
5. Bill Kleshe— COE (Mar. 28, 1983).
duct wetlands research that is related directly to
their respective missions, the Corps is the only Fed-
eral agency that has a program set up specifically
for wedands research. The Corps' wedand-research
program is carried out primarily by the Waterways
Experiment Station (WES).
A 5-year wetland research program was set up
by the Corps to begin in 1982. Three research pri-
orities are established for this program: 1) to de-
velop improved and standardized techniques to as-
sist Corps personnel in the field identification and
delineation of wetlands, 2) to assess and quantify
wetland values for use in evaluating permit activi-
ties, and 3) to develop techniques for wetland res-
toration in permafrost, freshwater interior, and
coastal environment. Little research has been fo-
cused on evaluating the impacts of wetland loss.
Research on the field identification and delinea-
tion (mapping) of wetlands presently is being con-
ducted, and the Corps expects to complete this
phase of its research by 1985. The next focus for
the research program is the quantification of the
functional values of wetlands. Part of this research
is underway. WES, for instance, already has com-
pleted an evaluation of techniques for assessment
of wetland values, and they are currently in the
process of assembling a data base of regional litera-
ture on wedand vzJues. This data base wiU be com-
bined with a similar base developed by FWS and
then computerized to provide easy access to field
personnel. In November 1983, the Corps conducted
a workshop to discuss the future direction for re-
search to quantify wetland values. The workshop
was attended by Corps personnel at the district level
as well as those at the Washington level. For fiscal
year 1983, $620,000 was allocated to the Corps'
wetland- research program.
W^Ue research that may pertain to wedands may
be conducted under FWS programs on endangered
species, fisheries, and wildlife, the central research
program at FWS — the Office of Biological Serv-
ices (OBS) — allocates $400,000, or approximately
5 to 7 percent of its total funding, for wetland re-
search. These funds are allocated to four research
projects: 1) a computerized bibliography of litera-
ture on wedand values; 2) a list of wetland plants
and soils (to aid in delineation); 3) a nearly com-
pleted assessment of the ecological impacts of dis-
Ch. 4— Wetland Programs That Affect the Use of Wetlands • 77
posing of wastewater on wetlands; and 4) an evalua-
tion of mapping-display technology.
At NMFS, approximately $6 million is slated
now for "habitat research." About one-half of that
amount is devoted to estuarine habitats, which
would include all the NMFS research on wetlands.
Half of the estuarine-related research is spent on
ecological studies; the other half is spent on pollu-
tion-related studies. The research findings from
both types of studies have a bearing on wetlands.
Such research is carried out by regional centers,
whose focus on wetland research depends on the
priority of wetlands in the region. The Southeast
Center probably conducts the most research on wet-
lands and at present is investigating the importance
of wetland detrital flow into estuarine waters.
At EPA, the Office of Research and Develop-
ment (ORD) is responsible for wetland research.
ORD has a separate work unit set up for wetlands,
but it is not funded at present. The approximately
$300,000 allocated for water research by ORD in-
cludes wedand research.
NSF conducts basic research on wedands through
four different NSF programs, though primarily by
the Biotic Systems Program, which conducts com-
munity-level studies (e.g., population studies), and
the Ecosystem Studies Program, which is respon-
sible for large ecosystem studies (e.g., an integrated
analysis of the Okeefenokee Swamp). It is not possi-
ble to identify the funds spent on wetlands as op-
posed to other research areas. In 1978, NSF spon-
sored a workshop on research priorities for wet-
land-ecosystem analysis; the proceedings of this
workshop were published and are available through
the Environmental Law Institute.
The foregoing agencies all appear to have some
more or less formal means of establishing intra-
agency research priorities. NMFS, for instance, de-
velops a strategic plan; FWS programs go through
what they call a "research- needs identification proc-
ess." However, there is no formal mechanism to
provide for interagency coordination of research.
All the agency representatives contacted said that
there is a great deal of informal communication be-
tween agencies. In addition, in 1981, the agencies
met in Kearney sville, W. Va., to discuss their re-
spective plans for wedand research. Proceedings of
this symposium were not published. Though co-
ordination of research plans between the agencies
is informal, research projects have been sponsored
jointly. Current joint studies are being conducted
between NMFS and the Corps, between FWS and
EPA, and between the Corps and FWS.
Federal Programs That Affect
Agricultural Conversions*
In the past. Federal programs encouraged the
direct conversion of wetlands to agricultural use.
Although funding of this type has been eliminated
and policies to prevent alteration of wetlands have
been established in some agencies, implementation
of such policies has not been entirely effective. The
other programs that still reduce the costs and risks
associated with conversion include: income tax pro-
visions, and to a limited extent, cost-sharing and
technical-assistance programs for conservation prac-
tices sponsored by USDA's Agricultural Stabiliza-
tion and Conservation Service (ASCS) and SCS,
loan programs of the Farmers Home Administra-
tion, disaster payments, and crop insurance and
commodity programs. In some regions, these pol-
icies add to the clear profitability of wetland con-
version only if crop prices are sufficiently high. In
other regions, wetland conversions may be unprof-
itable even with direct or indirect Federal assistance.
Past Policies Encouraging Wetland Drainage
Between 1940 and 1977, USDA was authorized
to assist landowners in draining their wetlands by
providing both technical information and cost-shar-
ing under the Agricultural Conservation Program
(ACP). Between 1942 and 1980 nearly 57 million
acres of wet farmland, including some wetlands,
were drained under this program; most of this
drainage occurred in the 1940's and 1950's. Min-
nesota had more land drained than any other State
(over 5 million acres).
In 1962, Congress enacted Public Law 87-732
forbidding USDA from providing financial or tech-
nical assistance for wetland drainage in Minnesota,
North Dakota, and South Dakota if the Secretary
of the Interior found that wildlife preservation
'Discussion based on information gathered in OTA case studies
and an OTA working paper on agricultural policies prepared by Ken
Cook.
78 • Wetlands: Their Use and Regulation
would be materially harmed by the drainage.'^
These findings were to be made on a farm-by-farm
basis and to continue for 1 year unless a Govern-
ment agency offered to purchase or lease the wet-
land. If such an offer was made but rejected by the
landowner, the prohibition was to terminate 5 years
after the Secretary of the Interior's finding.
In 1977 President Carter issued Executive Order
11990 requiring all Federal agencies to minimize
loss of all types of wedands. As a result, ASCS cost-
sharing for draining wetlands was eliminated in
1978. Also, SCS employees were limited officially
in the technical information they could provide
about wetland drainage.' More recent regulatory
changes have been made that give SCS "additional
flexibility in providing technical assistance to alter
wedands when denial of assistance could lead to det-
rimental consequences on soil and water resources
or on human welfare and safety. "° The rules
strengthen the requirements to utUize all practicable
measures to minimize impacts on wedands resulting
from SCS-assisted projects.*
When private drainage occurs, information by
SCS may improve the efficiency of drainage. In ad-
dition, if SCS designs the drain, there is an oppor-
tunity that the constructed drain will affect only part
of the wetlands while preserving the remainder.
Technical information could aid in protecting wet-
lands in this way. Regardless of stated policy, how-
ever, it will continue to be difficult to control ef-
fectively the distribution of technical information
about drainage.
Comments about the impacts of USDA cost-
sharing on drainage varied. Those feeling that the
impact was substantial cited the subsidy, stating
that its elimination has to have an impact. Others
feel that Federal and State governments still sup-
port drainage only in attitude. Information collected
from OTA case studies suggests that Executive
Order 1 1990 has probably not had a significant af-
fect on drainage (2).
«I6 U.S.C. S.590, p. 1.
'7 CFR, pt. 650.26.
'7 CFR, pt. 650-Summary.
^Federal Register, vol. 44, No. 147, July 30, 1979— 650.26(c) (2)
(i) (B) and (C).
Present Policies That Reduce Costs of
Wetland Conversion
Federal Income Tax. — Numerous studies have
pointed to Federal income tax writeoffs for all types
of development activities as an important incentive
to farmers to clear and drain wetlands for agricul-
tural use. These provisions enable farmers to shift
a portion of the investment costs of wetlands con-
version to the general taxpayer. The incentives
include:
• tax deductions from taxable income for land-
clearing costs of up to $5,000 or 25 percent
of taxable income (whichever is less);
• tax deductions of up to 25 percent of gross
farm income for drainage expenses (expenses
in excess of this allowable limit may be de-
ducted in subsequent years);
• investment tax credit equal to 10 percent of
the installation cost for drainage tile. This is
a direct reduction of tax liability;
• tax deductions for depreciation on all capital
investments necessary for any type of farm-
ing, including draining and clearing for bot-
tom land farming, up to 5.5<t per dollar in-
vested if the investments have an expected life
of 7 years of more; and
• deductions for interest payments.
Several researchers have provided examples of
how these tax provisions can lower the cost of wet-
land conversion to farmers. Using 1978 cost esti-
mates developed by Shulstad and May (5), Shab-
man (4) has calculated that the application of tax
provisions could lower the cost of bottom land clear-
ing in east Arkansas by about 30 percent (e.g., from
$311.67 to $2 18.1 7/acre). Shabman further calcu-
lated in a hypothetical example that a farmer in a
30-percent tax bracket, who financed this conver-
sion with a 20-year loan at a 10-percent interest rate
effectively could reduce that interest rate to 7 per-
cent and his annual loan payments from $36.60 to
$20.59 over the period of the loan, "a significant
(44 percent) reduction in cash-flow needs."
Barrows, et al. (1), performed a similar analysis
of the effects of some tax policies on drainage costs
in Wisconsin and came to similar conclusions.
Without the tax incentives — the soil- and water-
Ch. 4— Wetland Programs That Affect the Use of Wetlands • 79
conservation deduction for drainage costs, the de-
preciation for drainage tile, and the investment tax
credit for the tile — the increment to income for each
drained acre would be considerably lower for farms
with taxable household incomes in the $12,000 to
$20,000 range. The value of the tax incentives in-
creases as income rises, up to a certain level that
easily is exceeded by large farming enterprises.
Partial budgets were used in a detailed study of
drainage costs in Minnesota (6). The budgets in-
cluded gross returns, production costs, and amor-
tized drainage costs. Drainage costs ranged from
$35 to $260/acre, depending on the size of the wet-
land and topography. Annual net returns in the
prairie-pothole region varied considerably, with a
high of $29 to a loss of $10/drained acre. Inclusion
of property-tax effects (including Minnesota's tax
credit) and State and Federal income taxes were
occasionally large enough to offset a before-tax loss
on the drainage investment. In the prairie-pothole
region, net returns per year after taxes generally
ranged from $0 to $20/acre. Income tax generally
had the effect of reducing losses where before-tax
returns were negative, and decreasing gains in areas
where before-tax returns were positive. Deductions
for drainage costs are taken prior to the returns
from future commodities grown on the drained
area, thereby resulting in a positive effect in early
years (2).
Cost-Sharing and Technical Assistance. — The
USDA ACP provides payments to farmers of up
to 80 percent of the cost of construction of a wide
variety of conservation practices. Practices for
which cost-sharing is offered axe developed by farm-
er-elected committees at the county level in con-
sultation with county program development groups
and are subject to the approval of a State commit-
tee. Other Federal programs such as the Great
Plains Program provide similar assistance on a re-
gional basis. Many States also have programs that
may cover a portion of the non-Federal costs for
projects supported by Federal cost-sharing pro-
grams.
Although direct drainage of wetlands is not
funded under ACP, eligible practices for funding
by these programs include actions that can lead to
wetland drainage and filling. For example, in Ne-
braska, eligible practices for irrigation water con-
servation include dugouts, reuse pits, land level-
ing, irrigation ditch lining, and underground pip-
ing. Restrictions on the use of these Federal funds
for wedand conversion include prohibitions on
funding activities with the primary purpose of
bringing new lands under irrigation, such as chang-
ing the surface area or depth of some types of wet-
lands and installing systems where the bottom of
the pit is below the ground water surface. However,
implementation of these provisions is difficult.
Administering agencies and their local agents
have considerable discretion in interpreting and ap-
plying these restrictions. Program restrictions are
particularly difficult to implement in areas such as
the Rainwater Basin where the condition of wet-
lands varies from year to year, depending on sea-
sonal and annual precipitation. Decisionmakers
may be under considerable pressure from their
neighbors to approve a project and to determine
that an area is not a wetland. Available evidence
and discussions with many people indicate that
some cost-sharing still is used for wedand drainage.
However, it generally is agreed that the implemen-
tation of the cost-sharing programs are increasingly
responsive to policies to protect remaining wedands
(3). In fact, many thousands of acres of wetlands
have been created or improved with technical
assistance from SCS.
The importance of cost-sharing assistance in a
farmer's decision to convert wedands was analyzed
in OTA's Nebraska case study (3). It provided an
analysis of the profitability of the different conver-
sion activities in Nebraska and concluded that most
conversions have questionable profitabUity. Gov-
ernment cost-sharing of $ 1 9 . 86/acre/yr for produc-
ing irrigated corn on wedands drained with the in-
staUation of a reuse-pit system resulted in a 16-year
average annual net revenue per acre of $30.32, ver-
sus $10.46 without Government cost-sharing. Pro-
duction of irrigated corn on smaller, shallower wet-
lands that could be filled by leveling was the most
profitable at $57.24 for the same period of time with
Government cost-sharing assistance of $5.88/acre/
yr. These returns were considered to be modest.
However, even with the Government cost-sharing,
a farmer would have lost money in 2 of the 1 6 yeau-s
investigated, and profits would have been less than
$10/acre in 3 additional years. Without Govern-
80 • Wetlands: Their Use and Regulation
ment assistzmce, the farmer would have lost money
in 5 of the 16 years investigated, and profits would
have been less than $10/acre in 4 additional years.
Using economic multiplier analysis, the Nebras-
ka study then estimated the impact on the State
economy of investment expenditures made to drain
and convert wedands for expanded agricultural use
and of new crop production resulting from this con-
version. Based on estimates of the annual wetland
acreage lost each year and on the types of profitable
conversions that occurred in the Rainwater Basin,
the study concluded that the income resulting from
converting wetlands in the Rainwater Basin to ir-
rigated corn is less than 0.000072 percent of State
personal income and around 0.000056 percent of
the personal income in the 17-county Rainwater
Basin area.
Other examples of converting Rainwater Basin
wedands to irrigated alfalfa with reuse systems and
to dryland wheat farming resulted in losses in net
annual revenue per acre over the 16-year average,
regardless of Federal cost-sharing assistance.
Farmers Home Administration Loans. — Pro-
grams administered by the Farmers Home Admin-
istration (FmHA) have been noted as having a po-
tentially adverse effect on wetlands. For example,
FmHA personnel stated in interviews with an OTA
contractor that FmHA operating loans have been
used for wedand conversion even in the recent past.
FmHA agrees that wetland conversions should not
be financed through FmHA, but there are practi-
cal problems in implementing such a policy. FmHA
published draft regulations to comply with Execu-
tive Order 1 1990 and other environmental laws in
1982. These regulations, when finalized, will dis-
allow approval or funding of any proposals that
would directly or indirectly result in conversions
of wedands. Implementation is expected to vary be-
tween States and counties, since decisionmakers at
the State and local levels have broad discretion in
making a loan decision. Although loan applicants
may be required to have SCS farm-conservation
plans that would provide for the protection of wet-
lands, it is not clear to what extent the farm plans
will have to be implemented to receive FmHA assis-
tance.
Federal Disaster Payments and Crop In-
surance.— Recent congressional and USDA policy
changes exclude high-risk areas from disaster
payments and subsidized crop insurance. Specific
areas that are excluded from coverage are being
mapped in each county. Although wedands are not
specifically excluded from coverage under the pro-
gram (the Federal Crop Insurance Agency that ad-
ministers the program hasn't issued regulations for
complying with Executive Order 1 1990), areas such
as wetlands that are subject to unacceptably high
risks from flooding or excess moisture generally are
excluded. If an area is subject to flooding as fre-
quendy as every 4 to 5 years, it is unlikely to receive
either disaster payments or subsidized crop insur-
ance. In some areas of the country, for instance,
especially the Missouri and Mississippi River Ba-
sins, certain flood plain and wetland areas are ex-
cluded from coverage because of the high risk of
crop loss to flooding. Also, some wetlands in Min-
nesota are excluded because of the high risk of sum-
mer flooding.
Commodity Programs. — While the actual im-
pact of price supports and target prices have pro-
bably not been significant in encouraging wetland
conversions, they have been criticized for the follow-
ing four reasons.
1 . Commodity programs have the potential to
increase crop prices above the level that would
prevail without the programs. These artificial-
ly high prices might encourage farmers to in-
crease their amount of land in crops by con-
verting wetlands. However, these artificially
high prices stUl are relatively low and only go
into effect when market prices drop to the
average cost of production. Even with the ar-
tificially higher price, a farmer with average
production costs is unlikely to be in a finan-
cial position to undertake costly conversions.
However, because larger farmers may have
production costs lower than the national aver-
age and are more likely to participate in the
commodity programs, commodity programs
may aid some larger farmers in their conver-
sion efforts.
Ch. 4— Wetland Programs That Affect ttie Use of Wetlands • 81
2. Commodity programs reduce the risk associ-
ated with growing certain crops. Guaranteed
floor prices may improve the long-term finan-
cial feasibility of converting wetlands and
make agricultural lenders more willing to fi-
nance conversion operations. In the case of
soybeans, which have only a floor price and
not the other features of commodity programs
for other crops, market prices have until very
recently remained well above the floor price,
and the program hardly has been used.
3. Commodity programs for most crops (not soy-
beans) set restrictions on the acreage that a
participating farmer can plant in a particular
crop each year. Usually the farmer must not
plant about 10 percent of his "normal crop
acreage" (NCA). However, NCA can be in-
creased by draining wetlands, allowing the
farmer to plant more acreage in the future.
Although a farmer who planted more than the
allowable acreage in a particular year would
not be eligible for commodity payments that
year (e.g. , by converting wetlands), his NCA
would be increased in subsequent yeairs. How-
ever, for the 1983 farm program the Congress
mandated that commodity payments would
generally be based on the acreage planted in
the preceding year. Therefore, no lands that
were added to production in 1982 are included
in NCA this year. It is expected that farmers
will be able to increase their acreages some-
time in the future.
4. Commodity programs (at least in the past) en-
couraged land management practices that
may have adverse impacts on wetlands. For
example, summer fallow for wheat can result
in erosion that fills in surrounding wetlands.
In 1977, Congress required proper soil con-
servation measures on summer-fallow acreage
eligible for the wheat program. However, as
with other commodity programs, few farmers
participated until recently, when crop prices
dropped. Thus, many farmers may not be fol-
lowing conservation practices on summer
fallow.
STATE PROGRAMS
States vary greatly in their approaches and
attitudes toward wetland protection. Even within
States, different agencies may take different posi-
tions on wedand protection and development — e.g.,
as with Federal entities. State environmental agen-
cies and State transportation and water-resource
agencies often find themselves in disagreement. The
direction of State programs is open to change by
reason of changes in political leadership and
changes in State fiscal health, among others. De-
spite these caveats, a number of observations may
be made about State wetland protection efforts.
Wetland Regulation
More than a dozen States have permitting pro-
grams specifically directed at controlling the use of
wedands. Most of these programs are administered
directly by State agencies, although local govern-
ments may be given the authority to veto approval
of some projects. A few States have State standard-
setting for regulation. Local governments formu-
late, administer, and enforce regulations meeting
or exceeding wetland protection set by the State.
In States where local programs dominate, the States
may retain the authority to review local decisions
or to intervene only where localities fail to create
adequate controls. States also may provide techni-
cal assistance to local program administrators.
A few States have established innovative regula-
tory programs for wetland protection that differ
from the more typical permit or zoning approaches.
For example, in Massachusetts, the Coastal and In-
land Wetland Restriction Acts place deed restric-
tions on wetland property to limit use to water-
related uses such as docks, recreation, farming, and
driveways into unrestricted land. Thus far, over
40,000 of the estimated 60,000 acres of coastal wet-
lands have been subjected to the law and only 5,000
acres of inland wetlands have been restricted. An-
other example of an innovative program is the Min-
nesota Protected Waters Program and its relation-
82 • Wetlands: Their Use and Regulation
ship with the Minnesota Water Bank Program. Per-
mits for drainage are required but automatically
are denied for wetlands identified as protected
waters (i.e., wetland types 3,4, and 5, greater than
10 acres and 2.5 acres in unincorporated and in-
corporated areas, respectively). The landowner will
be able to drain legally if within 60 days the State
fails to offer some type of compensation. Without
this offer, Minnesota case law would declare the
rejection an illegal taking because the owner was
not justly compensated. Acceptable offers, accord-
ing to the statute, include State Water Bank pay-
ments, purchase, or indemnification by other
means such as conservation restrictions, easements,
leases, or any applicable Federal program. As dis-
cussed in more detail in chapter 9, State regula-
tion of coastal wetlands is far more common than
that of inland wetlands.
Acquisition
Seveial States have programs that give priority
to the acquisition of wetlands.
Incentives to Landowners
Some States authorize tax relief for landowners
to preserve wedand and other open-space areas. At
least one State has a program resembling the Fed-
eral Water Bank Program. Under the Minnesota
Water Bank Program, requirements for participa-
tion are more stringent than those for the Federal
program (i.e., wetlands must be of such a nature
that drainage would be lawful, feasible, and prac-
tical, that drainage would provide high-quality
cropland, and that cropland is its projected use).
Payment rates also are much higher under this State
program than under the Federal program. In 1981,
annual payments ranged from $85 to $125/acre.
Other Programs
Many States control wetlands use through pro-
grams whose primary purpose is not wetlands pro-
tection. Types of programs include:
• coastal zone management,
• flood plain management,
• shoreline zoning,
• scenic and wild rivers protection.
• critical or natural areas protection,
• dredge and fill acts,
• wildlife and waterfowl protection,
• public lands management,
• public education,
• stream alteration requirements, and
• site location of developments.
State Influence on Federal Activities
The Corps seeks good relations with State gov-
ernments and usually will defer to strongly ex-
pressed State wishes concerning particular projects.
In several Corps districts, the Corps will not act
on a permit prior to a State decision about a proj-
ect. In addition to these informal mechanisms, sev-
eral legal requirements establish State influence in
Federal wetland-permitting decisions.
The Clean Water Act and Corps Regulations
Section 404(t) of CWA requires that each Fed-
eral agency comply with State requirements to con-
trol the discharge of dredged or fill material as long
as such requirements do not affect or impair the
authority of the Secretary of the Army (i.e., the
Corps) to maintain navigation.
Section 320.4(j)(l) of the Corps regulations im-
plementing section 404 states that the processing
of applications for Corps permits normally will pro-
ceed concurrently with the processing of other re-
quired Federal, State, or local authorizations or cer-
tifications. If any of these other authorizations are
denied, the permit application to the Corps also will
be denied. * Even if such certification or authoriza-
tion is not required by the governmental units con-
cerned, the Corps will give due consideration to the
comments and views of the State, regional, or local
agency having jurisdiction or interest over the par-
ticular activity in question.'" Similarly, the officially
adopted State, regional, or local land use classifica-
tions, determinations, or policies that are applicable
to the areas under consideration shall be considered
by the Corps as part of the public interest review."
*Prior to the July 1982 changes, this was stated directly at a dif-
ferent point: "Pennits will not be issued where certification or author-
ization of the proposed work is required by Federal, State, and/or local
law and that certification or authorization has been denied."
(§320.4[j](5]). This section was eliminated by the 1982 revisions.
'"Clean Water Act, sec. 320.4(j)(l).
"Clean Water Act, sec. 325(j)(2).
Ch. 4 — Wetland Programs That Affect the Use of Wetlands • 83
In cases where several agencies within a State com-
ment on an appUcation and conflict, and no agen-
cy has been designated to provide a single State po-
sition, the Corps will ask the State's Governor to
designate such an agency to provide his/her views
directly.'^ Finally, division engineers will refer per-
mit applications to the Chief of Engineers in cases
where the recommended decision is contrary to the
stated (1982 revisions: written) position of the Gov-
ernor of the State in which the work is to be per-
formed.*^ The Corps generally will issue a permit
following receipt of a favorable State determina-
tion unless it finds "overriding national factors of
the public interest" that cause it to overrule the
State permit decision.'*
Section 401 of CWA provides that no Federal
license or permit for an activity that may result in
a discharge into navigable waters shall be issued
unless the State in which the discharge originates
certifies that such a discharge will comply with the
provisions of CWA. The main application of this
section is to 404-permit requests. Generally, the
State agency responsible for water quality decides
on certification. A few States use this section as their
chief means of regulating wetland development.
Coastal Zone Management Act
Section 307(c) of the Coastal Zone Management
Act (CZMA) of 1972 requires that all Federal ac-
"Clean Water Act, sec. 320.4(j)(3).
"Clean Water Act, sec. 325.8(b)(2).
"Clean Water Act, sec. 320.4(j)(4).
tivities significantly affecting the coastal zones of
States with CZM plans approved by the Secretary
of Commerce be conducted in a manner consistent
with such State CZM plans. In States with ap-
proved CZM programs, applicants for 404 permits
must include in their application to the Corps a cer-
tification that the proposed activity complies with
the State's program. If within a 6-month period the
State agency responsible for coastal zone manage-
ment informs the Corps that it does not concur in
the applicant's certification of consistency, the
Corps may not issue the permit, unless the Secre-
tary of Commerce overrides that State's objection
on grounds that the activity is consistent with the
purposes of CZMA or is necessary in the interests
of national security.
Fish and Wildlife Coordination Act
Under the Fish and Wildlife Coordination Act
and the Reorganization Plan No. 4 of 1970, any
Federal agency that proposes to control or modify
any body of water must first consult with FWS,
NMFS, and the head of the appropriate State agen-
cy administering the wildlife resources of the State
concerned. While the Act does not give State agen-
cies a concrete power to veto or modify Federal pro-
posals, it does mandate a certain level of State in-
volvement in the consideration of many projects
potentially affecting wetlands.
LOCAL PROGRAMS
In some areas of the country, the principal means
of wetland protection outside of the 404 program
come from local programs. Some localities have ac-
quired wetlands directly or have included wetland
parcels along with other land acquisitions for parks
and other protected areas. In addition, some pro-
tection is afforded by local implementation of State
or Federal regulations. For instance, State shore-
land zoning administered by localities in several
States (e.g., Wisconsin) has provisions that protect
84 • Wetlands: Their Use and Regulation
wetlands. The National Flood Insurance Program,
implemented in localities, has several features that
have the effect of protecting wetlands.
Moreover, local building, sanitary, and other
types of codes have had the effect of protecting wet-
lands in many localities. For example, wedands are
often poor locations for siting septic tanks or above-
ground structures, and such uses may be prohibited
by local codes. Several States have State standard-
setting for local regulation (e.g., Virginia, Massa-
chusetts, and Connecticut). Local zoning power
also has been used to protect wedands by providing
for adequate open space and recreational areas.
PRIVATE INITIATIVES
Many private organizations are involved in wet-
land protection. Private efforts such as those of the
Nature Conservancy, Ducks Unlimited, and the
Audubon Society, which have protected many
thousands of acres of wetlands along with other
types of natural areas through direct acquisition,
partial interest, and other means. For example, the
Richard King Mellon Foundation recendy gave the
Nature Conservancy a $25 million grant towards
its efforts to conserve wetland ecosystems in the
United States. Ducks Unlimited is another private
organization interested in preserving wetlands for
duck habitat. Many other national environmental
organizations, while not direcdy managing wedand
areas, carry out various activities (e.g., education)
that help protect wedands. Hundreds of other or-
ganizations on a local or regional level have been
active in wetland protection, including fish and
wildlife clubs, hunting organizations, and general
or special purpose environmental organizations.
Recognizing that Federal acquisition of land
or easements to meet FWS goals exceeds the Fed-
eral Government's fiscal capability at this time,
POWDR group was formed by the Department of
the Interior's former Secretary James Watt. It is
composed of representatives from sportsmen's or-
ganizations, such as Ducks Unlimited and Bass
Angler's Sportsmen's Society, and from corpora-
tions such as DuPont and Olin. The aim of the
group is to advise public and private officials on
wetlands protection and to encourage owners of
wetlands, duck hunting clubs, and others to make
gifts of their land or development rights on their
land to private conservation groups. State agencies,
or FWS.
CHAPTER 4 REFERENCES
1. Barrows, R., Henneberry, D., and Schwartz, S.,
"Individual Economic Incentives, The Tax System
and Wetland Protection Policy: A Study of Returns
to Wetlands Drainage in Southeastern Wisconsin,"
American Society of Agricultural Engineers, summer
meeting, 1982, p. 26.
2. Department of Agricultural Economics, "Wetlands
in the Prairie Pothole Region of Minnesota, North
Dakota, and South Dakota — Trends and Issues,"
North Dakota State University, contract study for
OTA, August 1982, pp. 56-60.
3. Great Plains Office of Policy Studies, "Wedand
Trends and Protection Programs in Nebraska, ' ' Uni-
versity of Nebraska, contract study for OTA, Sep-
tember 1982, pp. 49-55.
Shabman, L., "Economic Incentives for Bottomland
Conversion; The Role of Public Policy and Pro-
grams," Proceedings of Forty- Fifth North Americem
WUdlife Conference, 1980, pp. 402-12.
Shulstad, R. N., and May, R. D., "Cropland Con-
version Study for the Mississippi Delta Region,"
report to Resources for the Future, Department of
Agriculture Economics and Rural Sociology, Univer-
sity of Arkansas, Fayetteville, 1979, p. 181.
U.S Army Corps of Engineers, "The Economics of
Wetlands Drainage in Agricultural Minnesota," St.
Paul District, St. Paul, Minn., 1981.
Chapter 5
Wetland Trends
Photo credit: Robert Friedman
Contents
Page
Chapter Summary 87
National Trends — Net Loss and Gain 87
Factors Affecting Wetland Loss 88
Trend Information 90
Vegetated Wetland Trends 91
Freshwater Wetlands 91
Saltwater Wetlands 93
Regional Trends 94
Agricultural Conversions 108
National Trends in Agricultural Land Use 112
Chapter 5 References 113
TABLES
Table No. Page
1 1 . Relationship Between Wetland Types Used for This Report 88
12. Probable Causes of Freshwater Vegetated Wetland Changes 92
13. Probable Causes of Saltwater Vegetated Wetland Changes 94
14. Physiographic Regions Used for Regionad Analysis of
National Wedand Trends Study Data 95
15. Pattern of Wetland Loss by Physiographic Region 96
16. Percentage of Vegetated Wetland Loss to Different Uses
by Physiographic Region 97
17. Wedand Case Study Sites 98
18. Agricultural Conversions of Wetlands 100
19. Conversions of Wetlands to Open- Water and Deep- Water Environments 102
20. Wetland Losses From Urban Development 104
21. Wetland Losses From Other Activities 106
22. Surface and Subsurface Drainage of Farmland, 1900-1980 109
FIGURES
Figure No. Page
6. Changes in Wedands Since the 1950's 88
7. Freshwater Wetland Trends 92
8. Saltwater Wetland Trends 93
9. Physical Subdivisions 95
Chapter 5
Wetland Trends
CHAPTER SUMMARY
Within the last 200 years, 30 to 50 percent of the
wetlands in the lower 48 States have been converted
by activities such as agriculture, mining, forestry,
oil and gas extraction, and urbanization. About 90
million acres are covered now by wedands. Accord-
ing to the most recent Federal survey, approximate-
ly 11 million acres of wedands in the lower 48 States
were converted to other uses between the mid-
1950's and mid-1970's. This amount was equiva-
lent to a net loss each year of about 550,000 acres,
or about 0.5 percent, of remaining wetlands. Pres-
ent nationwide rates of wetland conversion are
about half of those measured in the 1950's and
1960's. This reduction is due primarily to declin-
ing rates of agricultural drainage and secondarily
to government programs that regulate wedands use.
While coastal wetlands are protected reasonably
well through a combination of Federal and State
regulatory programs, inland, freshwater wetlands,
which comprise 95 percent of the Nation's wedands,
generally are not well protected.
Wedand conversion rates and activities vary sig-
nificantly throughout the country. On the one
hand, conversions in the Lower Mississippi River
Valley occurred between the mid- 1 950 's and mid-
19 70' s at rates that were nearly three times the na-
tional average; on the other hand, rates in the At-
lantic coast (exclusive of Florida) were only 30 per-
cent of the national average. Overall, wetland con-
versions occurred in coastal areas at rates that were
about 25 percent less than inland conversion rates.
Ninety-seven percent of actual wedand losses oc-
curred in inland, freshwater areas during this 20-
year period. Agricultural conversions involving
drainage, clearing, land leveling, ground water
pumping, and surface water diversion were respon-
sible for 80 percent of the conversions. Of the re-
mainder, 8 percent resulted from the construc-
tion of impoundments and large reservoirs, 6 per-
cent from urbanization, and 6 percent from other
causes, such as mining, forestry, and road construc-
tion. Fifty-three percent of inland wetland conver-
sions occurred in forested acres, such as bottom
lands. Of the actual losses of coastal wetlands, ap-
proximately 56 percent resulted from dredging for
marinas, canals, port development, and to a lesser
extent from erosion; 22 percent resulted from ur-
banization; 14 percent were due to dredged-materi-
al disposal or beach creation; 6 percent from natural
or man-induced transition of saltwater wedands to
freshwater wetlands; and 2 percent were from agri-
culture.
NATIONAL TRENDS— NET LOSS AND GAIN
According to the National Wedand Trends Study
(NWTS) (8), conducted recently by the U.S. Fish
and Wildlife Service (FWS), there were in the mid-
1970's approximately 99 million acres of vegetated
and unvegetated wedands in the United States, ex-
clusive of Alaska and Hawaii. * Saltwater (or estua-
"Alaska and Hawaii were not included in NWTS. However, the
Alaska District of the Corps of Engineers estimates that there may
be as many as 223 million acres of wetlands in Alaska, nearly 60 per-
cent of the State. Almost half of this potential wetland acreage (98
million acres) is some type of tundra. Overall, the loss of wetlands
in Alaska has not been great, although it has been concentrated in
a few locations. Figuies for Hawaii were not obtained but are expected
to be quite low in relation to the data for the lower 48 states.
rine) wedands comprise 5 percent of the wetlands;
the rest are freshwater wetlands. (See table 1 1 for
the relationship between the wetland types de-
scribed in this chapter and those discussed in ch.
1 .) About 93 million acres are vegetated types, in-
cluding areas dominated by emergent plants (emer-
gent wedands), large trees (forested wedands), and
shrubs and small trees (scrub/shrub wedands). Be-
tween the mid-1950's and mid-1970's, there was
a net loss of these vegetated wetlands of approx-
imately 1 1 mOlion acres (fig. 6). Ninety-seven per-
cent of this net loss was attributed to freshwater wet-
lands.
87
88 • Wetlands: Their Use and Regulation
Table 11.— Relationship Between Wetland Types Used for This Report^
NWTS wetland classification National Wetland
types discussed in this chapter Trends Study code Wetland types discussed in chapter 2
Estuarine (saltwater):
• Intertidal vegetated:
Emergents 3 Salt and brackish marsh (coastal)
Forested/scrub/shrub 4 Mangrove (coastal)
• Intertidal nonvegetated:
Unconsolidated shore 5 Mudflats (coastal)
Other 7 Submerged beds (coastal)
• Deep water:
Subtidal 2 Submerged beds (coastal)
Palustrine (freshwater):
• Vegetated:
Forested 8 Wooded swamp, bottom land hardwood, bog, pocosin (inland)
Scrub/shrub 9 Bog, pocosin (inland)
Emergent 10 Freshwater marsh, saline marsh, freshwater tidal marsh (inland)
Tundra'' — Tundra
• Nonvegetated:
Unconsolidated shore 11 —
Open water 12 —
Other 13 —
Lacustrine (lakes):
• Deep water 14 —
^Terminology for wetlands used In this chapter includes the classification used by NWTS (the recently adopted USFWS Classification System, with minor modifications
to distinguish vegetated and nonvegetated types, and large or deepwater areas from small or shallow-water areas); the old USFWS Circular 39 Classification System;
and lay language- Since strict correlations cannot be made between these three categories and information obtained by OTA, all three categories are used in this
chapter. The use of this variety of terminology Is intended to clarify, rather than confuse, the discussion.
"Tundra not Included in NWTS data. Under the recent USf=WS classification system it is a palustrine/moss-llchen wetland.
SOURCE: W. E. Frayer. T. J. Monahan. D. 0. Bowden. and F. A. Grayhlll, "Status and Trends of Wetlands and Deepwater Habitats In the Coterminous United States.
1950'sto 1970's," Department of Forest and Wood Services. Colorado State University, Fort Collins. Colo.. 1983, p. 31.
Figure 6.— Changes in Wetlands Since the 1950's
(thousands of acres)
Wetland lost
15,132
Unchanged wetland
89,554
New wetland
3.708
SOURCE; Original data from FWSs National Wetland Trends Study. 1982.
Factors Affecting Wetland Loss
Major sources of loss identified in NWTS include
conversions to agricultural use, urban use, deep
water (lakes, subtidal areas), nonvegetated wet-
lands, and other uses (such as forestry, rangeland,
and mining). Major development activities associ-
ated with these losses of wetlands included dredg-
ing and excavation, filling, draining and clearing,
and flooding. These same activities were respon-
sible for wetland losses in Alaska, although fill ac-
tivities are probably the major source of Alaskan
losses.
Wetland characteristics may change and acreages
increase or decrease in response to natural factors
apart from, or in addition to, the development ac-
tivities listed above. For example, variations in
climate have a major influence on the size and vege-
tation of wedands in the prairie-pothole region and
in Nebraska, as well as on the ease with which they
can be altered for agricultural use (6,9). Natural
succession and activity of increased beaver popula-
Ch. 5— Wetland Trends • 89
tions were the greatest factors associated with wet-
land alteration in Massachusetts between 1951 and
1977; however, development activities were respon-
sible for far more actual losses of wetlands.
Also, changes in sea level, sedimentation, ero-
sion, subsidence, and overgrazing by birds or mam-
mals all have played a role in the loss of wetlands
in coastal Louisiana (2). Because of the many fac-
tors involved, it is difficult to determine the signif-
icance of losses from natural processes relative to
those from man's activities. However, there is evi-
dence that until artificial hydrologic changes were
made, such as containment of the Mississippi River
and canal dredging, there was a slow, long-term
net gain of land (including wetlands) in the region
(2). The dramatic reverse of these gains implies that
much of the loss is man-induced, resulting from a
combination of sediment starvation; canal construc-
tion; saltwater intrusion from navigation channels;
and freshwater pumping for rice irrigation, marsh
impoundment, and cattle grazing (2). Losses re-
ported by NWTS are discussed in more detail be-
low, followed by a discussion of wetland trends
reported in regional case studies.
The average annual net-loss rate for the Nation's
vegetated wetlands in the lower 48 States during
the 20-year period of NWTS was about 550,000
acres/yr, or about 0.5 percent of the Nation's wet-
lands each year. It must be recognized, however,
that the rate of loss is not uniform throughout the
country. For example, the Lower Mississippi Al-
luvicd Plain lost nearly 190,000 acres/yr, or about
1 .6 percent of the region's wetlands each year. The
Pacific mountains lost 19,000 acres/yr, but this also
represented about 1.6 percent of the region's wet-
lands lost each year. These two regions had loss
Photo credit: OTA Staff. Joan Ham
A combination of levee and canal construction, saltwater Intrusion from navigation channels, freshwater pumping for
rice irrigation, marsh impoundments, and cattle grazing have led to major wetland losses in coastal Louisiana
90 • Wetlands: Their Use and Regulation
rates that were three times the national average.
The Atlantic and gulf coastal zones lost about
17,000 acres/yr, or about 0.35 percent of the com-
bined regions' wetlands, a little more than half of
the national rate.
Nonvegetated wetlands include about 6 million
acres of estuarine and palustrine unconsolidated
shore and other types of freshwater open water
(areas less than 20 acres in size or less than 2 meters
deep). Most of the net gain of about 2 million acres
in these nonvegetated wetland types between the
mid-1950's and mid-1970's involved the net in-
crease of 1 . 7 million acres in freshwater, open water
from the "other use" category (i.e., land that
formerly was neither wetland, agricultural, or
urban).
Trend Information
Information from NWTS is the most reliable in-
formation available and is used here to identify ma-
jor sources of loss. The data has strong statistical
validity for nationwide figures on wedand gains and
losses and represents what happened to wetlands
prior to the implementation of the 404 program.
Recent information on how these trends may have
changed since the implementation of the 404 pro-
gram in the mid-1970's and the initiation of other
efforts to control wetland use is available on a
qualitative basis only for some regions of the coun-
try. Regional information from NWTS and case
studies provide less statistically precise trend infor-
mation in specific areas of the country. The regional
case studies also examine other information sources,
including comparative studies and inventories, per-
mit data, and personal interviews.
The recent availability of statistically reliable na-
tional estimates of wetlands in the mid-1950's and
mid-1970's necessitates a reevaluation of previous
estimates of the loss of "original" wetland acreage
in the lower 48 States since the time of European
settlement. All estimates of "original" acreage are
limited by the lack of good data on the amount of
land that has been drained or otherwise reclaimed
and the relationship between wedands and wetsoils.
The following OTA analysis relies on a comparison
of wedands reported for the mid- 1 950 's by NWTS
(8) and the estimates of reclaimed lands for 1950
reported by Wooten (19). To develop an estimate
of the maximum percentage of reclaimed lands that
were wetlands, NWTS data were compared with
the difference between improved lands reported by
Wooten and agricultural lands on wetsoils in 1977
reported by the U.S. Department of Agriculture
(USDA) (16).
The most commonly accepted estimate of 30- to
40-percent loss of original wedands is based in part
on estimates of wedand acreage both originally and
in the 1950's reported in Circular 39 (3,15). In Cir-
cular 39, FWS estimated that a minimum of 45 mD-
lion acres of wetlands had been reclaimed by the
mid-1950's. If this estimate is valid and is added
to the 104 million acres of wetlands that NWTS
reported for the mid- 1 950 's, then there would have
been a minimum of 149 million acres of "original"
wedands, not the 127 million estimated by USDA's
Soil Conservation Service (SCS). NWTS data,
therefore, indicate that FWS Circular 39 estimates
were about 20 percent too low.
The minimum value of 45 million acres of re-
claimed wedands by the mid- 1 950 's was developed
from data prepared by USDA; however, according
to Wooten, a total of 135 million acres had been
reclaimed by 1950. Many of these lands were prob-
ably just wetsoils, and not wetlands. The relation-
ship between wetsoils and wedands cannot be deter-
mined with existing information. Recent USDA in-
formation on wetsoils is correlated with Circular
39 wetland types 3-20 on non-Federal rural lands.
NWTS information on wedands uses the new FWS
classification that doesn't correspond direcdy to Cir-
cular 39 wetland types 3-20, but instead to types
1-20. Also, NWTS doesn't distinguish Federal from
non-Federal lands.
Sixty percent of the increase in agricultural land
on wetsoils between the mid-1950's and mid-1970's
appears to have come from wedands if we compare
the difference between improved lands reported by
Wooten in the 1950's and agricultural lands on wet-
soils in 1977 reported by USDA with NWTS esti-
mates of wetlands in the mid-1950's and mid-
1970's. This estimated 60 percent compares favor-
ably with the estimate discussed later in this
chapter, that 65 percent of the lands drained be-
tween 1955 and 1975 were wedands. Assuming that
the proportion of wetlands to wetsoils that are be-
ing converted to agricultural use probably has been
increasing over time (since it's probably easier to
Ch. 5— Wetland Trends • 91
convert wetsoils to other uses than wetlands), then
the percentage of wetsoils that were reclaimed wet-
lands prior to the mid-1950's was 60 percent at
most. If we then assume that at most 60 percent
of the 135 million acres of reclaimed lands reported
by Wooten were wetlands and add NWTS's esti-
mate of 104 million acres of wetlands in the mid-
1950's, we can derive a maximum value for "origi-
nal" wetlands of 185 million acres.
Thus, previous estimates of loss of original wet-
lands probably were low. If the SCS estimate of
127 million acres of original wetlands is accepted,
then losses may have been as low as 30 percent.
If only one-third of the reclaimed lands were wet-
lands, as was assumed for the purposes of Circular
39, then there was an original acreage of 149 mUlion
acres for a loss of nearly 40 percent. If at most 60
percent of the reclaimed lands were wetlands (as
a means of developing a maximum estimate of 185
million acres of original wetlands), then as much
as 50 percent of the original wetlands may have
been converted. All of these estimates are limited
by the lack of good data on the amount of land that
has been drained or otherwise reclaimed and the
relationship between wetlands and wetsoils.
VEGETATED WETLAND TRENDS
Freshwater Wetlands
Since freshwater areas comprise 95 percent of the
Nation's vegetated wetlands, freshwater wetland
losses are similar to overall national trends (see fig.
7). There was a net loss of 11 million acres of
freshwater vegetated wedands between the mid-
1950's and mid-1970's, representing a reduction
of 1 1 percent. Forested wetlands accounted for 54
percent of the net loss of freshwater vegetated wet-
lands, emergent marshes accounted for 42 percent,
and scrub-shrub wetlands accounted for 4 percent.
Information on actual losses and gains are presented
below and summarized in table 12.
Actual losses of freshwater vegetated wetlands
totaled 14.6 million acres. Agricultural land use was
responsible for 80 percent of these losses. The re-
maining 20 percent was comprised of urban use (6
percent), other use (4 percent), nonvegetated habi-
tat (open water, 4 percent; unconsolidated shore,
1 percent; and other nonvegetated habitat, less than
1 percent), deepwater types (4 percent), and salt-
water vegetated wetlands (less than 1 percent).
These losses to nonvegetated open water and deep
water are most likely associated with impoundments
(e.g., farm ponds, water supply, flood control and
recreational reservoirs, and waterfowl-management
impoundments). They also could be associated with
drainage practices that concentrate water in the
lowest lying wedand to allow drainage of other wet-
lands in the watershed. Factors associated with the
loss to unconsolidated shore might also be associated
with impoundments, especially if water levels fluc-
tuate. Other possible factors responsible for such
loss include grazing, plowing, and natural climatic
shifts associated with reductions in wedand vegeta-
tion. Losses to saltwater wetlands may result from
decreased freshwater outflows or destruction of
dikes in coastal areas.
Actual gains in freshwater vegetated wetlands
totaled 3.6 million acres. Roughly 50 percent of the
gains were from the "other uses" category. These
gains can be accounted for primarily by increases
in emergent and scrub-shrub wedands surrounding
newly constructed farm ponds on lands that were
formerly neither wetlands nor in agricultural use.
According to information from SCS, about 50,000
farm ponds, averaging 0.5 acre in size, were con-
structed each year during the period analyzed in
NWTS (18). Other gains were from agriculture (25
percent), nonvegetated types (13 percent from open
water and 2 percent from unconsolidated shore),
deep water (8 percent), urban areas (1 percent),
and saltwater vegetated wedands (1 percent). Most
of these gains probably were related to successional
changes associated with abandonment of former
land uses, such as the lack of maintenance of drain-
age ditches for forestry and agriculture, or natural
factors like beaver activity, construction of roads
that block drainage, construction of irrigation ditch
92 • Wetlands: Their Use and Regulation
Figure 7.— Freshwater Wetland Trends (mid-l950's to mid-l970's)
12,000 -11,720
10,000
" 8,000
a 6,000
4,000
2,000
□ □
Actual
loss
Actual
gain
1,828
899 925
Agriculture Urban Other use
SOURCE: USFWS National Wetland Trends Study, 1982
Lakes Open water
Conversions of wetlands
Bare stiore Ottier nonveg. Salt. veg.
Table 12.— Probable Causes of Freshwater Vegetated Wetland Changes
Acres Cause of loss
Freshwater wetland loss to:
Agriculture 11,720,000 Drainage, flooding, excavation, clearing, land-leveling, filling, ground
vi^ater pumping, and surface water diversions for conversion to
cropland
Urban use 925,000 Fill for development
Deep water 621,000 Impoundments
Otfier use 618,000 Drainage, excavation, filling for forest management, mining, other
Open water 579,000 Impoundments, drainage/flooding, excavation, climatic changes
Unconsolidated shore 188,000 Impoundments, grazing, plowing, climatic changes
Other nonvegetated 25,000 —
Saltwater vegetated 1,000 Decreased freshwater outflow, destruction of dikes
Total 14,677,000
Acres Cause of gain
Freshwater wetland gains from:
Other uses 1,828,000 Succession around margins of newly constructed farm ponds
Agricultural use 899,000 Lack of maintenance on drainage ditches, dikes
Open water 450,000 Succession around margins of existing ponds
Deep water 305,000 Succession around margins of larger water bodies
Unconsolidated shore 65,000 Vegetation establishment
Urban use 38,000 Drainage and open space management
Saltwater vegetated wetlands 25,000 Increased freshwater outflow, construction of dikes
Other nonvegetated 1 2,000 —
Total 3,622,000
SOURCE; Data from FWS National Wetland Trends Study, 1983.
Ch. 5— Wetland Trends • 93
systems that may leaik and support some wetland
vegetation, and construction of dikes in coastal
areas.
Saltwater Wetlands
Saltwater-loss trends differ from those of fresh-
water since conversions to deep water and urban
use are most prevalent. Agricultural use has had
litde impact on saltwater wetlands in recent years
(see fig. 8). There was a net loss of 373,000 acres
of saltwater vegetated wetlands between the mid-
1950's and mid-1970's, representing a 7.6-percent
reduction. Emergent saltwater wetlands comprised
95 percent of these net losses. The remaining 5 per-
cent were saltwater forested and scrub-shrub wet-
lands. Information on actual losses and gains is
presented below and summarized in table 13.
Actual losses in saltwater vegetated wetlands
totaled 482,000 acres. Conversions to deep water
were responsible for 55 percent of these losses. This
amount probably can be attributed to dredging for
canals, port zmd marina development, and erosion.
Urban use accounted for 22 percent of the losses.
Conversions to nonvegetated types (i.e., unconsoli-
dated shore, 1 1 percent; and other, 2 percent) were
likely to be associated with dredged-material dis-
posal practices, removal of vegetation for recrea-
tional development, such as beach creation, and
death of vegetation associated with changes in salin-
ity. Transitions to freshwater vegetated wetlands
were responsible for 6 percent of the losses. Such
transitions could be related to increases in fresh-
water outflow or dike construction. Agriculture and
other uses were each responsible for 2 percent of
the losses.
Actual gains in saltwater vegetated wetlands
totaled 109,000 acres. Roughly 50 percent of the
gain was from deepwater areas, and 40 percent was
Figure 8.— Saltwater Wetland Trends (mid-l950's to mid-i970's)
500
400
300
200
n~ D
Actual
gain
(268)
100
(107)
(9)
I L
(2)
(0)
(54)
(62)
(44)
(25)
JUL
(1)
(11) (8)
' ' '
Urban
Agriculture
SOURCE USFWS National Wetland Trends Study, 1982.
Deepwater Nonveg.
Conversions of wetlands
Fresh, veg.
Otfier use
94 • Wetlands: Their Use and Regulation
Table 13.— Probable Causes of Saltwater Vegetated Wetland Changes
Acres Cause of loss
Saltwater wetland loss to:
Deep water 268,000 Dredging for canals, port and nnarina development, erosion
Urban use 107,000 Fill for development
Unconsolidated shore 50,000 Dredged material disposal, removal of vegetation for recreational
development, death of vegetation
Freshw/ater vegetated wetlands .... 25,000 Increased freshwater outflow, dike construction
Agriculture 9,000 Diking for conversion
Other uses 11,000 Filling for port development
Other nonvegetated 12,000 —
Total 482,000
Acres Cause of gain
Saltwater wetland gain from:
Deep water 54,000 Natural establishment of vegetation, marsh creation efforts
Nonvegetated types 44,000 Same as deep water
Other uses 8,000 Same as deep water
Agriculture 2,000 Destruction of dikes
Freshwater vegetated wetlands .... 1,000 Reductions in freshwater outflow, dike construction, increased
saltwater inflow
Total 109,000
SOURCE: Data from FWS National Wetland Trends Study, 1983.
from nonvegetated types. Reasons for these changes
probably include natural establishment of vegeta-
tion and marsh-creation efforts associated with
dredged-material disposal and erosion-control prac-
tices. Other uses were responsible for 7 percent of
these gains, and abandonment of agricultural lands
accounted for 2 percent of the gains. The remain-
ing 1 percent were gains from freshwater vegetated
wetlands that may be associated with reductions in
freshwater outflow, destruction of dikes, or in-
creased saltwater flow.
Regional Trends
Using national figures of wetland losses and gains
can be misleading. Farm ponds — such as in Mis-
souri— even with aquatic plant improvements
through plant succession, cannot compensate for
potholes lost in the prairie-pothole area. A wide
variety of migratory birds uses the latter for repro-
duction and rarely or infrequently uses the former.
Regional information on wetland use was obtained
by OTA from four primary sources: NWTS, other
inventory and trend studies, permit information,
and interviews.
NWTS (8)
For OTA's study, NWTS grouped its data into
13 regions so that wetland losses and gains on
regional levels could be analyzed. The regions are
listed in table 14 and shown in figure 9. Although
this study was based on a stratified random sam-
pling, very large standard errors are associated with
its data on a regional level.' The regional data re-
flect actuEil losses and gains in wetlands and other
land uses at the sample sites. Such data indicate
probable trends in wetland use in a region, especial-
ly if they can be supported by other sources of
evidence.
Regional data provide an average picture over
a large area and do not necessarily reflect the ac-
tual status of wetlands within a single State in the
region. For example, in the Upper Midwest, Illinois
lost 186,905 acres, or 23 percent, of the wetlands
that were present in the mid- 1 950 's; Wisconsin lost
133,872 acres, or 3 percent, of wetlands present in
'The following explanation of statistical reliability is from W. E.
Frayer & Associates, "Status and Trends of Wetlands and Deepwater
Habitats in the Coterminous United States, 1950's to 1970's — Final
Draft 1982." National Wedands Inventory, Office of Biological Serv-
ices, U.S. Fish and Wildlife Ser\'ice;
Standard errors for overall wetland loss figure for physiographic
regions range from a low of 1 1 percent of the measured loss in the gulf
coastal zone to a high of over 134 percent of the measured loss in the
intermontane region. The majority of the standard errors for physio-
graphic regions are from 15 to 35 percent of the measured loss. Reliahili-
ty can be stated generally as "we are 68 percent confident that the true
value is within the interval constructed by adding to and subtracting
from the entry the SE%/100 times the entry." For example, if an entry
is 1 million acres and the SE percent is 20, then we are 68-pcrcent con-
fident that the true value is between 800,000 and 1.2 million acres.
An equivalent statement for 95-percent confidence can be made by add-
ing and subtracting twice the SE%/100 to and from the entry,
respectively.
Ch. 5— Wetland Trends • 95
Table 14.— Physiographic Regions Used for Regional
Analysis of National Wetland Trends Study Data
Region
1— Atlantic coastal zone^
2— Gulf coastal zone''
3— Atlantic coastal flats^
4— Gulf coastal flats'"
5— Gulf-Atlantic rolling plain
6— Lower Mississippi Alluvial Plain
7— Eastern tiighlands
8— Dal<ota-Minnesota drift and lake bed flats
9— Upper Midwest
10— Central
11— Rocky Mountains
12— Intermontane
13— Pacific mountains
^Atlantic regions do not include Florida.
Gulf regions include Florida.
SOURCE: Ollice of Technology Assessment.
the region. Data from Minnesota more closely re-
flect the trends for the entire region. Minnesota lost
447,709 acres, or 8 percent, of wetlands in the up-
per midwest portion of the State.
The proportion of wetlands and percentage of
loss vary considerably in the different physiograph-
ic regions (see table 15). Three regions have a
greater proportion of land area as wetlands and a
greater loss rate than the national averages of 5 per-
cent and 11 percent, respectively: Lower Mississip-
pi Alluvial Plain, gulf coastal flats, and gulf-Adantic
roUing plain. Five regions have a greater propor-
tion of land area as wetlands and loss rates at less
than or equal to the national averages: Adantic
coastal zone, gulf coastal zone, Adantic coastal flats,
Dakota-Minnesota drift and lakebed flats, and Up-
Figure 9.— Physical Subdivisions
Atlantic Coastal Zone
Gulf Coastal Zone
Atlantic Coastal Flats
Gulf Coastal Flats
Gulf-Atlantic Rolling Plain
Lower Mississippi Alluvial Plain
Eastern Higtilands
Dakota - Minnesota Drift and Lake-bed Flats
9 Upper Midwest
10 Central Hills and Plains
11 Rocky Mountains
12 Intermontane
13 Pacific Mountains
Scale 1-17,0X,000
100 200 300 400 lollies
600 Kilometers
96 • Wetlands: Their Use and Regulation
Table 15.— Pattern of Wetland Loss by Physiographic Region
Wetland portion New loss of Standard
of region wetlands (mid- Actual Actual error for
(mid-1950's) 1950's-mid-1970's loss gain net change
Region (%) (%) (acres) (acres) (%)
1— Atlantic coastal zone^ 16 3 84,000 48,000 52.3=
2— Gulf coastal zone" 28 9 371,000 70,000 11.3"
3— Atlantic coastal flats^ 36 11 1,274,000 74,000 15.0®
4— Gulf coastal flats" 27 13 1 ,872,000 341 ,000 14.5'
5— Gulf-Atlantic rolling plain 8 13 2,310,000 291,000 31.29
6— Lower Mississippi Alluvial Plain . 36 32 3,749,000 331,000 8.6^
7— Eastern highlands 2 2 322,000 211,000 68.89
8— Dakota-Minnesota drift
and lake bed flats 10 9 816,000 424,000 33.69
9— Upper Midwest 8 7 2,286,000 754,000 16.89
10— Central 1 3 763,000 637,000 (i)
11— Rocky Mountains 4 <1 125,000 112,000 (i)
12— Intermontane 1 12 685,000 320,000 (i)
13— Pacific mountains 1 31 473,000 94,000 77.1
^Atlantic regions do not include Florida.
Gulf regions include Florida.
^Standard error given is for saltwater wetlands. The fresfiwater wetlands had a net gain of 10,626 acres witti a standard error of 86.9 percent.
Standard error given is for saltwater wetlands. Tfie freshwater wetlands had a net gain of 2,137 acres with a standard deviation greater than this value.
^Standard error given is for freshwater wetlands. Saltwater wetlands had a net loss of 866 acres with a standard deviation greater than this value.
Standard error given is for freshwater wetlands Saltwater wetlands had a net gain of 933 acres with a standard error of 81.6 percent
9standard error is for all vegetated wetlands measured in region which included exclusively freshwater types.
. Standard error is for freshwater wetlands. Saltwater wetlands had a net loss of 22,282 acres with a standard error of 67.8 percent,
'standard deviation is greater than estimated net change.
SOURCE: Original data from f=WS National Wetland Trends Study. 1983.
per Midwest. Two regions have a lower propor-
tion of land area as wetlands and loss rates greater
than the national average: Pacific mountains and
Intermontane. Three regions have a lower propor-
tion of land area as wedands and loss rates less than
the national average: Eastern highlands, Central,
and Rocky Mountains. Although the amount of
wedand acreage lost from these areas with relatively
few wetlands may not have contributed much to
the national totals, such losses may be environmen-
tally significant on a regional level.
The percentage of wetland loss to various activi-
ties varies among the physiographic regions (see
table 16). The actual losses of vegetated freshwater
wetlands to agriculture range from 1 to 90 percent.
However, agricultural use was the greatest cause
of loss of vegetated freshwater wetlands in all
regions, and the proportion of agricultural loss was
greater than the nationEil average (i.e., 80 percent)
in six regions.
In all 11 physiographic regions with predom-
inandy vegetated freshwater wedands, the losses to
agriculture were greater than any gains in wedands
from agriculture. However, there were two excep-
tions to this net loss to agriculture when data from
subdivisions comprising the physiographic regions
were examined. (Standard errors are extremely
high for subdivision data.) Agriculture is a source
of net gain of wetlands in the Adirondack-New
England subdivision of the Eastern highlands re-
gion. This trend is supported by the findings of the
New England case study, which notes increases in
wetlands from agricultural abandonment and the
lack of maintenance of drainage ditches. Agricul-
ture is also a source of net gain of wetlands in the
Columbia Basin subdivision of the Intermontane
region. Wetland increases associated with irriga-
tion development may be partially responsible for
this trend.
Conversions to urban use were the second most
important cause of actual losses in two regions, the
third most important cause in three regions, and
the least important cause in six regions. Propor-
tions of loss to urban use range from 0 to 36 per-
cent. These proportions are greater than the nation-
al average (6 percent) for urban loss in three re-
gions: gulf coastal flats. Eastern highlands, and Up-
per Midwest.
In all regions, losses to urban use were greater
than any gains in wetlands from this use, with one
Ch. 5— Wetland Trends • 97
Table 16.— Percentage of Vegetated Wetland Loss to Different Uses by Physiographic Region^
(mid-1 950's to mld-1970's)
Region Agriculture Urban Other Water/nonvegetated
1 —Atlantic coastal zone^ 5 36 5 54
2— Gulf coastal zone<= 1 19 2 78
3— Atlantic coastal flats" 89 6 2(+) 3
4— Gulf coastal flats'^ 66 19 4(+) 11
5— Gulf-Atlantic rolling plain 84 3 4(+) 9
6— Lower Mississippi Alluvial Plain 90 3 3(+) 4
7— Eastern higtilands 38 22 5(+) 35
8— Dakota-Minnesota drift and lake bed flats 83 1 4 (-I-) 12 (+)
9— Upper Midwest 71 8 3(+) 18
10— Central 63 5 ^S(+) M ( + )
11— Rocky Mountains 71 0 19( + ) 10( + )
12— Intermontane 88 1 7(+) 4(-t-)
13— Pacific mountains 87 1 7(-l-) 5
^(-*-) indicates there was a net gain in wetlands from the use category in the region. If (+) is not indicated, then there was a net toss from that use category.
Atlantic regions do not include Florida.
^'Gulf regions include Florida.
SOURCE: Original data from FWS National Wetland Trends Study, 1983.
exception. Urban use is a source of wetland gain
in the West central rolling hills subdivision of the
Central region which can be attributed to a gain
in wedands in Iowa, accompanied by a slightly
lower rate of wetland conversion to urban use in
Nebraska. Gains of wetlands from urban use in
Iowa could be associated with flood plain manage-
ment activities.
The combined category of deep water, open
water, and other nonvegetated types was the sec-
ond most important cause of actual losses of vege-
tated freshwater wetlands in six of the regions and
the third most important cause in the remaining
five regions. The proportion of these losses was
greater than the national average (10 percent) in
five regions.
These losses to deep water, open water, and other
nonvegetated types were accompanied by gains in
freshwater vegetated wetlands from these cate-
gories, resulting in a net gain in 4 of the 1 1 regions,
including Dakota-Minnesota drift and lakebed flats,
Central, Rocky Mountains, and Intermontane. All
other regions had a net loss of vegetated wetlands
from these categories. Subdivision data on these net
changes show five exceptions each for the general
region trends of net loss and net gain of vegetated
wetlands from this category. Again, standard er-
rors for these numbers are very high.
Conversions to other uses were the second most
important cause of loss in three regions, the third
in four regions, and last in the remaining four
regions. Proportions of loss from other uses range
from 2 to 19 percent. These proportions are greater
than the national average (4 percent) in five regions.
In all regions, these losses to other uses were accom-
panied by gains, resulting in a net gain in fresh-
water vegetated wetlands from this category. This
gain is relatively small when compared to the overall
losses of wetlands.
Two physiographic regions comprise 98 percent
of the data for saltwater wetlands: Atlantic coastal
zone and the gulf coastal zone. The remaining 2
percent is primarily from the Lower Mississippi Al-
luvial Plain. A very small amount of saltwater wet-
lands was also measured in the gulf and Atlantic
coastal flats regions. No data were coflected for
saltwater wetlands of the Pacific coast.
The Atlantic coastal zone and gulf coastal zone
(including Florida) both showed a net loss of salt
and brackish wetlands. However, in the Atlantic
region, this loss was attributed primarily to urban
use. There was also a net loss due to agriculture,
conversions to freshwater wedands, and other uses.
A net gain of vegetated wedands resulted from deep
water, open water, and other unvegetated areas.
In the gulf region, the net loss of salt and brackish
wedands was due primarily to deep water and non-
vegetated areas. Louisiana and Florida accounted
for 84 percent and 10 percent of these losses, respec-
tively. Erosion, subsidence, and dredging for canals
and marinas were probably responsible for these
trends. Urban losses also were significant. Addi-
tional losses were due to agricultural and other uses.
98 • Wetlands: Their Use and Regulation
Regional Case Studies
Ten OTA regional case studies (table 17) of
trends in wedand use in 21 States provided infor-
mation from three major sources:
• Wetland inventory and trend information
(other than NWTS); There are few reliable
trend studies. Moreover, there are many prob-
lems with comparing inventory studies to es-
tablish trends, owing to variations in wetland
definitions, size categories, and study areas.
For example, in Minnesota, a 1950 inventory
examined wedands within 15,803 square miles
(mi^) of the prairie-pothole region. A 1955 in-
ventory looked at Circular 39 types 1-8 in
western Minnesota; in 1964, types 3-5 were
inventoried in 19 western Minnesota counties;
and in 1982, types 3-5 (over 10 ^cres) were
inventoried in 1 4 western Minnesota counties
Permit information on section 404 and State
programs: There are few cases where data
have been compiled for particular permit pro-
grams. Data that are available generally report
only what has been allowed under the reported
permit program and exclude information on
illegal activity and activities taking place in
wedands that au-en't covered by the permit pro-
Table 17.— Wetland Case Study Sites
Region/States
OTA contractor
New England/Massachusetts,
Connecticut, Rhode Island,
Vermont, Maine, and New
Hampshire
North and South Carolina
Gulf Coast and Lower
Mississippi River/Louisiana,
Texas, and Mississippi
Prairie Potholes/Minnesota,
North and South Dakota
California and Alaska
New Jersey
Washington
Nebraska
Florida
Water Resources Research Center
University of Massachusetts
Amherst, Mass. 01003
School of Forestry and Environmental Studies
Duke University
Durham, N.C. 27706
Coastal Ecology Laboratory
Center for Wetland Resources
Louisiana State University
Baton Rouge, La. 70803
Department of Agricultural Economics and
Center for Environmental Studies
N.D. Agricultural Experiment Station
North Dakota State University
Fargo, N.D. 58105
ESA/Madrone, Environmental Consultants
23-B Pamaron Way
Novate, Calif. 94947
JACA Corporation
550 Pinetown Road
Fort Washington, Pa. 19034
Shapiro and Associates, Inc.
The Smith Tower, Suite 812
506 Second Avenue
Seattle, Wash. 98104
Center for Great Plains Studies
1213 Oldfather Hall
Lincoln, Nebr. 68588
Center for Governmental Responsibility
Holland Law Center
University of Florida
Gainesville, Fla. 32611
SOURCE: Office of Tecfinology Assessment.
Ch. 5— Wetland Trends • 99
gram. The 404 program provides only very
general unverifiable estimates of acreages of
wetlands converted by permitted projects on
a districtwide basis.
• Interviews: Interviews are probably the best
qualitative source of information if they are
accompanied by information from the other
data sources. However, they must be viewed
strictly as expert testimony.
OTA information from the regional case studies
allows the following general conclusions about past
and current wetland trends:
• Agricultural practices are a major factor
associated with wedand loss in inland areas of
North Carolina, South Carolina, Maryland,
Florida, Nebraska, and California, plus the
prairie-potholes and Lower Mississippi River
Valley. Losses to wetlands continue in these
areas today. More detailed information on ag-
ricultural conversions is provided at the end
of this chapter.
• Loss of coastal freshwater and saltwater wet-
lands to open water, deep water, and unvege-
tated areas through dredging and filling for
marinas and canals is a major factor in South
Carolina, North Carolina, Texas, Louisiana,
California, New Jersey, Florida, and Wash-
ington. The rate of loss from man's activities
has been reduced as a result of regulatory ef-
forts under the Federal section 404 program
and State programs. Some projects are not ap-
proved; others are approved with required
measures for restoration or creation of wet-
lands. Regardless of mitigation measures,
however, losses continue to occur.
• Loss of inland wetlands to open and deep
water areas from impoundments occurs in
New England, Nebraska, Lower Mississippi
River Valley, and prairie-potholes areas.
Losses related to agricultural development and
the farm pond exemption continue, although
the construction of farm ponds may result in
new wetlands forming on adjacent lands.
Losses from newly designed impoundments
and channels for flood control and municipal
water supply continue, but projects are
handled in a more environmentally sensitive
manner in accordance with Federal and State
environmental and regulatory policies. Some
projects may require mitigation.
• Urban development has been a major factor
in wedand loss in coastal areas in South Caro-
lina, Florida, Mississippi, California, Wash-
ington, New Jersey, New England, and Alas-
ka. Federal and State regulatory programs
have slowed the loss considerably. Current
losses usually are restricted to water-dependent
projects and often require mitigation. Losses
continue in areas that are not subject to regula-
tion and from small projects that potentially
may have significant cumulative impacts.
Losses also continue in areas (e.g., southeast
and south-central Alaska) where there are few
alternative construction sites in nonwedands.
• Sources of loss from other uses include forest-
ry, mining, port development, road construc-
tion, and succession to nonwedands. These ac-
tivities are important to varying degrees in
many areas, including North Carolina, the
Lower Mississippi River Valley, Florida, New
England, Nebraska, prairie-potholes, Mary-
land, California, Alaska, and Washington.
Losses continue for nonregulated activities and
areas. Losses also continue for activities sub-
ject to regulation, but again are generally
handled in a more environmentally sensitive
manner in accordance with Federal and State
environmental and regulatory policies.
Case study information can reveal further some
of the specific factors associated with these losses
in different regions. The following tables summar-
ize case study information on the major national
trends for vegetated wetlands. Tables 18 to 21 pre-
sent information on conversions to agriculture,
open and deep water, urban development, and
other uses, respectively. Conversions to other non-
vegetated wetlands were not addressed specifically
in the case studies. The category "other uses" in-
cludes information on forestry, mining, ports, road
construction, and activities in non wetlands. The
tables include information on how the conversions
are accomplished, important regions and types of
wetland involved, reasons why the changes occur,
and current and past trends, where available. Im-
pacts of activities causing conversions are discussed
further in chapter 6; the current programs that reg-
100 • Wetlands: Their Use and Regulation
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108 • Wetlands: Their Use and Regulation
ulate these activities are discussed in chapters 7,
8, and 9. Further elaboration on the reasons for
the major source of loss, due to converson to
agriculture is presented following the tables.
Agricultural Conversions
Information on Federal policy and national
trends in agricultural land use was obtained from
a working paper on agricultural policies prepared
for OTA, except where other sources are noted.
Trends in Agricultural Conversions
Eighty percent of freshwater wetland losses oc-
curring between the mid-1950's and the mid-1970's
were attributed to agricultural conversions, accord-
ing to NWTS data. Only 2 percent of estuarine wet-
lands were lost to agriculture during this 20-year
period. Conversions of estuarine wetlands to agri-
cultural use were greater prior to 1950. For exam-
ple, in the Snohomish Estuary of western Washing-
ton, conversion of wetlands to agricultural use was
greatest prior to 1940 but continued to increase at
a reduced rate untU about 1960 (14). In Califor-
nia, diking of northern coastal wetlands for
agriculture primarily occurred prior to 1950 (7).
Since that time, many of the diked former agricul-
tural areas have been filled for other uses. On the
east coast, former diked estuarine wetlands used
for agriculture have in many cases reverted back
to estuarine wetlands or been maintained for non-
agricultural purposes such as waterfowl production
(13).
Although the general trend is the loss of wedands
to agriculture, there have been some relatively small
gains in wetlands from former agricultural lands.
Agriculture-related losses and gains of freshwater
vegetated wetlands were 11.7 million and 899,000
acres, respectively. Similar losses and gains of es-
tuarine wetlands were 9,000 and 2,000 acres, re-
spectively. Some parts of New England actually had
net gains in wetlands from agricultural land use.
Some of these agricultural lands have reverted to
wetland through lack of maintenance of former
drainage ditches. However, the majority of aban-
doned agricultural areas have been converted to
other nonwetland uses (17).
Wedand conversion to agriculture almost always
involves surface drainage, but drainage may occur
in areas that are not wedands. USDA has prepared
estimates of surface and subsurface drainage of all
lands between 1900 and 1980. The data do not
cover wetlands separately. By examining these
drainage data in relation to NWTS estimates of
wetland loss to agriculture between the mid-1950's
and mid-1970's, it is possible to make some esti-
mates of wetland loss to agriculture between 1975
and 1980 on a nationwide basis.
Pavelis (11) estimates that about 17 million acres,
or about 850,000 per year, were surface-drained
between 1955 and 1975 (table 22). During approx-
imately the same period of time, NWTS estimates
that 11 million acres of wetlands, about 550,000
acres/yr, were converted to agricultural land. This
amount represents about 65 percent of the surface
drainage. Between 1975 and 1980, just over 2 mil-
lion acres, or about 426,000 acres/yr, were sur-
face-drained. Even if all the drained lands were
wetlands, the rate of wetland conversion (requir-
ing surface drainage) has declined by at least 20
percent. However, if the proportion of drained wet-
lands to overall drained land has remained about
65 percent since 1975 the rate oi actual wedand con-
version to agricultural land would be about 275,000
acres/yr or about 50 percent of past wetland drain-
age rates. If gains in wetland acreage due to agri-
culture are proportional to those of the mid-1950's
to mid-1970's, nef conversion rates would be just
over 250,000 acres/yr.
Interpretation of these nationwide figures may
be somewhat misleading. In the past, drainage was
concentrated in the Midwest, the Lower Mississippi
River Valley, and the Atlantic and Texas coasts.
More recently, although new drainage has been at
a virtual standstill in many parts of the country,
significant drainage activity still is taking place in
the Lower Mississippi River Valley, Florida, and
the Southeast in general (12). For example, data
from the Lower Mississippi River Valley show that
rates of clearing of bottom land hardwoods (which
is often accompanied by drainage for crop produc-
tion) continued to increase between 1967 and 1977
in Louisiana. Louisiana also had the greatest per-
centage of remaining forest in 1978. But in the five
Ch. 5— Wetland Trends • 109
Table 22.— Surface and Subsurface Drainage of Farmland, 1900-1980
Farmland currently Acreage shares Annual change, past Undepreciated
Year drained 5 years drainage^
Surface Subsurface Surface Subsurface Surface Subsurface Surface Subsurface
drainage drainage drainage drainage drainage drainage drainage drainage
systems systems systems systems systems systems systems systems
(Millions of acres)'' (Percent) (Thousands acres per year)'' (Millions of acres)
1900 5.271 1.024 837 1^3 — — 3.975 1.014
1905 9.775 1.902 83.7 16.3 900 176 7.447 1.877
1910 18.673 3.632 83.7 16.3 1,780 346 15.313 3.572
1915 29.344 5.701 83.7 16.3 2,134 414 25.029 5.541
1920 43.452 5.993 87.9 12.1 2,822 58 38.131 5.573
1925 .. . 41.420 6.143 87.1 12.9 -406 30 41.412 6.143
1930 42.676 6.687 86.5 13.5 251 109 38.514 6.010
1935 38.606 7.244 84.2 15.8 -814 111 32.697 6.118
1940 36.532 8.905 80.4 19.6 -415 332 19.298 4.711
1945 40.769 9.555 81.0 19.0 847 130 15.800 3.291
1950 57.980 11.949 82.9 17.1 3,442 479 22.849 5.394
1955 64.995 13.670 82.7 17.3 1,443 344 29.172 6.510
1960 70.784 15.823 81.7 18.3 1,117 431 34.252 7.550
1965 76.013 17.630 81.2 18.8 1,046 361 35.244 9.048
1970 79.753 19.331 80,5 19.5 748 340 21.773 10.426
1975 82.583 20.817 79.9 20.1 566 297 17.588 11.912
1980 84.715 22.768 7a8 21^2 427 390 13.931 13.863
* "Undepreciated drainage" refers to surface drainage systems in place for less tfian 20 years, to tfiose subsurface systems in place for less than 30 years if installed
before 1940. or to those subsurface systems in place for less than 40 years if installed in 1940 or thereafter. Note that by 1980 surface and subsurface systems were
about equal in importance on an "undepreciated basis," even though surface systems are still in much wider use, as indicated by the acreages and percentage distributions
for current drainage (cols. 1 to A). Such a breakdown is useful as an overall indicator of general age and condition of farm drainage systems and was helpful for measur-
ing active gross capital stocks and net capital values.
Acreages for surface and subsurface drainage add to the overall net acreage drained.
"Rates of increase or decrease for surface and subsurface drainage add to the overall change for all farm drainage.
SOURCE: G. A, Pavelis, unpublished draft, "Farmland Drainage in the United States, 1900 to 1980: Acreage, Investment and Capital Values, 1982."
Other States in the study region, clearing had
peaked between 1957 and 1967. The study notes
that "rates of acreage decreases in bottom land
hardwood forest area closely reflect the magnitude
of reduction in total hardwood forest area by State
(10)." Thus, although national drainage rates have
declined, wedand drainage probably is continuing
in some areas.
How Wetlands Are Lost to Agriculture
Wedands are lost to agriculture through two pri-
mary means: direct conversions by draining artd/or
clearing and indirect conversions associated with
normal agricultural activities. Direct conversions
of wetlands for the purpose of expanding agricul-
tural operations probably result in far more lost
wetland acreage than do the indirect conversions
on a nationwide basis. However, indirect conver-
sions may be the major factor associated with loss
of wetlands to agriculture in some regions of the
country. Conversion activities are summarized in
table 18.
Examples of direct conversion of wetlands to ag-
riculture include drainage to expand crop acreage
in the prairie-pothole region, construction of irriga-
tion reuse pits to improve irrigation efficiency and
to drain wedands in the Rainwater Basin of Nebras-
ka, clearing and draining bottom land hardwoods
for soybean or rice production in the Lower Mis-
sissippi River Valley and for soybeans and other
crops in North Carolina, and the mowing-chop-
ping-seeding-grazing sequence for improving
Florida sawgrass for agriculture.
Examples of indirect conversions of wetlands as-
sociated with normal agricultural activities include
the general lowering of the water table for irriga-
tion, which results in drying of "wet meadows,"
making them suitable for crops in the Platte River
Valley and the Sandhills of Nebraska; changing
water-management practices associated with crop
changes in the Central Valley of California (i.e.,
when ricefields are converted to orchards, water
from flooded ricefields is no longer available for
discharge to wetlands); clean farming techniques
1 10 • Wetlands: Their Use and Regulation
•**'-4(t.
V
, ^^*
..«?•
Photo credit: U.S. Fish and Wildlife Service
NWTS estimates that between the mid-1950's and mid-1970's 11 million acres of wetlands or about 550,000 acres/yr
were converted to agricultural use through drainage and clearing
such as changes in rice-culture practices that result
in fewer wetland species growing within ricefields;
and changes in seed varieties and equipment that
allow earlier planting and later harvests and tend
to eliminate wetland vegetation that might grow in
cultivated areas at other times of the year.
Individual permits under section 404 generally
are not required for these direct and indirect con-
version activities, either because they occur in areas
covered by nationwide pennits, are exempted under
law, entail no dredge or fill activities, or involve
incidental discharges or vegetation clearing that falls
outside the Army Corps of Engineers guidelines for
regulated activities. Even in cases where the Corps
requires an individual permit, it is likely that the
activity will be approved with few modifications due
to difficulties associated with demonstrating adverse
water quality and cumulative impacts from these
activities. (See ch. 8 for further discussion of these
issues.)
In the opinion of some agricultural analysts, the
404 program has had a minimal effect on the con-
version of wetlands to agriculture or is viewed as
being a modest nuisance, but not a significant
hurdle for farmers. Although the importance of the
404 program varies in different locations, the Corps
generally gets involved in response to a complaint
or for very large projects. Monitoring potential ag-
Ch. 5— Wetland Trends '111
ricultural conversion activities and enforcement of
section 404 is not now considered possible, given
the current manpower and budget of the Corps.
Economic factors (e.g., profits, available land,
costs of maintaining wetlands) and Government
policies often are cited as reasons for converting
wetlands to agricultural use.
ECONOMIC FACTORS
Commodity prices are a major factor in the deci-
sion to expend funds to bring wetlands into pro-
duction. In some parts of the country, when prices
are sufficiendy high, it can be extremely lucrative
to grow crops on wetsoils that may, but not neces-
sarily, include wetlands. For example, in an anal-
ysis of minimum prices and potential yields for con-
version of different wetsoils to soybean production
in the southern Mississippi Valley alluvium, it was
found that the minimum price for planting soybeans
profitably ranged from $L05 to $2.31 per bushel
(bu) (5). With soybean prices ranging from a low
of about $2.00/bu in 1958 to a high of over $7.00/bu
in 1976, growing soybeans has been extremely lu-
crative (10). Production alternatives on these bot-
tom land hardwood acres are not nearly as econom-
ically desirable as crop production. For instance,
sustained timber production from natural bottom
land hardwood stands is not considered to be a
viable economic investment. Hardwood plantations
can produce good returns on some sites, but crop
returns are better (10).
There is general agreement that the primary rea-
sons for draining wetlands in the prairie-pothole
region are the economic and technological factors
associated with farming, including the:
• elimination of the nuisance and cost of avoid-
ing potholes situated within cropland;
• opportunity to gain relatively productive crop-
land by draining wedands (particularly if land
is already owned);
• change in farming from a diversified crop-
livestock combination to increasing emphasis
on row-crop and small-grain production;
• rapid increase in tractor horsepower, which in-
creases avoidance costs and facilitates drainage
of potholes by providing the power to operate
drainage equipment. This allows the land-
owner the opportunity to drain his own land
during slack periods at low cost;
• continuing increase in the use of center-pivot
irrigation systems that are not compatible with
potholes;
• variable short-term climatic conditions that in-
crease nuisance and cost factors in a wet year
and provide opportunity for low-cost drainage
in a dry year;
• short-term net farm income variability, which
provides investment capital for drainage dur-
ing periods of high income and increases the
incentive to expand cropland area;
• absence of private returns from maintaining
wedands without Government programs; and
• low returns from Government incentives to
preserve wetland relative to profits from con-
version (6).
Pressures on agricultural lands from urban use
(also an economic issue) may increase demands for
agricultural land on wetlands in some parts of the
country. For example, in south Florida, land use
data for a single county between 1972 and 1980
showed that 23,767 acres of wetlands were con-
verted to agricultural use while 655 acres were ur-
banized. During that same period, 24,539 acres of
agricultural lands were lost to urbanization. Thus
it appears that urbanization displaces agriculture,
which then moves into wetland areas (1).
Costs of maintaining wetlands may be a factor
in the decision to convert to agriculture in a few
circumstances. For example, the California case
study noted examples where hunting club land-
owners in the Central Valley found it too costly to
maintain wetlands for waterfowl habitat because
of local property tax policies. Wetlands were taxed
as recreational lands at a higher rate than were ag-
ricultural lands. Costs of water and taxes have stim-
ulated some hunt clubs to convert portions of their
land for crop use (7); however, property taxes aren't
considered to be a factor in conversion to agricul-
ture in most other regions of the country. For ex-
ample, in Nebraska, wetlands are taxed at a nom-
inal rate (9).
The cost of direct conversions of wedand to ag-
ricultural use depends on the characteristics of the
area to be converted. Relevant characteristics in-
clude how wet it is and for what period of time.
112 • Wetlands: Their Use and Flegulation
the topography, the conversion technique used, and
the availabiUty of an outlet for drainage. Owner-
ship of the areas to be converted and of equipment
to perform the work also are factors in the cost. For
example, the prairie-pothole case study cited six
studies of costs of open drainage conducted from
1971 to 1981 by four different investigators. Costs
per acre ranged from $11.24 to $400.00 (6). The
Nebraska case study makes estimates of conversion
costs for different methods for its analysis of the
profitability of conversion. Conversion of Rain-
water Basin wetlands (with an average size of 10
acres) to irrigated agricultural use with a reuse pit
ranged from about $2,000 in 1965 to $6,600 in 1980
(9). Amortized costs over a 30-year period ranged
from $12.95 to $84.99/acre/yr in 1965 and 1980,
respectively (9). Estimates of landshaping costs in
the Sandhills for irrigation veiry with the terrain and
range from $4,000 to $26,000/center-pivot (9).
Converting pocosin wetland to cropland in North
Carolina could cost as much as $740/acre (13).
Incentives from Federal programs (and in a few
ses, State programs) to landowners to preserve
wetlands are sometimes enough to outweigh the
profitability of drainage and conversion (see follow-
ing section). In many cases, however, payments
from such programs as USDA's Water Bank Pro-
gram and FWS easements are less than profits from
conversion. A survey of landowner attitudes in
Minnesota and North Dakota found that low pay-
ments from FWS and Agricultural Stabilization and
Conservation Service (ASCS) programs were the
overriding reason for refusal to participate in these
protection programs (6). (Other important factors
listed included the long period that the agreements
cover and the lack of information about programs.)
The Nebraska case study noted that wetland pay-
ments under the ASCS program of $10/acre and
State habitat program contracts of $15 to $30/acre
appear to be inadequate. To be successful, pay-
ments should be increased to the $35 to $45/acre
range in Nebraska. The higher range would reflect
not only the modest return that may sometimes be
received by converting wetlands but also the par-
tial value to society in preserving wetlands (9).
cases
NATIONAL TRENDS IN AGRICULTURAL LAND USE
The amount of total cropland planted nationwide
declined between 1954 and 1972 from 355 million
to 295 million acres. This decline was largely a
result of production controls that were fairly con-
stant throughout the 1960's. Some shifts of lands
in and out of production did occur during this time,
however. Land in major crops increased from 295
million acres in 1972 to 326 million acres in 1974
and then increased steadily until 1981, when 365
million acres were planted. (The year 1978 was an
exception; there was a significant set-aside in that
year, so land in crops decreased.) It is widely
assumed by agricultural analysts that a major por-
tion of the gains in planted cropland after 1972
came from areas that previously were idled by Gov-
ernment programs.
The nationwide expansion in cropland is attrib-
uted to the growth in export demand for grains and
oilseeds that began in 1972. Primary factors for this
increase in demand include the entry of the Soviets
into the international market, a shortfall in crop
production on the Indian Subcontinent, and the de-
valuation of the doUar in 1971. Major increases in
commodity prices occurred between 1972 and 1976.
Although the prices declined in 1977 and 1978,
prices in general were sufficiently high during the
late 1970's for farmers to increase their amount of
land in crops.
The demand for new cropland is expected to in-
crease over the next 20 years, despite expected ad-
vances in productivity. The amount of additional
cropland needed will depend on the food needs of
the United States, the production capability of U.S.
soils, and the total export demand. Maximum esti-
mates for cropland needed by the year 2000 range
from 378 million to 437 million acres, depending
on rates of increase in crop yields (4). Although
USDA's National Resources Inventory identified
Ch. 5— Wetland Trends • 113
an estimated 70 million acres of wetlands, the ex-
tent that wetland acreage will be used to meet this
demand cannot be estimated readily.
Regardless of the availability of nonwetlands to
meet future needs for cropland, demand for wetland
conversions may well continue as a result of shift-
ing the production of certain crops to different re-
gions of the country. For example, estimates have
been made that soybean production on existing
cropland can be increased up to 21.5 percent in
Louisiana and Mississippi without any environ-
mental damage; destruction of scenic, recreation,
and wildlife areas; lowered water tables; or water-
quality degradation associated with conversions. Ir-
rigation and precision land-forming would be re-
quired to make these improvements in production,
and these techniques are being implemented on a
fairly large scale. On the other hand, increased pro-
duction costs of cotton in the West and Southwest
associated with irrigation requirements and im-
provements in pest control may revitalize the cot-
ton industry in the Southeast and in the Lower
Mississippi River Valley, where cotton grows well
on converted bottom lands with high organic
matter.
Since data from the last 10 years are insufficient
to provide an accurate estimate of current conver-
sions of wetlands to agricultural use, future projec-
tions of wetland conversion rates cannot be made.
However, without restrictions on conversions, it can
be expected that wetlands probably will continue
to be converted for agricultural use. Production on
newly converted wetlands may have little impact
on the national need for about 400 million acres
of cropland over the next 20 years or even on re-
gional incomes from farming. However, it may well
make a difference for individual farmers.
CHAPTER 5 REFERENCES
1. Center for Governmental Responsibility, "Wet-
lands Loss in South Florida and the Implementa-
tion of Section 404 of the Clean Water Act," Uni-
versity of Florida, College of Law, contract study
for OTA, September 1982, p. 25.
2. Center for Wetland Resources, "Wetland Trends
and Factors Influencing Wetland Use in the Area
Influenced by the Lower Mississippi River: A Case
Study," Louisiana State University, contract study
for OTA, September 1982, p. 1-28.
3. Council on Environmental Quality, "Our Nation's
Wetlands: An Interagency Task Force Report"
(Washington, D.C.: U.S. Government Printing Of-
fice, 041-011-0004509, 1978).
4. Council on Environmental Quality, "National Ag-
ricultural Lands Study, Final Report," U.S. De-
partment of Agriculture, 1981.
5. Davis, B., "Economic Potential for Converting
Woodland and Pasture to Cropland: Lower Missis-
sippi Valley and Southeast," Economic Research
Service, USDA ERS-495, Washington, D.C, 1972,
cited in MacDonald, 1979, p. 56.
6. Department of Agricultural Economics, "Wedands
in the Prairie Pothole Region of Minnesota, North
Dakota, and South Dakota — Trends and Issues,"
North Dakota State University, contract study for
OTA, August 1982.
7. ESA/Madrone, "Wedands Policy Assessment: Cali-
fornia Case Study," contract study for OTA, Sep-
tember 1982, pp. 26-63.
8. Frayer, W. E., Monahan, T. J., Bowden, D. C,
and GrayhiU, F. A., "Status and Trends of Wet-
lands and Deepwater Habitats in the Coterminous
United States, 1950's to 1970's," Department of
Forest and Wood Services, Colorado State Univer-
sity, Fort Collins, Colo., 1983, p. 31.
9. Great Plains Office of Policy Studies, "Wedand
Trends and Protection Programs in Nebraska,"
University nf Nebraska, contract study for OTA,
September 1982.
10. MacDonald, P. O., Frayer, W. E., and Clauser,
J. K., "Documenting Chronology, and Future Pro-
jections of Bottom Land Hardwood Habitat Loss
in the Lower Mississippi Alluvial Plain," Ecological
Services, U.S. Fish and Wildlife Service, 1979, p.
133.
11. Pavelis, G. A., "Farm Drainage in the United
States, 1900 to 1980: Acreage, Investment and Cap-
ital Values," unpublished draft, 1982.
12. Pavelis, G. A., personal communication.
13. School of Forestry and Environmental Studies,
"Wetland Trends and Policies in North and South
Carolina," Duke University, contract study for
OTA, August 1982.
114 * Wetlands: Their Use and Regulation
14. Shapiro & Associates, Inc., "An Analysis of 17.
Wetlands Regulation and the Corps of Engineers
Section 404 program in Western Washington," con-
tract study for OTA, September 1982, p. 16.
15. Shaw, S. P., and Fredine, C. G., "Wetlands of the 18.
United States: Their Extent and Their Value to
Waterfowl and Other Wildlife," U.S. Fish and
Wildlife Service Circular 39, 1956 (Washington, 19.
D.C.: U.S. Government Printing Office, 1971).
16. U.S. Department of Agriculture, "1980 Appraisal
Part I: Soil, Water and Related Resources in the
United States: Status, Condition, and Trends,"
1981.
Water Resources Research Center, "Regional
Assessment of Wetlands Regulation Programs in
New England," University of Massachusetts, con-
tract study for OTA, September 1982, pp. 17-18.
Wilen, Bill O., National Wetlands Inventory, Of-
fice of Biological Services, U.S. Fish and Wildlife
Service, personal communication.
Wooten, H. H. , "Major Uses of Land in the United
States," U.S. Department of Agriculture, Technical
Bulletin 1082, 1953.
Chapter 6
Impacts and Mitigation
Photo credit: U.S. Fish and Wildlife Service
Contents
Page
Chapter Summary 117
Introduction 117
Definitions 118
Development Activities 119
Dredging and Excavation 119
Filling 120
Drainage and Clearing 121
Extensive Flooding 122
Water Withdrawals and Diversions 123
Disposal and Discharge of Pollutants and Nonpoint-Source Pollution 123
Variables of Wetland-Impact Magnitude 124
Physical and Chemical Variables 124
Biological and Ecological Variables 125
Operations Variables 125
Predicting Impacts of Development Activities 126
Limitations 126
Wetland Reviews 127
General Permits 128
Mitigating Impacts 129
Feasibility of Compensation or Offsite Mitigation 130
Onsite Mitigation to Minimize Impacts 131
Management Plans 133
Chapter 6 References 135
Chapter 6
Impacts and Mitigation
CHAPTER SUMMARY
Wetlands are important to development activities
such as agriculture, forestry, port and harbor de-
velopment, oil and gas extraction, housing and ur-
ban growth, mining, and water-resource develop-
ment. Development activities that involve excava-
tion (or dredging), filling, clearing, draining, or
flooding of wedands generally have the most signifi-
cant and permanent impacts on wetlands. These
impacts vary from project to project, depending on
the scale and timing of the project, the type of
wedand affected, and many other variables. Direct
impacts associated with some development activities
often can be mitigated by redesigning the project
or modifying the construction timetable.
The ability to restore significandy degraded wet-
lands to their original condition depends on the type
of wetland and on the degree to which it has been
affected either by natural processes or by develop-
ment activities. For example, San Francisco Bay
wetlands that were once used for agriculture are
being restored by removing manmade dikes that
separated these wetlands from the bay. It is aJso
possible to create new wedands in areas that are
not subject to a high degree of wave action or swift
currents. Costs of creating new wedands in relative-
ly calm coastal environments range from as little
as $250/acre to over $6,000/acre.
The ability to construct new wetlands should not
be used as sole justification for the unregulated con-
version of wedands to other uses: manmande wet-
lands do not necessarily provide the same values
as natural ones. In addition, it is probably not possi-
ble to create new wedands at the rate they have been
converted to other uses in the past.
INTRODUCTION
Generally, any wetland-development activity of
a significant magnitude has the potential to affect
wetlands adversely. This chapter identifies the ac-
tivities and operations that affect wetlands and
describes the nature of their impacts. The actual
impacts of an activity, however, are site and proj-
ect specific. In other words, an activity with major
impacts in one circumstance may have moderate
impacts in another. All major development activi-
ties responsible for wetland loss, including those
regulated under the 404 program, are included in
this discussion.
The present ability to predict or monitor impacts
on wetlands also is evaluated in this chapter. Im-
pact assessment is a critical step in determining
what development activities to allow in wetlands
and how to mitigate potential impacts. The uncer-
tainty associated with impact assessment influences
both the ability to safeguard wedands and the equity
of regulatory decisions. On the one hand, wetlands
require protection from project impacts that are not
always obvious; on the other, regulatory decisions
based on highly uncertain impact assessments may
impose unnecessary burdens on developers.
Finally, opportunities for and limitations of
mitigating impacts are evaluated in this chapter.
Under the current regulatory program, mitigation
conditions are imposed on about one-third of all
permits processed annually; in comparison, less
than 3 percent of all applications are denied. This
suggests that the strategy of the 404 program is to
minimize or compensate for impacts rather than
prevent development.
117
118 • Wetlands: Their Use and Regulation
DEFINITIONS
The Council on Environmental Quality (CEQ)
distinguishes between three basic types of impacts
in the National Environmental Policy Act (NEPA)
regulations:'
• Cumulative impacts are those impacts on the
environment that result from the incremen-
tal impact of a development activity when
added to other past, present, and reasonably
foreseeable future activities. Cumulative im-
pacts can result from individually minor, but
collectively significant, activities taking place
over time.^
• Direct effects are caused by specific activities
and occur at the same time and place as the
activities.' *
• Indirect, or secondary, effects are caused by
the activities and are later in time or farther
removed in distance but still reasonably fore-
seeable. Indirect effects may include growth-
inducing effects and other effects related to in-
duced changes in the pattern of land use, pop-
ulation density, or growth rate, and related ef-
fects on air and water and other natural sys-
tems, including ecosystems.*
Impacts can also be described as permanent or
temporary, and short or long term. The former dis-
tinction refers to whether or not the wedand restores
itself naturally after suffering impacts; the latter in-
dicates the length of time an impact takes to mani-
fest itself after the activity occurs. An activity may
have temporary and permanent impacts, as well
as short- and long-term impacts, simultaneously.
'CFR title 40, pt. 325 to end, July 1, 1982.
^S. 1508.7.
'S. 1508.8,
•The words "effect" and "impact" are used interchangeably in
both the CEQ regulations zind this chapter.
«S. 1508.8.
A canad dredged through a wetland area, for in-
stance, will immediately damage a wetland by re-
moving vegetation and wetland soil; this impact,
in most cases, is permanent. The dredging, how-
ever, also will cause turbidity — generally a short-
term, temporary impact — and slumping of adja-
cent wetland areas into the canal — potentially a
long-term, permanent impact.
Two other terms used to describe impacts in this
chapter are onsite and offsite. Activities can impact
a wetland whether they take place directly on the
wetland (onsite) or some place removed from the
wetland (offsite). In general, offsite activities will
have less immediate impacts than will onsite ac-
tivities. Dredging in a wedand wiU remove vegeta-
tion and overlying substrata and cause immediate
damage. Erosion of fill material disposed in areas
adjacent to a wedand may cause gradual accumula-
tion of sediment in the wedand over a longer time.
The term mitigation as used in the NEPA regula-
tions includes:
a) avoiding the impact altogether by not taking
a certain (i.e., activity) action or parts of an
action;
b) minimizing impacts by limiting the degree
or magnitude of the action and its implemen-
tation;
c) rectifying the impact by repairing, rehabili-
tating, or restoring the affected environment;
d) reducing or eliminating the impact over time
by preservation and maintenance operations
during the life of the action; and
e) compensating for the impact by replacing or
providing substitute resources or environ-
ments.*
HO CFR, pt. 1508.20.
Ch. 6— Impacts and Mitigation » 119
DEVELOPMENT ACTIVITIES
Dredging and Excavation
Both dredging and excavation in wetlands in-
volve the direct removal of wetland vegetation and
the underlying wetland soil. Because the elevation
of the dredged area is reduced, it normally will be
flooded by deeper water most of the time, thereby
eliminating the possibility of recolonization by
wedand plants unless the area becomes subsequent-
ly filled, either naturally or by man. For example,
dredging or excavation are responsible for wetland
losses associated with agricultural conversion in
Nebraska; mosquito-control ditching along the east
coast in North Carolina; canal construction in
coastal Louisiana, Mississippi, and Texas; peat
mining in Maryland, Michigan, and Minnesota;
phosphate mining in North Carolina and Florida;
the extraction of other materials such as borax,
potash, soda ash, lithium, gold, sand, and gravel;
and port and other water-dependent coastal devel-
opment.
Dredging commonly is used to deepen or
straighten waterways for navigation, port, and
marina facilities or for flood control. In addition
to the direct effects of removing wetland vegeta-
tion and soil, dredging may impact wetlands even
if it takes place offsite. Giese and Mello (21), for
instance, found that dredging a navigation inlet into
a small estuary increased the tidal range in the up-
per estuauy, exposing the bottom at low tide. Salini-
ty was increased, shellfish beds were exposed, ben-
thic (i.e., bottom-dwelling) invertebrate populations
were eliminated, and vegetation patterns were
changed. The dredging of canals primarily for ac-
Photo credit: Office of Tectinology Assessment. Joan Harn
The dredging of canals for navigation and for access to oil and gas development sites in coastal Louisiana has led to
saltwater intrusion into freshwater marshes. The excess salinity eventually kills the marsh vegetation
120 • Wetlands: Their Use and Regulation
cess to oil and gas development sites also has con-
tributed significantly to direct and indirect wetland
losses in coastal Louisiana (15). While many early
studies attributed these losses to the presence of
levees on the Mississippi River, which reduced the
sediments contributing to the buildup of deltas and
wetlands (8), several recent studies in the Mississip-
pi Delta have shown a positive correlation between
canal density and the extent of wedand loss (13,53).
In addition to direct wedand loss resulting from the
disposal of dredged material along canal banks, the
increase in canal density in an area leads to more
saltwater intrusion into wetlands as water is flushed
in and out by the tides. Salinity changes may kill
vegetation, and tidal flows help erode the banks of
canals, causing them to widen at the annual rates
of from 2 to 14.8 percent per year. At the high an-
nual rate, a canal would double its width in only
4.7 years.
Excavation commonly is used for mining and to
create dugouts, or reuse pits, for irrigation. Min-
ing for minerals such as peat, phosphate, and lime-
rock will cause total removal of wetland vegetation
overlying these deposits (30). Additional adverse
impacts also may result. For example, after lime-
rock was excavated and removed from the Biscayne
Aquifer in southern Florida, ground water filled
the pits left by the excavation, lowering the water
table. The stockpiling of materials, the construc-
tion of access roads, and other fUling associated with
development and operation of a mine also block sur-
face waterflows. Water-filled rockpits, which are
attractive locations for residential development, can
become degraded quickly by urban runoff. In ad-
dition, water in the open pit is subjected to con-
tinuous, year-round evaporation (9).
In another example, the number and size of wet-
lands in the Rainwater Basin in Nebraska have
been reduced through the excavation of "dugouts,"
or irrigation reuse pits. This practice results in par-
tial drainage of some wetlands and the flooding of
others (22). These wedand losses subsequendy have
led to increased incidence or risk of disease to water-
fowl, reduction in food supply for migratory birds,
and loss of breeding and rearing habitat for birds
(22).
Filling
The immediate and permanent effect of filling
is to bury wetland vegetation, increase the eleva-
tion of the area, and eliminate the periodic inun-
dation of the wetland (14). Several types of solid
waste are used as fill material. Municipal waste,
including household refiise and incinerator residue,
has been used for wetland fills. Construction and
demolition debris is used occasionally, as are stone,
sand, gravel, and broken concrete from highway
construction. Even coal ash has been disposed of
as fill in wetlands (8). The disposal of some types
of solid waste in wetlands carries the risk of detri-
mental chemical effects owing to leaching of nu-
trients and toxic chemicals from the fill material.
For example, filling is a major factor associated
with wedand loss for land-leveling and agricultural
conversion in Nebraska and California; for con-
struction of impoundments in New England, the
Lower Mississippi River Valley, Lower Colorado
River Valley, South Carolina, and North Carolina;
for canal construction and dredged-material dispos-
al in coastal Louisiana, Mississippi, and Texas; for
port, harbor, and other coastal development; for
urban and industrial development in South Caro-
lina, New Jersey, California, New England, south
Florida, Washington, and Alaska; for road con-
struction in Alaska, New England, and Nebraska;
and for disposal of waste products in Washington,
California, and New England.
Filling often is associated closely with dredging
and excavation activities. For example, the major
method used in the Southeast to create waterfront
real estate has been to excavate canals within wet-
lands, using the dredged material as fill for buUding
sites. This practice not only results in complete loss
of the wetland but also creates canals that are poor
habitat for both flora and fauna (26). A comparative
study of a residential lagoon system and natural
wedands has shown that the lagoon supports smaller
fish and shellfish communities (28).
Highways built on fill material can have indirect
impacts by either flooding or dewatering adjacent
wedands. Culverts normally constructed at soil level
Ch. 6— Impacts and Mitigation • 121
will prevent flooding of the road, but will not allow
the flow of subsurface water. In some instances,
borrow canals adjacent to the highways also have
diverted the drainage direcdy into a coastal estuary,
permitting saltwater intrusion into the wetland
where the normal drainage had been cut off.
Drainage and Clearing
Narrow drainage ditches (less than 5-feet wide)
may be^xcavated to accelerate and channel sur-
face water runoff and to lower ground water levels,
increasing the value of the drained land for agri-
cultural and forest management. For example,
draining and clearing is a major factor associated
with wedand conversions in the prairie potholes and
in Nebraska, California, the Lower Mississippi
River Valley, North and South Carolina, and south
Florida; for urban development in south Florida
and Washington; and for forestry management in
North Carolina and the Lower Mississippi River
Valley.
The major ecological impact from draining and
clearing wetlands for agricultural purposes is the
loss of diverse wildlife habitat. Studies in Missouri
where wedand channelization projects were under-
taken to reduce flooding problems indicated that
78 percent of bottom land hardwood forest pre-
viously flooded was converted to crop production
after project completion (19). In Louisiana, 51 per-
cent of the original 4.5 million hectares of forested
wetlands have been converted to agricultural use,
mosdy for soybeam and cotton production. The loss
of hardwood forests has meant a loss of prime hab-
itats for birds and mammals, as well as a loss of
critical spawning grounds for aquatic species.
Under some circumstances, ditches in agricultural
areas also may increase the runoff of pesticides, her-
Photo credit: Office of Tect^nology Assessment, William Barnard
The clearing of this pocosin wetland in North Carolina will result in loss of wildlife habitat
122 • Wetlands: Their Use and Regulation
bicides, fertilizers, and animal wastes to down-
stream wedand systems. The drainage may change
vegetation in adjacent areas; the runoff may cause
pollution of adjacent land and open water areas
(45). Drainage of wetlands for agricultural uses
results in the loss of organic material from the soils
due to oxidation. In some parts of the country, this
may lead to soil subsidence and increased hazards
of fire (9). For example, reclaimed peat-based agri-
cultural land in the Sacramento-San Joaquin Valley
has subsided through processes of compaction, ox-
idation, and wind loss and is now up to 20 ft below
sea level (17).
In some instances, the creation of new habitats
has changed the behavior of migrating birds; rice
cultivation in southwest Louisiana and eastern
Texas has encouraged overwintering of waterfowl
that normally overwinter in eastern Louisiana
wetlands. Natural filling of drainage ditches may
cause an area to revert to a wetland, as occurred
on some former agricultural lands in New England
(56).
Forested wetlands are also partially drained to
lower the water table and allow harvesting of the
forested land. After harvesting, an area may be
allowed to regenerate naturally or replanted as a
pine or hardwood plantation. Active forest manage-
ment can significantly increase the yield of wood
from the land but also decrease wildlife diversity
within forested plantations, depending on a number
of factors. Maki, et al. (31) report that the prac-
tice of "high grading," in which only desirable
large and shade-intolerant species are harvested,
produces extensive stands of shade-tolerant species
having less value as habitat. Large-scale drainage
and channelization could contribute to decreases
in resident invertebrate density and diversity (3).
If good management practices are not used, con-
structing drainage ditches and channelizing streams
in forested wetlands may also increase erosion and
sedimentation, which in turn affects wildlife habitat
and water quality in adjacent areas (7). In addi-
tion, the drainage of wetlands (14) may increase
the danger of floods in downstream areas.
Drainage of wetlands in south Florida has been
cited as contributing to flooding, drought, oxida-
tion and subsidence of peat, saltwater intrusion,
reduction offish and wildlife resources, and water-
quality problems in Lake Okeechobee — particularly
increases in nutrients, suspended solids, and pol-
lutants introduced from land uses to which wedands
are converted (9).
Grazing of livestock in wedands has been a com-
mon practice because of the relatively rapid and
lush growth of some wetland plants, particularly
in arid regions. Some wetland vegetation has
proved more nutritious for livestock than upland
forage (38). Overgrazing leads to trampling and
compaction of soft wetland soils and the loss of
natural food sources for resident and migratory
wildlife. Moderate grazing, on the other hand, can
help maintain a wedand by encouraging the growth
of annuals and by setting back vegetative succes-
sion.
Other agricultural practices, such as mowing,
disking, and burning wetland vegetation to con-
trol crop weeds and mosquitoes, are often carried
out in the playa basins of the southern Great Plains.
The adverse effects of these practices are temporary
and, like moderate grazing, can promote the growth
of annual wetland vegetation (38). However, such
practices conducted late in the growing season may
severely curtail winter cover for upland game birds
and waterfowl.
Extensive Flooding
Permanently inundating wetlands to certain
depths will eliminate wetland vegetation. Some-
times wedands are flooded to create ponds for grow-
ing aquatic organisms, particularly fish and shell-
fish. Extensive flooding of wetlands is also
associated with agricultural conversions of prairie
potholes; development of impoundments for munic-
ipal- and agricultural-water supply, hydropower,
and flood control in places such as New England,
the Lower Mississippi River Valley, the Lower Col-
orado River Valley, Nebraska, and Alaska; water-
fowl management in South Carolina; for mosquito
control in North Carolina; and aquaculture in Lou-
isiana.
Culture ponds for crayfish and shrimp, for in-
stance, are prevalent in Louisiana. These ponds are
constructed by building dikes to raise water eleva-
tions. In addition to its direct effects on the wedand
Ch. 6— Impacts and Mitigation • 123
vegetation, such flooding may have indirect effects
on adjacent wetlands. For example, an experiment
in shrimp culture, in which a dike was built to im-
pound part of a coastal wetland, led to large varia-
tions in temperature and salinity with subsequent
die-offs of many organisms, including the cultured
species (41).
The construction of dikes or the disposal of spoil
from dredging operations may result in the im-
poundment of swamps and marshes. An im-
pounded swamp does not dry out periodically like
a natural swamp and has a lower water turnover.
This results in reduced primary and secondary pro-
ductivity and decreased value for wildlife habitat.
Virtually no fish are found in the stagnant water
of such an area (10).
Water Withdrawals and Diversions
Alterations in the hydrologic regime from large
water withdrawals for municipal-industrial use or
large-scale diversions of water for irrigation and
flood control can cause various impacts on wetland
ecosystems. The effects of these withdrawals and
diversions on downstream wetlands are twofold.
First, upstream depletions may lower the water
table in downstream freshwater wetlands, causing
a temporary or permanent loss of vegetation and
a decrease in habitat values. Second, decreasing
freshwater inflow in coastal areas will allow tidal
incursion of saltwater into the brackish and fresh-
water marshes. The increase in salinity to these
marshes will reduce species diversity and abun-
dance as well as overall ecosystem productivity.
Water diversions and withdrawals also reduce the
input of detritus into the estuarine food chain.
Water diverted for irrigation and then returned
to the wetland can increase salinities and temper-
atures considerably. For example, salinity in Suisun
Marsh, which represents the largest contiguous wet-
land area in California and 10 percent of the total
State wetland acreage, has been increasing along
with increasing water diversions by the State and
Federal water projects in the Central VaUey and
the Sierras. One result has been a decline in cer-
tain high-food-value plant species that are favored
by brackish-to-fresh soil-water conditions. These
brackish plant species are particularly important
to wintering ducks and geese (17). In addition, in-
creases in water temperature owing to thermal ef-
fluents from powerplants or from irrigation return
flows may cause a reduction in species diversity of
wetland flora or a shift to the more temperature-
tolerant, blue-green algae that tend to produce
eutrophic (oxygen-deprived) conditions.
Restricting or manipulating water flows with
dams and reservoirs also can dewater downstream
wetlands. Any wetlands downstream that are not
immediately dewatered may be subject to reduced
flushing, leading to a decrease in the amount of
nutrients reaching the wetlands. Greater than nor-
mal floodflows can occur also when large reservoir
releases are sustained, possibly washing out wet-
lands downstream.
Dikes and flood-control levees often are built to
convert wetlands in flood plains to dry farmland.
These flood-control levees retain floodflows within
a river channel, dewatering the wetlands behind
them. Levees within the floodway also tend to in-
crease the velocity of storm runoff, produce an
overall loss of flood storage capacity, and increase
the chance of downstream flooding (45). Increased
flows may increase scouring and erosion. Unlike
the conversion of wetland by filling, land that is
drained behind or within dikes or levees can be re-
stored to a wetland if the embankments are re-
moved or breached.
Disposal and Discharge of Pollutants
and Nonpoint-Source Pollution
Wetlands have been used to purify wastewater
of nutrients and suspended solids, sometimes with
adverse effects (4). Abundant nutrients in the waste
may increase the productivity and biomass of tol-
erant vegetation in the wedand while more sensitive
species disappear (58). Algal populations also may
shift in species composition, which may lead to
wetland eutrophication (23). If the wastewater vol-
ume is large enough to raise wetland water eleva-
tions, a conversion from emergent wetland to open
water can occur. Stormwater discharge also can
have adverse impacts on wedand functions and val-
ues. For example, contaminants from urban runoff
have been noted to cause detrimental effects on tidal
124 * Wetlands: Their Use and Regulation
wetlands around Hilton Head Island in South Car-
olina (43).
A long-term effect of the disposal of contaminated
dredge spoil in or near wedands is the potential bio-
availability of toxic chemicals such as oil and grease,
pesticides, arsenic, and heavy metals, when the sed-
iments are resuspended periodically (1). Although
the bioavailability of these contaminants general-
ly is quite low, under certain conditions there may
be some long-term potential for bioaccumulation
of these harmful substances within the food chain,
especially when contaminated dredged materials are
exposed to the air (27).
For example, filling of wetlands by eroded soil
is also a factor associated with wetland conversions
from forestry, agricultural, and development prac-
tices in watersheds of the California coast; from
agricultural and development practices around the
Chesapeake Bay in Maryland; and from agricul-
tural activities in the prairie potholes and Nebraska.
VARIABLES OF WETLAND-IMPACT MAGNITUDE
The actual impacts of a specified construction or
development activity will vary geographically and
by season of the year according to regionally or
locally distinct characteristics of the physical-
chemical environment. The characteristics of bio-
logical populations and habitats and of the whole
wetland ecosystem also will modify the impacts. A
discussion of these variables has been included here
to illustrate both the site-specificity of wetland-
project impacts and the range of factors that must
be understood to make realistic impact assessments,
and to suggest how these variables may be manip-
ulated to mitigate project impacts.
Physical and Chemical Variables
Composition of Wetland Soils
The physical characteristics of wetland soils will
have considerable influence on the severity of im-
pacts produced by different activities in wetlands.
Wetland bottom type is an important factor in spe-
cies diversity and productivity. For example, a proj-
ect that introduces large quantities of silt and clay
would have a significant impact by smothering pro-
ductive substrates. A wedand's chemistry also may
influence the magnitude of a project's impact. The
effects of dredging in marine or brackish waters are
likely to be less severe than in freshwater because
of the buffering capacity of these waters. Also, since
cold water generally has higher levels of dissolved
oxygen, the effects of activities that tend to deplete
the dissolved oxygen will be greater if water tem-
peratures are higher.
Hydrologic Regime and Water Dynamics
The hydrology of a wetland will affect substan-
tially the magnitude of impacts from activities in
wetlands. For example, wetlands that are hydro-
logicaUy isolated from ground water supplies, such
as perched bogs or playa lakes, will be more ad-
versely affected by excavation or dredging than wet-
lands that have sources of water besides precipita-
tion. Excavation in these isolated wedands may
damage the compact peat layer and/or clay layers
that seal the bottom of the wetland and hold water
within it (32).
The construction of highways on wedand fill has
different impacts, depending on the particular wet-
land hydrology. Culverts placed through a highway
fill may cause flooding of the upslope side and
dewatering of the downslope side (44). In the Flor-
ida Everglades, however, the same type of highway
fill with drainage culverts may be able to accom-
modate the water that flows over the surface of the
wetland.
Composition of Fill Material
The disposal of solid wastes, however, carries the
risk of detrimental chemical and biological effects
due to leaching of the fill material. The magnitude
of adverse impacts depends on the actual waste
composition, which can vary physically and chem-
ically according to geographic region, community
standards, and seasonal variations. In general,
municipal solid wastes have a high proportion of
biodegradable animal and vegetable waste, rags.
Ch. 6— Impacts and Mitigation • 125
wood, cardboard and paper products, as well as fer-
rous metals. Leaching of organic matter such as
garbage and wood waste can lead to an increased
biological oxygen demand (BOD) and reduced lev-
els or large fluctuations in dissolved oxygen (DO).
Such changes in water chemistry can cause stress
to aquatic populations and changes in species di-
versity.
Biological and Ecological Variables
Population Abundance, Diversity,
and Productivity
Productivity, abundance, and diversity are im-
portant factors in evaluating the potential impacts
of a certain activity on a wetland. Highly diverse
wetland ecosystems with high overall productivity
but low abundance of many species may be affected
heavily by activities that change the limiting fac-
tors for selected species, thereby unbalancing the
whole structure (species composition) of that eco-
system. A less diverse ecosystem may be impacted
less by the same activities. Spartina marshes, which
admost can be considered a monoculture, are known
to be highly resistant to changes in salinity and
might not be affected significantly by, for exam-
ple, the reduction of freshwater inflows to the
estuary from upstream use of water for cooling a
powerplant.
Presence of Key Species
Important to an Ecosystem
The severity of impact from a particular activi-
ty will be greater if the adverse effects focus on a
key species in the wetland ecosystem. For exam-
ple, detritus-based food chains can easily be dis-
rupted by activities that would lower the abundance
of snails and small crustaceans that help produce
detritus by shredding the marsh grasses.
Habitat Diversity and Carrying Capacity
Fish and wildlife may require different habitats
during their lifecycles, in each season, and even dai-
ly, in order to meet their needs for food, water, cov-
er, and reproduction. Wetlands offer a variety of
habitats for a variety of species and life stages.
Habitat diversity often has been assessed as an in-
dication of the importance or health of a wetland.
The degree of impact on a wetland often will de-
pend on which habitats are adversely affected; for
example, fish that use coastal marshes may be di-
verted from their normal routes by large changes
in salinity and flow (24).
Operations Variables
Frequency, Duration, and Season of Activity
The frequency, duration, and season of a devel-
opment activity in or affecting a wedand will modify
the severity of impact. Frequent channel-mainte-
nance dredging, for example, might limit the recov-
ery of an adjacent wetland from the temporary ef-
fects of sediment resuspension, especially where
there is high exposure to wind and waves. Oil ex-
ploration may have rather minor and temporary
adverse effects on waterfowl if access to wetlands
is limited during the breeding, nesting, and rear-
ing season. Similarly, construction of a highway
through a wetland will have less impact on water
quality and wUdlife if the construction is rapid and
efficient, avoids the period of high spring runoff,
and is carried out before or after the waterfowl
breeding season.
Location of Activity Within an Ecosystem
The location or orientation of development proj-
ects within a wetland can alter the magnitude of
their impact considerably. One example would be
the placement of highway fill in a wetland. If the
causeway fill is placed parallel to the direction of
surface sheet flow and subsurface flow, the prob-
lems of blocking wetland drainage or channeling
the flow through culverts wiU be minimized (44).
In another example, if pipelaying in wetlands is
confined to the "push-ditch" method and the
equipment can operate on dry soil at the edge of
the wetland, the impacts will be less than if the
equipment is operated from mats in the wetland.
Distribution, Scale, and Type of Activity
The type, scale, and spatial distribution of con-
struction or development in a wedand must be con-
sidered in order to estimate reliably the project's
impact. Wedand filling, if confined to a single area
of marsh while leaving other areas undisturbed,
may be preferable to a patchwork of fills distributed
126 • Wetlands: Their Use and Regulation
throughout the marsh. Draining and clearing of a
significant number of small, isolated wetlands for
cropland have contributed to the decline of water-
fowl in the Central and Mississippi flyways (35).
PREDICTING IMPACTS OF DEVELOPMENT
ACTIVITIES
Limitations
According to U.S. Army Corps of Engineer reg-
ulations, "the decision whether to issue a permit
wlU be based on evaluation of the pro6afa7e impact,
including cumulative impacts of the proposed ac-
tivity . . . ." Under the Corps' public interest
review, the impacts of a proposed project must be
weighed against its other costs and benefits to deter-
mine if the project will be allowed. While there are
certain characteristic impacts associated with par-
ticular activities, it is clear that the actual impacts
of any project will vary with each site and project
and will depend on the time at which they are con-
ducted. This suggests that in most cases similar ac-
tivities or projects cannot necessarily be regulated
in a uniform way; the potential impacts of major
projects that might generate significant impacts
must be evaluated on an individual basis.
Guidelines established for the 404 program rec-
ognize the variability that exists from site to site
and project to project. The 404(b)(1) guidelines,
for instance, require that the "permitting author-
ity .. . shall determine in writing the potential
short-term or long-term effects of a proposed dis-
charge of dredged or fill material on the physical,
chemical, or biological components of the aquatic
environment." This includes determinations of the
nature and degree of effect that a proposed dis-
charge will have on the following: physical sub-
strate, water circulation, fluctuation and sadinity;
suspended particulates/turbidity; contaminants; the
aquatic ecosystem and organisms; and cumulative
and secondary effects.
Even under conditions of very careful site-specific
and project-specific examination, however, the abil-
ity to assess potential impacts accurately often is
limited. In general, the immediate effects of an ac-
tivity are easier to predict than long-term impacts;
physical-chemical impacts are more predictable
than biological impacts; direct effects are more ap-
parent than secondary effects; and the impacts of
each project individually are much easier to predict
than the cumulative impact of many individual
projects. The short-term turbidity caused by dredg-
ing, for instance, is predicted relatively easily and
precisely; predictions of most cumulative impacts
are merely speculative. A study of the impacts of
deepening navigational channels on fish and wild-
life concluded that:
Assessing the impacts of navigational dredging
and the disposal of dredged material is a controver-
sial exercise; the viewpoints and approaches are
endless. Without question, dredging can devastate
fish and wildlife resources; however, in the absence
of definitive information, impacts are sometimes
more imagined than real (1).
It is well recognized that the routine application
of section 404(a) authority to issue individual per-
mits for the discharge of dredged or fill material
cannot provide for the assessment of cumidative im-
pacts on wetlands or other aquatic resources from
many individual projects that are evaluated sepa-
rately. The Corps' proposed general policies for
evaluating permit applications makes a clear dec-
laration:
Although a particular alteration of wetlands may
constitute a minor change, the cumulative effect
of numerous such piecemeal changes often results
in a major impairment of the wetland resources.''
The separate examination of potential effects at
different but interrelated wetland sites cannot, by
itself, account for the cumulative effects. The
Corps' Environmental Advisory Board concluded
that:
Individual permit processing in specific regions
is costly and ineffective in addressing the cumula-
tive impacts of existing and future similar permit
^Federal Register, vol. 45, No. 184, pp. 62, 740.
Ch. 6— Impacts and Mitigation • 127
actions in the same region. There was generad
agreement that without planning, the cumulative
impact of activities associated with the regulatory
program could indeed lead to serious consequences.
Planning required to assess cumulative impacts of
individual actions must be done on a large scale —
regional, watershed, ecosystem, etc. It was also
generally agreed that any analysis of cumulative
impacts on an area must of necessity be based on
a knowledge of local growth patterns and local plan-
ning objectives.'
Wetland Reviews
As noted in the Code of Federal Regulations,*
"the District Engineer may undertake reviews of
particular wetland areas ... to assess the cumu-
lative effect of activities in such areas." Some
districts have conducted such inventories of wetland
resources, called "wetland reviews," particularly
where there are large numbers of permit applica-
tions and pressures for development. In some cases,
the Corps has worked with State and local officials
to plan for future demands for development that
might require section 404 authorization. Such ac-
tivities also can help to reduce the time it takes to
make a permit decision and to reduce uncertainty
as to which areas are regulated under section 404.
These efforts are described below.
Wedand reviews have been conducted for at least
six estuaries on the west coast, one area in Alaska,
and in the Atlantic City, N.J., area. Each review
is different; however, the review of the Snohomish
Estuary by the Seattle District in 1977-78 provides
a good example of information that can be pre-
sented to help reduce the uncertainty associated
with the 404 process. The review's goal was to pro-
vide a comprehensive inventory of wedand habitats,
a discussion of existing regulatory controls, and
recommendations for wetland protection. As part
of the project, a complete inventory and mapping
of land use and land cover was prepared. In addi-
tion, fish and wildlife habitats and physical, cul-
tural, and esthetic chau-acteristics were mapped and
evaluated.
From the data gathered, wedand areas within the
estuary were designated as areas of importance,
'U.S. Army Corps of Engineers, 29th Meeting of the Environmental
Advisory Board, held Apr. 21-24, 1982, Arlington, Va.
'33 CFR 320.4{6)(3).
areas of environmental concern, and other areas.
Areas of importance were those areas with unique
resources or those which served critical functions.
It was recommended that they be maintained in
their present state and that any 404 permit be ap-
proved "only if the activity is clearly in the public
interest." Areas of environmentad concern were
sensitive to development or change, but might have
uses that are "consistent with maintenance of their
habitat values." It was recommended that "only
uses in the public interest and compatible with the
habitat values should be approved." Other areas
were those in which "new development would have
minimal impacts on wetlands and other valuable
habitat types."
Since its completion, the Snohomish Estuary
Wedand Study has been used regularly by the Seat-
tle District. Within the Regulatory Functions
Branch, use of the document has emphasized the
identification of wetlands as a means of determin-
ing Corps jurisdiction under section 404. As a re-
sult, the need for time-consuming site visits has
been reduced. It also is used in preapplication con-
ferences to inform applicants of issues of concern
and to suggest methods for minimizing impacts as-
sociated with their proposal. In the Environmen-
tal Resources Section, the analysis of wedands val-
ues has been used in preparing environmental as-
sessments (EA's) of proposed 404 permit activities.
The detailed data base presented in the review
saved both time and effort in preparing environ-
mental documentation. Furthermore, in the winter
it provides data that would not be available even
on a site visit. On occasion, the review even has
been used as a data source for EA's on sites in other
estuaries with similar habitats.
It should be noted that the Snohomish County
Planning Department also uses the study to evalu-
ate substantial development permits under its
Shoreline Master Program. The small county staff
lacks the technical expertise to evaluate all the func-
tional characteristics and potential impacts associ-
ated with a particular site; the review contributes
to the accuracy and consistency of their decisions.
In addition, the important wedands that were iden-
tified in the study have been incorporated as "areas
of special concern" in the county comprehensive
plan (45).
128 • Wetlands: Their Use and Regulation
General Permits
Advantages
In 1977, Congress authorized the Corps to ex-
empt categories of activities "similar in nature"
on a nationwide, districtwide, or statewide basis
from case-by-case permit reviews. The Corps is re-
quired to establish that activities regulated in this
way ' 'will cause only minimal adverse environmen-
tal effects when performed separately and will have
only a minimal cumulative adverse effect on the
environment." Regionwide and nationwide general
permits provide several positive features for wedand
regulation. They provide regulatory consistency,
avoid administrative delay and paperwork, and cir-
cumvent possible duplication of control by other
agencies. Myhrum (34) notes that the nationwide
permit program allows the regulatory agencies to
focus limited personnel and finances on activities
generating greater impacts. Twenty-five nationwide
permits for categorical activities, such as shore
stabilization and minor road-crossing fills, have
been authorized with special conditions attached
to each that must be followed in order for the per-
mit to be valid. Division engineers of the Corps are
authorized, at their discretion, to modify nation-
wide permits by adding regional conditions appli-
cable to certain activities or geographic areas. Fur-
ther, individual permits may be required if general
permits are not adequate to protect aquatic ecosys-
tems.
WhUe section 404 authorizes general permits for
activities similar in nature, the Corps also has au-
thorized two general permits on a nationwide basis
for areas rather than activities. The Corps' justifica-
tion for this goes back to its history of using general
permits on an areawide basis, before the 1977
amendments authorized general permits officially.
The Corps also argues that the areas granted gen-
eral permits (isolated waters and waters above head-
waters) have not been regulated in the past and that
the geographic scope and distribution of these wa-
ters make them impossible to regelate effectively
on a case-by-case basis. On the other hand, grant-
ing a permit on an areawide basis, rather than on
an activity basis, allows activities and projects to
take place on wetlands, regardless of the scope and
magnitude of their impact.
Disadvantages
Despite these advantages, Blumm (5) has ex-
pressed the view: "Absent reporting requirements,
the cumulative impacts of general permits remain
largely a matter of speculation." He cites the
criticism by the General Accounting Office (GAO)
of cumulative impact assessment by the Corps in
a GAO 1977 report: "It is not clear that our foun-
dation of knowledge about impacts can support the
premise that activities or discharges and conditions
specified under nationwide permits will necessari-
ly ensure minimal adverse impacts, particularly
minimal cumulative adverse impacts." For exam-
ple, minor road-crossing fills are permitted in non-
tidal wetlands if they discharge less than 200 cubic
yards below "mean" high water and do not ex-
tend beyond 100 ft past the ordinary high water
mark. Each such fill is required to be "part of a
single and complete project for crossing of a non-
tidal waterbody . . ."' However, successive "mi-
nor" crossings of a road over many isolated small
freshwater wedands in the Great Plains or separated
narrow riverine wetlands in a coastal delta cannot
always be said to involve only minimal cumulative
impacts. While the Corps is required under sec-
tion 404(e)(2) to review the status of nationwide per-
mits every 5 years to determine if impacts have been
minimal, it is almost impossible to assess the im-
pacts that have taken place as a result of the per-
mit if reporting is absent. In light of this problem
some general permits now have reporting require-
ments and additionsJ reporting requirements are
being considered for others.
Another difficulty with general permits is that
it is difficult for some developers and landowners
to determine if they meet the conditions of the per-
mit. To meet the general-permit conditions, for ex-
ample, that a discharge of fill in an isolated wedand
does not adversely modify the critical habitat of a
threatened wildlife species requires a high level of
"Federal Register, vol. 45, No. 184, pp. 62, 776.
Ch. 6— Impacts and Mitigation • 129
technical expertise. Parish and Morgan (40) discuss
this problem:
Lack of certainty is inherent in the language of
the permit conditions. A discharge will be per-
mitted if it consists of "suitable" materials free
from toxic materials, and the fill will be "proper-
ly" maintained. Certain classes of activities will be
permitted if management practices are followed to
the extent "practical" and adverse effects are min-
imized. If the discharger incorrecdy interprets any
of these terms and an individual section 404 per-
mit is required, its issuance will involve the need
for federal environmental assessment.
MITIGATING IMPACTS
In line with the definitions used by CEQ, miti-
gation includes:
• avoiding adverse impacts to wetlands alto-
gether by denying a project permit;
• minimizing impacts by limiting the degree or
magnitude of a project;
• rectifying the impact by repairing, rehabili-
tating, or restoring the affected environment;
• reducing or eliminating the impact on wet-
lands by preservation and maintenance opera-
tions during the life of the project; and
• compensating for the wedand losses by replac-
ing or providing substitute resources or envi-
ronments."'"
For the purposes of the following discussion, a
basic distinction can be drawn between those ac-
tions taken to minimize the impacts of a project on
wedands and those actions taken to compensate for
a project's impact. Though the two may be used
in combination, the strategy to compensate is most
suited to situations where little can be done to
minimize project impacts. Typically, in such a case,
the project totally eliminates the wetland and com-
pensation entails either restoration of wetlands or
creation of new ones at another site. Filling and
bulkheading of wedands for real estate development
or draining and clearing of wetlands for farming
are good examples.
Under the 404 program, adverse impacts are re-
duced by conditioning individual permits or by
using "blanket conditioning" for general permits.
Conditioning usually entails either onsite design re-
quirements and construction and management
practices to minimize impacts or requirements for
offsite compensation of unavoidable impacts. Like
the difficulties associated with assessing impacts,
the effectiveness of mitigation measures in ameli-
orating the impacts of a project sometimes can be
very uncertain or even speculative. Although the
Corps strives to tailor mitigation measures to in-
dividual permits, controversies may arise from re-
quirements for expensive mitigation measures if the
benefits of these measures are questionable. In some
cases, the expense of mitigation can reduce the prof-
itability of projects to a point where they are no
longer worthwhile to pursue, and developers com-
plain that the agencies sometimes use permit con-
ditions as leverage to discourage projects.
Current Corps policy does not give much guid-
ance on the level of mitigation appropriate in cases
of great uncertainties, calling only for modifications
that are "commensurate in scope and degree with
the impacts of concern." However, the Corps cur-
rently is establishing a more specific policy: in the
interim final regulations issued July 22, 1982, the
Corps indicates that it is beginning to address the
problem of uncertainty. Whether permits may re-
quire mitigation of secondary impacts, for instance,
' 'will depend on whether the impact is at least prob-
able, rather than speculative."" In its May 12,
1983, revisions of the 404 regulations, the Corps
proposed expanding authority of the district en-
gineer to provide for either onsite or offsite miti-
gation.
In the following sections, the feasibility of these
strategies is evaluated, and opportunities for and
limitations of using them are explored.
'"CFR, pt. 1508.20(a-e).
"Federal Register, vol. 45, No. 184, pp. 62, 657.
130 • Wetlands: Their Use and Regulation
Feasibility of Compensation
or Off site Mitigation
Creation
Producing a new wetland usually involves filling
an open-water or upland ecosystem, which may,
in itself, possess important values. Developing a
new wetland entails providing the proper substrate
level and type, assuring chemical compatibility, and
providing erosion control during establishment of
vegetation. The complexity of these factors intro-
duces considerable risk of failure; however, the
historical record shows that creation of wedands can
be successful, given proper site selection and
preplanning.
Marsh creation has occurred mainly in coastal
waters or along shorelines that are not exposed to
large storm waves or the wakes of ships (20,39,60).
Planting aquatic plants predates the 1940's.
Marshes of various sizes have been developed along
the Mississippi River since the 1930's, in Utah in
the 1930's and 1940's, and in Wisconsin and other
States since the 1940's. Although some projects
range up to several hundred acres in size, marsh
creation by means of artificiad plantings tends to
be on a smaller scade (0.1 to 10 acres) owing to high
costs for establishment.
The largest concentration of projects has occurred
in brackish and saline environments along the mid-
Adantic and Southeastern coasdines. Wedands also
have been created successfully in New England,
along the Gulf Coast, particularly in Texas (57),
and along the west coast [e.g., San Francisco Bay
and the Columbia River estuary (51)]. Some
freshwater marshes have been established on rivers
(55), on the Great Lakes (59), in isolated ponds as
part of surface-mine reclamation (1 1), and in sew-
age lagoons, to assist with wastewater treatment
(16).
Restoration of Wetlands
Restoration involves taking an existing marsh
from a poor, unhealthy, or degraded state to the
level of productivity and habitat value associated
with undisturbed natural wedands occurring in the
vicinity. This process often can be accomplished
by changing surrounding water inflow or drainage,
eliminating erosion and siltation, and reducing
pollution from adjacent areas (6,29,46). Restored
areas generally will have at least some semblance
of the natural elevations and substrate unless ero-
sion or sediment deposition has been severe. Resi-
dual populations of natural plants usually are pres-
ent to serve as seedstock for widespread regenera-
tion. However, re-creation of wedands has occurred
from seed remaining in the soil for decades.
Restoration, although not widely reported, has
been practiced in estuarine systems where diking
has degraded coastal wedands (33,47), in areas
where normal sediment input or hydrologic patterns
have been disrupted (48,49), and in brackish or
saline marshes that have been modified heavily by
construction activities or exposed to different types
of pollutants (55). In some cases, freshwater wet-
lands have been restored, as in the case of Florida's
extensive freshwater ecosystems (50,52). Marsh-res-
toration projects tend to be small — usually 20 acres
or less.
Costs of Creation and Restoration
Any successful marsh-creation or marsh-resto-
ration project must involve costs for project plan-
ning, site investigation, careful seasonal schedul-
ing, and postproject monitoring. Total project costs
typically range from $250/acre for a small, relatively
simple marsh-creation project (57) to over $6,000/
acre for a marsh established for sewage treatment
(16). Transport of substrate material by barge,
truck, or dredge, and subsequent site preparations
usually account for the largest single cost wherever
the site requires extensively raised elevations. In
most newly created wedands, artificial plant propa-
gation is also a necessary and significant cost.
Scheduling of project operations within natural en-
vironmental constraints, such as the periods of
tides, plant germination time, and limits of the
growing season cam increase costs in the short term
but will contribute gready to project success over
the long term. In general, it is far less cosdy to
restore degraded wedands than to create new wet-
lands.
Prospects for Success
The success of efforts to create or restore wet-
lands depends on many factors, including wetland
type and location, project scope and size, materials
Ch. 6— Impacts and Mitigation • 131
and methods used, and good project planning and
management, especially during the first two or three
growing seasons. However, even a properly devel-
oped wetland will require an extended period of
time for the functions of a natural wedand to evolve.
For example, hydrological values and the ability
of manmade wetlands to enhance sedimentation of
suspended material are achieved within a relative-
ly short time; wedand ability to assimilate nutrients
and toxic substances takes somewhat longer. The
diversity of a site and its ability to support more
wildlife also generally increase over time. However,
there is insufficient data at this time to say how long
it takes for all the biological functions of a natural
wetland to develop.
WETLAND PRESERVATION VS.
RESTORATION OR CREATION
Some States may call for protecting wetlands
equivalent in biological value to the wetlands filled
or diked. Others, such as Oregon, prescribe that
no net loss of existing wetland values should oc-
cur: "Oregon's mitigation requirement . . . is that
areas of similar biological potential must be created
or restored, not simply protected (25)." The mitiga-
tion goal is to replace lost wetlands with restored
or new wetlands similar in quantity and quality of
flora and fauna. Recently, the concept of "no net
loss" has been criticized. The skepticism arises from
a concern over whether new marsh creation really
compensates for losses of natural wetlands. Race
and Christie (42), for instance, write:
A reevaluation of data from manmade marshes
is necessary before there can be a determination
of whether coastal salt marshes are truly being
replaced or expanses of marsh vegetation that per-
sist temporarily are merely being planned ... a
newly created marsh is not the functional equiva-
lent of a 1,000-year-old marsh.
These authors warn that mitigation should not
be offered as justification for the development and
destruction of wetlands. The assumed ability to
"create" wetlands, they say, creates the percep-
tion that wetlands are a renewable resource, a
perception that could lead to more widespread de-
velopment. Regulators, they feel, should be "ju-
dicious" in allowing mitigation by marsh creation.
Race and Christie conclude that:
Marsh creation in suitable situations can be an
effective tool to minimize onsite damage at post-
construction sites, to abate shoreline erosion, and
to return degraded wetlands to tidal influence by
means of restoration. However, because of the lim-
ited scientific evidence on the development and sta-
bilization of important biotic and physical charac-
teristics of manmade salt marshes, managers must
be cautious in the widespread adoption of marsh
creation as a mitigation strategy.
OPPORTUNITIES FOR WETLAND
MITIGATION BANKING
The Statewide Interpretive Guideline for Wet-
lands and Other Wet, Environmentally Sensitive
Habitat Areas, adopted pursuant to the California
Coastal Act, provides for the payment of a fee to
a public agency for purchase and restoration of a
degraded wetland to a productive value at least
equivalent to that of a wetland being filled. The
payment to a "mitigation bank" would be in lieu
of dedicating or restricting the use of a comparable
wedand provided direcdy by the permitholder (36).
This feature relieves the burden on landowners and
developers of searching out suitable mitigation sites.
It also promotes a cohesive rather than a
fragmented approach to wedand-impact mitigation,
with significant opportunity for economy of scale.
A Federal wetland bank, as suggested by the
Corps, would operate as in California except that
creation of replacement wetlands would be empha-
sized (54). In fact, Congress has authorized use of
a wetland mitigation bank associated with the Ten-
sas project in Louisiana.
Onsite Mitigation to Minimize
Impacts
Site-Specific Requirements
Many development activities produce primary,
secondary, and cumulative impacts in or adjacent
to wetlands that can be minimized feasibly when
ftdly understood. Thus, successful control of the pri-
mary impact, in turn, will reduce subsequent sec-
ondary and cumulative impacts. Further mitiga-
tion efforts may be necessary, however, where an
activity is known to produce significant indirect or
132 • Wetlands: Their Use and Regulation
compounding adverse effects. An areawide wetland
review may uncover further unforeseen impacts.
One of the major problems in mitigating proj-
ect impacts is the difficulty of mitigating cumulative
and secondary impacts. The lack of reliability in
impact prediction complicates the mitigation proc-
ess. As an example, a short-term, isolated, primary
impact of a dredging operation is suspension of sedi-
ment in the water column. The narrow approach
toward mitigating this effect might include avoiding
periods of fast tidal currents and deploying silt cur-
tains. However, secondary impacts may include the
release of excess nutrients and toxic contaminants.
Long-term cumulative impacts from repeated
dredging and other excavation at many sites
throughout a single estuary might include low-level,
but widespread, bioconcentration of metals and
synthetic organic compounds, with consequent
chronic, sublethal effects within the food chain.
Mitigative measures designed merely to minimize
the direct, localized effects of separate dredging
operations may fail to address systemwide, indirect
effects.
General Requirements
Mitigating impacts on wetlands may take the
form of standard conditions attached to individual
dredge or fill permits, conditions incorporated into
general nationwide and regional permits, and the
best management practices (BMP's) prescribed for
activities exempted from any permits. While the
nature of general prescription has eased the regu-
latory burden of issuing individual permits cover-
ing site-specific situations and has set approximate
standards for common development practices, it
overlooks the likelihood of environmental damage
that may occur because specific wetland functions,
values, and sensitivities are not considered. As an
example, disposal of spoil from maintenance dredg-
ing might be required under a regional general per-
mit to avoid discharge in or near active currents.
This practice could lead to several shallow-water
spoil sites in a wetland area with long-term effects,
such as chronic resuspension of sediments from
wind and waves, periodic disruption to bottom-
dwelling populations, and possible bioaccumulation
of toxic chemicals (37). Under an individual per-
mit, however, site-specific conditions might stipu-
late long-term disposal within a diked containment
site to avoid contamination of a nearby wetland
heron rookery or of a municipal ground water
supply.
BMP's are applied to common activities such as
minor road construction for maintenance of natural
surface and subsurface drainage or pipeline installa-
tion for sediment control. A representative BMP
for a minor road might be to install culverts through
the causeway fill with spacing, elevation, and
capacity needed to maintain lateral drainage, in-
cluding stormflows and the passage of fish cind other
aquatic animals (37). The application of BMP's on
an indiscriminate basis can reduce the effectiveness
of mitigation measures by overlooking limiting, site-
specific conditions. To ensure their effectiveness,
adequate site investigations are necessary to show
that critical or sensitive wetland values and func-
tions are not jeopardized and that local environ-
mental conditions will not negate normal BMP ef-
fectiveness. For example, where there is unchan-
neled sheet flow in a marshland, the required num-
ber and spacing of culverts will be quite different
than where surface flow is already channeled; other-
wise, the usual BMP approach could cause adverse
hydrologic impacts by promoting channeling. In
conclusion, BMP's generally are appropriate where
impacts from a specified activity are localized, con-
sistent, and predictable; the mitigative measures
are highly standardized and proven effective; and
the landowners or developers responsible possess
the necessary technological and management capa-
bilities to use these practices effectively.
Controversy over mitigation arises over applica-
tion of blanket stipulations of mitigation require-
ments as opposed to case-by-case tailoring of per-
mit conditions. Blanket stipulations gready increase
the uncertainty over the effectiveness of mitigation
requirements, and developers complain that they
are required to meet blanket stipulations that are
not applicable to their specific permit situation.
Because it lacks resources to undertake the exten-
sive site investigations or studies to determine the
effectiveness of different mitigation measures, the
Corps has been forced to use stipulations recom-
mended by its staff and staff from other resource
agencies. GAO, in a report to the Congress on im-
proving wetlands permit processing in Alaska,
concluded:
Ch. 6— Impacts and Mitigation • 133
(The) Corps imposes controversial and costly
permit conditions without assuring that these con-
ditions are, in fact, needed. The need for these con-
ditions, which are frequendy proposed by various
Federal and State agencies, is not substantiated by
site-specific data and research findings (12).
GAO recommended increased site-specific inves-
tigation to prescribe impact controls adapted to
unique site characteristics instead of blanket stipula-
tions. This recommendation was aimed at the uni-
form application of partictilarly cosdy measures that
may burden the oil companies, such as seasonal
drilling requirements in wedands. However, GAO
admitted that without more research to substanti-
ate such restrictions, neither their imposition nor
the removal of blanket restrictions could be justified.
Uncertainty of Mitigation Cost Effectiveness
In the Corps' proposed regulations for processing
of section 404 permits, special conditions may be
attached "only to respond to effects and impacts
of the permit which are at least probable rather than
speculative.'^ Banta and Nauman (2) believed that,
"While ideally (mitigation) involves an objective
judgment by scientific standards . . . , it has fre-
quently become the last ounce of environmental
quality that can be injected into a project within
legally and politically acceptable hmits." For ex-
ample, a standard mitigation criterion in the En-
vironmentzil Protection Agency's (EPA) section
404(b)(1) guidelines is to minimize adverse effects
by "selecting sites or managing discharges to pre-
vent or avoid creating habitat conducive to the de-
velopment of undesirable predators or species which
have a competitive edge ecologically over in-
digenous plants or animals." This much sophistica-
tion actually applied to the conditioning of permits
would entail considerable subjectivity and specu-
lation.
Clearly, there is more objectivity and accounta-
bility where mitigation is prescribed in more specific
terms tailored to local conditions, or at least to
regional situations. On the other hand, a total site-
specific approach would impose an inordinate regu-
latory burden on both the permitters and permit-
holders. Mitigation may not be cost effective where,
as GAO has pointed out, cosdy measures for wet-
"Federal Register, vol. 45, No. 184, pp. 62, 757.
land protection are requested without a site ex-
amination to ascertain the need in each case. Also,
requesting untested or (experimental) practices for
impact mitigation may be insupportable in view of
the proposed regulation to eliminate conditioning
of permits for speculative impacts. Unfortunately,
the followup evaluation of actual cost effectiveness
for classes of mitigative measures has been very
deficient.
Management Plans
To design a mitigation plan covering secondary
and cumulative impacts in an area subject to signifi-
cant development activities, a systemwide impact
assessment such as that provided by the Corps'
"wedand review" must be undertaken prior to de-
veloping an estuary management-and-mitigation
plan. The offsite, cumulative effects of many wet-
land fills within an estuary on basinwide tidal cir- ^
culation and water levels could be controlled by lim-
iting the siting, uses, and overall amount of land-
fills. Through this approach, appropriate resource-
based constraints to development projects can be
identified based on an inventory of physical, bio-
logical, esthetic, social, and economic resources.
Objectives of the plan are linked consistently with
all project proposals, and the costs are shared equi-
tably.
Management plans are initiated generally by
groups that have responsibility for local planning
and development. To help ensure that the plan will
be implemented, the sponsoring group may seek
the participation of the Corps and other agencies
with regulatory responsibilities. Management plan-
ning efforts can be particularly useful for specific
areas where pressures for development are intense,
there are constraints to development, and incon-
sistent policies and plans for an area make deci-
sionmaking especially difficult.
Management plans can be used to define which
areas are to be protected or developed. For exam-
ple, the Anchorage Wedand Plan classifies areas
into four categories: preservation, which precludes
any development; conservation, which allows lim-
ited development with mitigation measures; devel-
opable, which allows complete draining and filling;
and special study, which requires additional envi-
ronmental data to determine status. The plan is be-
134 • Wetlands: Their Use and Regulation
ing implemented through local planning and con-
trol mechanisms and includes a provision for Fed-
eral consistency with local coastal-management pol-
icies. The Corps currently is preparing to issue a
general permit to the city for development activities
that occur in wedands covered by the plan (18).
Management plans also can be used to restrict
certain development activities and establish stand-
ards for other types of development. For example,
the East Everglades Management Plan prohibits
road construction in permanent wetlands, allows
agricultural use in some drier areas (particularly
those that were disturbed previously), restricts the
density of residential development, and defines
BMP for three basic management areas. To imple-
ment the law, the local government must develop
some new mechanisms, including a site-alteration
overlay ordinance and a system of transferable de-
velopment rights; establish new zoning districts;
and continue to regulate obstructions to surface wa-
ter flows under an existing ordinance. State govern-
ment also has the responsibility of continuing to
regulate dredge and fill in the area to the extent
authorized under State law and of revising water-
quality standards for the area.
Continued regulation of section 404 by the Corps
is cdso an important element in the implementa-
tion of the plan, particularly in cases of violations.
Corps jurisdiction is broader than the State's, and
the Corps has acted more quickly than the county
in enforcement actions (9).
Management plans also have been used to resolve
the conflicts and inconsistencies between the policies
of the numerous agencies with jurisdiction in an
area. For example, an objective of the Grays Har-
bor (Washington) Estuary Management Plan is to
set guidelines that offer some assurance that activ-
ities permitted by the plan would have general con-
currence from all the agencies involved. This plan-
ning process is described in detail below.
The Grays Harbor Estuary Planning Task Force
was formed in 1975 with representatives from all
the agencies responsible for plans and regulations
in the area. In 1976, funds were acquired from the
Office of Coastal Zone Management (OCZM) for
development of the plan, which began with the
development of a comprehensive data base deline-
ating the physical and biological resources, owner-
ship, land use, comprehensive plan designations,
areas of conflict, and other data. Development of
the actual plan occurred during a series of work-
shops in which the task force determined planning
areas, established specific management units, and
developed policies to direct development activities
in the estuary. The draft plan underwent extensive
review, and a final plan recently has been com-
pleted.
The Grays Harbor Regional Planning Commis-
sion is the lead agency for the plan but has no au-
thority to adopt or enforce the plan. Instead, the
plan is recognized as a recommendation from the
task force to the numerous agencies involved in the
planning process and in development activities in
the estuary. At present, an environmental impact
statement (EIS) on the plan is being prepared by
OCZM.
Each of the agencies involved has been asked
cJso to prepare a memorandum of understanding
(MOU) to explain how it perceives the plan, and
how it will be used. To date, none of the MOU's
have been completed and probably will not be until
the EIS is finished. Unofficially, severed agencies
have indicated that the plan probably will not be
considered binding; however, it will be given seri-
ous consideration in evaluation of local concerns
and the public interest. The Fish and Wildlife Serv-
ice (FWS) notes that it supports the plan; it has ac-
cepted some major environmental losses in ex-
change for long-term protection of other portions
of the estuary. FWS also observes that the plan does
not make decisions but will serve as a guideline and
should streamline permit review. The Corps also
generally supports the plan. The Corps has been
asked to give serious consideration to issuing gen-
ercd permits for some activities in the area; in par-
ticular, the disposal of dredge or fill material in
unvegetated and vegetated intertidal areas desig-
nated in the plan for industrial development. To
date, no decision has been made on these general
permits.
A major issue in the plan is the predesignation
of dredged-material disposal sites within the estu-
ary. The Regional Planning Commission and the
Port of Grays Harbor have expressed a strong de-
sire for predesignation by EPA; to date, EPA has
not made a decision on this issue. Since some of
Ch. 6— Impacts and Mitigation • 135
the areas are vegetated and unvegetated wetlands
of significant environmental value, EPA has ex-
pressed some concern about whether such a pre-
designation is legal.
State and local concerns about Federal involve-
ment in the plan also have been expressed in an-
other manner. The plan is viewed as an attempt
to create a regional plan for shoreline management
that will provide consistency and predictability for
both development and conservation interests.
Through the planning process, least damaging al-
ternatives and compromise solutions were inves-
tigated and pursued.
Greater legal commitment of different Federal
agencies to the results of any planning efforts of this
sort are very much needed. If the Federal agen-
cies cannot commit to the final components of the
plan, then case-by-case permit evaluation will re-
place long-term plaiming. Not only will predictabili-
ty and shortened permit processes be precluded,
but other local jurisdictions will be discouraged
from pursuing comprehensive shoreline planning,
an outcome perceived to thwart the goals of
OCZM.
In spite of the concerns described above, the plan
is considered by many to have been a successful
exercise. Representatives from most of the jurisdic-
tions involved felt it was a good idea and have com-
mitted time and effort for almost 6 years. The port
often has been able to maintain momentum when
other agencies lost enthusiasm or became mired in
the process. Furthermore, many areas of "predict-
ability" have been identified. Development inter-
ests can learn which are controversial locations and
which are acceptable. At least some regulatory
agency personnel already are using the plan to assist
them in making decisions, even if they have not
firmly acknowledged its authority (45).
CHAPTER 6 REFERENCES
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9. Center for Governmental Responsibility, "Wet-
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136 • Wetlands: Their Use and Regulation
11. Clewell, A. F., "Vegetational Restoration Tech-
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1981, pp. 158-159
12. Comptroller General of the United States, "Report
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13. Craig, N. J., Turner, R. E., and Day, J. W., Jr.,
"Wedand Losses and Their Consequence in Coastal
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1980, pp. 225,241.
14. Darnell, R. M., Pequenat, W., James, B. M., Ben-
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15. Deegan, L. A., Kennedy, H. M., and Costanza,
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logical Modeling, Colorado State University, Fort
Collins, Colo., 1982.
16. Demgen, F. D. and Nute, W. J., "Wetlands Crea-
tion Using Secondary Treated Wastewater," Mt.
View Sanitary District, Calif., AWWA Research
Foundation, Washington, D.C., 1979.
17. ESA/Madrone, "Wedands Policy Assessment: Cali-
fornia Case Study," contract study for OTA, Sep-
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18. ESA/Madrone, "Wetlands Use and Regulation:
Alaska Case Study," contract study for OTA, Jan-
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19. Fredrickson, L. H., "Floral and Faunal Changes
in Lowland Hardwood Forests in Missouri Result-
ing From Channelization, Drainage and Impound-
ment," U.S. Fish and Wildlife Service," Eastern
Energy and Land Use Team, FWS/OBS-78/91,
1979.
20. Garbisch, E. W., WoUer, P. B., and McCallum,
R. J., "Salt Marsh Establishment and Develop-
ment," Environmental Concern, Inc., St. Michaels,
Md., Coastal Engineering Research Center, Fort
Belvoir, Va., 1975.
21. Giese, G. S. and Mello, M. J., "Effects of Inlet
Dredging on a Small Estuary," In: Proceedings of
the Third Annual Meeting Society of Wetland Sci-
entists, Wrightsville Beach, N.C., 1982.
22. Great Plains Office of Policy Studies, "Wedand
Trends and Protection Programs in Nebraska,"
University of Nebraska, contract study for OTA,
September 1982, p. 25.
23. Guntenspergen, G. and Stearns, F., "Ecological
Limitations on Wetland Use for Wastewater Treat-
ment, Selected Proceedings of the Midwest Con-
ference on Wedand Values and Management, June
17-19, 1981, B. Richardson (ed.), St. Paul, Minn.,
1981.
24. HerrgeseU, P. L., Kohlhorst, D. W., Miller, L. W.,
and Stevens, D. E., "Effects of Freshwater Flow
on Fishery Resources in the Sacramento-San
Joaquin Estuary," Proceedings of the National
Symposium on Freshwater Inflow to Estuaries, R.
D. Cross and D. L. Williams (eds.), U.S. Fish
and Wildlife Service National Coastal Ecosystems
Team, FEW/OBS-81-04; NTIS No. PB 82-131434,
1981.
25. Hershman, M. and Ruotsala, A., "Implementing
Environmental Mitigation Policies, Coastal Zone
'78, vol. II, Symposium on Technical, Environmen-
tal, Socioeconomic and Regulatory Aspects of
Coastal Zone Management, San Francisco, Ameri-
can Society of Civil Engineers, New York, N.Y.,
1978, p. 1333.
26. Hicks, D. B., Cavendar, T. R., Carroll, B. J.,
Raschke, R. L., and Murphy, P. M., "Finger-fill
Canal Studies, Florida and North Carolina," U.S.
Environmental Protection Agency, Athens, Ga.,
EPA 904/9-76-017; NTIS PB-265-645, 1975.
27. Hirsh, N. P., Di Salvo, L. H., and Peddicord, R.,
"Effects of Dredging and Disposal on Aquatic Or-
ganisms," U.S. Army Corps of Engineers, Tech-
nical Report No. DS-78-5, 1978.
28. JACA Corp., "A Case Study of New Jersey Wet-
lands Trends and Factors Influencing Wetlands
Use," contract study for OTA, September 1982,
pp. 1-12.
29. Lahti, T., "Restoration of a Small Suburban
Southern Wisconsin Wetlands," Wetlands: Ecol-
ogy, Values and Impacts, Proceedings of the
Waubesa Conference on Wedands, Madison, Wis.,
1977.
30. Longley, W. M., Jackson, R., and Snyder, B.,
"Managing Oil and Gas Activities in Coastal En-
vironments," U.S. Fish and Wildlife Service, Na-
tional Coastal Ecosystems Team, FWS/OBS-78/54,
1978.
31. Maki,T. E., Weber, A.J.,Hazel, D. W., Hunter,
S. C, Hyberg, B. T., Flinchum, D. M., Lollis, J.
P., Rognstad,J. B., and Gregory, J. D., "Effects
of Stream Alteration on Bottomland and Swamp
Forest Ecosystems," University of North Carolina,
Water Resources Research Institute, Raleigh,
N.C., UNC-WRll 80-147, 1980.
32. Michigan Department of Natural Resources,
"Manual for Wedand Evaluation Techniques," op-
Ch. 6— Impacts and Mitigation • 137
erational draft, Division of Land Resource Pro-
grams, 1980.
33. Mitchell, D., "Restoration of a Salt Marsh on the
Scdmon River Estuary, "Estuarine Research Fed-
eration Conference, Salishan, Ore., 1981.
34. Myhrum, C. B., "Federal Protection of Wetlands
through Legal Process," Boston College Environ-
mental Affairs Law Review, vol. 7, No. 4, 1979,
pp. 567-628.
35. National Waterfowl Management Plan for the
United States, Cooperators: U.S. Fish and Wildlife
Service, Pacific Flyway Council, Central Flyway
Council, Mississippi Flyway Council, Atlantic Fly-
way Council, 1982.
36. National Wetlands Newsletter, "California Wet-
lands; California Wetlands Guidelines; California
Tidelands: Public or Private?; California Wetlands
Banking; California's Coastal Conservancy," vol.
3, No. 3, 1981, pp. 5-11.
37. Nelson, R. W., Shea, G. B., and Logan, W. J.,
"Ecological Assessment and Reduction of Impacts
from Inland Dredge and Fill Operations," U.S.
Fish and Wildlife Service, Eastern Energy and Land
Use Team, Kearneysville, W.Va., FWS/OBS-
82/19, 1982.
38. Nelson, R. W., Logan, W. J., and Weller, E. C,
Playa Wetlands and Wildlife of the Southern Great
Plains: A Characterization of Habitat, U.S. Fish
and Wildlife Service, Western Energy and Land
Use Team, in press.
39. Newcombe, C. L., Morris, J. H., Knutson, P. L.,
and Gorbics, C. S., "Bank Erosion Control with
Vegetation; San Francisco Bay, California," U.S.
Army Coastal Engineering Research Center, Fort
Belvoir, Va., 1979.
40. Parish, G. E. and Morgan, J. M., "History, Prac-
tice and Emerging Problems of Wetlands Regula-
tion: Reconsidering Section 404 of the Clean Water
Act," Land and Water Review, vol. 27, No. 1,
1982, pp. 43-84.
41. Parker, J. C, Holcomb, H. W., Jr., Klussman, W.
G., and McNeill, J. C. IV, "Distribution of Aqua-
tic Macro-Fauna in a Marsh in West Galveston
Bay, Texas, and Possible Effects Thereon Resulting
from Impoundments for Shrimp Culture," Texas
A. & M. University, Sea Grant Prog. Rep. No.
TAMU-SG-71-208; NTIS-PB 199-196, 1971.
42. Race, M. S. and Christie, D. R., "Coastal Zone
Development: Mitigation, Marsh Creation, and
Decision-Making," Environmental Management
Journal, vol. 6, No. 4, 1982, pp. 317-328.
43. School of Forestry and Environmental Studies,
"Wetland Trends and Policies in North and South
Carolina," Duke University, contract study for
OTA, August 1982, p. 99.
44. Schuldiner, P. W., Cope, D. F., and Newton, R.
B., "Ecological Effects of Highway Fills on Wet-
lands— User's Manual," National Cooperative
Highway Research Program Reports 218A and
218B, Transportation Research Board, Nation-
al Research Council, Washington, D. C, TRB/
NCHRP/REP-218A and 218B, NTIS No. PB 80-
142094, 1979.
45. Shapiro and Associates, Inc., "An Analysis of Wet-
lands Regulation and the Corps of Engineers Sec-
tion 404 Program in Western Washington," con-
tract study for OTA, September 1982.
46. Shea, G. B., "Rain River Preserve Management
Plan," The Nature Conservancy, Portland, Ore.,
1977.
47. Shea, G. B. and Boss, T. E., "Rain River Pre-
serve Management Studies, Final Annual Report,"
Western Eco-Sy stems Technology, Bothell, Wash.,
1981.
48. Shea, G. B., "Hydrologic and Biological Studies
for Restoration of the Storkan Marsh, Oak Bay,
Washington," Western Eco-Systems Technology,
Bothell, Wash., 1981.
49. Shea, G. B., "Hydrologic and Biological Studies
of Finel Swamp, Maryland," Western Eco-Systems
Technology, Laurel, Md., 1981.
50. Teas, H. J., "Ecology and Restoration of Man-
grove Shorelines in Florida," Environmental Con-
servation, vol. 4, No. 1, 1977, pp. 51-58.
51. Ternyik, W. E., "Salt Marsh Creation in the Pacific
Northwest: Criteria, Planting Techniques, and
Costs," Wave Beach Grass Nursery, Florence,
Ore., Rehabilitation and Creation of Selected
Coastal Habitats: Proceedings of a Workshop,
Sapelo Island, Ga., 1976.
52. Tolman, A. J., "Florida's Water Resources Res-
toration Program," Florida State Department of
Environmental Regulation, Tallahassee, Fla. Lake
Restoration, report No. EPA 440/5-79-001, 1979,
pp. 39-40.
53. Turner, R. E., Costanza, R., and Scaife, W.,
"Canals and Wetland Erosion Rates in Coastal
Louisiana," unpublished report. Center for Wet-
lands Resources, Louisiana State University, Baton
Rouge, La., 1982.
54. U.S. Army Corps of Engineers, Institute of Water
Resources, "Regulatory Impact Analysis," unpub-
lished report. Fort Belvoir, Va., 1982.
55. Virginia Institute of Marine Science, Gloucester
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Impacts of Marsh Development with Dredged Ma-
terial, Botany, Soils, Aquatic Biology, and Wildlife,
1978.
138 • Wetlands: Their Use and Regulation
56. Water Resources Research Center, "Regional As-
sessment of Wetlands Regulation Programs in New
England," University of Massachusetts, contract
study for OTA, September 1982.
57. Webb, J. W. and Dodd, J. D., "Shoreline Plant
Establishment and Use of a Wave-Stilling Device,"
paper No. 78-1, U.S. Army Coastal Engineering
Research Center, Fort Belvoir, Va., 1978.
58. Wigham, D. R. and Simpson, R. L., "Sewage
Spray Irrigation in a Delaware River Freshwater
Tidal Marsh," Freshwater Wetlands and Sewage
Effluent Disposal, Proceedings of National Sym-
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Ann Arbor, Mich., NSF/RA-760251; NTIS No. PB
259 305, 1976.
59. Wile, I., Miller, G., and Black, S., "Design and
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60. Woodhouse, W. W., "BuUding Salt Marshes Along
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Army Coastal Engineering Research Center, Fort
Belvoir, Va., 1979.
Chapter 7
The Effects of the 404 Program
Photo credit: OTA staff. William Barnard
Contents
Page
Chapter Summary 141
Effects on Wetlands 141
Program Effects Not Reflected in Permit Data 142
Program Effects Reflected in Program Data 143
Effects on Development Activities 145
Benefits of the 404 Program to Regulated Sectors 146
General Objections to the Program by Regulated Sectors 147
Specific Impacts of the 404 Program 152
Processing Costs 154
Modification Costs 155
Delay Costs 156
Percentage of Permits Delayed 156
Length of Delays 157
Sources of Delays 157
Opportunity Costs 159
Distribution of Costs 160
Chapter 7 Technical Notes 161
TABLES
Table No. Page
23. Corps of Engineers' Wetland Acreage Survey, 1980 to 1981 145
24. Estimated Effects of Technology Transfer on Financial Costs 147
Chapter 7
The Effects of the 404 Program
CHAPTER SUMMARY
According to U.S. Army Corps of Engineers es-
timates for 1980-81, Corps districts (excluding
Alaska) processed permits for projects that, if com-
pleted as requested, would have resulted in direct
and indirect conversion of approximately 100,000
acres of wetlands per year. The Corps authorized
projects that, if completed in accordance with the
conditions of the permits would involve the con-
version of approximately 50,000 acres of wetland
or about half the acreage applied for. National
Marine Fisheries Service (NMFS) data for the
coastal wetlands (in the lower 48 States) indicate
that the 404 program, in combination with State
regulatory programs, reduced the conversion of
coastal wetlands by 70 to 85 percent in 1981 . Thus,
several thousand acres of coastal (saltwater) wet-
lands are probably being converted to other uses
each year. Moreover, each year about 5,000 acres
of vegetated wedands either are created or restored
for mitigation purposes as a direct result of the
"conditioning" of 404 permits.
There are probably numerous cases where reg-
ulatory costs or delays to developers have been
substantial — in some cases, millions of dollars. But
little verifiable data are available to document the
overall impacts of 404 on development activities,
especially as they relate to other costs imposed by
other policies and programs (such as sec. 10, the
National Environmental Policy Act (NEPA), State
programs; and local ordinances) and general
economic conditions. Information collected by this
study suggests that 404, for the most part, mini-
mizes or compensates for impacts rather than pre-
vents development.
All permit applicants bear at least some 404-re-
lated costs resulting from permit denials, modifica-
tions of projects, permit processing, and/or process-
ing delays. Of approximately 1 1 ,000 project appli-
cations per year, slightly less than 3 percent are
denied; about one-third are modified significantly
to reduce wetland impacts; and about 14 percent
are withdrawn by applicants. About half are ap-
proved without significant modifications. From
1977 to 1981, the average processing time for non-
EIS (environmental impact statement) permits was
about 130 days; in 1983, the average processing
time was about 70 days. Less than 1 percent of all
projects permitted by 404 require an EIS, which
may take several years to complete. Delays in proc-
essing permit applications for the relatively few
large-scale projects that represent the bulk of the
economic value of all proposed development activ-
ities probably account for a substantial portion of
the total costs to industry associated with the 404
program.
EFFECTS ON WETLANDS
In many areas of the country, the 404 program
is the only Government program controlling the
use of wedand resources. This chapter discusses the
effects of the 404 program on wetlands; however,
it does not evaluate the effectiveness of the program.
Analysis of effectiveness requires judgments about
how the program should optimally or realistically
perform to reach both specified goals and measure-
ments of the actual performance against the ideal.
This chapter presents evidence of how the 404 pro-
gram actually has affected wetlands.
Theoretically, the effect of the 404 program on
wetlands use can be quantified from permit data
by tallying the acreage of wedands that are not con-
verted as a direct result of the permit evaluation
process, or the acreage on which the impacts of de-
velopment have been lessened, and the acreage of
141
142 • Wetlands: Their Use and Regulation
wetlands that have been created or restored as a
result of the program. In practice, it is very dif-
ficult to present an accurate picture of the effects
of the program. Very litde quantitative informa-
tion has been compiled detailing what the program
has accomplished.
Although many sources were consulted, the fol-
lowing are the only available sources of hard data
on the effects of the program nationwide:
• The Corps' Regulatory Functions Branch
summaries, covering basic information such
as number of permit applications, denials, and
withdrawals.
• The Corps' Institute for Water Resources
(IWR) report. Impact Analysis of the Corps
Regulatory Program. The major source of
data for the IWR report was a "regulatory im-
pact assessment" (RIA) questionnaire, sent to
all Corps districts by the Regulatory Functions
Branch in 1981 . This report only appeared in
draft form and has not been released official-
ly (1)-
• OTA survey of Corps districts. OTA sent all
Corps offices a questionnaire designed to sup-
plement information available from other
sources. Of 38 offices, 37, including all 36
Corps districts, responded. (The Honolulu of-
fice did not respond to the survey.)
These sources were supplemented by other ma-
terials, such as an OTA survey of the 50 States,
case studies of 21 States conducted by contractors
for OTA, data on NMFS Southeast region permit
recommendations, and interviews conducted by
OTA staff.
While adequate data are available on such basic
indices as the number of permit applications and
issuances, information is far more sketchy concern-
ing permit modifications, mitigation, and other
things necessary to assess the impact of the program
on wedands. Few districts compile the permit infor-
mation necessary for an evaluation of the program.
Usually, Corps personnel have been forced to make
unverifiable estimates when asked to provide quan-
titative data on the program. Composites of such
approximations probably convey an accurate over-
all picture but make the accuracy of resulting sta-
tistics open to question. In the absence of firm data.
estimates from different sources must be weighed
against one another.
Interpretation of data from the above materials
is complicated further by several factors. First,
Corps districts have great independence and flex-
ibility in how they interpret the requirements of the
404 program and often differ considerably in the
types of wetlands and development activities en-
compassed within their boundaries. Many of the
conclusions of most studies of 404-program effects
are based on information from a limited sample of
districts.
Second, it is extremely difficult to separate the
effects of the 404 program from the effects of other
influences on the use of wetlands. It is likely that
general economic conditions, such as interest rates,
and conditions specific to particular development
activities or areas have much greater effects upon
wedand development than do governmental regula-
tions.
Third, while reduction of wetland loss rates can-
not be exclusively attributed to the 404 program,
it is clear that in the great majority of States, the
program plays a crucial role in regulating the use
of many wetlands. When States were asked by
OTA to evaluate the relative importance of the 404
program in comparison with State programs, 10
States asserted that the 404 program is redundant
and relatively unimportant in management of both
coastal and inland wedand areas and that their State
programs play the dominant role. However, separa-
tion of the effects of the 404 program from those
of State programs is possible only where State pro-
grams do not exist or do not cover activities or areas
dealt with by the 404 program.
Program Effects Not Reflected
in Permit Data
The 404 program has been successful in reduc-
ing damage to wetlands through actions not re-
flected in permit data and which are difficult to
quantify. The greater the number of projects sub-
mitted to the 404 process and the more environmen-
tally damaging those projects are, the more per-
mit modifications and denials are likely to be re-
quired by the Corps. Measures taken by the Corps
Ch. 7— The Effects of tt)e 404 Program • 143
to improve the program have reduced the number
of permits submitted and made those that are re-
viewed less environmentally damaging, thus mask-
ing the quantifiable effects of the 404 program.
The expanded use of general permits has reduced
the number of permit applications by an estimated
90,000 cases annually.' While these permits may
decrease control over the use of wedands (as is dis-
cussed elsewhere in this report), other general per-
mits benefit wedand protection when best manage-
ment practices (BMPs) are required as part of per-
mit conditions.
Preapplicadon consultations* also lessen project
impacts; they may result in applicants changing a
planned activity so that it requires less wedand acre-
age or no longer occurs on a wetland — i.e., either
transferring the activity to an upland area or cancel-
ing it. Better management practices may be sug-
gested that limit the impacts on those wedands that
are used. The activity also may be altered so that
it falls under a general permit, thereby presumably
having an acceptable impact on the wetlands of a
particular region (2).
Consultations also may result in savings to appli-
cants. Permit application requirements can be clari-
fied, reducing the chance that applications would
have to be resubmitted, for example, to make up
for gaps in information. On the other hand, Corps
suggestions may entail additional costs to the appli-
cant or reduce the benefits expected from a project.
According to district estimates in the OTA sur-
vey, a range of 5 to 90 percent (with a mean of 30
percent) of applicants consult with the Corps prior
to submitting an application. A much higher per-
centage of parties planning large projects consult
with the Corps. Several districts reported that near-
ly all applications for major projects entailed preap-
plication consultations, and most industry associa-
tions and firms responding to another OTA survey
said that they routinely set up appointments with
the Corps to discuss planned activities, particular-
ly if the activities are large scale.
'Pacific Lega] Foundation, "A Repon to the Presidential Task Force
on Regulatory Relief," Mar. 18, 1982, p. 28.
'This term refers to advice given by Federal personnel to those in-
quiring about activities that might require a 404 permit.
Results of consultations are more difficult to sum-
marize. Most consultations take place at an early
stage in project planning, before applicants have
detailed plans that specify the acreage of wetlands
potentially involved. Still, most districts believe that
such consultations have had significant benefits for
wedand protection. Because of the lack of data, very
few estimates were made of reductions of amounts
of dredged and fill material or of alterations of
wetland acreage that were achieved by consulta-
tions. Instead, more qualitative estimates were
given, sometimes in terms of the percentage of per-
mits that were modified in the course of consulta-
tions. These estimates can be categorized as follows:
9 districts said they could not estimate the effects
of consultations; 4 indicated that results were in-
significant (e.g., "very few" projects were modi-
fied); 10 indicated that results were good (e.g., con-
sultations had a "good" effect; 10 percent of ap-
plications were modified); and, 14 said results were
very good (e.g., consultation results were "substan-
tial;" 50 percent of applications were modified).
A last form of program success not reflected in
permit data stems from the increased public
knowledge that has arisen about wetland benefits
and about regulations that require the developer
to apply for a permit to develop many wetlands.
This awareness has meant that an unknown num-
ber of projects have been initiated than might other-
wise have been, that many projects affect wetlands
less than they otherwise might have, and that fewer
permits, therefore, are denied or modified by the
Corps.
Program Effects Reflected in
Program Data
Reduction of Wetland Loss
The major effects of the 404 program are the
reduction of wetland conversions through permit
denials, modification of permits to reduce the num-
ber of wetland acres affected, and conditions at-
tached to permits that lessen the impact of activities
on the wetlands that are used.
Only a small number of section 404 and section
10/404 permit applications are denied; (291 out of
10,718 applications received in fiscal year 1981,
144 • Wetlands: Their Use and Regulation
about 2.7 percent). It should be noted that districts
vary greatly in the percentage of permits denied.
Twelve reported on the OTA survey that they deny
1 percent or less of permit applications, while ten
deny more than 5 percent. About 14 percent of per-
mit applicants (1,545) withdrew their applications
before the Corps rendered a decision.
A much greater number of permits are modified
in the course of the permit process. The IWR report
estimated that one-third are "substantially modi-
fied."^ Another source estimated that more than
half have conditions attached.^ Information col-
lected by OTA supports these estimates. OTA
asked districts to estimate the percentage of per-
mits requiring a 404 review that were substantial-
ly modified. Several districts separated their esti-
mates into permits that were modified substantially
and those that received more minor modifications,
saying that almost all permits were conditioned or
modified to some degree. Two districts said they
did not require substantial modifications to any per-
mit in the period considered. One of these, how-
ever, denied a large percentage of 404 applications.
Two others did not make percentage estimates, say-
ing that many or most permits were modified sub-
stantially. The estimates of the remaining districts
varied from 3 to 95 percent. The majority of dis-
tricts gave estimates ranging from 20 to 40 percent,
and the mean of all districts was 31 percent.
The effects of the 404 and State regulatory pro-
grams on potential wetland conversions can be es-
timated using two main sources of data: NMFS
Southeast region figures and results of a Corps
survey. The NMFS Southeast region, has juris-
diction over coastal areas from Texas to North Car-
olina including about 90 percent of all coastal (salt-
water) wetlands in the lower 48 States (according
to FWS trend data). The Southeast region made
recommendations that, if implemented, would have
had the following effects: During fiscal year 1981
NMFS reviewed projects that would have resulted
in the conversion of about 14,000 acres of vegetated
wedands. NMFS recommendations, which were ac-
cepted in about 98 percent of the cases, could have
resulted in the potential preservation of about 85
percent of these wetlands proposed for conversion.
Since about 20 percent of the projects were in viola-
tion of permit conditions, the actual acreage of wet-
lands saved from conversion by Federal and State
permitting programs in coastal areas probably
ranges from 70 to 85 percent.'* Thus, severed thou-
sand acres of coastal (saltwater) wetlands are pro-
bably being converted to other uses each year.
According to recent estimates compiled by the
Corps for 1980 and 1981 (table 23), its districts (ex-
cluding Alaska) processed permits for projects that,
if completed as requested, would have resulted in
direct and indirect conversion of approximately
100,000 wetland acres per year. However, the
Corps authorized projects that involved converting
approximately 50,000 acres of wetlands. In other
words, the 404 program, in combination with State
programs, was responsible for preserving about
50,000 acres of wedands if there is compliance with
all permit conditions. This is a 50-percent reduc-
tion in potential conversions from modifications,
withdrawals, and denials of 404 permits. Actual
compliance with permit conditions in NMFS South-
east region is about 70 percent. The acreage saved
by the 404 program is probably less than 50,000;
how much less is uncertain. In addition, some con-
versions may have been deterred simply by the
existence of the regulatory programs; other con-
versions may have been prevented through preap-
plication consultations with the Corps.
Creation of New Wetlands/Restoration of
Degraded Wetlands
New wedands ore created and degraded wedands
are restored or enhanced as a result of the 404 pro-
gram. In some cases, 404 permit applicants create
or restore wedand acreage as compensation or miti-
gation for acreage degraded or converted by a per-
mitted activity. In other cases, persons who have
altered wedands under the scope of the Corps' reg-
ulatory program without a permit, or who have vio-
lated permit conditions, have been required to miti-
^Institute for Water Resources, U.S. Army Corps of Engineers,
"Impact Analysis of the Corps Regulatory Program," unpublished
report, November 1982, p. 62.
'Jeffrey A. Zinn and Claudia Copeland, "Wetlands Management,"
Congressional Research Service, July 1982, p. 125.
^Figures from W. N. Lindall and G. W. Thayer, "Quantification
of National Marine Fisheries Device Habitat Conservation Efforts in
the S.E. Region of the United States," vol. 44, No. 12, 1982, pp.
18-22. During a conversation in June 1983, Lindall estimated that
75 to 80 percent of the acreage in columns 2, 3, and 4, table 1 from
this paper were vegetated wetland; 90 percent of acreage in columns
8, 9, and 10 were vegetated.
Ch. 7— The Effects of ttie 404 Program • 145
Table 23.— Corps of Engineers' Wetland Acreage Survey, 1980 to 1981
Total acreages (in thousands)
Exclusive of Including
Alaska and Hawaii Alaska
1. Total acreage of "technical" wetlands* 64,100 287,100
2. Total acreage of wetlands regulated under
individual permit 46,700 209,700
3. Wetland fill requested, past 2 years:
Direct (smothered) 56.0 63
Indirect (flooded, drained, etc.) 124.9 124.9
4. Wetland fill authorized, past 2 years (direct only) . 30.2 36.7
5. Wetlands created for mitigation, past 2 years .... 9.6 9.6
6. Wetland dredging requested, past 2 years:
Direct (dredged) 13.4 14.4
Indirect (sidebank, slumping, etc.) 15.0 15.0
7. Wetland dredging authorized past 2 years (direct
only) 3^3 4.3
^Total wetland acreage estimates based on the Corps' "tectinical" definition of wetlands. Ttiey are therefore less than the
average of wetlands estimated from the FWS National Wetland Trends Study.
SOURCE: Army Corps of Engineers.
gate impacts through wetland creation or restora-
tion.
IWR reported an estimate that "less than 5,000
acres" of wetlands are created annually,' presum-
ably as a result of the 404 program. While several
individual cases of restoration were listed, IWR did
not estimate the total acreage of wetlands restored
annually.
The NMFS Southeast region office recom-
mended that 2,493 wetland acres be created and
1,469 be "generated/compensated" in that area
from July 1981 to June 1982.^
Based on the OTA survey, 25 Corps districts es-
timated that 1 ,200 to 1 ,700 acres were created and
2,300 to 2,800 acres were restored annually (3).
These amounts do not include two cases in which
Florida phosphate mines have or will "re-create"
about 3,500 acres of wetlands "to obtain the re-
quired State and Federal permits" or to satisfy State
requirements. A Corps survey of districts and
Corps responses to OTA's questionnaire indicated
that about 5,000 acres of wetlands are created
annually.
^Institute for Water Resources, op. cit., p. 114.
'Lindall and Thayer, op. cit.
EFFECTS ON DEVELOPMENT ACTIVITIES
Although many development activities benefit
from wetland protection, the 404 program also im-
poses costs on development from the processing,
modifications, and delays entailed in the 404 per-
mitting process. Aside from financial costs, more
general objections to the program voiced by such
parties as industry trade associations include ques-
tions about the need for the program to protect wet-
lands, congressional intent regarding wedands and
the 404 program, the value of wetlands versus the
value of their development, and possible inefficient
or inequitable program administration.
Some firms state that they have borne major 404-
related costs, in some cases millions of dollars, and
it is evident that all firms that go through the per-
mitting process bear at least some costs. However,
although many individual firms have abundant ma-
terial on their own experiences, very little data are
available that aggregate individual experiences into
746 • Wetlands: Their Use and Regulation
industrywide estimates. Very few trade associations
have collected detailed statistics from their mem-
bership.
The desire to reduce costs brought by the 404
program to permit applicants has been a major fac-
tor in many or most efforts to change the 404 pro-
gram through legislative and regulatory revision.
Many industry associations and firms have voiced
their unhappiness with the current program. In par-
ticular, the program is said to be unnecessary, or
at least overly restrictive and cumbersome, and to
cause large financial losses to permit applicants
through modifications and delays to projects im-
posed by Federal agencies. The Office of Manage-
ment and Budget (OMB) stated that its suggested
reforms to the program could save $1 billion an-
nually.' On the other hand, defenders of the pro-
gram argue that it is not costly, either in absolute
terms or in comparison with the benefits it brings,
and that many sectors of society, including several
major industries, are aided by the program.^
This section discusses perceptions of the 404 pro-
gram held by regulated sectors and the costs and
benefits to permit applicants of this program. There
is a paucity of data on the costs and benefits of the
404 program and of other Federal and State wetland
programs to regulated sectors. OTA examined pre-
viously published estimates, surveyed industry as-
sociations, and collected data from other sources
(4). OTA also surveyed States about whether they
had made estimates of the costs to permit applicants
of State or Federal wetland permitting programs.
No State had collected information on such costs.
Massachusetts officials estimated that, assuming
that the average bank carrying cost "to hold op-
tion on raw land, assuming an average 20-acre sub-
division, single-family homes," of a project is
$2,000/month, and the average decision time for
State permitting is 2.5 months, the average cost to
the project would be $5,000, plus consulting and
legal fees. Several States gave data on permit fees
charged to applicants. Not including EIS costs, fees
ranged from zero (e.g., Maryland) to 0.5 percent
of construction costs with a minimum of $100 (New
'Office of Management and Budget press release, May 7, 1982.
^National Wildlife Federation and 13 other organizations, "Sec-
tion 404: A Response to the Army-OMB Regulatory Reform Pro-
posals," May 1982.
Jersey). Most fees ranged from $15 to $75. One
industry association, the Fertilizer Institute (FI),
reported that permit application fees in Florida now
are $100 for the short form, for more minor proj-
ects, and $1 ,000 for the stcindard form, for relatively
major projects.
Benefits of the 404 Program to
Regulated Sectors
Environmental Benefits Captured by Industry
Many types of firms experience both costs and
benefits from the 404 program. For example, mem-
bers of the housing-construction industry believe
that 404 program costs severely impact the indus-
try's operations; at the same time, land values ad-
jacent to wetlands protected by section 404 often
increase, benefiting some builders as well as existing
homeowners.
The RIA questionnaire asked Corps districts to
rate the impacts of the regulatory program (includ-
ing sec. 10) on 14 sectors (5). Districts unanimously
believed that the fishing industry benefited from
the program and were near unanimous that the
general public benefited. More than 80 percent
thought that government and public service and
land values adjacent to permit areas benefited, and
more than 60 percent saw benefits accruing to the
agricultural industry and to private individuals (6).
Technology Transfer
Advice given by Federal personnel to permit ap-
plicants prior to submission of an application, and
in the course of permit review after submission of
an application, may result in savings to applicants
as well as protection of wedands. Small projects and
private individuals, in particular, may benefit from
information about current engineering and man-
agement practices that can make projects more ef-
ficient and less cosdy. Called "technology transfer"
by the Corps, these practices produce such benefits
as avoidance of erosion losses and stabilization costs
when natural vegetation and drainage features are
preserved and utilized.
Based on a telephone survey of 12 districts, the
IWR report estimated that for 15 to 30 percent of
issued permits, the projects approved are more ef-
Ch. 7— The Effects of ttie 404 Program • 147
ficient or less costly to develop than those original-
ly proposed. Average savings were estimated to be
15 percent of total project costs. (However, in a
table showing calculations, savings were estimated
to be 15 percent of "site development costs," which
in turn were thought to be 25 percent of the total
project cost.) Using an estimated total financial cost
of over $217 billion for all projects and an amorti-
zation factor of 10 percent for 25 years for the "so-
cial value" of projects, IWR estimated total benefits
from technology tranfer to range from $135.5 mil-
lion to $271 million. 9
Many projects undoubtedly experience benefits.
However, the IWR estimate appears to be over-
stated gready. The methodology used for the IWR
report has serious flaws (7), and does not corres-
pond to the responses received by OTA from Corps
districts.
The OTA survey of Corps districts asked re-
spondents to estimate the proportion of permitted
projects that have benefited from technology trans-
fer, and the average percentage of savings in terms
of project development costs. Most districts do not
keep any records on technology benefits. As stated
by one, "As project costs are seldom, if ever, pro-
vided with permit applications, it is impossible to
estimate savings in project costs without loss of ben-
efits."* Thus, answers to the survey questions were
estimates rather than calculations from data.
As with all aspects of the 404 program, districts
vary tremendously in how they perceive technology
transfer. Owing to lack of data, 14 districts did not
make any estimates of technology transfer benefits.
Seven districts said that the program did not result
in savings to projects. Five of this latter group
thought that costs were increased rather than de-
creased to applicants. Four districts said that "few"
or "very few" projects experienced savings. One
district said that "a number" of modifications to
projects resulted in "potential savings." Finally,
1 1 districts gave numerical estimates of technol-
ogy-tranfer benefits.
Estimates of the percentage of projects gaining
savings from technology transfer and the percent-
age of those savings, in order of magnitude of esti-
mated savings, are shown in table 24.
'Institute for Water Resources, op. cit., pp. 135-36.
•Response from the Corps' Detroit District.
Table 24.— Estimated Effects of Technology Transfer
on Financial Costs
District Percentage of projects Percentage of savings
1 1 No estimate
2 5 No estimate
3 5 10
4 5 20
5 5-10 5-10
6 10 5
7 10-15 5-10
8 15-20 10-20
9 20 10
10 25 20-30
11 40-45 20-30
SOLIRCE: Data from Corps district responses to OTA's questionnaire.
While the means of these estimates ( 1 3 to 1 5 per-
cent of permitted projects benefiting; 12- to 16-per-
cent savings) are more or less in the range given
by IWR, the view of most Corps districts is that
technology transfer benefits are infrequent or can-
not be documented. As stated by several districts
in response to the survey, the goal of permit mod-
ifications is not to reduce costs to applicants but
to reduce or avoid environmental impacts of proj-
ects on wetlands.
OTA also asked industry associations to estimate
technology transfer benefits to their members. The
associations involved generally have strong objec-
tions to aspects of the 404 program and may not
be representative of the experience of other in-
dustries with respect to such benefits.
Of the eight associations or groups of firms re-
sponding specifically to this question, seven said
that such benefits do not accrue. One association
said that its members benefited from Corps advice
on water-related projects (e.g., building of struc-
tures in waterways and the design of dams and im-
poundments). The percentage of projects that were
estimated to experience such benefits was less than
5 percent; the amount of savings less than 1 per-
cent of total project costs.*
General Objections to the Program
by Regulated Sectors
The major concern of regulated sectors about the
404 program are the costs suffered as a result of
the program processing, delays, modifications, and
•Response from the American Mining Congress.
148 • Wetlands: Their Use and Regulation
opportunity costs — and related effects on national
interests, such as energy supply. How these costs
are evaluated depends not only on their absolute
magnitude but also on how the observer evaluates
the 404 program itself. A strong supporter of the
objectives of the 404 program could find even large
costs in all categories acceptable if it could be shown
that these goals were met as a result. Conversely,
even relatively small costs in a single category could
be regarded as unacceptable if the 404 program
were judged unnecessary or of low priority. In ad-
dition, the evaluation of costs is affected by how
the administration of the 404 program is viewed —
whether the program is seen as efficiendy and equit-
ably implemented or needlessly cosdy and time con-
suming to applicants. Before discussing specific
quantifiable costs, some of the more important ob-
jections to the rationale and administration of the
program are summarized.
The Need for the 404 Program to
Protect Wetlands
Although most industries agree that at least some
wetlands provide important benefits to society,* a
number of sources contend that the 404 program
is not essential for protecting wetland resources.
One argument is that conversion rates were only
0.5 percent per year between the 1950's and 1970's
and are probably less now. Since wetlands are not
under great threat from the activities regulated by
the program, the scope of the 404 program may
be reduced without great harm to wetlands. One
source, using the U.S. Department of Agriculture
(USDA) Soil Conservation Service (SCS) informa-
tion, stated that annual creation of new wetlands
exceeds wetland destruction.'" Another source, in-
terpreting IWR figures, contended that annual wet-
land conversion is small relative to the total wedand
acreage in the United States — about 300,000 acres
per year out of more than 148 million acres regu-
lated by the program, or 0.2 percent. If the 404
program prevents a similar amount of wedand acre-
age from being converted annually, as claimed by
IWR, abolition of the 404 program would result
only in approximately doubling this conversion
rate, which in the eyes of this source would repre-
sent an insignificant amount of wedand converted."
Similar arguments are made with respect to the
impacts of development activities in specific areas.
For example, according to one estimate, oil com-
pany operations on the North Slope of Alaska have
resulted in the "disturbance" of approximately
7,300 acres of tundra.'^ Depending on the frame
of reference used — whether this acreage is com-
pared with the total tundra acreage of all of Alaska,
the North Slope region alone, or just the area within
the oilfield where the disturbance is concentrated —
this area represents from considerably less than 1
percent to 4.5 percent of tundra. It is argued that
the impacts of oil extraction should be considered
in relation to the far greater number of acres left
undisturbed.
Last, many sources favoring relaxation of the 404
program contend that States are capable of provid-
ing adequate wetland protection and, indeed, are
better suited to do so, both in terms of knowledge
about their own resources and in terms of what ob-
servers see as the desirable amount of power States
should possess vis-a-vis the Federal Government.
Some of the above arguments can be viewed from
a different perspective. Between the mid- 1 950 's and
the mid-1970's, about 500,000 acres of wedands
were converted to other uses each year. Also, con-
version rates differ for different types of wetlands
and for different areas of the country. Some wet-
lands are under much greater pressure than the na-
tional figure indicates. For example, conversion
rates for the Lower Mississippi Alluvial Plain be-
tween the mid-1950's and the mid-1970's were
three times higher than the national average. Con-
version rates for freshwater emergent wetlands in
this period were four times greater than those for
freshwater scrub/shrub.
'This was stated by several industry representatives in talks with
OTA staff, and no association has explicitly challenged this notion
in its public statements on the 404 program.
'"Julian Simon, "Are We Losing Our Farmland?," Public Interest,
No. 67, spring 1982, p. 53.
"Pacific Legal Foundation, "A Report to the Presidential Task
Force on Regulatory Relief in Support of the ArmyOMB Regulatory
Proposals for Clean Water Act Section 404," Mar. 18, 1983, pp. 11-12.
This reasoning is rather unfair, as IWR was only considering losses
in the approximately 90 million vegetated wetland acres of the con-
tinental United States.
"Alaska Corps District, as reported in ESA/Madrone, "Wetlands
and Regulation: Alaska Case Study," contract study for OTA, January
1983, pp. 2-11.
Ch. 7— The Effects of the 404 Program • 149
In addition, it is very difficult to estimate what
conversion rates would be without the program. Al-
though efforts are being made to reduce duplica-
tion between State and Federal programs, substan-
tial duplication exists in some States, increasing
costs to applicants in various ways including, for
example, in added filing fees and in time spent in
preparation and discussion of applications. Permit
applicants must sometimes explain their projects
to different sets of governmental personnel or en-
dure one agency denying a permit after another has
approved it. Whether these drawbacks are war-
ranted depends on how the results of duplication
are judged. Many observers, including many States
where duplication is present, believe that the posi-
tive general results of duplication outweigh the dis-
advantages to applicants, such as increased assur-
ance that violations missed by one level of govern-
ment will be dealt with by another. In addition,
duplication is less common than lack of duplica-
tion— the 404 program is the only available means
of wedand protection in many areas of the country.
Congressional Intent
Some sources contend that the current jurisdic-
tion of the Corps under the 404 program, the 404
program's presumption in favor of wetlands, and
its protection of wetlands for reasons other than the
narrow grounds of water quality, were not intended
by the Congress when the Federal Water Pollution
Control Act was passed and amended. '^ In support
of these contentions, the following arguments are
made:
• Section 404 of the Clean Water Act (CWA)
does not mention wedands. Wedands are men-
tioned in the report supporting the 1977
amendments to the CWA. It also is argued
that Congress originally intended historically
navigable waters to be regulated. Certain
Federal court decisions and agency discretion
in rulemaking, rather than congressional ac-
tion, have expanded the program into its cur-
"For example, Pacific Legal Foundation, op. cit., pp. 8-9; Gary
E. Parish, J. Michael Morgan, "History, Practice and Emerging Prob-
lems of Wetlands Regulation: Reconsidering Section 404 of the Clean
Water Act," Land and Water Law Review, vol. 17, No. 1, 1982;
Washington Legal Foundation, "The Feds: Even Dry Land is
Wetlands," 1982. See also statements by Assistant Secretary of the
Army Gianelli in National Journal , Mar. 6, 1982, pp. 412, 413.
rent form. This extension is held to constitute
unwarranted Federal involvement in land-use
decisions.
• The appropriateness of regulating wetlands
that do not conform to popular definitions of
swamps, marshes, and so forth is especially
controversial. Wetlands that are only infre-
quendy under water or that are the byproduct
of manmade activities (e.g., drainage ditches
or structures) have been the subject of several
battles between the Corps and developers (8).
Regulation of Alaskan tundra, playa lakes, and
several other specific types of areas as wetland
also is controversial.
• Because section 404 has obvious deficiencies
in the protections it offers to wetlands, as ex-
plored later in this report, it can be argued that
it should not be seen as a wetland-protection
statute. If Congress had wished to protect wet-
lands, it would have written more explicit lan-
guage to that effect.
• The intent of Congress in passing CWA was
to safeguard water quality, narrowly inter-
preted to refer to water pollution. If wetlands
are to be protected under the act, it is argued,
this protection should only be extended when
the water quality benefits of wetlands are en-
dangered. Further, it is believed that only in-
terstate water quality benefits of wetlands
clearly fall under the purview of the act.
• The current mode of operation of the 404 pro-
gram is held to conflict with more clearly ex-
pressed congressional intent to encourage agri-
culture and other types of development activ-
ities.
Opposing these contentions, environmentalists
and other sources have argued that Congress has
strongly recognized wetland values and has at least
implicitly approved the current scope of the pro-
gram by not excluding wetlands, adopting a nar-
row navigable-waters standard, or restricting the
program to water quality, when it passed amend-
ments to the act in 1977. Parties favoring the cur-
rent geographic scope of the program also can point
to language in the legislative history of the act call-
ing for a broad interpretation of its scope. Environ-
mentalists also believe that the objective of CWA —
to "restore and maintain the chemical, physical,
and biological integrity of the Nation's waters"
150 • Wetlands: Their Use and Regulation
(emphasis added)'* justifies the protection of wet-
lands for other than water-quahty reasons, in par-
ticular, to safeguard wildlife habitat.
The Presumption of Wetland Value
Prior to the suggested regulatory revisions of July
1982 put forward by the Corps, the Corps reviewed
permit applications with the presumption that,
"Wedands are vital areas that constitute a produc-
tive and valuable public resource, the unnecessary
alteration and destruction of which should be dis-
couraged as contrary to the public interest."'^
In this view, the benefits of proposed projects must
outweigh the damage to wedands, and the proposed
wetland alteration must be necessary to realize the
"Clean Water Act, sec. 101(a).
'533 CFR, sec. 320.4(b)(1).
benefits. If a proposed activity is not water-depend-
ent— if a feasible alternate site is available — it nor-
mally will be denied. Further, all appropriate and
practicable steps must be taken to minimize po-
tential adverse impacts of the discharge in ques-
tion. Parties opposed to these provisions have the
following arguments against the above presump-
tions:
• The benefits of wetlands often are difficult to
discern and measure. Not £ill wetlands are of
equal value, and many wetlands are regarded
by various sources as being of little value to
society. In particular, the water quality values
of many wetlands protected by the program
are questionable; as mentioned, some sources
believe that only protection of water quality
is mandated by CWA.
Pholo credit: U.S. Fish and Wildlife Service. Bill Gill
Prior to the Corps' suggested regulatory revisions of July 1982, the Corps reviewed permit applications with the presumption
that, "wetlands are vital areas that constitute a productive and valuable resource, the unnecessary alteration and destruction
of which should be discouraged as contrary to the public interest"
Ch. 7— The Effects of the 404 Program • 151
• In specific permit decisions or in general, par-
ties seeking to change the program hold that
development values outweigh the benefits of
natural wetlands. Employment, balance of
payments, energy supply, and so forth are con-
trasted to the less quantifiable benefits of wet-
lands. Development values are held to be of
national importance, while wetland values
may be seen as having only local applica-
bility.'^
• Wetlands also may be contrasted to other lands
in terms of their environmental benefits. For
example, while some environmentalists see
wedands as the most vcduable type of undevel-
oped area, others prefer upland environments.
Many State resource agencies support schemes
that create upland environment for nonwet-
land game species.
In summary, it is argued that, at most, section
404 should cover only wetlands of clear benefit to
society. There should be no presumption that all
wetlands are valuable. Secondly, a more explicit
balancing of the values of conversion with the values
of preservation of wetlands should be made. Some
proposals would reverse the presumption of weUcUid
value to a presumption of development value and
would hold that unless an application can be dem-
onstrated to injure the wetland, or even more nar-
rowly, water quality, the application should be
granted without the imposition of modifications.
In contrast, defenders of the program argue that
all wetlands are valuable, albeit to varying extents.
A presumption of value therefore is appropriate and
necessary to reverse what some view as a disastrous
rate of wedand conversion. Under treaties, conven-
tions, and agreements, the United States has public
trust responsibilities for resources, including mi-
gratory birds, anadromous fishes, and threatened
and endangered species. Destruction of upland en-
vironment to protect wedands is the result of a lack
of comprehensive planning and poor coordination
between agencies rather than an inherent flaw of
the 404 program.
The July 1982 revisions changed the strength
with which the presumption of wedand value is ap-
plied, i.e., by removing the provision that wetland
alterations must be necessary to realize project ben-
"Pairish and Morgan, op. cit., p. 79.
efits. The presumption that "wetlands are vitcil
areas ..." was changed to "some wetlands are
vital areas ..." (emphasis added).
Program Administration
The administration of the 404 program has been
criticized by a number of sources for three reasons:
• Those planning to conduct activities in wedand
areas, especially individuals and small firms,
often are unaware of or confused by program
requirements. There often is uncertainty
whether a particular area is a wedand. Defini-
tions of wetlands used by State and Federcd
agencies often differ and may be difficult for
nonspecialists to use to verify whether their
land is covered by a regulatory program. For
example, many plcint species are found in both
wedands and nonwedands. Determinations of
whether wetland species are "prevalent" in
an area under consideration cam be controver-
sial. There is much desire that the Corps pub-
lish easy-to-use guidelines on how to identify
wetland areas.
• Some firms claim that the modifications im-
posed by Federal agencies are unreasonable —
e.g., that the activity applied for is not overly
impacting wetlands or water quality — or that
the firm's own planned mitigation practices
are adequate, and there is no need for the ad-
ditional mitigation often required by Federal
agencies (9).
• In the eyes of many permit applicants, delays
resulting from agency permit processing seem
unreasonable. Requests for additional infor-
mation about projects often are seen as unnec-
essary. Some Corps districts are also thought
to be unwilling to take a strong role in resolv-
ing disputes if any local. State, or Federal
agency has any objections to the proposed de-
velopment. Permit applicants and agencies are
left to fight out problems among themselves,
a situation seen as favoring agencies (10). On
the other side, defenders of the progrcim argue
that while some exceptions may exist, the mod-
ifications required and the amount of time
taken by Federal agencies have not been un-
reasonable considering the need for caution in
dealing with project impacts.
152 • Wetlands: Their Use and Regulation
Specific Impacts of the 404 Program
Costs related to the 404 program may be divided
into two categories: national costs and costs to in-
dividual permit applicants.
National Costs
Overall, the greatest potential impact on develop-
ment activities from the 404 permitting process is
the prevention of activities. In some cases, resources
cannot be extracted, facilities built, and so forth,
because of deniails of permit applications (assum-
ing that alternative means of conducting the activity
cannot be found) or if delays, modifications, or
other costs make the planned activity uneconomical
or otherwise infeasible to undertake. Activities that
are not prevented may be made more expensive,
thus increasing costs to users of the products pro-
duced. These general types of impacts can have
broader effects than just the costs to the permit ap-
plicants.
Potential national costs include reductions of pro-
duction and price increases in regulated industries
and other industries dependent on regulated firms.
One oil company argued, for example, that 404
regulation is economically unproductive, adds no
resources to the Nation, and creates many millions
of dollars in costs that are "inevitably passed on
to consumers and contribute to America's current
economic malaise.""
In addition, if regulatory restrictions make wet-
land portions of a resource base impossible or more
expensive to use, the remaining nonwetland por-
tions also may become more valuable as a result
of the diminished supply of the resource in ques-
tion. While this outcome may not increase costs to
the firms exploiting the resource, it could result in
increases in the prices charged to consumers of the
products derived.
Some industry associations and individual firms
contend that the macro-level effects of the 404 pro-
gram are of a different type than are direct effects
on the gross national product (GNP) or consumer
prices. They argue that a deleterious effect of the
404 program on the operations of various industries
adversely affects vital national interests. For exam-
ple, petroleum industry members have stated that
the 404 program has seriously interfered with the
ability of the oil industry to explore and develop
Alaskan North Slope oil reserves, which comprise
roughly 40 percent of U.S. domestic reserves. They
state that Alaskan reserves are "of obvious and cru-
cial importance to America's domestic oil supply,
and thus to American national security interest."'^
OTA does not have sufficient information to de-
termine the impacts of the 404 program on any sec-
tor of industry, on national indicators such as GNP,
or on national interests in general. At least some
individual firms have borne major costs as a result
of the 404 program, and industry associations
brought to OTA's attention instances in which costs
ran into millions of dollars. The significance of these
costs beyond the impacts to the firms concerned is
difficult to assess. To some industry associations,
the 404 program is one of the major sources of reg-
ulatory costs.*
OTA asked associations to estimate the signifi-
cance of 404-related costs — e.g., the proportion of
the total burden of Federal and State regulation en-
tailed by the 404 program — and the importance of
404 program costs relative to other factors, such
as high interest rates. Several associations said that
the significance of program costs varies with the
project. Two associations made more specific esti-
mates. The range of the responses received by the
FI from 2 firms in North Carolina was 10 percent
and 50 percent; from 14 firms in Florida, 1 to 40
percent, with a median of less than 5 percent. The
American Paper Institute/National Forest Products
Association (API/NFPA) responded as follows:
The significance of section 404-related costs to
our members has decreased steadily since the mid-
1980 publication of the regulations implementing
section 404(f). As a consequence, it may now be
less significant than requirements imposed by
other Federal or State programs.
"Sohio, "Briefing Paper for Regulatory Changes to Corps of
Engineers Regulations Governing Section 404 of the Clean Water Act
and Sections 9 and 10 of the River and Harbor Act of 1899," 1981.
It was claimed that in one project alone, 404 problems caused tens
of millions of dollars in costs.
'"Ibid.
•For example, API listed section 404 permitting second in a list
of 10 highest priority issues submitted to the Reagan administration,
May 4, 1981.
Ch. 7— The Effects of ttie 404 Program • 153
Immediately after the expansion of the section
404 program to nonnavigable waters in 1975, we
anticipated over 180,000 permit requirements per
year for forest management activities. As the result
of the passage of section 404(f), this problem has
decreased to 0.1 percent of our original projection.
We would currently estimate section 404 as rep-
resenting a relatively small proportion of the total
burden of Federal and State regulation that our
industry faces.
With respect to the importance of section 404,
compared to general economic conditions; high in-
terest rates (to use the example cited) have resulted
in the poorest forest products market since 1930.
Consequently, compared to current economic con-
ditions section 404 is a relatively minor concern.
The IWR report found that changes in the na-
tional economy caused by the 404 program are dif-
ficult or impossible to measure (e.g., using the GNP
or consumer price index (CPI) figures). It con-
cluded that while impacts on individual firms could
be significant, such impacts are unlikely to have
any major effect on the national economy."
The impacts of the 404 program on national se-
curity concerns are unclear. For example, Alaskan
energy development appears to be subject to per-
mitting delays more from State agencies than from
the Federal agencies involved in the program. It
could be contended also that the development ac-
tivities affected by section 404 are not constrained
to such an extent that nationcd security is threat-
ened. For example, it could be argued that suffi-
cient amounts of the resources in question can be
obtained from nonwetland areas to meet U.S.
needs.
One study of the effect of section 404 on the deep-
ening of coal ports concluded that 404 reviews have
"Institute for Water Resources, op. cit., p. 184. The IWR report
concluded that it is likely that all Federal environmental regulation
combined has had a very small effect on the GNP and CPI, and the
404 program is only a small part of this regulation. See also the Western
Governors' Policy Office, "Permitting and Siting of Energy Projects:
Causes of Delay, and State Solutions," Denver, 1981 , which concluded
that environmental regulations constituted a relatively minor source
of delay to energy projects in Western States, as compared with
equipment- and labor-related problems.
not aind are not likely to constrain either such deep-
ening or the development of U.S. coal exports. De-
lays in port dredging are attributable to other
sources.^"
Environmentalists are quick to point out that
there may be national costs associated with degrada-
tion and conversion of aquatic habitats required to
sustain wildlife. National estimates for 1980 show
that commercial and noncommerciEil activities as-
sociated with fish, wildlife, and associated outdoor
activities are worth many billions of dollars per
year. Some of these economic values are described
in chapter 3. Maintenance of the habitat base re-
quired to perpetuate wildlife resources is important
for economic as well as other purposes.
Costs to Permit Applicants
Major categories of costs to applicants for 404
permits involve processing, modification, delay,
and opportunity.^' These costs are borne not only
by permit applicants but also by people who would
otherwise benefit from the activities permitted.
Projects that are abandoned, made less profitable,
or never initiated mean potential losses in job op-
portunities, economic development, and tax reve-
nue. On the other hand, protection of wedands has
its own set of benefits that may include higher re-
turns in some areas. In addition, losses both to proj-
ect initiators and potential beneficiaries will be offset
if, as is likely, the resources that would have been
used in a wetland-related project are used in some
other fashion. From the standpoint of the national
economy, there might be no net change. However,
great changes in which areas experience benefits
could result.
Finally, there are nonquantifiable costs to the
permit process, such as the energy and aggrava-
tion entailed in filling out forms and meeting with
agency officials.
^"Michael Rubino, "Dredge or Fill, Section 404, and Coal Port
Development," Brookhaven National Laboratory, 1983, pp. 6-7.
^'Institute for Water Resources, op. cit., pp. 144-145. Categories
are modifications of categories listed.
154 • Wetlands: Their Use and Regulation
PROCESSING COSTS
Processing costs are those costs incurred by appli-
cants to produce information needed for the per-
mit process. Such information may include applica-
tion fees, maps, project plans, and EISs.
Private individuals are charged a $10 applica-
tion fee for a 404 permit. Permit applications for
commercial purposes cost $100. A set of drawings
showing the location of the proposed project and
the work to be performed must be submitted. Many
applicants employ engineering firms to produce
such drawings. According to IWR, some firms will
handle all procedural details of applications, with
fees ranging from $100 to $500. ^^
Applicants may be required to submit additional
information beyond what is required normally,
however. Applications that appear to have major
environmental impacts, for example, often must be
accompanied by detailed EISs.^^ The fees paid by
applicants to environmental consultants preparing
EIS's often are substantial, costing tens of thou-
sands of dollars and representing a major share of
permitting costs.* The costs of EIS preparation,
however, cannot always be attributed to the 404
program. Authority to require a developer to sub-
mit an EIS comes from NEPA, not from section
404. In many cases, if the Corps did not require
an EIS for 404 considerations, another Federal
agency with permitting authority over the project
could require it or be sued by an outside group seek-
ing to make the agency exercise this prerogative.
Another major difficulty in estimating the costs of
404 application and preparation is that some, or
even most, of the environmental analyses under-
taken by firms (which can constitute the greatest
source of expense) may be required in any case by
"Institute for Water Resources, op. cit., p. 146.
"The Washington Post. Sept. 13, 1982. The number of NEPA suits
filed for "projects affecting wetlands or bodies of water" constituted
almost 13 percent of all suits filed in 1980, tying for second place among
18 categories.
*The Fertilizer Institute claimed that in one instance fees totaled
%3 million.
States with strong environmental programs and
may be undertaken not only for wetland-related
concerns but also for other environmental con-
siderations. Also, many firms engage in advance
planning and environmental programs of their own,
the results of which are used in 404 applications.
The OTA survey asked associations to estimate
the costs of application and processing of 404 per-
mits. Most associations said that costs vary with
the scope and controversy of the proposed permit.
Only a few associations gave quantified estimates.
The FI estimate was $1,000 to $3 million. Of the
three firms making up the American Waterways
Operators, Inc. (A WO), response, one estimated
such costs as $500, another's estimate was $20,000
to $25,000, and one said that "costs can run into
the tens of thousands of dollars." For the two ports
answering this question on the American Associa-
tion of Port Authorities (AAPA) response, one said
that "preproject paperwork" increased by 20 to 50
percent for small projects. The other said that costs
can vary from $25,000 to over $100,000.
The response from API/NFPA said that signifi-
cant costs are experienced occasionally when Fed-
eral agency evaluation is necessary to assess the ap-
plicability of 404(f) exemptions to a project. In one
instance, a firm devoted 120 staff hours to prepar-
ing support for its view that planned activities fell
under 404 exemptions.
IWR estimated that processing costs in fiscal year
1980 totaled $17.3 million, averaging $91 1 per ap-
plication, or $1,226 for government, $652 for indi-
vidual, and an implied $ 1 , 1 79 for commercial appli-
cations.^* The assumptions and methods by which
IWR cadculations were made were not explained,
and the resulting estimations may be inaccurate
(11).
"Institute for Water Resources, op. cit., p. 173. IWR did not give
an average for commercial applications. The figure listed here was
calculated using IWR figures for the cost borne by different types of
applicants and for the number of commercial applications.
Ch. 7— The Effects of the 404 Program • 155
MODIFICATION COSTS
Project modifications made in response to Fed-
eral agency requirements or pressure as a condi-
tion for permit approval may entail additional out-
lays by applicants — i.e., to restore or create wet-
lands, transport material to more expensive upland
sites, or use more expensive technology or manage-
ment practices. In addition, such modifications may
reduce the profitability of a project, for example,
by making the project smaller. There also may be
modification costs not directly required by agen-
cies. Applicants may modify projects before an
agency objects to them in expectation of permit
denicds if modifications are not undertaken.
Rough estimates indicate that one in three per-
mits is modified. The figure is probably lower for
small projects and higher for large projects. Many
projects undoubtedly were modified in anticipation
of comments by Federal agencies; many others were
modified as a result of preapplication consultations
(12).
According to one supporter of the program, 90
percent of recommendations made by Federal re-
source agencies to permit applicants during per-
mit review are "accepted" by applicants,^' mean-
ing that few such suggestions result in the appli-
cant withdrawing a permit application or refusing
to make the change. However, the requirement of
modifications often has an element of coercion.
Apart from the threat of denial of a permit by the
Corps or the Environmental Protection Agency,
(EPA), Federal agencies without the power to deny
a permit could, before the regulatory changes pro-
posed by the administration in 1982, threaten to
elevate a decision on a permit to higher levels in
the Government, with the concomitant delay en-
tailed in processing. As stated by OMB, the threat
of elevation often has caused applicants to "accede
to unnecessary and unreasonable changes in their
plans" to avoid agency objections. ^^
The cumulative amount of outlays for modifica-
tions and the average cost per permit applicant are
almost entirely unknown, given present data. IWR
estimated that the cost of modifications equals the
amount of savings to permit applicants through
"technology transfer."^' These savings were esti-
mated to be 15 percent of site development costs,
or an annual amount of $135.5 million to $271 mil-
lion.^^ However, no basis was given for the assump-
tion that sums for modifications and technology
transfer are the same. Further, as previously dis-
cussed, the IWR estimate of technology transfer
savings is extremely uncertain.
The OTA survey asked associations to estimate
the ranges of costs for modifications. Very few
quantitative estimates were made. The American
Mining Congress (AMC) and the American Petro-
leum Institute (API) said that modifications range
from minor, relatively inexpensive changes to major
modifications costing millions of dollars. AAPA said
that costs for riprapping increased by 10 to 20
percent.
An example of increased costs was given by API,
which said that drilling a 12,000-ft oil or gas ex-
ploratory well may cost $2.5 million for a straight
hole and $7.5 million when directional drilling is
employed. Out of the API survey sample of 40
firms, representing a total of 794 permits from
August 1978 to October 1981, 53 cases of increased
costs from "the adoption of stipulations or special
conditions" were noted, totaling $17 million, an
average of about $320,000 per case. However, this
average is not representative, one permit alone ac-
counted for $10 million in costs. Secondly, not all
firms submitted all of their past permitting experi-
ences to API: some firms gave only exzimples where
problems were encountered, possibly biasing the
overall picture presented. API also gave an alter-
nate figure: averaging the $17 million figure across
all 794 permits, API determined the average cost
to be about $22,000.
Among the nonquantitative estimates, API/
NFPA said that "with respect to specific project
^'National Wildlife Federation, op. cit.
^^Office of- Management and Budget, op. cit.
^'Institute for Water Resources, op. cit., p. 153.
2=Ibid., p. 135.
156 • Wetlands: Their Use and Regulation
modifications, forest-access road construction usual-
ly requires certain modifications (e.g., adequate
culverts) to insure flow and circulation when cross-
ing waters or wedands. This is not a major difficul-
ty. The construction of water intake and effluent-
outfall structures must be undertaken in a fashion
that does not involve unnecessary disruption of wet-
land areas. This has not generally proven to be dif-
ficult."
DELAY COSTS
Delays in processing applications past "normal"
processing time can result in costs to applicants,
such as payments to idle workers and contractors,
possible increases in interest rates and prices for
raw materials, labor, machinery, and the like. Un-
anticipated delays are especially cosdy.
OMB stated that the 404 program has been
"plagued by severe delays that have generated com-
plaints and imposed heavy economic burdens on
the public" and "has introduced long delays into
a substantial number of major permit applica-
tions."^' Such delays are contrary to statutory
language in section 404, which requires that memo-
randums of agreement be concluded among agen-
cies to minimize delays. The major source of delays
was said to be the multiple layers of review or eleva-
tions of permit decisions possible if another agen-
cy disagrees with the Corps.
As the OMB letter did not define "long delays,"
or "substantial number of major permits," it is dif-
ficult to assess the accuracy of its criticism. Opin-
ions differ about what constitutes normad process-
ing time. A coalition of environmental groups be-
lieves that 131 days, the average period for proc-
essing non-EIS permits from 1977 to 1981, is a
reasonable figure.'" Following the figure employed
by RIA, IWR used 120 days. The General Ac-
counting Office (GAO) says 105 days." Some in-
dustry spokesmen have used a 90-day figure (13).
OMB recommended that 60 days be the normal
processing time.
Statutory and regulatory language on process-
ing deadlines provides that the Corps must issue
a public notice of a permit application within 15
days of receipt of a complete application.'^ Applica-
tions lacking required information must be resub-
mitted. CWA requires that memorandums of
agreement be concluded among the Federal agen-
cies involved such that "to the msiximum extent
practicable,"'' decisions about permits can be made
not later thcin 90 days zifter pubhc notice. This dead-
line allows for some deviation. Federal agencies are
given 30 days from the issuance of public notice
to forward comments to the Corps; however, they
may request extensions of up to 75 days under what
are supposed to be unusual circumstances. Section
404(m) directs the Fish and Wildlife Service (FWS)
to submit comments within 90 days of receiving the
public notice.
In addition to the time allowed for Federal agen-
cy action. States are given up to 1 year to perform
water quality certifications, which apply to prac-
tically all 404 permits. Without such certification,
the Corps cannot grant a permit. As discussed be-
low, according to IWR, much of the time involved
in processing permits stems from the length of time
it takes States to grant 401 certifications. Most
States claim, however, that they issue such certifica-
tions within 90 days. Arrangements have been
made between some Corps districts and State agen-
cies to set time limits on State certifications, after
which certification is considered to be de facto
granted.
Percentage of Permits Delayed
OTA calculations based on RIA material are that
if only issued permits are considered (i.e., not in-
cluding permit withdrawals and denials), 43 per-
cent of commercial, 29 percent of private, and 33
"Office of Management and Budget, op. cit., p. 28
'"National Wildlife Federation, op. cit.
"General Accounting Office (Tech. Note No. 9), p. 28.
"Clean Water Act, sec. 404(a).
"Clean Water Act, sec. 404(q).
Ch. 7— The Effects of ttie 404 Program • 157
percent of governmental permits, or 34.5 percent
of all permits, took longer than 120 days to proc-
ess in fiscal year 1980 (14). As described earlier,
RIA data include non-404 permits. While it is not
certain that these percentages would hold if 404 and
10/404 permits were considered, it is likely that
these figures for delay do represent minimum esti-
mates: 404-related permits constituted 54 percent
of permits issued in fiscal years 1980 and 1981, and
it is reasonable to assume that 404-related permits
were, on average, more controversiad, and thus
more subject to delay, than were non-404 permits.
If these percentages are accepted, a substantial
number of permit applicants do appear to suffer
delays, especially for commercial projects.
Taking all oil- and gas-related 404 permits in
Alaska from February 1980 to September 1981,
GAO found that approximately 76 percent took
more than 105 days to process, that length of time
being GAO's definition of normal processing time.
Even using the more generous standard of 130 days,
more than half of such permits were delayed.^*
Length of Delays
According to IWR, the average Corps process:
ing time for routine permits (permits to which agen-
cies have not raised objections) has been reduced
from 84 days in 1977 to 70 days in 1981 .^^ As men-
tioned, zmother source estimated that average proc-
essing time for all permits except those requiring
an EIS was 131 days.^^
By a great margin, permits take longest to proc-
ess when EISs are required. Based on fragmentary
data, IWR estimated that processing such permits
takes an average of 815 days.'' The percentage of
all 404 permits that require an EIS, however, is
very small, about 0.03 percent. Large-scale proj-
ects are affected disproportionately. If permits re-
quiring EISs are not considered, the average length
of time to process permits is much less.
The OTA survey asked associations to estimate
how long, on average, it takes to receive a final deci-
sion on a permit. API reported that processing takes
"General Accounting Office (Tech. Note No. 9), p. 28.
"Institute for Water Resources, p. 39.
''National Wildlife Federation, op. cit.
"Institute for Water Resources, op. cit.
an average of 131 days (median time, 106 days).
Routine permits are processed in under 4 months;
permits to which objections are made average over
a year. These totals factor in permits for which EISs
are required. For Alaskan oU and gas permits alone,
according to GAO, the average permitting time was
150 days.'* AMC found average processing time
to be 8 months, with routine permits usually proc-
essed within 90 days and controversial permits tak-
ing an additional 5 or 6 months. FI did not pro-
vide an average figure, saying that application ap-
provals take from 2 months to over 3 years. The
three firms making up the AWO response reported
that processing takes from 3 to 8 months, 4 to 7
months, and "at least" 12 months, respectively.
Finally, the three ports making up the AAPA re-
sponse reported that processing takes 4 to 9 months
for routine permits, and several years for more con-
troversial permits.
Sources of Delays
It is difficult to determine what percentages of
delays are due to the various possible sources of de-
lay. OMB focused on delays caused by elevation
procedures and found that between March 24,
1980, and an unspecified date, there were 281 cases
in which a district engineer proposed to issue a per-
mit over the objection of another Federal agency.
Seventy cases, or 25 percent of such cases (and
about 0.6 percent of all 404-related permits proc-
essed), were elevated. Of these, the division en-
gineer resolved 55 (about 79 percent), for an aver-
age delay time of 150 days. Five cases were resolved
by the Office of the Chief of Engineers for an av-
erage delay time of 320 days. Five cases were re-
solved by the Assistant Secretary of the Army (Civil
Works) for an average delay time of 650 days, and
five cases were pending. (It is unclear if these delay
times represent additional days over what is con-
sidered normal processing time [120 days], or
whether they are total processing times.) The av-
erage delay for the 70 cases was 202 days. OMB
also stated, without listing a source, that the threat
of elevation affected an additional 1,700 cases, caus-
ing an average delay of 75 days. Of the 70 cases
in which permits were elevated as described by
OMB, requests for elevation were made in 50 days
"General Accounting Office (Tech. Note No. 9).
158 • Wetlands: Their Use and Regulation
by FWS, 36 by NMFS, and 16 by EPA (elevation
requests are sometimes made by more than one
agency).
It has been argued, however, that these agen-
cies have steadily reduced processing delays and
only rarely elevate permits. According to FWS sta-
tistics for the period July 1 to December 31, 1980,
average processing time was 17.2 days for routine
permits and 22.5 days for all permits. FWS re-
quested the elevation of 42 out of the 6,376 received
404 and 10/404 public notices, about 0.7 percent.
Of these, resolutions in the permit applicant's favor
were made in 15 cases; in FWS' favor, in 2 cases;
and a compromise was made in 25 cases. Of the
four cases elevated as high as the Washington level,
two resolutions were made in the applicant's favor,
with two compromises.'^ In the NMFS Southeast
region, which handles about half the NMFS 404
workload, 97 percent of the 5,240 permits reviewed
were handled within 30 days in 1980.*°
According to IWR, elevation requests and han-
dling by Federal agencies are not the only, or even
the primary, source of delays. In order of impor-
tance, the following sources of delay were men-
tioned by Corps districts in response to the RIA
questionnaire:
Applicant Behavior
Many permit applicants fail to provide sufficient
information on applications, leading to requests for
additional information by Federal agencies and de-
lay for the applicant. One possible reason for this
problem, suggests IWR, is that application require-
ments are complicated and beyond the capability
of many applicants.
State Water Quality Certification
As mentioned, section 401 of CWA requires all
404 applicants to obtain a certification or permit
from the State in which the discharge of a pollut-
ant may take place to the effect that the discharge
will comply with applicable State standards. States
are given a period not to exceed 1 year to make
a decision on whether to give such certification,
after which this requirement is considered to be
waived. In the absence of 401 certification, a 404
permit will not be granted by the Corps. A number
of States use 401 requirements as a way of gaining
concessions from permit applicants without having
to establish explicidy a separate wedand-protection
program.
Manpower
Corps district personnel responsible for process-
ing applications are unable to keep pace with the
number of permit applications received. Manpower
was not expanded when the Corps expanded its ac-
tivities from phase I to phase II and III waters.
FWS Comments
Although FWS actually elevates relatively few
permits, it has exercised considerable influence by
threatening to elevate permits unless applicants im-
plement changes in their applications. To avoid the
greater delay of elevation, applicants accept the
lesser delays entailed in revising applications to
meet FWS concerns.
Other sources of delay were not judged by Corps
districts to be nearly as significant as the above four
causes.*'
The relative importance of these sources of delay
varies with the Corps district. State, and project
involved. For example, in most cases, State certi-
fications become factors in delay only when proj-
ects are controversial, large in size, or otherwise
difficult or complex to evaluate. Many States say
that delays come from poor applications and poorly
planned projects: time is taken to assist applicants
in resubmitting or even redesigning applications
and projects. Most States responding to the OTA
State survey claimed that they process routine 401
and 404 permit applications and applications for
State permits within 2 months, with more major
applications taking longer (6 months, or in excep-
tional cases, even years). While there are few data
on the proportion of projects that are delayed by
"U.S. Fish and Wildlife Service, "Fact Package," Feb. 26, 1982.
"Natural Resources Council of America, "Statement on 404, " Mar.
5, 1982.
"Ibid., pp. 180-183. Corps delays in issuing public notices in Alaska
were ascribed by GAO to Corps manpower problems. Rather than
the 15-day period mandated, the Alaska district averaged 21 days,
with two-thirds of the notices late in issuance in fiscal year 1981 (down
from 28 days and 71 percent delayed in 1980). GAO made a similar
finding in 1980 for three other Corps districts. GAO (Tech. Note No.
9), p. 30.
Ch. 7— The Effects of the 404 Program • 159
State processing, several States said that only a
small percentage are delayed (e.g., Massachusetts
stated that 90 percent of its projects are processed
within 2 months).
Estimates of Delay Costs
Very little information is available bearing on
the monetary costs of permit processing delays.
OMB, evidendy using the IWR analysis, put such
costs at "over $1.5 billion. "« The IWR estimated
delay costs, including opportunity costs due to de-
lay, to total $1.7 billion. The extremely complicated
formula used by IWR to calculate delay costs en-
tailed many assumptions for which no basis was
provided. Some data that went into the calculation
almost certainly were inaccurate. For these reasons,
the IWR estimate is of uncertain reliability (15).
Only one industry association made a specific
monetary estimate of delay costs: FI put the range
of such costs at $17,000 to $2.2 million. The $2.2
million estimate was based mostly on opportunity
costs: according to one firm, delay made it neces-
sary to cancel a mining project, thereby negating
previous sums spent on environmental studies and
foregoing the value of the resource. Individual ac-
counts of increased costs from delays are frequent.
One application in Alaska by an oil company to
construct a drilling mud pit took 225 days to proc-
ess, mostly as a result of repeated extensions granted
to an Alaskan State agency. The company involved
claimed that project costs more than doubled, most-
ly because construction was moved from summer
to winter.*^ Two other estimates from the petroleum
industry also indicate substantial costs: API stated
that 55 permit delays in southern Louisiana cost
firms $19 million (with "lost or deferred produc-
tion" totaling 428,000 barrels of oil and 14.9 billion
cubic feet of gas as a result).** Another industry
study claimed that 57 out of 89 oil- and gas-related
permit applications experienced delay-related eco-
nomic losses.*^
^Office of Management and Budget, op. cit.
"General Accounting Office (Tech. Note No. 9).
"Ibid.
'^Mid-Continent Oil and Gas Association, 1979, quoted in Institute
for Water Resources, op. cit., p. 175.
OPPORTUNITY COSTS
Opportunity costs are created when the permit-
ting process denies applicants the use of capital,
labor, and machinery that could otherwise produce
an investment return. For example, modifications
to projects that require additional outlays by the
applicant may create opportunity costs, assuming
that the funds going into modifications could be
used in other ways that would generate more reve-
nue than that produced by the modification. Sim-
ilarly, delays could mean that investments sunk in
project planning and kept in reserve for project im-
plementation remain idle rather than produce rev-
enue when expected. In some cases, delay produces
opportunity costs when the opportunity to exploit
a resource is withdrawn, owing to delay (e.g., if
time-based leasing arrangements are not fulfilled).
Even normal processing of permits produces oppor-
tunity costs in time and money that conceivably
could be used elsewhere to produce a greater return.
Denials and withdrawals of permits presumably
create opportunity costs greater than those of nor-
mal processing, as no return is realized from the
resources spent on such permit applications. Op-
portunity costs in terms of the value of lost raw
materials also are created when permit denials pre-
vent a resource from being exploited if an alter-
nate plan of resource extraction subsequently can-
not be worked out.
An even more speculative category of opportuni-
ty costs is costs related to planned projects that never
were submitted as permit applications out of fear,
perhaps based on meetings with Federal officials,
that they would be denied or modified in a way un-
acceptable to the applicant.
Opportunity costs are the most difficult of all the
costs listed to estimate. It is possible to approximate
roughly the number and proportion of projects sub-
160 • Wetlands: Their Use and Regulation
ject to such costs beyond the opportunity costs as-
sociated with normal processing. In fiscal year 1981 ,
291 permits were denied to section 404 and 10/404
projects, about 2.7 percent of total permits proc-
essed. About 14 percent, or 1,545 permits, were
withdrawn. As stated in the IWR report, not all
withdrawals can be attributed to the regulatory pro-
gram. Other factors, such as changed economic
conditions, can cause applicants to change their
plans. However, the majority of withdrawals prob-
ably stem from difficulties encountered in the course
of agency review of permit applications. As dis-
cussed earlier, roughly one-third of issued permits
are modified substantially; about the same percent-
age are delayed. Some overlap probably exists in
these last two categories. It also is likely that of per-
mits not issued, some proportion were in process-
ing for over 120 days; however, no estimate is avail-
able of what this figure might be. At minimum,
the percentage of delays/modifications, with-
drawals, and denials can be added together, result-
ing in a figure of at least half of all permits that
experience opportunity costs beyond those associ-
ated with routine processing.
A large part of the problem in estimating oppor-
tunity costs is the difficulty of getting objective in-
formation. Investments are not necessarily idle,
even if "sunk" in a project. For example, ma-
chinery may be contracted out to other firms. In
some industries, some periods of the year normal-
ly are slack, and permit delays cannot justly be
regarded as the source of idle labor and machinery.
However, few 404 program critics volunteer such
information. To give a more common example of
the difficulty in making estimates, modifications of
permits often require changing the timing of a
planned activity so that it will have less impact on
various wetland species of animals (e.g., not per-
forming the activity during spawning season).
Delays also will affect project timing. The cost of
the impact depends on the extent to which the ap-
plicant already has committed resources to the time
originally asked for in the permit. This will only
be known to the permittee. According to Corps per-
sonnel, consultations before permits are submitted
will make it known to prospective applicants what
generally can be expected; hence, to commit large
amounts of time and money in advance to a proj-
ect before submitting an application is not prudent,
and delay costs, if they occur, thus are not entirely
due to Corps actions.
Few estimates of opportunity costs were given
by associations. According to FI, the value of 33.5
million tons of phosphate rock underlying 2,862
acres not approved for mining in permit applica-
tions from 1975 to the fall of 1982 totaled between
$804 million and $838 million per ton at 1982
prices. The IWR's estimate of opportunity costs —
apparendy including only such costs that are related
to modifications — was $409 million, with median
costs of $13,523 for commercial projects, $8,000
for government, and $263 for individuals.** As with
other IWR estimates, these figures suffer from more
or less serious methodological difficulties (16).
I
I
"Institute for Water Resources, op. cit., p. 174. See pp. 153-157
for methodology.
DISTRIBUTION OF COSTS
As highlighted by IWR, the manner in which
the costs of a regulatory program are distributed
across different sectors of society is of interest.
Respondents to the RIA were fairly consistent in
their classification of those sectors of industry and
society that they rated as being negatively affected.
The great majority of responses rated residential
development, small business, the manufacturing in-
dustry, and the mining industry as suffering adverse
impacts from the Corps regulatory program. Oil
and gas development was highlighted specifically
by several respondents. Somewhat less but still large
majorities also saw negative impacts occurring in
the "business-commerciad-industrial sector" and
in the construction industry.*'
"Institute for Water Resources, op. cit., p. 175. "Transportation
Utilities" were also rated by IWR as being negatively affected; how-
ever, responses to the RIA questionnaire were divided almost evenly.
Ch. 7— The Effects of ttie 404 Program • 161
Some costs are borne by taxpayers. IWR esti-
mated that the regulatory functions program of the
Corps had a budget of $41 mUHon in 1980. IWR
accepted an estimate that other agency support
totaled one-fourth of the Corps' effort, an additional
$10.25 miUion. These figures may be high, as they
encompass activities outside of 404 administration.
On the other hand, the budget may be understated.
For example, Corps employees from branches other
than regulatory may work part time on permitting
matters but are not counted as regulatory branch
employees. It is difficult to get exact estimates,
because the Corps districts apparently do not keep
separate records for 404 expenditures. The fiscal
year 1982 Corps budget for 404 and section IV was
approximately $50 million, with 800 people on the
regulatory staff nationwide.
CHAPTER 7 TECHNICAL NOTES
1 . Much of the quantitative information presented in the
IWR report is of questionable quality. Where this infor-
mation is used in this report, the limitations of the data
are examined. In many cases better data were available
or collected for this study. For example, the IWR report
is quoted often as evidence that the 404 program is respon-
sible for "saving" about 300,000 acres of wetlands that
otherwise would be developed if the 404 program did not
exist. However, it is unclear how this IWR estimate was
made. Since the Corps now is regulating those activities
that were responsible for the conversion of about 1 75,000
acres of wetlands per year between the mid-1950's and
the mid-1970's, it is highly unlikely that the 404 program
could be saving almost twice this acreage, even if all per-
mits were denied. In fact, data recently collected from all
Corps districts and presented in this chapter suggest that
this IWR estimate is about six times too high.
2 . Activities also may be altered to fall under nationwide per-
mits or exemptions, with benefits to applicants but with
less clear benefits in terms of wetland protection.
3. Many districts did not separate estimates on a yearly basis,
instead giving totals for 1980 to mid- 1982. These were di-
vided by 2.5 to derive a yearly figure.
4. OTA mailed surveys to 20 industry associations. The
following associations provided responses: American
Association of Port Authorities (AAPA), American Farm
Bureau Federation (AFB), American Mining Congress
(AMC), American Petroleum Institute (API), American
Paper Institute/National Forest Products Association
(API/NFPA), American Public Power Association (APPA),
American Waterways Operators, Inc. (A WO), The Fer-
tilizer Institute (FI), National Cattlemen's Association
(NCA), National Association of Conservation Districts
(NACD), and National Association of Home Builders
(NAHB). Not every association answered every survey
question.
5. Sectors considered were: business-commercial-industrial,
agricultural, fishing, mining, construction, manufactur-
ing, transportation utilities, wholesale trade and retail
trade, residential development, land values adjacent to per-
mit areas, smjill businesses, general public, private indi-
viduals, government, and public service.
6. The IWR report said that wholesale and retail trade also
benefited. However, OTA's examination of RIA responses
shows that a slight majority of districts believed that this
sector was negatively affected by the program.
7. In its unpublished and quickly prepared report, the IWR
used what in effect were educated guesses by Corps per-
sonnel to calculate savings to applicants. These percent-
ages were applied to the number of permits processed
(18,939 in 1980) rather than the number of permits issued
(16,286) — a 16-percent difference (the number of sec. 404
and sec. 10/404 issued permits was 8,013; the remainder
were sec. 10 permits). It is possible that permit applica-
tions denied or withdrawn experienced similar amounts
of benefits as those submitted. For example, as a result
of discussions with agencies, projects could be reconfigured
to fall under general permits or be conducted on nonwet-
land areas with savings over original plans. On the other
hand, it is likely that at least some applications were
withdrawn, owing to the expense of complying with poten-
tial requirements, and that alternate projects were not initi-
ated or were more expensive than those originally envi-
sioned.
Site development costs were assumed to be 25 percent
of the total costs of projects; no rationale was given for
this percentage. Further, no basis was given for the figure
of total costs ($217,619 million) of projects. Even if these
estimates were accepted, IWR calculations of benefits
almost certainly are overstated, due to two factors:
1 . Large projects represent an overwhelming share of the
total costs of projects (in the first IWR draft, 20 per-
cent of applications were said to account for 95 per-
cent of economic impact [1-7]), yet these are the least
likely to benefit from technology transfer. It is likely
that large firms planning large projects already will have
discovered the least expensive way (though not neces-
sarily the least environmentally damaging way) to de-
velop such projects without benefit of Federal advice.
2 . According to the IWR, report itself, at least some sec-
tors are negatively affected by the program. Based on
responses to the RIA questionnaire, these sectors in-
clude the business-commercial-industrial sector, the
mining, construction, and manufacturing industries,
162 • Wetlands: Their Use and Regulation
residential development, and small business. These sec-
tors clearly encompass a large share of the total project
cost figure given by IWR, yet logically should not be
included in a calculation of benefits.
Last, the rationale for the amortization factor is not ex-
plained. If annual benefits are amortized so that only a
small proportion is calculated to appear yearly, the total
yearly benefits of the program would consist logically of
not only the amortized figure for that particular year, but
Jilso the amortized benefits from previous years. This is
not shown in the IWR estimate. The flaws in the IWR
estimate are brought out more clearly when the amortiza-
tion factor is eliminated. Accepting the IWR's figures
without amortization, the annual benefits of technology
transfer would be from $1.2 billion to $2.4 billion.
8. "In the case of 'Madrona Marsh' in Torrance, California,
the Army Corps asserted jurisdiction over the Eirea on Feb-
ruary 27, 1980. The area known as the 'marsh' is located
approximately two and one-half miles east of the Pacific
Ocean and 15 miles southwest of the Los Angeles City
Civic Center in a heavily developed commercial area of
the City of Torrance. The 'marsh' is not a natural phe-
nomenon, and in fact, did not exist until the late 1960's
when it was 'built' as a sump by the City of Torrance to
solve a localized drainage problem. In 1981, a petition for
withdrawal of claim of jurisdiction was filed with the Army
Corps. Jurisdiction was subsequently withdrawn, but in
February of 1982, the Army Corps decided to review the
decision of the district engineer withdrawing jurisdiction.
It has been over two years since jurisdiction was original-
ly asserted, yet under the current regulations and jurisdic-
tional memorandum of understanding, there has been no
final determination by the Army Corps." Pacific Legal
Foundation, op. cit., p. 17. See also Washington Legal
Foundation, op. cit., pp. 2-3.
9. One industry response (API/NFPA) stated that in some
cases, permit reviewers required modifications to enhance
wildlife habitat even though the requested modifications
were not related to the habitat impact of the project con-
cerned. This type of problem was said to be declining.
In Alaska, some permits prohibit drilling except dur-
ing winter, require that pipelines reach certain heights at
animal crossings, and require that impermeable waste dis-
posal pits be constructed. These stipulations are termed
controversial by a GAO report because they are costly and
their effectiveness has not been established. Often, stipula-
tions requested by other Federal agencies are accepted
routinely by the Corps. For Alaskan oil and gas permits,
GAO found that 40 percent lacked "site-specific support"
from February 1980 to September 1981. (GAO, "Devel-
oping Alaska's Energy Resources: Actions Needed to
Stimulate Research and Improve Wetlands Permit Proc-
essing," June 17, 1982.)
Some Corps districts feel that other Federal agencies
act unreasonably. For example, the Charleston district
stated in its response to OTA's questionnaire: "This Dis-
trict frequently sees applicants deferring in the interests
of more expedient application processing to somewhat
questionable project modification imposed as conditions
of 'no objection' by Federal environmental agencies. Many
of these modifications serve no useful purpose and act to
increase project costs needlessly."
The Corps' Pittsburgh District responded: "When deal-
ing with the Fish and Wildlife Service and the Environ-
mental Protection Agency, all wetlands are determined
to be of the highest quality and any application for filling
wedands, regardless of true quality, brings a recommenda-
tion for denial."
10. As with stipulations, GAO found that extensions of time
to Federal and State agencies to comment on permits often
were allowed by the Corps without sufficient documenta-
tion of the need for such extensions by the requesting agen-
cies. Lack of documentation greatly decreased, however,
after March 1980 Memoranda of Agreement (MOA) were
signed between the Corps and other involved Federal agen-
cies. Problems continue with State agencies. Further
restrictions on reviewing times were contained in 1982
MOAs.
1 1 . To give several examples of problems with IWR
calculations:
The IWR gave average costs to applicants for routine
permits (those taking under 120 days to process) as $250.
No basis was given for this figure, which is not even the
midpoint between $100 and $500, the range given by IWR
for fees charged by firms assisting permit applicants.
To estimate total costs, IWR multiplied $250 by the
number of permits estimated as taking 120 days or less
to process. For permits taking over 120 days, IWR listed
the average processing time for permits not requiring an
EIS as 251 days and for permits requiring an EIS as 815
days. To calculate additional processing costs for these
cases, IWR multiplied $250 by 2 and 7 to arrive at $500
and $1,750, respectively. Apart from the questionable
validity of including EIS costs and the problems of using
the $250 figure, no evidence was presented justifying the
estimates of average processing time. Estimates evident-
ly were based on a question on the RIA questionnaire that
asked each Corps office to describe three permit cases,
which would produce a nonrandom sample of small size
(114 examples) when compared to the thousands of per-
mits in various categories (e.g., total issued, total delayed,
total processed).
Even if IWR assumptions are accepted, the calculations
of total cost and of average processing costs to applicants
presented by IWR appear to be incorrect. IWR did not
present an explanation of how estimates were made. Using
IWR figures of average cost and RIA questionnaire figures
on numbers of permits handled in various categories
(which also were used by IWR), OTA arrived at difierent
estimates. For example, IWR gave a figure of $4.8 million
for the cost borne by all applicants for routine permits.
The RIA questionnaire listed a total of 10,688 permits fall-
ing in this category, an amount which multiplied by $250
totals $2.67 million.
1 2. In response to a question on the OTA survey on how often
modifications are required, only 1 association made a nu-
merical estimate: FI said that 7 out of 14 projects had
modifications requested of them. Nine out of seventeen
projects incorporated modifications in anticipation of agen-
cy objections.
Ch. 7— The Effects of ttie 404 Program • 163
13. American Petroleum Institute representative before
NACOAA meeting, December 1981. Some industry asso-
ciation staffers also have suggested that the time at which
the permit process can be said to begin should be pushed
back to the preapplication consultation stage, not so much
to include this time in statutory limits on processing, but
to give a better sense of the total length of time spent by
industries in processing.
14. As far as overzdl percentages are concerned, the inclusion
or exclusion of EIS permits makes an insignificant dif-
ference as so few EISs are required by the Corps: 47 in
fiscal year 1980, including non-404 permits.
IVVR estimates of the percentage of permits delayed
were 36.3, 24.7, and 29.8 percent, respectively, for com-
mercial, private, and governmental permits. However,
these estimates are inaccurate, even if RIA figures on
which IVVR based its estimates are correct. IWR used the
total number of permits, including denials and withdraw-
als, in its percentages, but the RIA survey only calculated
the number of issued permits that were delayed.
15. The IWR did not write down the calculations it performed
to arrive at its estimate; therefore, it is impossible to
validate the figure of $1 .6 billion. Many unproven assump-
tions were employed (e.g., projects costing $50 million and
under were postulated to take 1 year to complete and be
one-third complete at 120 days; projects over $50 million
were to take twice as long). Heavy reliance was placed
on the small, nonrandom sample of 114 cases described
earlier (footnote 13), e.g., to derive median cost figures.
Problems with the IWR methodology are exemplified
in the use of one key piece of data. To determine the costs
of projects subject to delay and to apply calculations of
delay costs for different types of projects, IWR employed
an RIA table giving percentages of how many projects fall
into different categories of dollar cost (e.g. , it was estimated
that 46 percent of all projects are under $25,000; 17 per-
cent from $25,000 to $100,000). This table may be inac-
curate. It was based on estimates from Corps personnel
from each district who were not asked to supply hard data
justifying estimates. The question generating the table was
worded such that respondents were asked to estimate proj-
ects according to their "potential economic impacts on
your region and/or nation," a far different basis than proj-
ect cost alone. In addition, each district was treated equally
for the purpose of calculating mean percentages for each
category. However, as detailed earlier, districts are far
from equal in the number of permits they handle. This
disparity would not be serious if districts had responded
in similar ways to this question. However, districts had
widely varying estimates. For example, for the first cate-
gory of project value, very few districts gave an estimate
close to the 46-percent figure used by IWR; many gave
estimates of over 75 percent or under 20 percent. Com-
pounding the problems of using this table, IWR divided
the cost categories of the table into commercial, individ-
ual,and government permits, although the RIA data gave
no basis for doing so. (See IWR pp. 161-166 and RIA.)
16. It is very difficult to foUow the methodology IWR used
in calculating opportunity costs. Evidently, estimates of
the cost of modifications, the amount of yardage of fill
denied by districts, and increased costs in placement of
fill were factored into IWR calculations. Some IWR as-
sumptions on these items are questionable. As discussed
earlier, IWR assumed, without a justification given, that
the cost of modifications equals the amount of benefits from
technology transfer (see footnote 4). IWR estimated that
an average of 4 million yd' of fill are requested annually
by applicants in each district and that reductions of 33 per-
cent of this figure are achieved by each district. The 33-
percent figure, while higher than the average of estimates
given by districts to OTA, is not unreasonable. However,
the figure of 4 million yd' is extremely high. Of the nine
districts giving figures to the OTA Corps survey of cubic
yardage of fill requested and approved — in five cases,
listing totals for 1980-82 year to date, and in at least one
case, combining dredged with fiU material — only one dis-
trict estimated that as much as 4 million yd' was requested.
The average amount requested per district was 1 . 5 million
yd'. Rather than eliminating 1.32 million yd', as can be
derived from the IWR figures (33 percent of 4 million),
all but one of the districts giving yardage figures estimated
that they removed 500,000 yd' or less. This indicates that
IWR estimates of opportunity costs may be high.
Chapter 8
Limitations of the 404 Program
for Protecting Wetlands
•'■^'ai^*ii*^iMc6r
"iv.
^^^i^i^^^'^^M^^P^'
ii»i«>
Contents
Page
Chapter Summary 167
Introduction 167
Scope of Coverage 168
Unregulated Activities 168
Exempted Activities 170
Nationwide Permits 171
GeneraJ Permits 173
Cumulative Impacts 174
Decisionmaking Criteria 174
Corps Performance 175
Regulatory Policies 175
District Implementation 176
Monitoring and Enforcement 177
Chapter 8 References 182
Chapter 8
Limitations of the 404 Program
for Protecting Wetlands
CHAPTER SUMMARY
There are fundamental differences in the way
Federal agencies and various special interest groups
interpret the intent of section 404 of the Clean
Water Act (CWA). The U.S. Army Corps of Engi-
neers views its primary function in carrying out the
law as protecting the quality of water. Although
wetland values are considered in project reviews,
the Corps does not feel that section 404 was de-
signed specifically to protect wedands. In contrast,
the Fish and Wildlife Service (FWS), the Environ-
mental Protection Agency (EPA), the National Ma-
rine Fisheries Service (NMFS), and environmen-
tal groups contend that the mandate of CWA
obliges the Corps to protect the integrity of wef-
lands, including their habitat values.
In terms of comprehensive wedand management,
404 has major limitations. First, in accordance with
CWA, the 404 program regulates only the dis-
charge of dredged or fill material onto wetlands.
Projects involving excavation, drainage, clearing,
and flooding of wetlands are not explicitly covered
by section 404 and not usually regulated by the
Corps. Yet such activities were responsible for the
vast majority of inland wedand conversions between
the mid-1950's and the mid-1970's. Rarely have
these activities been halted or slowed because of
Federal, State, or local wetland regulations.
Second, the Corps does not have adequate re-
sources to regulate activities effectively in "all
waters of the United States." Instead, the Corps
uses "general" (or nationwide) permits for isolated
waters and headwater areas. Because there are few
application or reporting requirements for activities
within areas covered by general permits, the Corps
has limited regulatory control over the use of wet-
lands covered by general permits.
Third, several administrative problems presendy
limit the program's effectiveness. These problems
include significant variations in the way different
districts implement the 404 program, the lack of
coordination between some districts and other Fed-
eral and State agencies, inadequate public aware-
ness efforts, and the low priority given monitoring
and enforcement.
Finally, Federal water projects planned and au-
thorized by Congress prior to environmental pro-
tection policies of the last dozen years are generally
not considered to pose a significant threat to wet-
lands, even though they may be exempted from 404
requirements. However, projects authorized 10 to
15 years ago that are now being undertaken often
cause significant impacts to wetlands.
INTRODUCTION
There is widespread agreement that the 404 pro-
gram has major limitations in terms of providing
comprehensive wetland protection. As stated by
William R. Gianelli, Assistant Secretary of the
Army (Civil Works), before the House Committee
on Merchant Marine and Fisheries on section 404
of CWA, August 10, 1982:
It is important to point out that wetlands sub-
ject to section 404 can be destroyed in a number
of ways without any requirement for a Corps per-
mit. They can be destroyed by excavating, drain-
ing, flooding, clearing, or even shading without the
need for a Corps permit as long as those activities
do not include the discharge of dredged or fill ma-
167
168 • Wetlands: Their Use and Regulation
terial. So, it is clear that section 404 does not serve
as the Nation's comprehensive wetlands protection
law.
This chapter addresses these and other limita-
tions of the program under two parts: "Scope of
Coverage" and "Corps Performance." The first
part discusses activities that may adversely impact
wetlands and areas that are not addressed by sec-
tion 404 because of either legislative or regulatory
language. The second part discusses the implemen-
tation of section 404 by the Corps, including reg-
ulatory policies, district implementation, and mon-
itoring and enforcement.
Sources of information for this chapter include
OTA surveys of States and Corps districts as well
as information provided in OTA's regional case
studies and OTA interviews. The analysis of cover-
age of the program was prepared by reviewing the
language of the legislation and regulations and con-
sidering the evaluations provided by these various
information sources. The analysis of Corps per-
formance, however, was limited by a lack of quan-
titative data.
SCOPE OF COVERAGE
With respect to comprehensive wetlands protec-
tion, a number of gaps exist in the 404 program's
geographical coverage of wedands, types of develop-
ment activities on wetlands that require permits,
and the standards for determining if a permit will
be granted. Resource agencies also contend that
gaps have been widened by recent regulatory
changes in the 404 program that were made in re-
sponse to the regulatory reform initiatives of the
administration. Because of inadequate data on the
404 permitting process prior to 1982, it is impossi-
ble to quantitatively document any changes in the
quality of decisions about wetlands use in terms of
environmental protection due to these administra-
tive changes.
Unregulated Activities
Several development activities that cause direct
wetland conversions or significant impacts on wet-
lands but do not involve the disposal of dredged
or fill material on wetlands are not included in sec-
tion 404 and thus not regulated by the Corps. They
include drainage of wetlands, dredging and excava-
tion of wetlands, lowering of ground water levels,
flooding of wetlands, deposition of material other
than dredged or fill, removal of wedand vegetation,
and activities on non wetland areas.
Drainage of Wetlands
Removal of water from wetlands through drain-
age ditches, tiles, and canals is the primary source
of wetland conversion in some parts of the coun-
try, such as south Florida (1), prairie potholes (2),
North Carolina (9). Drainage of wetlands is not
covered under the existing 404 program unless the
material removed from the ditches or canals is de-
posited back in the wedand area. Reasons for drain-
age include: bringing new areas into agricultural
production or improving productivity on existing
agricultural land (e.g., prairie potholes (2),
Nebraska (4), Florida (1), North Carolina (9),
South Carolina (9)); allowing harvest and reforesta-
tion of timber stands (which generally requires only
partial drainage during critical time periods, e.g.,
North Carolina (9)); providing sites that can be de-
veloped for urban or industrial use (e.g., Florida
(1)); and enhancing the use of areas for nonwedand
purposes such as lawns (e.g., Washington State
(10)).
Dredging and Excavation of Wetlands
While dredged or fill material may not be placed
on a wetland covered by the 404 program without
a permit or exemption, wetlands themselves may
be dredged or excavated without a permit as long
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 169
as the resulting dredged material is disposed of on
a nonwetland site. The wetland area may be exca-
vated to provide a source of fill, to provide greater
storage area for drainage of other wetland areas,
or to create reuse pits or dugouts to store water and
improve irrigation efficiency (e.g., Florida (1),
Nebraska (4)).
Lowering Ground Water Levels
Reducing the supply of water to wetlands
through pumping is not covered under 404. This
is an important activity for irrigation of cropland
in some regions, such as the Central Platte River
Valley and the Sandhills of Nebraska (4). It also
may impact wetlands in a few isolated locations,
such as the California desert, where limited water
supplies are in demEind for mining, agriculture, and
ranching (3). Pumping to drain wetlands is also a
technique that has been used in conjunction with
excavation and fill projects by developers to im-
prove the quality of a site prior to construction (1).
Flooding of Wetlands
Flooding wetlands or creating reuse pits for irri-
gation is not covered under the 404 program. These
practices, which occur in places like the prairie-pot-
hole region (2) and the Rainwater Basin in Nebras-
ka (4), may significantly change the character of
a wetland and alter its habitat values. Flooding of
wetlands involving construction of an impound-
ment most likely would involve the discharge of fill
material and would require 404 review unless the
project was exempted from coverage for some other
reason, such as exemption for farm ponds, nation-
wide permit for headwaters, and exempted Federal
construction projects.
Deposition of Material Other Than Dredged
and Fill Material
The Corps regulates the discharge of fill material
if "the primary purpose is to replace an aquatic
area with dry land or change the bottom elevation
of a water body. "' The Corps' authority to regulate
the disposed of waste materials, such as wood waste,
construction rubble, and household garbage in wet-
lands is not clear. The Corps has asserted that these
'33 CFR 323.2 (m).
materials should be regulated by EPA under sec-
tion 402 of CWA because the primary purpose of
the activity is to dispose of waste. EPA contends
that the Corps should regulate these activities under
section 404. This controversy, which is apparently
close to resolution, has been an issue in cases in-
volving disposal of logging slash and expansion of
landfills into wetlands.
Removal of Wetland Vegetation
Activities resulting in a gradual transition of an
area to nonwetland can take place without 404 re-
view in most regions of the country. For example,
during the dry season in western Broward County,
Florida, sawgrass has been mowed and chopped
into the soil (1). Grass seed and fertilizer are then
spread by aerial application. When the sawgrass
sends up new shoots, cattle are introduced. Since
they feed on the sawgrass preferentially, the seeded
grass becomes the dominant species. The area is
then no longer a wetland as defined by the Corps,
and jurisdiction is lost for regulating development.
In other circumstances, removal of vegetation in-
volving the incidental discharge of dredged or fill
material from activities with the purpose of bring-
ing an area into a new use may require a permit
under section 404(F)(2).
Activities on Nonwetland Areas
Activities on nonwetland areas also can injure
wetlands. For example, in the Platte River Valley
and the Sandhills, land-use changes from ranching
to irrigated cropland result in seasonal and long-
term ground water drawdown and the subsequent
conversion of wetlands. Upstream withdrawals of
surface water can have adverse impacts on down-
stream wedands. Diversions for irrigation and other
uses, especially when accompanied by impound-
ments, reduce peak and average annual flows,
which are important for maintaining some wet-
lands, such as the wet meadows along the Platte
River in Nebraska (4). Erosion from land-disturb-
ing activities and runoff containing pesticides and
herbicides used on agricultural land can all impact
wetlands.
These development activities cannot be viewed
in isolation from other gaps in the 404 program for
providing wedand protection. A development activ-
170 * Wetlands: Their Use and Regulation
ity not involving disposal of dredged or fill material
in a wetland may take place above the headwaters
or be part of an existing farming operation and
therefore be excluded from individual permit review
under the nationwide general permit or be exempt-
ed from 404 jurisdiction entirely under 404 (F)(1).
These exemptions are discussed below.
Exempted Activities
Some development activities are exempted specif-
ically by CWA from coverage by the Corps: normal
farming, silviculture, and ranching activities such
as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber, and
forest products, or upland soil and water conserva-
tion practices; maintenance of "currently service-
able" structures such as dikes, dams, levees, and
transportation structures; construction or mainten-
ance of farm or stock ponds or irrigation ditches,
or the maintenance of drainage ditches; and con-
struction or maintenance of farm roads, forest
roads, or temporary roads for moving mining
equipment where such roads are constructed and
maintained in accordance with best management
practices (BMPs).^
According to Edward Thompson, Jr. (11),
"Congress clarified its original intention to exclude
routine earth-moving activities of agriculture, for-
estry, and related industries . . . from case-by-case
review under section 404, with the understanding
that their water-quality effects will be controlled by
the States through the prescription of BMPs, under
section 208 of the act." However, during the con-
gressional deliberations on this point, Senator
Muskie explained, "It is not expected that section
208(b)(4)(c) exemptions (from sec. 404) will be
available for whole classes of activity, such as silvi-
culture (i.e., forestry)." Activities would have to
be "appropriate" for BMP regulation. Congress
decreed under section 404(f)(1)(E) that farm, forest,
and mining roads required BMP control apart from
many other exempted activities, such as construct-
ing irrigation ditches.
Normal Farming, Silviculture,
and Ranching Activities
Some routine or normal activities,* can lead to
wetland conversion or deterioration. Agricultural
activities were identified by the National Wetland
Trends Study (NWTS) as being responsible for
about 80 percent of the conversions of inland wet-
lands from the mid-1950's to the mid-1970's; case
study information indicated that normal farming
activities were responsible for some of these con-
versions. For example, in the Central Valley of Cal-
ifornia, many farming practices actually contribute
to the maintenance of some wetlands (3). Changes
in these farming practices may impact wetlands.
For example, rice cultivation provides a major
source of water to wedands. Conversion of the land
to other crops, such as orchards, could eliminate
this water source and alter timing of water availa-
bility. More efficient farming practices, such as
land-leveling techniques and herbicide use, can re-
duce wetlands acreage and available food for
waterfowl.
Normal agricultural activities may also lead to
wetland conversions and to other adverse impacts
on remaining wetland areas. For example, in the
prairie-pothole region, changes in farming meth-
ods, increased specialization in crop production,
decreased number of farms with livestock, and in-
creasing machinery size were identified as major
causes of wedand drainage. These changes in farm-
ing methods have decreased the relative value of
^Clean Water Act, sec. 404(0(1).
'The definition of normal activities is ambiguous and, depending
on its interpretation, may result in wetland conversions. The Corps
regulations issued on July 22, 1982, state that "to fall under this ex-
emption, activities . . . must be part of an established (i.e., ongoing)
farming, silviculture, or ranching operation" (33 CFR 323.4 (a](l][i|).
Many wetland areas in the Rainwater Basin of Nebraska and similar
areas throughout the prairie-potholes region, for example, are peri-
odically cultivated and farmed before they are more permanendy drain-
ed. The regulations are not clear as to whether alteration of this sort
(even if a discharge of fill material was involved) would come under
the normal farming exemption. Another example of this ambiguity
problem is whether clearing wooded ponds for aquaculture is an ex-
empted activity.
Ambiguity in the term "normal" has been recognized by the forestry
industry in at least two Corps districts. Local forestry associations are
working with the Corps' Vicksburg and Wilmington districts and EPA
to define normal silviculture activities and to clarify which practices
require review under section 404. Forestry practices of concern in-
clude conversions of mixed bottom land hardwood stands to hardwood
plantations and conversions of pocosins to pine plantations.
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 171
wetlands as a source of forage and have increased
soil erosion, which gradually causes filling of the
wedand, decreasing its wildlife value. The increase
in machinery size simultaneously has provided the
horsepower to perform much of the drainage activ-
ity and increased the nuisance of farming around
potholes (2).
Farm Ponds/Irrigation Ditches/
Drainage Ditches
The farm pond exemption is of potential con-
cern, given the freshwater wedand acreage that has
been converted to open water, as shown by NWTS.
OTA's New England case study (15) cites more de-
tailed analysis of wetland change in 15 Massachu-
setts towns and notes that impoundments are the
most important single cause of man-induced wet-
land change in inland areas (48 percent). Agricul-
ture-related pond construction on existing wetland
sites may be related to the transition of shallow to
deepwater wetlands. The New England study fur-
ther notes that although many of the impoundments
are farm ponds, others, probably increasingly, are
recreational ponds. This exemption is also of con-
cern in regions (e.g., Playa Lakes and Nebraska)
where the creation of irrigation reuse pits has re-
sulted in wetland conversions or a transition to
deeper water habitats.
Construction of Farm, Forest, or Temporary
Mining Roads
These activities are probably not a major cause
of wedand conversion, provided BMP's are actually
implemented. In the past, road construction was
a major factor responsible for wetland conversions
in some parts of the country, and today it continues
to encourage wetland conversions indirectly. For
instance, exempted logging roads built through
wooded coastal swamps near river channels have
provided access to areas that were then illegally
filled for housing. Road construction may result in
wetland drainage by roadside ditches. Also, road
construction in or near wetlands often increases
pressures for further urbanization and commercial
development.
Federal Construction
Federal construction projects specifically author-
ized by Congress and entirely planned, financed,
and constructed by a Federal agency are also ex-
empted from 404 permitting requirements. How-
ever, before such an exemption may apply, the Fed-
ered agency involved must prepare an adequate en-
vironmental impact statement (EIS) and make it
available for congressional review prior to author-
ization or appropriation of funds. That EIS must
consider the impact of the project in light of the
section 404(b) guidelines that embody the principal
404 permit standards (404(r)). The exemption for
Federal construction, which includes congression-
ally authorized Federal water projects, is not con-
sidered to be a significant threat to wedands because
the requirements of the National Environmental
Policy Act (NEPA) must still be met.
Other Federal water projects that are not spe-
cifically authorized by Congress, such as the
Department of Agriculture's (USDA) small-scale
Soil Conservation Service (SCS) watershed proj-
ects, still require section 404 permits, compliance
with principles and standards of NEPA, and com-
pliance with agency policies on wetlands stemming
primarily from Executive Order 1 1990. In general,
these projects are considered to have less impact
on wedands now than they did in the past, owing to
all of these environmental protection policies. How-
ever, there are many projects, authorized prior to
the development of environmental protection pol-
icies but now under construction, that are a source
of frustration for resource-protection agencies.
Flood control and drainage projects of the Corps
that are not specifically authorized by Congress do
not require 404 permits; however, the public inter-
est review is still required. These projects may result
in the conversion of some wetlands (e.g., fill of bot-
tom land hardwoods); however, the rates of con-
version are much less than they were prior to the
public interest review.
Nationwide Permits
Activities in some wetland areas are covered by
nationwide permits, thus eliminating the necessity
172 ' Wetlands: Their Use and Regulation
for individual permit review. Discharges of dredged
or fill material in these areas may occur without
the need for specific authorization from the Corps.
Before the 1982 changes, these areas included:
• wetlands adjacent to nontidal rivers and
streams located above the headwaters (head-
waters being defined as less than 5 cubic feet
per second (ft^/s) average annual flow);
• natural lakes and adjacent wetlands under 10
acres that are not part of a surface or river
stream, or fed by a river or stream above head-
waters; and
• isolated wedands not part of a surface tributary
system to interstate or navigable waters.
The 1982 changes (9) broadened these permits
to encompass all isolated wetlands (removing) the
10-acre limit. Several States, opposed to nationwide
permits, have denied 401 certification for certain
permits. In its May 12, 1983, proposed regulatory
changes,' the Corps reinstated the 10-acre limit.
Nationwide permits have been criticized on var-
ious grounds. First, some sources claim that the
Corps has no authority to exempt areas, as opposed
to activities, from coverage; some States have sued
the Corps on these grounds.
Second, discharges of dredged and fill material
under nationwide permits are supposed to meet the
following criteria: they cannot threaten endangered
species or be discharged into a component of a State
or National Wild and Scenic River System; they
must be free of more than trace amounts of toxic
pollutants; and fills must be maintained to prevent
erosion and other nonpoint sources of pollution.*
Discretionary authority, regional conditioning, and
other measures also improve permit effectiveness.
However, various parties contend that nationwide
permits prevent the 404 program from stopping or
mitigating destruction of much wedand acreage (9).
Because there is little monitoring of activities for
compliance, neither point of view could be verified
with documented evidence.
Third, the Corps does not regulate activities oc-
curring in headwater areas when waterflow is less
than 5 ft'/s, a standard that has been criticized as
being inexact and injurious to wetlands, especially
^Federal Register, vol. 48, No. 93,
•Clean Waler Act, 323.4-2(b)(l-4).
pp. 21, 466-21, 476.
in areas of seasonal rainfall and in areas with low
relief (e.g., Atlantic coastal plain). Higher relief
areas subject to intense development pressure (e.g.,
the lowland creeks of western Washington) are also
of concern with respect to the 5-ft'/s standard.
In areas with seasonal rainfall, wetlands may or
may not be covered by individual permits, depend-
ing on whether mean or median flow is used to de-
fine the 5-ft'/s boundary. Also, in areas with low
relief, the 5-ft'/s boundary is difficult to determine
and Ccui be changed artificially by diverting stream-
flows in areas with an existing network of drainage
canals.
Corps policies for determining the 5-ft'/s bound-
aries vary among districts, depending on the avail-
ability of hydrologic information. More detailed in-
formation provided by applicants has been used to
change a jurisdictional determination made by the
Corps in at least one case in California (3).
Activities taking place in wetlands upstream of
the 5-ft'/s limit for individual permit jurisdiction
that might impact wedands include, among others,
depositing fill for a variety of reasons, including
urban development, instream dredging, peat min-
ing, and agricultural conversions. Also, such up-
stream activities may reduce flows downstream so
that the 5-ft'/s boundary moves progressively down-
stream, exposing new areas to coverage under na-
tionwide permits.
Finally, some isolated wetlands are only covered
by a nationwide permit. According to the OTA case
studies, isolated wedand types that experience con-
troversial regulation under the nationwide permit
include vernal pools, isolated mountain wetlands,
pocket marshes, and closed basins (including diked
areas) in California (3); pocosins and bays of North
and South Carolina (9); swamps of southern New
Jersey (6); and wetlands of the prairie-pothole re-
gion (2); and Nebraska (4).
Regulations allow the district engineer discretion-
ary authority to require individual permits in areas
covered under nationwide permits. This authority
has been used in a few cases. For example, at the
request of FWS and after discussions with the local
governments, wildlife agencies, conservation
groups, and others, the Los Angeles District of the
Corps agreed to accept discretionary authority for
the vernal pools of San Diego County because of
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 173
the presence of endangered species (3). It must be
noted, however, that individual permit review does
not always result in the preservation of the wedand.
In the San Diego case just mentioned, the indivi-
dual permit process under the Corps' discretionary
authority has not preserved as many pools as the
city expected. In another case, the New York Dis-
trict considered using discretionary authority to
regulate a planned-unit development project next
to a national wildlife refuge. The threat of section
404 requirements prompted the developers to avoid
the wetlands (6).
General Permits
Some development activities are given limited
coverage by regulations in the form of general per-
mits, which are developed within each district and
may apply to all or part of the district. (General
permits that apply to all districts are called nation-
wide permits.) Most general permits are for activ-
ities that cause little or no impact on wetland areas
(e.g., mooring buoys) and do not require individual
project permits. While some general permits pro-
vide some protection to wetlands, through the use
of BMPs, the lack of monitoring of permit condi-
tions means that many such activities may have
greater impacts than officially allowed.
Some districts provide greater protection to wet-
lands than do other districts through language in
their general permits designed to protect wedands.
For example, Wilmington District general permits
for discharges into diked disposal areas; mainten-
ance and repair of private bulkheads; and mainten-
ance, repair, construction, or use of boat ramps all
include language for the specific protection of vege-
tated wedands. General permits for similar activities
in the Charleston District do not include such ex-
plicit language for avoiding vegetated wedands (9).
Criticisms of general permits include:
• the general-permit process eliminates both the
normal public interest review and the oppor-
tunity for other agencies to comment on a proj-
ect-by-project basis;
• public notice is not required, which eliminates
a means for informing State and local agen-
cies of activities that may require non- Federal
permits;
• general permits may lead to cumulative con-
version of wedand habitat to small-scale devel-
opment; and
• general permits are not closely monitored to
ensure that BMPs are followed.
Since there are no reporting requirements for
most general permits, many projects covered by a
general permit can be undertaken without checking
with the Corps. If someone reports a suspected vio-
lation, the Corps will investigate and determine if
an individual permit is necessary. To avoid poten-
tial violations, letters of authorization for specific
projects can be obtained from the Corps. In fact,
some communities in New Jersey, for example, re-
quire such a letter from the Corps before local
approvals are obtained for construction.
General permits can reduce regulatory require-
ments for both applicants and the Corps. The most
frequently noted successful use of the general per-
mit was in reducing regulatory overlap between the
requirements of the North Carolina Coastal Area
Management Act and the Wilmington District.
This general permit has broad support by appli-
cants, the Corps, and other resource agencies. The
permit covered 80 percent of all major projects in
1981 and still involves review by the NMFS, FWS,
and the Corps (9).
Current efforts to grant general permits for State
programs that do not have as stringent or encom-
passing review requirements as the Corps program
are being met with resistance. Also, EPA has been
reluctant to agree to general permits that would
allow disposal of fill material in wetlands covered
by special area management plans, such as the one
developed for Grays Harbor, Washington (10).
General permits have been adopted in some cases
that explicidy allow fill in wetlands. For example,
the Wilmington District has a general permit for
vegetative fill in wetlands from selective snagging
operations by the Government. Exceptions include
endangered or threatened species habitat, structures
in the National Register of Historic Places, and Na-
tional Wild and Scenic Rivers. The Wilmington
District also currendy is working to develop a gen-
eral permit for the discharge of dredged and fill ma-
terials for drainage systems and for land clearing
to convert lands to agricultural use. Stringent con-
ditions (yet to be developed) would have to be met,
174 • Wetlands: Their Use and Regulation
and probably would meet all conditions. However,
such an effort could potentially prevent the exten-
sive delays and costs associated with the permit pro-
cess for large agribusiness operations (9).
Cumulative Impacts
Generally, permits are not denied unless substan-
tial individual impacts can be shown; the combina-
tion or cumulation of minor impacts of many small
projects is extremely difficult to evaluate in mak-
ing permit decisions. It is difficult to deny a proj-
ect for reasons of cumulative impacts alone, espe-
cially if it is in an area where similar projects already
have been approved. These cumulative impacts are
overlooked in many districts.
No clear nationwide guidance exists on how,
where, and when to deny applications, and there
is no legal basis for denying permits based on cum-
ulative impacts of possible future projects. Most
Corps districts try to minimize the impacts of spe-
cific projects. The result appears to be an incre-
mental conversion of wetlands, without projections
of cumulative impacts based on good scientific
studies that entail adequate field investigations.
Decisionmaking Criteria
Corps regulations state that the unnecessary al-
teration or destruction of important wedands should
be discouraged as contrary to the public interest.^
The regulations state that no permit will be granted
that involves the edteration of important wetlands
unless the district engineer concludes that the bene-
fits of the proposed alteration outweigh the damage
to the wetlands resource. This guidance is consid-
ered by some to be inadequate and leads to varia-
bility in the degree of protection provided to wet-
lands.
Although the water dependency test (described
on p. 2 of ch. 3) is considered to be well imple-
mented in tidal wetlands, decisions based on the
test are controversial for projects where permits are
awarded for nonwater-dependent projects on the
basis of no practicable alternatives. For example,
the New York District recendy granted a permit for
townhouses in a wetland area in the Passaic River
Basin (3). Under the permit, 8 wetland acres will be
converted, whUe 15 manmade wedand acres will be
required as compensation. Before this was agreed
to, the New York Corps of Engineers required the
applicant to study all possible alternative sites of
a similar size within 5 miles of the proposed proj-
ect. (Alternative sites do not need to be on property
owned by the applicant.) For various reasons, the
applicant ruled out all alternative sites. The Corps
agreed after conducting its own verification proc-
ess. The reasons cited were unfavorable zoning, in-
ability to market the expensive townhouses, sewer
bans, unavailability of the land, and large incre-
mental developmental costs. Another district engi-
neer could have used a different standard to define
what was practicable. Lack of guidance on applying
the practicable alternatives test was also noted as
a problem when evaluating agricultural conversions
of bottom land hardwoods by the New Orleans
District.
In its proposed changes to the existing regula-
tions published on May 12, 1983,'' the Corps stated
its desire to include property ownership as a factor
in its decisionmaking process. As stated in the
Federal Register,
Section 320.4(a)(1): "Considerations of property
ownership" would be explicitly expressed as a fac-
tor of the public interest. This has always been a
basic tenet of Corps policy and has been implicit
in previous regulations. The statement that "No
permit will be granted unless its issuance is found
to be in the public interest," would be changed to
"A permit will be granted unless its issuance is
found to be contrary to the public interest." The
intent of this change is to recognize that within the
context of the public interest review, an applicant's
proposal is presumed to be acceptable unless dem-
onstrated by the Government not to be.
This provision in essence would shift the burden
of proof from the applicant to the Federal Govern-
ment.
'Clean Water Act, sec. 320.4(b)(1).
^Federal Register, vol. 48, No. 93, op. cit.
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 175
CORPS PERFORMANCE
As described elsewhere in this report, the 404
program has protected wedands in many areas.
Evaluations of the performance of different Corps
districts by sources consulted by OTA varied great-
ly, however. Some districts were singled out by
States for being outstanding in their implementa-
tion of the program, while some others were con-
sistently criticized, especially for lack of action.*
This lack of action may be a result of unclear reg-
ulatory policies and guidance established by the
Corps leadership in Washington, D.C., or ineffec-
tive implementation of policies at the district level.
Monitoring and enforcement also are important be-
cause no regulatory program can be effective with-
out adequate monitoring of compliance with regula-
tions and enforcement of sanctions against violators.
Regulatory Policies
Three major aspects of Corps policy are criticized
with respect to the degree of protection provided
to wedands under the 404 program: interpretation
of the intent of section 404, interpretation of inter-
state commerce, and jurisdiction over incidental
discharges related to clearing and excavation.
Interpretation of the Intent of Section 404
The extent to which section 404 can be used to
protect biological systems is at the heart of the con-
troversy over the Corps interpretation of water
quality. The objective of CWA is to protect the
chemical, physical, and biological integrity of the
Nation's waters.' The interpretation of biological
integrity is the major issue. Broad interpretation
of the concept of biological integrity and the ob-
jective of CWA would include protection of wet-
land habitat values. Federal resource agencies and
environmental groups believe that the mandate of
CWA obliges the Corps to protect the integrity of
•For example, "The C.O.E. (Corps) offers minimal protection to
wetlands with the 404 Program. The degree of concern and quality
of the 4-04 Program varies with each C.O.E. District Office. For ex-
ample, the Omaha C.O.E. District appears not to be concerned about
protecting anything, and runs an inefficient program; while the Salt
Lake City Regional Unit of the Sacramento District Office is very
active and concerned about all the activities" (Wyoming).
'Clean Water Act, sec. 101(a).
wetlands, including their habitat values, and not
just the quality of the water.
The Corps, following a narrower interpretation
of CWA, views its primary function in carrying out
the law as protecting the quality of water; protec-
ting other wetland values is a secondary concern.
The Corps does, however, consider fish and wildlife
habitat values under its general public interest re-
view that is part of the overall balancing process
used to determine whether to grant a permit. How-
ever, habitat values are not afforded any special
status over other factors that are also considered
in the public interest review except to the extent
that Corps regulations state that the unnecessary
alteration or destruction of important wetlands
should be discouraged.
Interpretation of Interstate Commerce
The Corps interpretation of the scope of inter-
state commerce issues that arise when a district en-
gineer considers whether to use discretionary au-
thority and to require individual permit review for
an isolated wedand has been criticized as too restric-
tive. One source stated that the Corps leadership
is pressing districts to apply section 404 only where
interstate commerce issues, narrowly defined, are
involved. In response, some districts are not con-
sidering impacts on migratory waterfowl from fill-
ing of inland wetlands and are only sparsely regu-
lating such activity.* Other aspects of interstate
commerce that are not considered but could pro-
vide greater opportunities for wetland protection
under section 404 include water withdrawal for in-
terstate industry, crop production, visitation by
interstate and international visitors, mining and oil
extraction (regardless of whether the activity is
wetland-dependent), and land development for in-
terstate purchases (3).
Jurisdiction Over Incidental Discharges
In the past, the Corps has been generally reluc-
tant to exert authority over land-clearing and ex-
cavation activities that involve discharges into wet-
lands from the drippings of dragline buckets, bull-
'Califomia response to OTA's questionnaire.
176 • Wetlands: Their Use and Regulation
dozers, and the like, even though such jurisdiction
has been authorized through court decisions (14).
CLEARING
The Corps clarified its position on vegetation
clearing in Regulatory Guidance Letter 82- 11. The
policy states that the removal of vegetation is not
a discharge of dredged or fill material (except in
the Western Judicial District of Louisiana). The
placement of vegetative matter into waters of the
United States requires a 404 permit if the "primary
purpose" is "replacing an aquatic area with dry
land or changing the bottom elevation of a water
body."^ Incidental soil movement related to the
planting or removal of vegetation is not considered
to be a discharge. However, if accompanied by land
leveling that alters topographic features of "waters
of the U.S." through significant soil movement,
it is subject to section 404.
The variation in this policy for the Western Ju-
dicial District of Louisiana is a result of the court
decision for Avoyelle's Sportsmen 's League v. A7ex-
ander.^ The court determined that the clearing of
bottom land hardwood trees for agricultural use and
the removal of their roots by plowing was held to
be a discharge of dredged or fill material within the
scope of regulation under section 404(f)(2). This
section states that, if the discharge of the dredged
or fill material is incidental to an activity (except
those specifically exempted by sec. 404) designed
to bring an area of water of the United States "into
a use to which it was not previously subject, where
the flow or circulation of navigable waters (waters
of the United States) may be impaired or the reach
of such waters be reduced," a section 404 permit
is required. The U.S. Fifth Court of Appeals in
New Orleans recendy upheld the lower court
ruling.
Prior to this decision by the appeals court. Corps
leadership held that the district court decision would
be adhered to only in the portions of the Corps dis-
tricts that are within the Western Judicial District
of Louisiana, where the lower court decision was
made. The rationale for this position is that the
judge's decision in the case was not a broad-based
decision attacking the validity of section 404 regula-
tions (as has been the case in other Federal district
court decisions recognized nationally by the Corps),
but that the AvoyeOes Sportmen's League case was
an action to force the Corps to regulate (under sec-
tion 404) the specific activities occurring on the
specific tract involved. Also part of the rationale
is the idea that, in a similar situation, a judge in
another Federal judicial district might decide dif-
ferently.
Actual implementation of this vegetation-remov-
al policy in the Western Judicial District of Loui-
siana is also being criticized. These criticisms relate
to the issues discussed previously regarding the
Corps' interpretation of water quality. Although
404 permits are required, they are generally being
issued because significant incremental water quality
degradation relative to existing levels cannot be ade-
quately demonstrated (12).
EXCAVATION
Drainage of wetlands by excavation can seldom
be accomplished without direcdy or incidentally dis-
charging dredged or fill material into the wetland
area. However, the Corps rjurely regulates drainage
that occurs during the conversion of wedands to
agricultural or urban use.
Dis trict Implem en ta. tion
Because of the nature of the Corps' organization,
there is a great deal of variability in the manner
in which the 404 program is implemented among
the semiautonomous districts. Of the 33 States that
described weak inland wetland protection in re-
sponse to OTA's questionnaire, 7 said that the 404
program is ineffective in providing additional cov-
erage. Most of the problems were related to Corps
resources and attitudes. Several States commented
that some districts are hampered by lack of man-
power and funding — for monitoring of violations,
for instance. In many cases, only a few field per-
sonnel are available to cover large areas.*
The Corps would agree with this assessment of
manpower/funding constraints. After the 1975
court decision requiring the Corps to expand its jur-
isdiction, the Corps requested additional funding
»3 CFR, sec. 323. 2(m).
H73 F. Supp. 525 WD. La., 1979.
'States commenting on Corps resources include Alaska, Vermont,
and V^yoming.
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 177
and manpower. This request was denied by the Of-
fice of Management and Budget (OMB). Thus, the
Corps had to reallocate resources to comply with
the court order. According to some States, a few
districts place a low value on wetland protection
and are inactive by choice. For example, some dis-
tricts favor a broad interpretation of nationwide and
general permits and are reluctant to assert discre-
tionary jurisdiction for individual permits.*
The case studies revealed two major styles used
by Corps districts to deal with objections to 404 per-
mit applications. In some districts, the Corps plays
an active role as mediator in disputes between appli-
cants and resource agencies with wedand-protection
concerns. Resource agencies are positive about this
approach in districts where it is used. Although the
process can be time-consuming, there is general
agreement by the agencies that better decisions and
better working relationships have resulted. In fact,
one Corps regulatory chief commented to OTA that
regulatory reform measures that limit the time
available for this kind of decisionmaking may result
in more permits being denied. Other districts sug-
gested these time limits would result in more "rub-
ber-stamp" approvals of permit applications.
In other districts, the Corps plays a more passive
role in resolving the objections of resource agencies
to permit applications. The applicants are directed
to work out the objections of other agencies on their
own. The Corps generally will approve the permit
when differences are resolved. Two problems were
noted in the case studies that can make this ap-
proach difficult. First, the applicant may be faced
with conflicting recommendations from different
agencies. For example, a compensation measure
•Several States responding to the OTA survey made comments
along these lines: "Permitting by the Corps of Engineers under sec-
tion 404 has had no importance in the control of wedands in the State
of New Hampshire. The State program issues between 1 ,000 and 2,000
permits a year and has for the last 8 years. Federal permits in New
Hampshire are currendy running at a level of approximately 100 per
year. One of the significant reasons for this difference is that the State
permit program has no exemptions for any type of applicant (govern-
ment agencies, agriculture, etc.), and has issued no general or statewide
permits for any size projects. The 404 program administered by the
Corps of Engineers lacks publicity in New Hampshire and eliminates
half of the projects in New Hampshire by national permits" (New
Hampshire). Also, "Freshwater wedands in the coastal zone could
be better protected by the Corps of Engineers than by the Coastal
Council because of differences in authority, but the Corps uses the
general permit to let all freshwater wedands be filled unless the Coastal
Council objects very strenuously" (South Carolina).
to enhance fish resources may conflict with one to
enhance wildlife resources. These conflicts generally
are resolved by negotiation and compromise be-
tween the agencies and project proponents before
permits are issued; however, this does litde to avoid
frustration for applicants. The second problem is
that of finalizing agreements that were made
without the presence of the Corps, the major deci-
sionmaker. The results of meetings between object-
ing agencies and permit applicants are often inter-
preted differently, especially if the decisionmaking
agency is not present to verify compromises or
changed permit conditions.
The OTA case studies also noted problems that
reviewing agencies have had with the Corps. In-
adequate information on public notices was noted
with respect to at least one district. Incomplete or
inaccurate information necessitates requests for ad-
ditional information and prolongs the review proc-
ess. Poor communication with review agencies,
especially on unauthorized activities, was noted as
a problem in two studies (3,6).
Finally, some States see Corps offices as making
inadequate efforts to publicize the program. * Other
districts are considered to have effective programs
for public awareness. A well-publicized program
can accomplish several things. First, it can help en-
sure that project proponents apply for necessary
permits. Publicity on what will or will not be per-
mitted under 404 can help ensure that projects sub-
mitted for review are designed so that the permit
can be obtained readily. Some districts have cited
a marked improvement in the quality of permit ap-
plications, noting that the majority of applicants
no longer request filling coastal wetlands for non-
water-dependent uses. In addition, increased
publicity leads to better monitoring and enforce-
ment, as discussed in more detail below.
Monitoring and Enforcement
The Corps has authority under section 404 to
monitor and enforce the conditions of its permits.
But the 404 program has experienced many prob-
lems in monitoring permitted activities and enforc-
ing permit conditions. Owing to inadequate fund-
*"The Corps efforts to inform the public of permit requirements
are also limited and haphazard" (Vermont).
178 • Wetlands: Their Use and Regulation
ing and manpower, and in some cases, reflecting
internal priorities, many districts cannot or do not
effectively monitor the areas under their jurisdic-
tion for violations. In particular, relatively few proj-
ects are field-checked in many districts for com-
pliance with permit conditions after a permit is
granted. The Corps authority to take action against
unauthorized activities is also limited. Because EPA
has greater enforcement authority to take action
against unpermitted and therefore illegal discharges
of dredged or fill material under sections 301 , 308,
and 309, the Corps is often forced to rely on EPA
and the Justice Department for obtaining injunc-
tions against illegal activities.
Compliance With the Program
Two basic types of violations of the 404 program
occur: discharge of dredged or fill material without
a permit and discharge in violation of conditions
placed on permits. According to the Corps, 3,724
violations of sections 404 and 10/404 were reported
or detected during fiscal year 1980 (13). This figure
was not broken down by type of violation. OTA
asked districts to estimate the number of violations
detected annually involving: 1) permit conditions,
and 2) discharging material without a permit.
Though percentages varied gready among districts,
more than 80 percent of estimated violations overall
were of the second category, unpermitted activities.
Because there are no requirements to demonstrate
that a project qualifies for permitting exemptions,
the use of general and nationwide permits may con-
tribute to this high percentage of violations from
unpermitted activities.
It is difficult to establish the percentage rate of
compliance from this information. If 20 percent of
violations concerned violation of permit conditions
and the figure given by the Corps is correct, then
about 745 such violations took place in fiscal year
1980. In that year, 8,013 permits and letters of per-
mission were issued, giving a compliance rate of
roughly 91 percent. This rate is compatible with
the estimates of the four districts reporting percent-
ages of compliance to the OTA survey. The per-
centage of violations estimated ranged from 1 to
15 percent, with a mean of 8 percent, giving a com-
pliance rate of 92 percent. The Corps Institute of
Water Resources (IWR) report estimated that com-
pliance with general permit conditions was 95 per-
cent (5). The NMFS Southeast region found that
of the 80 individual permits that were completed
or under way (of 1 10 permits examined), at least
58, or 73 percent, complied with permit conditions
recommended by NMFS. Rates of compliance for
completed projects varied from 100 percent in two
districts (Charleston, Savannah) to 36 percent in
one district (Mobile) (7).
The degree of compliance also varies from year
to year within each district. For example, although
NMFS determined that in 1981 the Charleston Dis-
trict had achieved nearly 100-percent compliance
with permit conditions, in 1982 NMFS did a similar
analysis and discovered that applicants appeared
to have disregarded permit conditions in 33 per-
cent of the completed, permitted projects that were
evaluated. On the other hand, according to the
Corps, the percentage of those permitted projects
in the Seattle District that deviated from what had
been permitted declined from 15 percent in 1980
to 8 percent in 1981 and to 4 percent in 1982. This
increase in compliance has been attributed to in-
creased public awareness of the program and the
knowledge that it is being implemented more con-
sistently and completely.
It is not enough, however, to compare the results
of such analyses to evaluate the performance of the
different districts without knowing the nature of the
conditions that are included in the permit. Some
districts do not incorporate controversial conditions
such as mitigation and compensation measures into
the permit. Instead, agreements are made between
the applicant and concerned agencies. The Corps
does not evaluate whether the agreed-on mitiga-
tion has been implemented successfully (10).
Enforcing wetland regulations can be difficult.
In some districts, the Corps sends teams to inves-
tigate suspected violations because of threats made
to district personnel in wedand cases (4). The most
frequent types of noncompliance found by one ob-
server were as follows:
• Unpermitted activities: loose-fill projects (e.g.,
trash dumping), minor erosion-control projects
(bulkheads, riprap), and construction of boat
ramps and access roads. Major projects, such
as marinas and canal dredging, were rarely
undertaken without permits.
• Violations of permit conditions: failure to per-
form sedimentation control (e.g., revegetation,
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 179
turbidity screening), violation of size/dimen-
sion limits placed on structures, and placement
of dredged and fill material.
Inland States experienced greater problems than
coastal States, with more violations from dredging
than from fill or construction projects; more viola-
tions took place with individual permits than cor-
porate permits.
Extent of Monitoring
Districts differ in the amount of time and expense
they devote to monitoring of permitted activities
and enforcing of permit conditions. Some districts
undertake site investigations of all permitted devel-
opments at least once during construction and again
after completion of work, and they frequendy sur-
vey their jurisdictions for unpermitted activities.
Other districts are basically reactive in monitoring
and enforcement: if a violation is reported to district
personnel, it will be investigated; however, the dis-
trict does not search for violations itself.
Corps districts were asked by the OTA survey
to estimate the percentage of permits field-checked
by Corps personnel and by personnel from other
agencies to monitor compliance with permit con-
ditions after a permit is granted. Estimates of the
percentage checked by Corps personnel ranged
from near 0 to 100 percent, with an average of 56
percent. About a third of the districts said that they
check all permits. Several of these districts said that
a much smaller percentage are checked in detail,
however. Most major projects are checked period-
ically.
Of the 16 districts estimating the percentage of
permits checked by other Federal agencies, esti-
mates ranged from 1 to 80 percent. All but three
districts estimated 10 percent or less, with most
estimates at 5 percent or below.'"
Districts also were asked by the survey how and
how often wetland areas are monitored for viola-
tions. Districts use combinations of aerial surveys
and photography, autos, and boats. The frequency
of inspections varies gready with the district and
'°EPA funding levels have enabled EPA personnel to review only
a small percentage of permits (10 percent in 1979), from J. A. Zinn
and C. Copeland, "Wedand Management," Congressional Research
Service, CP145I, 1982, p. 95.
the type of wetland concerned. Roughly a third of
the districts do not have a specific program of mon-
itoring. Instead, they rely on reports of suspected
violations from citizens, organizations, and State
and other Federal agencies. In addition, monitor-
ing is done by Corps personnel in the course of per-
forming other duties — e.g., during inspection of
permitted projects for compliance. Personnel fly-
ing over an area for other reasons may also check
to see if unpermitted development activities are
occurring.
About a fifth of the districts indicated that they
do not regularly monitor inland wedands but do
follow a monitoring schedule for wetlands located
adjacent to coastal or major riverine waterways, the
areas in which most development regulated by 404
occurs. Last, about half of the districts indicated
that they monitor all the wetlands in their jurisdic-
tions, often monitoring activities around coastal
areas or major streams more frequently. Frequency
of monitoring of the wedands near major waterways
by those districts with a monitoring program varies
from daily to once every few years. Most districts
monitor such areas several times a year. Those
districts that regularly monitor inland wedands usu-
ally do so on a yearly or multiyear cycle.
As mentioned above, districts rely heavily on
non-Federal sources (private citizens, conservation
groups. State agencies) to report violations. In fiscal
year 1980, about 18 percent of all violations dis-
covered by the Corps were first reported by private
citizens and another 4 percent by environmental
groups (13). When asked by the OTA survey to
estimate the proportion of violations reported by
private citizens and organizations, estimates by dis-
tricts ranged from 5 percent to 95 percent, with a
mean of 40 percent. With reductions in the budgets
of State and Federal agencies, reliance on citizen
input is likely to increase. Such reliance does not
necessarily mean that districts are negligent in mon-
itoring. Citizen involvement varies according to
perceptions of wetlands and awareness of the 404
program. Different areas of the United States dif-
fer greatly in these respects.
One source found the most effective monitoring
and enforcement efforts took place when State agen-
cies and Corps districts cooperated closely. "By
backstopping one another and by pooling resources,
180 • Wetlands: Their Use and Regulation
the agencies make up for each other's deficiencies
and create a more vigorous enforcement posture
that neither could estabhsh alone (8)."
The OTA prairie-pothole case study (2), for ex-
ample, presents two contrasting State responses to
coordination with the Corps on monitoring and en-
forcement, which in part reflect these States' capa-
bilities to control wetland use. In Minnesota, the
State regional network of hydrologists and game
wardens detects and reports potential 404 viola-
tions. The Minnesota Department of Natural Re-
sources also sends the Corps notices of applications
for State permits, which gives the Corps an oppor-
tunity to determine whether 404 permits are also
required. North Dakota, however, has no regional
network of State agencies for reporting potential
violations, and North Dakota agencies do not in-
form the Corps of activities over which the State
has jurisdiction and that the Corps may also have
authority to regulate under section 404.
Problems in Monitoring
Many districts devote most of their efforts to wet-
lands in the vicinity of historically navigable waters.
While this is the area in which most permit applica-
tions originate and which has potentially the most
serious violations, such attention has resulted, in
some cases, in the lack of attention to permitted
activities in inland areas. Inland wetlands that are
only periodically innundated receive the least at-
tention; in some cases, districts make little effort
to verify whether the area is a wetland (4,8).*
The Corps in Nebraska has been challenged in
at least one case on its determination about an area
as a wetland. Upon reevaluation, the Omaha Dis-
trict concluded that the area in question was in-
deed a type I wetland, and 404 authorization was
required, although the fill eventually was author-
ized under a nationwide permit.
Another State reported that, owing to the remote-
ness of the Corps offices, neither Corps nor FWS
personnel cover a large portion of the State and
therefore must depend on the State to supply in-
formation. "The Corps does not know if compli-
ance with section 404 and section 10 is high or low
and is not attempting to increase compliance." Sev-
'Response of Washington State to OTA questionnaire.
eral States believe that Corps district resources are
insufficient to carry out adequate monitoring ef-
forts (e.g., Rhode Island, Tennessee). A few dis-
tricts indicated that monitoring efforts have been
curtailed as a result of budgetary cutbacks.
Another disincentive to conducting a vigorous
monitoring of permitted activities is the knowledge
that in most cases, the Justice Department is reluc-
tant to prosecute violators, especially if permit viola-
tions only involve a few acres.
Enforcement
When a permit violation is discovered. Corps dis-
tricts have several options. A cease-and-desist order
can be issued. For projects that have been initiated
without going through the permitting process, ne-
gotiations with violators to accept modifications are
common. If the project is deemed to be essentially
in compliance with environmental guidelines and
with minor impacts, it is often granted an after-the-
fact permit. Last, the violator can be taken to court,
the project dismantled, and fines imposed. Litiga-
tion is often favored in cases where permitholders
egregiously violate the conditions of their permit.
In less serious violations, the permitholder may be
required to stop the activity in dispute and to pro-
vide mitigation of some sort.
Generally, every effort is made to resolve viola-
tions short of actual prosecution. In many cases,
subsequent investigation determines that suspected
violations are, in fact, legal activities — e.g., fall-
ing under a general permit or not requiring a 404
permit. The Corps estimated that in fiscal year
1980, 2,273 such cases occurred — 61 percent of the
number of violations listed. After-the-fact permits
are also common: 872 in fiscal year 1980, or 23 per-
cent of violations (13). In many districts, after-the-
fact permits are far more common. Twelve districts
reported on the OTA survey that over 60 percent
of violations receive such permits, and five other
districts said that "most" violations are permitted
after the fact.
Finally, violators are not prosecuted if voluntary
restoration is made, although restoration is often
made under the threat of prosecution. Voluntary
restoration or even offsite mitigation may be made
in the context of after-the-fact permitting. For ex-
ample, in a case in North Carolina, a developer
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 181
already had cleared approximately 30 acres of bot-
tom land hardwood swamp and partially erected
a dam to build a lake before the violation was re-
ported. In this instance, restoration was so difficult
that the developers were open to any other alter-
native. To avoid litigation, and at the suggestion
of the Wilmington District, the owner of the land
purchased a previously unregulated 60-acre Car-
olina bay and deeded it to the Nature Conservan-
cy. The Corps agreed to take no legal action and
then granted an after-the-fact permit. The land-
owner could then claim a charitable contribution,
and the Nature Conservancy purchased a priority
site at less than one-third of its value. Although
some lauded this creative resolution of the prob-
lem, others in both public agencies and private con-
servation groups said the penalty was not appro-
priate. They point out that no wooded swampland
was restored, although 30 acres were converted. Re-
placement of one wetland type for another could
set a precedent for the conversion of one wetland
type with certain wildlife habitat values, while pre-
serving another with different resource and habitat
values (9).
In many districts, most or all violators agree to
voluntary restoration.* Some Corps districts may
be more successful than others in obtaining volun-
tary restoration. One technique used by the Wilm-
ington District is to coordinate closely with the U.S.
Attorney's Office, which in turn sends a letter to
the violator stating that a file has been opened on
the case. Such measures add weight to the negotia-
tions for voluntary restoration. In some cases, how-
ever, such agreements are not made in good faith
by violators, and further action must be taken by
districts.** In some districts, voluntary restoration
takes place in less than a quarter of violations.
In the opinion of some observers, some Corps
districts have been too ready to grant after-the-fact
permits or dismiss violations in other ways and too
sparing in instituting litigation against violators.***
*As stated by one district, "The majority of our violations are re-
solved by granting after-the-fact permits. We have not prosecuted any
violators. All violators to date have agreed to perform necessary restora-
tion work without prosecution" (Albuquerque).
"As put by another district, "Of those (violators) who agree to
restore, a large percentage really have no intention of restoring and
will delay indefinitely if allowed to, which cumbersome legal procedures
allow them to do (Little Rock).
'""The Corps seldom takes violators to court. Thus, there is lit-
tle deterrent to noncompliance" (Vermont).
The Corps has experienced significant problems in
prosecuting violators. If violators do not respond
to Corps orders to cease projects that violate 404
standards, districts may request U.S. district at-
torneys to prosecute. However, district attorneys
are often reluctant to take on 404 cases, regarding
them as being of lesser importance than other
crimes and, as such, of low priority in the tens of
thousands of cases that are handled each year by
the Department of Justice. Corps districts file about
4 percent of violations with the Justice Department
for prosecution. However, outside observers say
that many additional cases are never forwarded,
in the knowledge that prosecution, especially in
smeill cases, is unlikely.*
Some cases referred to the U.S. Attorney are
never resolved, for example, when there is insuffi-
cient evidence to convict. According to the Phila-
delphia District, personnel turnover is also a big
problem in dealing with violations because new per-
sonnel may not be familiar enough with a viola-
tion to get it resolved.
Of the cases that are resolved through the U.S.
Attorney, penalties may consist of fines, restora-
tion, or some combination of the two. One case
study revealed some variations in how penalties are
handled in two Corps districts. In negotiated set-
dements, the Wilmington District generally resolves
the violation with both fines and restoration. Fines
are assessed based on past violation records and the
degree to which restoration is possible. For exam-
ple, after its fifth violation in 2 years, Texasgulf
Co. voluntarily restored 6.5 acres in the Pamlico-
Albermarle estuary at a cost of approximately
$200,000 and paid a fine of $5,000. The Charleston
District noted that it seldom requires fines. In both
North Carolina and South Carolina, courts general-
ly have been reluctant to impose fines. When the
restoration is costly, courts believe that this alone
constitutes an adequate penalty. Penalties and at-
torneys' fees are typically viewed as a cost of do-
*One study concluded that "A major finding of the Urban Institute
Study with respect to enforcement practice is that a substantial dis-
junction exists between detection of violations and effective legal fol-
lowup. The record of administrative-prosecutorial cooperation revealed
by our study is quite poor. While there are a few well-known cases
of outstanding coordination between U.S. Attorneys and the Corps
. . . U.S. Attorneys have not accepted wetlands cases as a major pri-
ority . . . many cases that can and should be prosecuted either fall
between the cracks or are handled by default on an 'after-the-fact per-
mit' basis." Rosenbaum (15).
182 • Wetlands: Their Use and Regulation
ing business, according to another case study, and
restoration requirements are crucial to an effective
program. If restoration is imposed, then the violator
stands to gain nothing. Some districts are often re-
luctant to prosecute offenders. Because Corps per-
sonnel do not see themselves as policemen, the
monitoring and enforcement aspects of the program
are unattractive.
However, personnel from several agencies and
interest groups think that fines should be imposed
in addition, because restoration often doesn't re-
place the original resource. They also think that
fines should be large enough to serve as a deterrent.
Districts differ markedly in the number of cases
they submit for litigation and in the results of pros-
ecution. At least five districts said they did not sub-
mit any violations for prosecution in the 1980-82
period. A few districts said litigation produced good
results.* More districts were frustrated by lack of
action from the Justice Department, low fines or
lack of restoration ordered by courts, or slowness
in the legal process. As stated by one, "The legal
"'The results from prosecutions have been excellent. Consent
decrees have obtained restoration on numerous cases and civil penalties
from $500 to $10,000" (Norfolk).
system affords very low-priority service, and be-
cause of extensive delays and frustrations, we seek
other solutions."
One technique is for the Corps to coordinate its
enforcement efforts with those of a State program.
For example, the Baltimore District reported in an
interview with OTA that for cases in which volun-
tary restoration was not successful and after-the-fact
permits not appropriate, the State could prosecute
under the State wetlands law more readily than the
Corps could obtain court assistance under section
404. Coordination with the State is enhanced with
monthly enforcement conferences. State programs
with administrative law judges, as in New York, are
able to handle some 404 violations expeditiously.
However, State enforcement may also be prob-
lematic. The Philadelphia District had difficulties
when New Jersey took the lead on enforcement
because of slowness or reluctance by the State At-
torney General. Florida is considered to be less
equipped than the Federal Government to prose-
cute some wetland cases owing to the lack of exper-
ience of the State's legal staff and lack of funds to
hire expert witnesses and to conduct site-specific
fieldwork required to prepare solid professional
opinions.
CHAPTER 8 REFERENCES
1. Center for Governmental Responsibility, "Wet-
lands Loss in South Florida and the Implementa-
tion of Section 404 of the 'Clean Water Act,' "
University of Florida College of Law, contract study
for OTA, September 1982.
2. Department of Agricultural Economics, "Wetlands
in the Prairie Pothole Region of Minnesota, North
Dakota, and South Dakota — Trends and Issues,"
North Dakota State University, contract study for
OTA, August 1982.
3. ESA/Madrone, "Wetlands Policy Assessment: Cal-
ifornia Case Study," contract study for OTA, Sep-
tember 1982.
4. Great Plains Office of Policy Studies, "Wetland
Trends and Protection Programs in Nebraska,"
University of Nebraska, contract study for OTA,
September 1982.
5. Institute of Water Resources, Impact Analysis of
the Corps' Regulatory Program, unpublished re-
port, 1981, p. 215.
6. JACA Corp., "A Case Study of New Jersey Wet-
lands Trends and Factors Influencing Wetlands
Use," contract study for OTA, September 1982.
7. Lindall, W. N., Jr., and Thayer, G. W., "Quan-
tification of National Marine Fisheries Service
Habitats Conservation Efforts in the Southeast
Region of the United States," Marine Fisheries Re-
view, vol. 44, No. 2, 1982, pp. 18-22.
8. Rosenbaum, Nelson, "Enforcing Wetlands Regula-
tions," in Wetland Functions and Values: The State
of Our Understanding, P. E. Greeson, J. R. Clark,
and J. E. Clark (eds.), American Water Resources
Conservation, Minneapolis, Minn., 1979, pp.
44-49.
Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 183
9. School of Forestry and Environmental Studies,
"Wetland Trends and Policies in North and South
Carolina," Duke University, contract study for
OTA, August 1982.
10. Shapiro & Associates, Inc., "An Analysis of Wet-
land Regulation and the Corps of Engineers Sec-
tion 404 Program in Western Washington," con-
tract study for OTA, September 1982.
11. Thompson, £., Jr., "Section 404 of the Federal
Water Pollution Control Act Amendments of 1977:
Hydrologic Modification, Wetlands Protection and
the Physical Integrity of the Nation's Waters," Har-
vard Environmental Law Review, vol. 2, 1977,
pp. 264-287.
12. U.S. Army Corps of Engineers, Regulatory Branch,
personal communication.
13. Corps of Engineers, Regulatory Board, FY 1980
Regulatory Summary Report.
14. U.S. V. Holland, 373 F. Supp. 665 (M.D. Fla.
1974), U.S. V. Fleming Plantations, 12 E.R.C. 1705
(E.D. La. 1978), Weisztnan v. Corps of Engineers,
526 F. 2d 1302. 1306 (5th Cir. 1976), and Avoyei/es
Sportsmen 's League v. Alexander, 473 F. Supp. 525
(W.D. La. 1979).
15. Water Resources Research Center, "Regional As-
sessment of Wetlands Regulation Programs in New
England," University of Massachusetts, contract
study for OTA, September 1982.
Chapter 9
Capabilities of the States in
Managing the Use of Wetlands
Photo credit: OTA staff, Joan Ham
Contents
Page
Chapter Summary 187
General State Wetland Capabilities 187
Overlapping of State/Federal Wetland Regulatory Programs 189
Activities and Areas 189
Implementation Procedures 192
State-Program Implementation Problems 193
Funding ' 193
General Attitudes Toward Wetlands 193
Monitoring and Enforcement 194
Inadequate Technical Information and Expertise 194
Agency Fragmentation 195
State Interest in Assuming 404 Permitting 195
Chapter 9 References 195
TABLES
Table No. P^ge
25. Values Protected by State Wetlands Regulatory Programs in New England 190
26. Exemptions by State Wetland Regulatory Programs in New England 190
Chapter 9
Capabilities of the States in
Managing the Use of Wetlands
CHAPTER SUMMARY
Almost all 30 coastal States (including those bor-
dering the Great Lakes) have programs that direcdy
or indirectly regulate the use of their coastal wet-
lands. These programs often rely on Federal fund-
ing from the Department of Commerce's Office of
Ocean and Coastal Resource Management (OCRM).
Only a few inland States have specific wedand pro-
grams. Through a combination of the program to
enforce section 404 of the Clean Water Act (CWA)
and State programs, most coastal wetlands are
regulated reasonably well; inland wetlands general-
ly are not regulated by the States.
Representatives from most States with wetland
programs feel that State and Federal programs com-
plement one another. Corps districts often let State
agencies take the lead in protecting wetlands, using
the 404 program to support their efforts. Other
States rely on Federal programs. State influence on
Federal programs, local regulation, and State pro-
grams that may indirectly affect the use of wedands
in the course of performing other primary func-
tions.
States can assume the legal responsibility for ad-
ministering that portion of the 404 program that
does not cover traditionally navigable waters if cer-
tain Environmental Protection Agency (EPA) re-
quirements are met. Twelve States have evaluated
or are evaluating this possibility, and four are ad-
ministering pilot programs to gain practical experi-
ence prior to possible program assumption. In gen-
eral, most States have neither the capability nor the
desire to assume sole responsibility for regulating
wetland use without additional resources from the
Federal Government; some States would be reluc-
tant to do so even with resources.
GENERAL STATE WETLAND CAPABILITIES
States may assume the legal responsibility for ad-
ministering portions of the 404 program if certain
requirements established by EPA are met. The ad-
ministration and the leadership of the U.S. Army
Corps of Engineers have also stressed the desirabili-
ty of transferring a large proportion of the respon-
sibility for regulating the use of wetlands to the
States. This could be done by decreasing the area
regulated by the Corps to historically navigable
waters, thereby de facto increasing the State role;
increasing funding for State regulatory programs;
granting additional powers to States to regulate
broad areas under general permits without formal
assumption of the 404 program; and easing the
standards for such assumption.
During the course of this study, OTA examined
the capabilities of the States in managing the use
of wetlands. Although a thorough review of the
capabilities of individual States was beyond the
scope of this study, OTA did examine many State
programs through a State survey, to which 48 States
responded, and 10 regional case studies, which
commented on 21 State programs.
Of all 30 coastal States (including States border-
ing the Great Lakes), the majority claimed high
State coverage of coastal wetlands. About 20 indi-
cated that their programs are more dominant than
the 404 program in their State; half of these States
said the 404 program was completely redundant.
137
188 • Wetlands: Their Use and Regulation
Other coastal States indicated that 404 plays an im-
portant role in protecting coastal wetlands.
The coverage of inland wetlands by coastal States
is varied: 17 coastal States indicated that their in-
land wetlands are not well protected by State pro-
grams; 7 indicated that they provide protection for
most such wetlands. For the 20 inland States, pro-
grams provide little coverage to wetlands outside
of small areas under direct State management.
Isolated wetlands generally are not well regulated
in most States.
Even for States with wetland regulatory pro-
grams, there may be gaps in wetlands coverage.
State programs often exempt some activities from
permitting requirements, such as agriculture, mos-
quito control, public utility projects, and actions
of local government (8). Florida provides a good
example of a State that does not regjulate some of
the activities that threaten wetlands the most. Al-
though the Florida dredge-and-fUl laws do not reg-
ulate drainage activities, the South Florida Water
Management District does have some control over
drainage activities by requiring permits for the con-
struction and operation of surface water manage-
ment systems. However, exemptions are provided
for agricultural and silvicultural activities. Drainage
of lands for agriculture is often the first step in
destroying wedands that are used eventually for ur-
ban development (1).
Some State laws encourage the conversion of wet-
lands. In particular, some drainage programs are
carried out by State agencies and some private
drainage is subsidized (by Kentucky, Ohio, and
Nebraska). For example, although State law in Ne-
braska charges one agency to protect wildlife hab-
itats and another to protect water quEility, a third
agency is required by law to plan for draining wet-
lands and county boards are required to drain areas
upon petition by owners. The 1975 Nebraska
Groundwater Management Act also states that all
irrigation runoff must be retained on the irrigator's
property. This stipulation has increased the use of
dugouts and reuse pits in the Rainwater Basin,
leading to wetland flooding and creating opportu-
nities for wetland drainage (6).
Expenditures and staffing for wetland-related
State regulatory activities are highly variable. Agen-
cy personnel with wetland responsibilities often
carry out other duties as well, although personnel
from other agencies may assist in monitoring wet-
land areas for unpermitted activities in the course
of other work. Asked by the OTA survey to list
numbers and types of personnel and budgetary al-
locations devoted to State wetland-protection ef-
forts, most States listed programs and budgets with-
out breaking out wetland-related components. The
number of employees working part time or fuU time
on wetland matters ranged from 1 to over 20. Of
States listing budgets that can be traced to wetlands,
figures range from $12,000 to over $100,000 in 10
States. Six States indicated almost no staffing and
budget allocations for wetland management.
Most States do not have permitting programs
solely concerned with wetlands. Instead, they rely
on Federal programs. State influence on some Fed-
eral programs. State wedand-acquisition programs,
and other State programs that incidentally cover
some development activities on some wetlands and
cover those activities that occur beyond the bound-
aries of wetlands yet may have an adverse effect
on them. State standard-setting for local regulation
also is present in many States.
Roughly half of the States without wetland pro-
grams listed State influence on Federal actions as
their most important means of controlling wedand
use. In some cases. State certification of projects
through section 401 of CWA and comments on 404
applications are used as substitutes for the creation
of State programs that would create political con-
troversies. Requirements for Federal consistency
with State coastal-management programs are also
an important tool. For example, although South
Carolina does not regulate development activities
in freshwater wetlands, it does have a policy for
their protection in its Coastal Zone Act. Federal
actions in the coastal zone, including all 404 per-
mitting, must be consistent with this policy (10).
States may also influence Federal actions (and
actions of other State agencies) by developing
resource information and preparing management
plans and guidelines. For example, the Resource
Agency in California prepared the Delta Master
Recreation Plan and Waterways Use Program. Al-
though the agency has no direct authority to im-
plement the plan, the management guidelines for
natural tidal and nontidal marshes and riparian
Ch. 9— Capabilities of the States in Managing the Use of Wetlands • 189
areas are used by the Corps in administering its
permitting programs (4).
A few States listed other State programs not di-
rected specifically toward wetlands as being most
important for controlling wetland use. Such pro-
grams address water pollution control, endangered
species or game species protection, and natural-area
acquisition programs. These programs vary gready
in the extent of protection they provide. In some
States, one or more of these programs appear to
have far-reaching effects on wedand protection. For
example. State flood plain regulations may limit
construction in large areas of wetlands located in
flood plains. However, flood plain regulations in
many States do not specifically consider the impact
of flood plain development on wetlands. Fill is
generally permitted, provided flood elevations are
not increased. On the other hand, in New Jersey,
the State Flood Hazard Area Control Act is used
to protect environmental values in some areas (e.g. ,
trout streams and State wild and scenic rivers) (7).
State acquisition programs targeted at wetlands
are present in a few States. However, acquisition
may be expensive and can protect only a limited
number of wetlands. In addition, acquisition pro-
grams have been hit hard by the financial pressures
besetting State legislatures. Some States emphasize
nonwetlands in their acquisition programs out of
preference for upland values because of Federal
wetland-acquisition programs in the State (3).
The 20 States with programs specifically directed
at wetlands, whether programs stand alone or are
subsumed under other programs such as coastal
zone management, almost without exception assert
that their programs are better than the 404 pro-
gram in protecting wetlands in the areas covered.
However, the OTA study indicated that some State
programs may look good on paper but have prob-
lems with implementation (3,11). In other cases,
a State may have granted the authority to an agency
or local government to provide protection to wet-
lands, but the authority may have not been used
(6,7). Case study information also revealed that
even where there is regulatory overlap between the
State and Federal programs, the 404 program may
provide an important regulatory backup for a few
projects where the State has neither the authority
nor the political will to deny actions that will
adversely impact wetlands.
OVERLAPPING OF STATE/FEDERAL WETLAND
REGULATORY PROGRAMS
States differ greatly in the types of wetlands they
have, the wetland policies they employ, the prob-
lems they experience, and their attitudes toward
wetlands and the 404 program. It is difficult there-
fore to generalize about the relative overlap of State
and Federal programs. Tables 25 and 26 illustrate
this point for State wetland-regulatory programs
in New England. State and Federal programs often
overlap or differ in the coverage of activities and
areas and procedures used. Some States have non-
wetland programs that may indirectly protect wet-
lands. In those States with strong wetland pro-
grams. Corps district offices do not always take an
active role in enforcing 404 regulations. Instead,
State agencies become the primary parties regulat-
ing the use of wetlands, and the Corps usually sup-
ports their efforts. Of those States with wedand pro-
grams, most believe that State and Federal wetiand
programs complement one another.
Activities and Areas
Some States regulate more wetland-related ac-
tivities than the Corps does. For example, over 70
percent of the wedands under the New Jersey Pine-
lands Preservation Commission's jurisdiction are
not subject to Corps individual permit review be-
cause flows are less than 5 ft^/s (7). Many States
regulate less area than the Corps but exempt fewer
activities from regulation. For example, the North
Carolina Dredge and Fill Act does not exempt agri-
cultural or silvicultural activities; however, the law
790 • Wetlands: Their Use and Regulation
Table 25.— Values Protected by State Wetlands Regulatory Progams in New England
Connecticut
Salt Fresh
Flood control P P
Water quality — P
Recreation P P
Fish P P
Wildlife P P
Esthetics P P
Water supply — P
Erosion P P
Sediment capture P P
Shellfish production P —
Navigation P —
Ground water — —
Vegetation — —
P- Protected.
— = Not protected.
NA = Not applicable.
SOURCE: Data from OTA's New England case study-
Maine
Massachusetts New Hampshire Rhode Island
Salt
Fresh
Salt
Fresh
Salt
Fresh
Salt
Fresh
p
NA
P
P
P
P
P
P
—
NA
P
P
—
—
—
—
p
NA
—
—
P
P
—
P
p
NA
P
P
P
P
P
P
p
NA
—
—
P
P
P
P
—
NA
—
—
P
P
P
—
p
NA
P
P
—
—
P
P
NA
—
—
—
—
P
—
—
NA
—
—
P
P
—
—
p
NA
P
P
P
P
P
P
p
NA
—
—
—
—
—
—
—
NA
P
P
P
P
—
P
—
NA
—
—
P
P
P
—
Table 26.— Exemptions by State Wetland Regulatory Programs in New England
Connecticut
Salt Fresh
Farm ponds — •
Farming — •
Boat moorings — •
Municipal water supply — •
Uses incidental to residential
property — •
Navigation aids • —
Public health emergencies ... • —
Mosquito control • —
Snow dumping — —
Maintenance and repair — —
Some requirements for
sewage disposal — —
Utility maintenance — —
Emergency work — —
Silviculture — —
Small wetlands (size limits
vary by State) — —
Riverbank cut and fill
with conditions — —
•^Exempted activities.
— = Activities regulated.
NA = Not applicable.
SOURCE; Data from OTAs New England case study
Maine
Massachusetts New Hampshire Rhode Island
Salt
Fresh
Salt
Fresh
Salt
Fresh
Salt
Fresh
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
does not apply to forested wetland species (10). Pol-
icies of New Jersey's Hackensack Meadowlands
Development Commission are less stringent than
the 404 program. For example, the commission al-
lows nonwater-dependent uses of wetlands. It is
only because of the 404 program that such projects
may be denied or mitigation measures may be re-
quired (7). Projects that are smaller than a specified
size often are not regulated by State programs,
thereby providing convenient loopholes for devel-
opers who scale their projects just outside of regu-
latory control.
In another case, the provisions of the New Jersey
Coastal Area Facilities Review Act (CAFRA) gen-
erally are similar to section 404 but have some
features that are more, or less, stringent. For ex-
ample, this act prohibits major development in wet-
Ch. 9— Capabilities of the States in Managing the Use of Wetlands • 191
lands unless the project is water-dependent, there
is no practical alternative on a nonwetland site, or
the project involves only minimum alteration of
natural tidal circulation, naturcil contour, or wet-
land vegetation. This law applies to all activities,
not just the disposal of dredged and fill material
as does section 404. CAFRA also prohibits develop-
ment that adversely affects white cedar stands; the
404 program doesn't have such specific prohibi-
tions. However, projects less than a certain size in
nontidal marsh wetlands are not regulated under
CAFRA, although the Corps might regulate some
of these activities (7).
Some State programs have provisions to regulate
activities that occur outside of the wedands but still
have some impact on them. The New Jersey Pine-
lands Preservation Commission program prohibits
residential, commercial, and industrial develop-
ment on wetlands, or within 300 ft of wetlands,
unless extraordinary hardship and a demonstrated
public need can be shown (7).
State definitions of wetlands and procedures for
identifying wetland boundaries may be more re-
strictive, leaving many wetlands to be regulated
only by the Corps. For example, the wetland veg-
etation list used in Florida is less comprehensive
than that of the Corps. Also, the Florida procedure
for identifying contiguous wetlands is more restric-
tive than the Corps'. Any break in the continuity
of contiguous, dominant species, even an illegal fill,
limits the extent of State jurisdiction (1).
Wetland values protected under some State laws
are less comprehensive than those of the Corps. For
example, Florida restricts its consideration to water-
quality impacts under its dredge and fill law (ch.
403), while the Corps considers the broader public
interest, including fish and wildlife values (1).
Massachusetts wetland permit programs do not
consider wildlife values (12).
A few States have more stringent standards for
mitigation than does the Corps, requiring devel-
opers to provide some sort of compensation or mit-
igation for all wetlands lost due to development in
certain areas — e.g., California and Oregon both
have a no-net-wedand-loss standard. California also
is committed to increasing wetland acreage by 50
percent by the year 2000 (4).
Broad language in many State laws can be used
to provide either strong or weak protection for
wedands. For example, the Nebraska Environmen-
tal Protection Act has a pollution prohibition.
Water pollution, as defined in the act, could include
any human activity affecting wetlands, including
wetland drainage due to lowering the water table.
The definition of wastes could include fill material
disposed of in wetlands. However, these author-
ities have not yet been used by the State to protect
wetlands (6).
In some States, courts have supported broader
State authority over development activities that may
have implications for wetland protection. For ex-
ample, the California Supreme Court in 1981 ex-
panded the boundary of the public trust to include
the area between the seasonal high and low water-
mark of adl nontidal waters (4). However, in other
States, protection for wetlands may be limited by
judicial interpretations of past State actions. For
example, Florida cannot deny permits to fill sub-
merged lands that were originally sold by the State
with the expectation that the area would be devel-
oped (11). Other States may lack authority to reg-
ulate tidelands that were granted to private land-
holders prior to statehood (4,10). In Nebraska, agri-
cultural water use is given constitutional preference
over all other nondomestic uses. Attempts to reserve
water for wetiands may result in constitutional chal-
lenges (6).
Some State programs may encourage the pro-
tection of wedands but lack the authority to require
protection or mitigation of potential impacts. For
example, the California Department of Fish and
Game reviews proposals for projects that may alter
streambeds and impact fish and wildlife. The de-
partment proposes modifications and encourages
the applicant to incorporate them into the project.
The State does not have the authority to stop any
projects (4). The California 1977 Policy for Pres-
ervation of Wedands in Perpetuity also has no direct
mechanism for implementation. The policy limits
the actions of State agencies in approving projects
that will harm wedands and exempts some wedands
from the policy. However, acre-for-acre compen-
sation still is required (4). In another case, the South
Florida Water Management District is authorized
to protect water resources and to ensure that con-
192 • Wetlands: Their Use and Regulation
struction of surface-water management systems do
not adversely affect water resources. The district
has authority to designate conservation areas; how-
ever, since it can only obtain easements for water-
flow, damage to wetlands from development still
can occur (1).
Implementation Procedures
The implementation procedures of some State
programs ensure better compliance with wetland
regulations than do some aspects of the Corps' 404
program. For example, the Mississippi program has
a reporting requirement for exempted activities. In
addition, exempted activities must be granted an
exemption and must still comply with the public
purpose of the wetlands law, which is to preserve
coastal wetlands except where a higher public in-
terest is served that is consistent with the public trust
(2). The Mississippi program also has a mechanism
to eliminate unnecessary wetland alteration from
activities of State agencies. Four agencies must ap-
prove State activities (2).
The State general permit program of the South
Florida Water Management District has notifica-
tion requirements that differ from those of the
Corps (1). To obtain a general permit, an appli-
cant must have the project reviewed to ensure that
certain standards will be met.
Some States administer programs on a regional
level. This practice is thought to provide greater
opportunities for monitoring and enforcement, to
ensure that decisions are made with a better under-
standing of local circumstances, to reduce travel
time and other costs, and to provide applicants with
better access to regulatory personnel (1).
State and Federal procedures for making deci-
sions about wetland use may not be the same, al-
though a similar decision may give the impression
that the programs are duplicative. For example,
Alaska requirements for oil and gas activities on
State lease sale tracts of wet tundra often duplicate
requirements on the activities imposed through the
404 program. The State review of operational plans
for these activities is conducted by four State agen-
cies. But the review process does not involve the
general public or local governments; the 404 review
of the same project application may. Critics of the
State review process note that the State agency with
responsibility for decisions on these operational
plans also has primary responsibility for develop-
ing State oil and gas resources and for accounting
for State revenues (5).
Several Corps districts have been working with
State program officials to reduce regulatory overlap
and permit processing delays. For example, the
Wilmington District's efforts include (10):
• Joint applications: the Corps and North
Carolina Office of Coastal Management
(NCOCM) developed a single permit applica-
tion for obtaining necessary State and Federal
approvals for regulated projects.
• Joint public notice: a single public notice was
prepared to meet both State and Federal
requirements.
• Joint preapplication meetings and onsite visits:
applicants meet with Federal and State officials
to review potential projects. For nonroutine
projects, a joint onsite meeting is held prior
to the submission of a permit application.
• Joint postapplication meetings: when review
agencies have objections to a proposed project,
the Wilmington District typically will call a
meeting to work out the differences between
the Federal and State agencies and the appli-
cant. The Corps acts as an arbitrator and has
full knowledge of the decisions that are made.
• Joint enforcement meetings: since 1972, the
Wilmington District and NCOCM have met
regularly with other interested Federal and
State agencies to discuss policies, regulations,
procedures, specific problem permits, and vio-
lations.
• State-program general permit: perhaps the
most far-reaching effort by the Wilmington
District and the State of North Carolina to
reduce regulatory overlap is the State general
permit. This type of permit covered 80 per-
cent of all major projects in 1981. If a permit
application qualifies for this general permit,
the application is processed by the State, and
the Corps and other Federal agencies are given
the opportunity to comment. The Corps coor-
Ch. 9— Capabilities of the States in Managing ttte Use of Wetlands • 193
dinates the collection of comments of the Fed-
eral agencies and determines the Federal con-
ditions that must be included if the State de-
cides to issue the permit. If Federal agencies
have objections that cannot be resolved or if
they recommend deniaJ, the general-permit
processing is terminated, and the application
is processed as an individual permit.
STATE-PROGRAM IMPLEMENTATION PROBLEMS
WhUe a large number of States actively regulate
at least some of their wetlands, many face prob-
lems that significantly hamper their efforts. These
problems are described below in approximate order
of importance, according to State responses to the
OTA survey. The following discussion should not
be taken as characterizing all States, yet all but three
States indicated that at least one of the problems
was of major concern. Additonal problems that
were noted in the case studies also are presented.
Funding
For most of those States with wetland programs,
the major implementation problem is inadequate
funding for hiring a sufficient number of staff with
appropriate expertise and for monitoring and en-
forcement of permitted activities.* For example,
the Florida pay scale is lower than that of the Corps,
and there is significant personnel turnover. Also,
enforcement budgets at the State level may be in-
adequate to provide experienced attorneys and ex-
pert witnesses. For this reason, Florida often relies
on the Corps to pursue enforcement and will set-
de for after-the-fact permits rather than try to seek
penalties and restoration (1).
Difficulties often are related to reduced Federal
funding for wetland programs and coastal-zone
management activities. Federal assistance has been
important to States, for example, in developing in-
ventories, in setting up coastal programs, and in
acquiring wetlands. Cutbacks in Federal programs
directly affect the capabilities of many States and
localities. For example, OCRM is phasing out its
grants to States with approved coastal-zone pro-
grams. In several cases, funding will be lost for half
to all of State staff dealing with coastal wetlands.
'Massachusetts, responding to the request on the survey to rank
problems in importance, responded "funding, funding, and funding,
in that order of priority."
State acquisition efforts also have been hampered
by the elimination of funding from the Land Water
Conservation Fund.*
Even more serious than Federal cutbacks is the
budgetary crisis confronting many State govern-
ments.** Wedand-program budgets generally have
not kept pace with inflation, and in most cases,
have been static. They have even been projected
to decline in the future. Few States have come up
with replacements for the Federal funding that will
be lost, and few programs, whether dependent on
Federal funding or not, are likely to fare well when
making funding requests from financially strapped
State legislatures. A major factor behind low fund-
ing is the absence of legislative and public support
for wetland protection, especially when such pro-
tection appears to conflict with development activ-
ities.
General Attitudes Toward Wetlands
States and regions within States differ radically
in the awareness and attitudes of legislators and
residents toward wetland values and wetland-pro-
tection programs. Unlike coastal wetlands, which
in many cases are of great importance to industries
such as fishing and tourism, inland wetlands, es-
pecially those outside of flyways for waterfowl, have
not been as firmly connected in the public mind
with functional services and economic benefits.
Based on State responses to OTA's questionnaire,
'A few States also have received grants from EPA to study the
feasibility of assuming the 404 program. States receiving grants have
said that such funding is essential if assumption eventually is to take
place .
"Michigan, for example, stated that owing to budget cutbacks,
it does not have enough personnel to administer "most effectively"
all aspects of the program. Applications for permits are getting proc-
essed in a timely fashion, but other important aspects of the program
are not being implemented.
194 • Wetlands: Their Use and Regulation
lack of support of wetlands programs apparently
is due to many factors, including:
• Lack of awareness of wetland values. A few
States (e.g., Tennessee, West Virginia, Kan-
sas) commented that most residents are unfa-
miliar with wetland values and are unaware
of wetland-protection programs such as 404.
• Opposition to land use controls. In some States
(e.g., Colorado, Wisconsin, Arkansas, Ten-
nessee), there is strong objection to wetland
programs that appear to create de facto land
use controls on private property.
• Sensitivity to regulatory costs and the desire
to promote development. In many States, es-
pecially ones in which agriculture is an impor-
tant industry (e.g., Florida), legislative and
public sentiment tends to place a higher priori-
ty on development than on wetland preserva-
tion when the two goals conflict. Agencies in
some States may be forced to bow to political
pressure and to allow development that they
otherwise would deny or modify.
A few quotes from State responses are indicative
of general attitudes:
Agriculture still remains top priority with Iowa.
Wetland alterations are generally accepted by pub-
lic as well as elected officicds.
Iowa
Any program that was solely designed to pro-
tect wetlands is not politically feasible in Wyoming.
Wyoming
Although the intrinsic values of wetlands are rec-
ognized by all State agencies whose functions im-
pinge on wetlands, and a few are strong advocates
of wetland protection, the entire question of
whether wetlands should be protected or regulated
by government has not been addressed by the State
(Arkansas) and there is little enthusiasm for doing
so now.
Arkansas
To illustrate further, the California Coastal Com-
mission regulates some wedand-alteration activities
in the coastal zone where the boundary is subject
to political manipulation. The California Legisla-
ture has changed the boundary several times (4).
The only statewide protection given to wetlands is
provided indirectly through water-quality author-
ities who require permits for the discharge of pol-
lutants into State waters. However, the effect of
discharges upon wetlands usually is not a separate
consideration in the permit process, which focuses
on water quality, especially the quality of water used
by people. Wetland habitat values are rarely con-
sidered.
Monitoring and Enforcement
Monitoring and enforcement was mentioned as
a problem by 14 States and was ranked first in im-
portance by 3; other sources also have concluded
that this is a serious problem for many States. Some
States undertake site inspections for all permitted
development activities at least once during construc-
tion and after project completion. In other States,
monitoring is less comprehensive. Inland wedands
are particularly neglected (9).
States experience even greater difficulties with
enforcement. According to one source, agencies
seeking administrative action in case of violations
are limited in some States to seeking injunctions
or issuing temporary cease-and-desist orders, with
the assistance of State or local prosecutors. Agen-
cies in such cases do not have the power to impose
fines or criminal citations; where penalties are avail-
able, they may be too low to constitute effective de-
terrents (9). It is also sometimes difficult to get State
attorneys general to prosecute wetland violators.
Some States turn prosecution over to local author-
ities, who are often subject to political pressure. At
both State and local levels, prosecutors are reluc-
tant to prosecute small violations and even in cases
of large violations have more pressing priorities than
wetland cases. Although compliance with some
State laws generally may be good, some States have
difficulty in obtaining restoration for those illegal
fills that do take place (11).
Inadequate Technical Information
and Expertise
A major problem hampering many States is the
lack of information regarding the wedand resources
of their area. Most States have litde data on such
things as the location, size, vegetation types, and
wildlife habitat values of wetland areas covered
under State programs. Some States sav tK«><' i- — —
Ch. 9— Capabilities of the States in Managing the Use of Wetlands • 195
insufficient technical expertise to determine wetland
boundaries and values and insufficient funds to hire
additional staff. Many States expressed the hope
that the Fish and Wildlife Service (FWS) inventory
effort will be accelerated and that increased aid be
given to States for their own inventories.
Agency Fragmentation
In many States, more than one agency handles
programs that protect wetlands. In some States,
there may be four or more agencies involved. In-
consistency in policy often results. Another sort of
fragmentation takes place within single agencies:
agencies and their personnel with wetland-protec-
tion responsibilities often have other duties as well.
Divided responsibilities between State and local
governments also can cause problems for wetland
protection. For example, the North Dakota Drain-
age Law is implemented at the State and local level.
Complaints about illegal drains are reported to the
State, but the local water board is responsible for
forcing closure. The J. Clark Salyer National Wild-
life Refuge requested closure of over 200 illegal
private drains in 1978. The State Water Commis-
sion informed the local boards and sent 200 viola-
tion letters. None of these drains had been closed
as of August 1982 (3).
State Interest in Assuming
404 Permitting
Somewhat less than a third of the 48 States re-
sponding to OTA's survey are interested in the
possibility of assuming responsibility for a portion
of the 404 program. Through such assumption,
some States hope to get a stronger regulatory pro-
gram; some a weaker program. However, almost
none of these States is willing to assume the pro-
gram without major changes in one or more of the
following: current EPA regulations governing as-
sumption, the scope of areas that States would be
allowed to administer, and, most importantly, fi-
nancial assistance. In fact, only four States have
accepted responsibility for 404 permitting on an ex-
perimental basis. If the Federal Government re-
duced its involvement in wetland protection, wet-
lands would receive mixed levels of protection from
the States, owing to States' budgetary and political
constraints. In response to cutbacks in the 404 pro-
gram, few States would be willing at this time to
increase the current level of wetland protection
without additional resources from the Federal
Government; even with resources some States
would be reluctant.
CHAPTER 9 REFERENCES
1. Center for Governmental Responsibility, "Wet-
lands Loss in South Florida and the Implementa-
tion of Section 404 of the Clean Water Act, ' ' Uni-
versity of Florida College of Law, contract study for
OTA, September 1982, pp. 58-61.
2. Center for Wetland Resources, "Wetland Trends
and Factors Influencing Wetland Use in the Area
Influenced by the Lower Mississippi River: A Case
Study," Louisiana State University, contract study
for OTA, September 1982, pp. II20-II23.
3. Department of Agricultural Economics, "Wetlands
in the Prairie-Pothole Region of Minnesota, North
Dakota, and South Dakota — Trends and Issues,"
North Dakota State University, contract study for
OTA, August 1982, p. 73.
4. ESA/Madrone, "Wetlands Policy Assessment:
California Case Study," contract study for OTA,
September 1982, pp. 19-63.
5. ESA/Madrone, "Wetlands Use and Regulation:
Alaska Case Study," contract study for OTA, Janu-
ary 1983, p. vi.
6. Great Plains Office of Policy Studies, "Wetlands
Trends and Protection Programs in Nebraska,"
University of Nebraska, contract study for OTA,
September 1982, p. 49,
7. JACA Corp., "A Case Study of New Jersey Wet-
lands Trends and Factors Influencing Wetlands
Use," contract study for OTA, September 1982,
pp. 3-23, 34.
8. Kusler,Jon, "Strengthening State Wedand Regula-
tions," Fish and Wildlife Service, 1978, pp. 25-28.
9. Rosenbaum, Nelson, "Enforcing Wedands Regula-
tions," in Wetland Functions and Values: The State
of Our Understanding, American Water Resources
Association, 1979, pp. 43-49.
10. School of Forestry and Environmental Studies,
196 • Wetlands: Their Use and Regulation
"Wetland Trends and Policies in North and South 12. Water Resources Research Center, "Regional As-
Carolina," Duke University, contract study for sessment of Wetlands Regulation Programs in New
OTA, August 1982, pp. 63, 87-89. England," University of Massachusetts, contract
11. Shapiro and Associates, Inc., "An Analysis of Wet- study for OTA, September 1982, p. 144.
lands Regulation and the Corps of Engineers Sec-
tion 404 Program in Western Washington," con-
tract study for OTA, September 1982, pp. 3, 41.
Appendix
List of Acronyms and Glossary
Appendix
List of Acronyms and Glossary
List of Acronyms
Glossary
AAPA — American Association of Port
Authorities
ACP — Agricultural Conservation Program
AMC — American Mining Congress
API — American Petroleum Institute
API/NFPA — American Paper Institute/National
Forest Products Association
AWO — American Waterways Operators, Inc.
BMPs — best management practices
CEQ — Council on Environmental Quality
Corps — U.S. Army Corps of Engineers
CPI — Consumer Price Index
CWA — Clean Water Act
CZM — Coastal Zone Management
EIS — Environmental Impact Statement
EPA — Environmental Protection Agency
FI — Fertilizer Institute
FmHA — Farmers Home Administration
FWS — Fish and Wildlife Service
GNP — gross national product
IWR — Institute for Water Resources
LWCF — Land and Water Conservation Fund
Act
MOA — memorandum of agreement
NCA — normal crop average
NEPA — National Environmental Policy Act
NFIP — National Flood Insurance Program
NMFS — National Marine Fisheries Service
NPDES — National Pollution Discharge
Elimination System
NSF — National Science Foundation
NWTS — National Wetlands Trend Study
OCRM — Office of Ocean and Coastal
Resource Management
OCZM — Office of Coastal Zone Management
OMB — Office of Management and Budget
ORD — Office of Research and Development
(EPA)
OTA — Office of Technology Assessment
PIK — Payment-in-Kind Program
POWDR — Protect Our Wedands and Duck
Resources Act
RIA — regulatory impact assessment
SCS — Soil Conservation Service
USDA — U.S. Department of Agriculture
WES — Waterways Experiment Station
Acquisition — the purchase of the full rights to a
property.
Alluvium — soil composed primarily of eroded material,
such as sand, silt or clay, that has been deposited on
land by rivers and streams overflowing their banks.
Barrier island — a detached portion of a barrier bar,
usually formed through wave deposits, lying offshore,
and usually parallel to the shore whose crest rises
above high water.
Biochemical oxygen demand (BOD) — the demand for
dissolved oxygen needed for the decomposition of
organic matter in water. If the amount of oxygen
dissolved in water is high and the organic matter
present is low, the BOD is low, and vice versa.
Biomass — the total amount of organic material present
during a specific instance in a community or in a par-
ticular population or other component of the commu-
nity.
Bog — a term commonly applied to forested wetlands
formed in deep, steep-sided lakes with small water-
shed areas and poor drainage. Decomposition rates
are characteristically slow, resulting in extensive
deposits of peat. Floating mats of Sphagnum moss
are commonly associated with bogs.
Bottom land — flat-lying areas adjacent to rivers, which
are subject to annual flooding.
Brackish — a mixture of freshwater and saltwater typ-
ically found in estuarine areas.
Bulkhead — a structure usually running parallel to the
shoreline of a river, stream, or lake to protect adja-
cent lands from erosion due to current or wave ac-
tion, and to protect channels from upland sedimenta-
tion.
Conditioning (permit) — requirements attached to a
permit that dictate the mitigation of or compensa-
tion for development project impacts.
Cumulative impacts — those impacts on the environ-
ment that result from the incremental impact of a
development activity when added to other past, pres-
ent, and reasonably foreseeable future activities.
Deciduous — a descriptive term for woody plants that
shed their green leaves or needles during the cold or
dry season.
Detritus — a partially decomposed organic material pro-
duced by the disintegration and decay of plant
tissues, principjJly leaves and stems.
199
200 • Wetlands: Their Use and Regulation
Dike — a wall or mound built around a low-lying area
to prevent flooding.
Drainage basin or watershed — the area within which
all surface water runoff will normally gather in a
single tributary, stream, river, conduit, or other
water course. This area is determined by topography
that forms drainage divides between watersheds.
Ecosystem — the system of interrelationships between
plants and animals and their environment.
Emergent — an erect, rooted herbaceous hydrophyte
that may be temporarily or permanently flooded at
the base, but is nearly always exposed at the upper
portion.
Endangered — nearing extinction; existence of the
organism and its environment are in immediate jeop-
ardy; distribution is usually restricted to highly specif-
ic habitats.
Estuary — the mouth of a river entering the sea where
the current of the river meets the tide and where salt
and fresh waters mix.
Eutrophication — an increase in concentration of nu-
trients in rivers, estuaries, and other bodies of water.
This increase may be due to natural causes, man's
influence, or a combination of both.
Evergreen — a descriptive term for woody plants that
retain their green leaves or needles throughout the
year.
Flood hydrographs — graphs of the time distribution of
runoff from a drainage basin which are used to
analyze flooding characteristics.
Flood plain — an area adjacent to a lake, stream, ocean,
or other body of water lying outside of the ordinary
banks of the water body and periodically inundated
by flood flows.
Flyways — routes followed by migrating birds.
Food chain — the means by which energy and material
are transferred from a producer (a green plant) to
herbivores and carnivores.
General permit — a type of permit that is issued for a
category or categories of work or structures when
those structures or work are substantially similar in
nature and cause only minimal individual and cumu-
lative adverse environmental impacts.
Glacial drift — sediment accumulated as a result of
glaciation, under a glacier, at its margins, or beyond.
Ground water — water that penetrates the Earth's sur-
face from precipitation and from infiltration by
streams, ponds, and lakes.
Habitat — the range of environmental factors at a par-
ticular location suppxDrting specific plant and animal
communities.
Herbaceous — plant material characterized by the
absence of wood.
Hydrophyte — any plant growing in a soil that is at least
periodically deficient in oxygen as a result of excessive
water content.
Indirect impacts — impacts removed from both the
direct area and time that development occurs.
Mangrove — a term denoting any salt-tolerant intertidal
tree species.
Marsh — a common term applied to describe treeless
wetlands characterized by shallow water and abun-
dant emergent, floating, and submergent wetland
flora. Typically found in shallow basins, on lake mar-
gins, along low-gradient rivers and in low-energy
tidal areas.
Mitigation — a term that describes the efforts to lessen,
or compensate for the impacts of a development proj-
ect.
Mudflat — bare, flat bottoms of lakes, rivers, and
estuaries, which are largely filled with organic de-
posits, and periodically exposed by a lowering of the
water table.
Nationwide permit — A type of general permit
authorized for the entire Nation.
Organic soil — a "histosol" as defined by the U.S. Soil
Conservation Service. In general, a soil is a histosol
either if more than 50 percent of the upper 80 cm
of soil is organic material or if organic material of
any thickness rests on rock or on fragmented material
having interstices filled with organic materials.
Peat — organic soU which has undergone very little de-
composition so that plant remains can be identified.
Permeability — the property of soil or rock to transmit
water or air.
Productivity, gross primary — the rate at which energy
is fixed by a particular population or community of
producers.
Productivity, net primary — the rate of increase in the
energy that is contained in a particular population
or community of producers after the amount of en-
ergy that is lost by respiration is deducted from the
gross productivity.
Recharge (ground water) — the percolation of surface
water to the water table.
Riparian — habitats adjacent to rivers and streams.
Riprap — a bulkhead or other structure constructed of
selected rock or concrete and placed so as to dissipate
wave energy or collect sand along a shoreline.
Sedge — a grasslike plant in appearance, of the family
cyperaceae, often with a triangular base.
Shrub — a woody plant that at maturity is less than 6
meters tall, usually exhibiting several erect, spread-
ing, or prostrate stems and a generally bushy appear-
ance.
Slough — a small body of stagnant water, or a small
marshy or swampy tract of land.
App.—List of Acronyms and Glossary * 201
Submergent — a herbaceous or nonvascular plant, either
rooted ornonrooted, which lies entirely beneath the
water surface, except for flowering parts in some
species.
Substrate — the bottom surface on which plants grow.
Swamp — a forested wetland.
Threatened — nearing endangered status.
Tundra — a wet arctic grassland dominated by lichens
and Sphagnum mosses. It is characterized by a thick
spongy mat of living and undecayed vegetation that
is often saturated with water.
Turbidity — the cloudy condition of a body of water that
contains suspended material, such as clay or silt par-
ticles, dead organisms, or small living plants or
animals.
Watershed — the region drained by or contributing
water to a stream, lake, or other body of water.
Water table — the upper surface of ground water in the
zone of saturation.
Index
Index
Adirondack-New England, 96
Agassiz National Wildlife Refuge, 45
Agricultural Conservation Program (ACP), 77, 79
Alaska, 3, 16, 19, 25, 30, 52, 72, 87, 88, 99, 127, 132,
148, 152, 157, 192
Alcovy River Swamp, Ga., 42
American Association of Port Authorities (AAPA), 154
American Mining Congress (AMC), 155
American Paper Institute/National Forest Products
Association, 152, 154, 155
American Petroleum Institute (API), 155, 159
American Waterways Operators, Inc., 154
Anchorage (Alaska) Wetland Plam, 19
Arkansas, 78, 194
Atlantic City, N.J., 127
Audubon Society, 13, 84
Avoyelle's Sportsmen's League v. Alexander, 176
Bass Angler's Sportsmen Society, 84
best management practices (BMPs), 132, 143, 170
Blackstone River, Mass., 45
Bombay Hook National Wildlife Refuge, Del., 41
Bureau of Reclamation, 74
Cache River, 111., 5, 44
California, 8, 52, 73, 99, 108, 111, 120, 123, 170, 172,
188, 191, 194
California Supreme Court, 191
Canada, 52
capabilities of States, 187-195
implementation problems, 193-195
agency fragmentation, 195
funding, 193
inadequate technical information and expertise, 194
interest in assuming 404 permitting, 195
general attitudes, 193 •
monitoring and enforcement, 194
State and Federal regulatory programs, overlapping of,
189-193
activities and areas, 189
implementation procedures, 192
Carter, President Jimmy, 38, 78
Cedarburg Bog, Milwaukee, Wis., 47
Charles River Basin, Mass., 4, 37, 45
Chesapeake Bay, 47, 52, 60, 124
Coastal Zone Management program, 75, 83
Congress:
House Committee on Merchant Marine and Fisheries,
167
Connecticut, 84
Corkscrew Swamp Sanctuary, Fla., 41
Council on Environmental Quality (CEQ), 118, 129
Cranesville Swamp, W. Va., 40
Currituck Sound, N.C., 48
Delaware, 41
Department of Agricuhure (USDA), 12, 90
Agriculture Stabilization and Conservation Service
(ASCS), 73, 77, 78, 112
Farmers Home Administration, 77, 80
Payment-in-Kind Program (PIK), 9, 15
Secretary of, 73
Soil Conservation Service (SCS), 73, 74, 77, 78, 80,
90, 91, 148, 171
Water Bank Program, 9, 12, 15, 19, 20, 73
Department of Commerce:
Office of Ocean and Coastal Resource Management,
187
Secretary of, 83
Department of the Interior, 13, 69
Secretary of, 77, 84
Department of Justice, 180, 181
District of Columbia, 72
Ducks Unlimited, 13, 84
East Everglades Management Plan, 134
effects of the 404 program, 141-161
delay costs, 156
length of delays, 157
percentage of permits delayed, 156
sources of delay, 157
distribution of costs, 160
effects on wetlands, 141-145
benefits of the 404 program to regulated sectors, 146
effects on development activities, 145
general objections by regulated sectors, 147
congressional intent, 149
program administration, 151
program effects not reflected in permit data, 142
program effects reflected in program data, 143
specific impacts, 152
modifications costs, 155
opportunity costs, 159
processing costs, 154
Environmental Impact Statement (EIS), 11, 141, 154, 171
Environmental Law Institute, 77
Environmental Protection Agency (EPA), 10, 13, 17, 18,
70, 71, 75, 76, 133, 135, 155, 158, 167, 169, 187
Office of Research and Development (ORD), 77
Everglades National Park, Fla., 42
Executive Order 11988, Flood Plain Management, 74
Executive Order 11990, Protection of Wetlands, 17, 74,
78, 80, 171
Farmers Home Administration, 12
Federal Crop Insurance Agency, 80
Federal Emergency Management Agency, 76
Federal Office of Coastal Zone Management, 75
Federal programs, 69-81
acquisition and incentive programs, 72
Agriculture Conservation Program, 77
agricultural conversions, 77
Federal tax, 78
assistance to States and localities, 75
205
206 • Wetlands: Their Use and Regulation
environmental programs and policies, 74
regulatory permitting programs, 69
wetland research program, 76
Federal Register, 174
Fertilizer Institute, 146, 152, 159
Florida, 31, 41, 42, 60, 87, 97, 99, 108, 111, 119, 120,
122, 130, 152, 168, 188, 191, 'i92
vV^
General Accounting Office (GAO), 132, 133, 156, 157
geographic distribution of wetland types, 32
Georgia, 25, 41, 42
Gianelli, William R., Assistant Secretary of the Army
(Civil Works), 167
Grays Harbor (Washington) Estuary Management Plan,
134
Great Plains Program, 79
Great Swamp Refuge, N.Y., 42
Hackensack River, N.J., 47
Hammond, Edwin H., 29
Hawaii, 87
Hilton Head Island, S.C., 124
hydrologic characteristics of wetlands, 28
Illinois, 51, 94
impacts and mitigation, 117-135
definitions, 118
development activities, 119-124
disposal and discharge of pollutants and nonpoint-
source pollution, 123
drainage and clearing, 121
dredging and excavation, 119
extensive flooding, 122
filling, 120
predicting impacts of, 126
general permits, 128
limitations, 126
wetland reviews, 127
water withdrawals and diversions, 123
mitigating impacts, 129
feasibility of compensation on offsite mitigation, 130
management plans, 133
onsite mitigation to minimize impacts, 131
variables of wetland-impact magnitude, 124
biological and ecological variables, 125
operations variables, 125
physical and chemical variables, 124
importance of wetlands to man, 37-61
attitudes, 37
ecological services, 43-61
climatic and atmospheric functions, 60
fish and wildlife values, 52-61
endangered wetland species, 57
pattern of duck distribution, 53
floodpeak reduction, 43-46
ground water recharge, 47
shoreline erosion control, 46-47
water quality improvement, 48-51
intrinsic values, 39, 42
recreation and education, 41
wetlands or natural areas, 39
Indiana, 27
Iowa, 97, 194
Ipswich River, Mass., 45
J, Clark Salyer National Wildlife Refuge, 195
J. N. Ding Darling Refuge, Fla., 42
Kearneysville, W. Va., 77
Kentucky, 27
Kissimmee River, 51
Lake Okeechobee, Fla., 51
Land and Water Conservation Fund, 76
Lawrence Swamp, Mass., 47, 48
legislation:
California Coastal Act, 131
Clean Water Act (CWA), 4, 9, 10, 15, 69, 70, 75, 82,
187
404 program, 10, 14, 15, 16, 17, 69, 70, 134,
141-161, 167-182
Coastal and Inland Wetland Restriction Act, 81
Coastal Zone Management Act, 9, 75, 83, 188
Dingell-Johnson Act, 75
Endangered Species Act, 74
Federal Aid in Fish Restoration Act, 75
Federal Aid to Wildlife Restoration Act, 9, 75
Federal Water Pollution Control Act (FWPCA), 69,
149
Fish and Wildlife Coordination Act, 74, 83
Land and Water Conservation Fund Act of 1965, 12,
73
National Environmental Policy Act (NEPA), 11, 75,
118, 141, 154, 171
Nebraska Environmental Protection Act, 191
Nebraska Groundwater Management Act of 1975, 188
New Jersey Coastal Area Facilities Review Act, 190
New Jersey Flood Hazard Area Control Act, 189
North Carolina Coastal Area Management Act, 173
North Carolina Dredge and Fill Act, 189
North Dakota Drainage Law, 195
Pittman-Robertson Act, 75
Protect Our Wetlands and Duck Resources Act
(POWDR), 13, 69, 84
Rivers and Harbors Act of 1899, 10, 11, 72
Swamp Land Acts, 37
Water Bank Act of 1970, 12
Wetlands Loan Act, 9, 12, 13, 69, 72
limitations of the 404 program, 167-182
Corps performance, 175-182
district implementation, 176
monitoring and enforcement, 177
regulatory policies, 175
scope of coverage, 168-174
cumulative impacts, 174
decisionmaking criteria, 174
exempted activities, 170
general permits, 173
nationwide permits, 171
unregulated activities, 168
Index • 207
local programs, 83
Louisiana, 55, 89, 97, 99, 113, 119, 122, 131, 159
Western Judicial District, 176
Lower Mississippi Alluvial Plain, 89, 95, 97, 148
Lower Mississippi River Valley, 5, 7, 56, 87, 99, 108,
113, 120
Loxahatchee Refuge, Fla., 42
Maine, 25
major types of wetlands, 29
bogs, 30
bottom lands and other riparian habitats, 30
coastal salt marshes, 31
inland freshwater marshes, 29
inland saline marshes, 30
mangrove swamps, 31
shrub swamp, 30
tidal freshwater marshes, 32
tundra, 30
wooded swamps, 30
Maryland, 55, 99, 119, 146
Massachusetts, 26, 39, 45, 81, 84, 89, 146
Merritt Island National Wildlife Refuge, Fla., 41
Michigan, 13, 25, 119
Migratory Bird Conservation Fund, 69
Migratory Bird Hunting and Conservation Stamps, 9, 12,
72
Minnesota, 25, 47, 73, 77, 79, 80, 95, 98, 112, 119, 180
Protected Waters Program, 81
Water Bank Program, 82
Mississippi, 119, 192
Mississippi Delta, 26
Mississippi River, 26, 52, 80, 89, 130
Muskie, Senator Edmund, 170
National Flood Insurance Program (NFIP), 76, 84
National Forest Service, 72
National Forest System, 72
National Marine Fisheries Service (NMFS), 10, 11, 18,
70, 71, 74, 76, 77, 83, 141, 142, 144, 145, 158, 167,
178
National Park Service, 73
National Pollution Discharge Elimination System, 75
National Science Foundation (NSF), 76, 77
National Wedand Trends Study (NWTS), 87, 88, 89, 90, 91,
94, 98, 108, 170, 171
National Wildlife Refuge System, 16, 41, 52, 72, 73
Natural Resources Defense Council, Inc. v. Callaway, 10,
70
Nature Conservancy, 13, 43, 84, 181
Nebraska, 27, 79, 80, 88, 97, 99, 109, 112, 120, 169,
180, 188
Neponset River Basin, Mass., 45
New Jersey, 99, 146, 173, 189, 190, 191
New York, 25, 42, 174
North Carolina, 5, 40, 43, 55, 99, 109, 119, 152, 168,
173, 180
North Carolina Office of Coastal Management, 192
North Dakota, 25, 73, 77, 112, 180
Office of Coastal Zone Management (OCZM), 134
Office of Management and Budget (OMB), 146, 155,
156, 157, 177
Okefenokee Swamp, Ga., 41, 42
Oregon, 55
origins of wedands, 25-28
activities of man, 27 ,
beaver dams, 26
distribution of wedands in the United States, 26
erosion and sedimentation, 25
freezing and thawing, 26
glaciation, 25
miscellaneous processes, 27
Passaic River, N.J., 45
Pennsylvania, 41, 42
Platte River Valley, Nebr., 169
policy considerations and options, 13-21
issues and options, 14-21
private initiatives, 84
programs and policies affecting wedand use, 8-13
administration policies, 13
Federal programs discouraging wetland conversion, 10
Federal programs encouraging wetland conversions, 12
Federal regulation — 404 program, 10-12
major Federal programs, 9
private initiatives, 13
State wedand programs, 13
Rainwater Basin, Nebr., 79, 80, 109, 112, 120, 169
Reelfoot Lake, Tenn., 28
Richard King Mellon Foundation, 13, 84
Reilly, William, 39
Sacramento-San Joaquin Valley, Calif., 122
San Diego County, Calif., 172
San Francisco Bay, 6, 28, 117, 130
Snohomish Estuary Wedand Study, Seatde district, 127
South Carolina, 99, 168, 178, 188
South Carolina Heritage Trust Program, 43
South Dakota, 73, 77
State programs, 81-83
acquisition, 82
incentives to landowners, 82
influence on Federal activities, 82
wetland regulation, 81
tax incentives, 12, 15
Tennessee, 28
Texas, 55, 99, 119, 130
Thief Run Wildlife Management Area, 45
Thompson, Edward, Jr., 170
Tinicum Marsh, Pa., 41, 42
U.S. Army Corps of Engineers, 3, 4, 10, 11, 12, 13, 14,
15, 16, 17, 18, 37, 69, 70, 76, 82, 110, 126, 128, 129,
141, 143, 156, 174, 175-182
Assistant Secretary of the Army (Civil Works), 71, 157,
167
208 • Wetlands: Their Use and Regulation
Institute for Water Resources, 142, 147, 153, 154, 155,
156, 159, 160
U.S. Fish and Wildlife Service (FWS), 10, 12, 18, 19, 25,
38, 56, 70, 71, 74, 75, 76, 83, 84, 87, 90, 112, 134,
158, 167, 195
values and uses, 4-8
intrinsic qualities and ecological services, 4, 5
trends in wedand use, 7
wetland conversions, 5
Virginia, 46, 84
Washington, 25, 55, 99, 108, 178
Waterways Experiment Station (WES),
Wharton, C. H., 42
Watt, James, Secretary of Interior, 84
West Virginia, 40
76
wedand trends, 87-113
national trends— loss and gain, 87-91, 112
factors affecting wedand loss, 88
trend information, 90
vegetated wetlands, 91
agricultural conversions, 108
economic factors, 1 1 1
freshwater wetlands, 91
regional trends, 94
agricultural conversions of wetlands, 100
case studies, 98
wetland losses, 106
saltwater wedands, 93
wetland vegetation, 28
Wisconsin, 25, 51, 56, 78, 83, 94, 130
Wisconsin scientific areas program, 43
Wyoming, 194
Office of Technology Assessment
The Office of Technology Assessment (OTA) was created in 1972 as an
analytical arm of Congress. OTA's basic function is to help legislative policy-
makers anticipate and plan for the consequences of technological changes and
to examine the many ways, expected and unexpected, in which technology
affects people's lives. The assessment of technology calls for exploration of
the physical, biological, economic, social, and political impacts that can result
from applications of scientific knowledge. OTA provides Congress with in-
dependent and timely information about the potential effects — both benefi-
cial and harmful — of technological applications.
Requests for studies are made by chairmen of standing committees of the
House of Representatives or Senate; by the Technology Assessment Board,
the governing body of OTA; or by the Director of OTA in consultation with
the Board.
The Technology Assessment Board is composed of six members of the
House, six members of the Senate, and the OTA Director, who is a non-
voting member.
OTA has studies under way in nine program areas: energy and materials;
industry, technology, and employment; international security and commerce;
biological applications; food and renewable resources; health; communica-
tion and information technologies; oceans and environment; and science,
transportation, and innovation.
OTA-O-206 MARCH 1984
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