No net loss policy in the United States

No Net Loss is the United States government's overall policy regrading wetlands preservation. The goal of the policy is to balance wetland loss due to economic development with wetlands reclamation, mitigation, and restorations efforts, so that the total acreage of wetlands in the country does not decrease, but remains constant or increases. To achieve the objective of no net loss, the federal government utilizes several different environmental policy tools which legally protect wetlands, provide rules and regulations for citizens and corporations interacting with wetlands, and incentives for the preservation and conservation of wetlands. Given the multiple benefits of wetlands, the decrease from nearly 220 million acres in the lower 48 states to 107.7 million acres in 2004 is of great concern to local, state, and federal agencies as well as the public interest they serve.

A wetland

Origins of No Net Loss

It has been estimated that over half the acreage of wetlands in the United States has been lost within the last four hundred years. Currently, approximately 100 million acres of wetlands remain. Since the 1950s, over fifty percent of this loss has come from wetlands being transitioned to agricultural lands. Other contributing factors to wetlands loss include but are not limited to development and forestry.

No Net Loss Wetlands Policy was written in the 1987 at the National Wetlands Policy Forum and was first adopted by President George H.W. Bush administration in 1989. The policy, which represented compromise between development and conservation, was grounded on the needs to protect the wetlands by creating and restoring the wetlands.

Definition of No Net Loss

• permitting under the Clean Water Act §404 for activities that dredge or fill nations waters
• mitigation policies - replace and restore destroyed wetlands to prevent net loss

No Net Loss Policy Under Past President Presidential Administrations

George H.W. Bush

No Net Loss was first adopted as a national goal under George H.W. Bush’s administration in 1988, after he campaigned on the policy. It emphasized three elements on its policy: strengthening the wetland conservation and acquisition measures, revising the delineation manual, improving and streamlining the wetlands regulatory program . All of these measures are aimed at maintaining wetlands quantity and quality of the national wetland resources.

Bill Clinton

During his presidency, Bill Clinton's administration reiterated the same pledge by endorsing and updating the No Net Loss Policy. The Clinton Administration’s commitment was to increase the fairness and flexibility, as well as speed of permit issuances over dredged or fill materials into waters as a part of the Section 404 CWA implementation. It also aimed to resolve the differences in the delineation of wetlands area. Finally, the administration committed to increasing funding for wetland restoration measures, such as Wetland Reserve Program under the USDA, voluntary wetlands restoration programs, non-regulatory conservation initiatives, and mitigation banks. The Clinton administration's 1998 Clean Water Action Plan aimed for a net gain of 100,000 acres of wetlands each year .

George W. Bush

The administration of George W. Bush endorsed the no net loss goal in December 2002, when it released the National Wetlands Mitigation Action Plan. This plan outlined improvements to be implement in wetland protection and mitigation by the Army Corps of Engineers, the Environmental Protection Agency, the National Oceanic Atmospheric Administration, the Department of the Interior, the Department of Agriculture, and the Federal Highway Administration. Additional action by the Bush administration includes a push to clarify and redefine wetlands under the Clean Water Act. This proposal, published on January 10, 2003 guided federal agencies to not require Clean Water Act permits for non-navigable and isolated wetlands.

Barack Obama

Following the lead of the previous three presidential administrations, Barack Obama also pledged his commitment to No Net Loss. The Obama administration increased funding of the North American Wetlands Conservation Act to ensure no net loss operation, however funding has been cut in the current budget. Obama campaigned to amend the Clean Water Act and to extend the Swampbuster program, however these commitments have yet to be followed through with. Barack Obama’s administration is additionally is working with Congress to amend the Clean Water Act so that isolated wetlands will fall under the Act’s protection.

Policy Instruments

Private-Public Sector Collaboration

• conservation easement programs
• direct payments
• education
• land banks
• voluntary programs

International

• Ramsar Convention on Wetlands

Federal

Regulatory

Defining Wetlands Under the Clean Water Act

Clean Water Act §404 - cannot discharge into waters of the US, this includes wetlands §404

• cannot always be subject to 404 since:
  • Supreme Court Decision: Rapanos v. United States (2006) changed how wetlands are regulated under the clear water act
  • Based on Rapano s v. United States Army Corps of Engineers
• Campbell vs. United States Army Corps of Engineers
  • must pass the Justice Kennedy’s Test (significant nexus between traditional navigable waters and the water under question) & the *Plurality Test (relative permanence of water flow, continuous surface flow with traditional navigable waters)
  • not all wetlands can be regulated under the CWA
• 2001 Supreme Court decision Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers
  • limited scope of Corpos authority to isolated wetlands in §404 Permitting

Other Wetlands Laws and Regulations

Year	Law	Description
2000	Corps updated permitting with limits	Description
1996	Migratory Bird Rule	Description
1995	bills to change wetland management but don’t become law	Description
1994	National Food Security Act Manual	Description
1993	Clinton’s “Protecting America’s Wetlands: A Fair, Flexible, and Effective Approach”	Description
1992	Takings of wetlands Supreme Court Decision Lucas v. North Carolina	Description
1991	EPA revised federal manual of 1989	Description
1990	| Description
1989	Federal manual by EPA, COE, FWS, SCS	Description

Non-Regulatory

Year	Act	Effect
????	§101, 303, 319, 402 of Clean Water Act	Effect
????	Migratory Bird Hunting and Conservation Stamp Act	Effect
1985/1990	Farm Bills Swampbuster Provision	Effect
????	Small Wetland Acquisition Program (SWAP)	Effect
????	Water Bank Act	Example
1990	§6217 of Coastal Zone Act Reauthorization Amendments (CZARA)	Example
Example	Fish and Wildlife Service's Wetland Action Plan	Example
Example	| Examp le
Example	Example	Example

Correcting for Market Failures

Program	Agency	Law	Purpose
Conservation Reserve Program	FSA	Farm Bill	Subsidy program
Wetlands Reserve Program	NRCS	1990 Farm Bill	Subsidy program
Swampbuster Provision	USDA	1985 Food Security Act	Converting wetlands to croplands results in a loss of federal funds

State

States government tools for addressing wetland protection, include but not limited to:

1. police powers
2. zoning authority
3. land use definition
4. benchmarks regulating net gain or loss
5. State Wetland Conservation Plans
6. acquisition

Local

Local Wetland Protection Local governments tools for addressing wetland protection, include but are not limited to:

1. Stakeholder involvement
2. Local Wetland Strategic Plans
3. ordinances regarding protection, zoning and development plans
4. mitigation banking

Barriers to Implementation of No Net Loss Policy

• Political Considerations
• Economic Considerations
• Other Considerations
  • The processes of wetland restoration, including restoring it to its original function and becoming stable enough as a wetland ecosystem, takes many years. Those processes are also very expensive. Based on the study done in the Kentucky Bottomland Forest, the wetland restoration takes forty-two years, particularly the process of 95% of the carbon accumulation that is stored in natural wetland. Therefore, in achieving the No Net Loss Wetlands Policy goal in relation to acreage, it is often questionable whether those efforts are worth with the expense for the quality.

ekurniaw (talk) 16:41, 26 April 2011 (UTC)