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No net loss policy in the United States

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No Net Loss is the United States government's overall policy goal 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.[1][2] 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[3] of wetlands, the decrease from nearly 220 million acres in the lower 48 states to 107.7 million acres in 2004 [4] is of great concern to local, state, and federal agencies as well as the public interest they serve.

Wetland in Everglades National Park

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[5]. Since the 1950s, over fifty percent of this loss has come from wetlands being transitioned to agricultural lands[6]. 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 [7] 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. The United States is not the only nation interested in the conservation of welands: international cooperation exists in the form of the Ramsar Convention on Wetlands.

Definition of No Net Loss

No Net Loss is a mitigation policy goal where the destruction or degradation of wetlands must be offset through replacement with a new wetland or restoration in an effort to prevent a net loss of wetlands. Under this bi-partisan policy, wetlands currently in existence are to be conserved if possible.[8] According to the 2002 National Wetlands Mitigation Action Plan, "A fundamental objective of the Clean Water Act Section 404 program is that authorized losses of wetlands and other waters are offset by restored, enhanced, or created wetlands and other waters that replace those lost acres and functions and values."

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[9] . 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.[10] The Clinton administration's 1998 Clean Water Action Plan aimed for a net gain of 100,000 acres of wetlands each year[11] .

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.[12] 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[13]. 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[14].

Policy Instruments

Federal

Regulatory

Defining Wetlands Under the Clean Water Act

Under the Commerce Clause in the United States Constitution, the federal government derives authority to regulate pollution of United States waters if interstate commerce is affected. The Clean Water Act (CWA), in particular §404, prevents discharge into the navigable waters of the United States, including wetlands. Permitting is required under the CWA §404 for activities that dredge or fill[15]. Under this permitting program, environmental impacts are to be avoided if possible, reduced and mitigated if necessary[16] . Permits are limited to a maximum period of five years, use public notice and comment procedures, and while the EPA issues the permit, responsibility for monitoring and compliance is shared with other federal and state agencies (such as the U.S. Army Corps of Engineers)[17]. However, the scope of what constitutes a wetland under the CWA has changed over time. Three key Supreme Court decisions have impacted the definition of wetlands under the Clean Water Act:

Rapanos v. United States (2006)[18]
  • challenged the definition of wetlands under the CWA
  • established that U.S. Army Corps of Engineers authority is limited to navigable waters
  • no clear definition of navigable waters so jurisdiction determined by at least one of two tests:
    • Justice Kennedy’s Test
    • Plurality Test
Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers (2001)
  • limited scope of Corpos authority to isolated wetlands in §404 Permitting
Lucas v. South Carolina Coastal Council (1992)
  • Takings of wetlands[19]
Campbell vs. United States Army Corps of Engineers (1961)
  • not all wetlands can be regulated under the CWA

Key Federal Policy Instruments

Program Agency Year Implemented Purpose
Conservation Reserve Program FSA Farm Bill[20] Conservation Easement
Wetlands Reserve Program NRCS 1990 Farm Bill Conservation Easement
Swampbuster Provision USDA 1985 Food Security Act[21] Converting wetlands to croplands results in a loss of federal funds
Migratory Bird Rule Army Corps of Engineers & EPA 1996 Overturned by U.S. Supreme Court in 2001[22][23]
Migratory Bird Hunting and Conservation Stamp Act USFWS & State Wildlife Agencies 1934 Fee on consumptive use of waterfowl to fund conservation efforts (such as SWAP[24])
§101, 303, 319, 402 of Clean Water Act EPA 1972 Command and Control Regulations on discharge of pollutants into waterways
Water Bank Act [25] USDA 1970 Allows trading of wetlands mitigation property rights
217 of Coastal Zone Act Reauthorization Amendments (CZARA[26]) EPA 1990 Voluntary Program

Other federal policy instruments include private-public sector collaborations such as educational efforts, conservation easement programs, and land banks as well as other voluntary programs and forms of direct payments.

State

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

  1. police powers to regulate use of water and land
  2. zoning authority
  3. land use definition
  4. benchmarks regulating net gain or loss
  5. State Wetland Conservation Plans[27]
  6. acquisition

Local

Local Wetland Protection[28] 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
    • Interest groups and constituents can lobby or exploit political influence to receive exemptions or change the scope of wetlands policy. Likewise, politicians and bureaucrats may also change the scope of wetlands policy and its implementation in an effort to cater to constituents and generate political goodwill.
  • Economic Considerations[29]
    • opportunity cost associated with
    • value of wetlands services such as recreation, flood control, filtration
    • value wetlands confer on surrounding property through hedonic pricing
  • 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[30]. 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[31]. 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.

Footnotes

  1. ^ "Nowhere near no net loss" (PDF). National Wildlife Federation. Retrieved 31 March 2011.
  2. ^ "No Net Loss Policy" (PDF). University of Florida Law.
  3. ^ "EPA Wetlands Fact Sheet". Environmental Protection Agency. Retrieved 31 March 2011.
  4. ^ Copeland, Claudia. "Specialist in Resources and Environmental Policy" (PDF). Congressional Research Service. Retrieved 30 March 2011.
  5. ^ Dahl; et al. "History of Wetlands in the Conterminous United States". US Geological Survey. Retrieved 1 April 2011. {{cite web}}: Explicit use of et al. in: |last= (help)
  6. ^ Hansen, Leroy. "AREI Chapter 2.3: Wetlands: Status and Trends". USDA Agricultural Research Service. Retrieved 1 April 2011.
  7. ^ "History of Federal Involvement in Wetlands" (PDF). THE Ohio State University. Retrieved 31 March 2011.
  8. ^ "660 FW 1, Wetlands Policy and Action Plan". USFWS. Retrieved 30 April 2011.
  9. ^ Heimlich, Ralph. "Wetlands Policy in Clean Water Act" (PDF).
  10. ^ Blumm, Michael. "The Clinton Wetlands Plan: No Net Gain in Wetlands Protection".
  11. ^ "Clean Water Action Plan". US EPA. Retrieved 31 March 2011.
  12. ^ "National Wetlands Mitigation Action Plan" (PDF). US EPA. Retrieved 31 March 2011.
  13. ^ "DOI Budget FY2011" (PDF). DOI Budget FY2011. DOI. Retrieved 31 March 2011.
  14. ^ "BARACK OBAMA: SUPPORTING THE RIGHTS AND TRADITIONS OF SPORTSME" (PDF). BarackObama.com. Retrieved 31 March 2011.
  15. ^ "Federal Wetland Policies and National Trends" (PDF). US Department of Agriculture. Retrieved 31 March 2011.
  16. ^ US Fish and Wildlife Service. "Clean Water Act Section 404". Retrieved 30 April 2011.
  17. ^ "EPA Section 404". EPA. Retrieved 30 April 2011.
  18. ^ Supreme Court of the United States. "Rapanos v. United State Supreme Court Opinion" (PDF). Retrieved 30 April 2011.
  19. ^ "Lucas v. North Carolina".
  20. ^ "Food, Agricultural, Conservation and Trade Act".
  21. ^ "MEMORANDUM OF AGREEMENT".
  22. ^ Meltz, Robert. "The Supreme Court Addresses Corps of Engineers Jurisdiction Over "Isolated Waters": The SWANCC Decision". Retrieved 28 April 2011.
  23. ^ "1996+migratory+bird+blue+law*wetlands" "1996 migratory bird rule".
  24. ^ "SWAP". USFWS. Retrieved 28 April 2011.
  25. ^ "Water Bank Act". USFWS. Retrieved 28 April 2011.
  26. ^ "CZARA". EPA. Retrieved 28 April 2011.
  27. ^ US EPA. "What is a State Wetland Conservation Plan?". What is a State Wetland Conservation Plan?.
  28. ^ Turner, Marjut; et al. "WATERSHEDSS: Water, Soil and Hydro-Environmental Decision Support System". WATERSHEDSS: Water, Soil and Hydro-Environmental Decision Support System. North Carolina State University. {{cite web}}: Explicit use of et al. in: |last= (help)
  29. ^ King, Dennis. "The dollar value of wetlands" (PDF). Retrieved 30 April 2011.
  30. ^ "The Ramsar Convention on Wetlands Resolution IX.4 Annex: The Ramsar Convention and Conservation, Production and Sustainable Use of Fisheries Resources" (PDF).
  31. ^ "SOIL CARBON AND MICROBIAL COMMUNITIES AT MITIGATED AND LATE SUCCESSIONAL BOTTOMLAND FOREST WETLANDS" (PDF).
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