Págs. 03 . 02 . 01 . 0 . 1 . 2 . 3 . 4 . 5 . 6 . 7 . 8 . 9 . 10 . 11 . 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 26 . 27 . 28 . 29 . 30 . 31 . 32 . 33 . 34 . 35 . 36 . 37 . 38 . 39 . 40 . 41 . 42 . 43 . 44 . 45 . invitacion . ribera . 1 . 2 . 3 . 4 . 5 . 6 . 7 . 8 . 9 . index .

Humedales

Leyes

Clean Water Act (CWA)

The Clean Water Act is a 1977 amendment to the Federal Water Pollution Control Act of 1972, which set the basic structure for regulating discharges of pollutants to waters of the United States.

Section 404 - establishes a program to regulate the discharge of dredged and fill material into waters of the United States, including wetlands. . . . . .Overview of Section 404
Text of Section 404 (33 U.S.C. 1344)
Section 403 - Ocean Discharge Criteria
Text of Section 403 (33 U.S.C. 1343)
Section 402 - National Pollutant Discharge Elimination System
Text of Section 402 (33 U.S.C. 1342)
Section 401 - State Certification of Water Quality
Overview of Section 401 Certification
Text of Section 401 (33 U.S.C. 1341)
Section 309 - Federal Enforcement Authority
Text of Section 309 (33 U.S.C. 1318)
Section 308 - Inspections, Monitoring, Entry
Text of Section 308 (33 U.S.C. 1318)
Section 502 - General Definitions
Text of Section 502 (33 U.S.C. 1362)

National Environmental Policy Act of 1969 (NEPA)

NEPA is the basic national charter for protection of the environment. It establishes policy, sets goals, and provides means for carrying out the policy.
Text of NEPA (42 U.S.C. 4321-4347)

Rivers & Harbors Appropriation Act of 1899

Section 10 - establishes a program to regulate activities affecting navigation in United States waters, including wetlands
Text of Section 10 (33 U.S.C. 403)
Army Corps of Engineers, Section 10 Program

Federal Agriculture Improvement and Reform Act of 1996

Commonly known as the Farm Bill, the 1996 revisions included modifications to four programs related to the conservation of wetlands on agricultural land.
Text of Conservation Provisions in the 1996 Farm Bill

Endangered Species Act (ESA)

The Endangered Species Act provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found.
Text of ESA (7 U.S.C. 136)

Transportation Equity Act for the 21st Century (TEA-21)

Authorizes funding to improve the Nation´s transportation infrastructure, enhance economic growth and protect the environment, including opportunities to improve water quality and restore wetlands.
Overview of TEA
Text of TEA-21

Coastal Wetlands Planning, Protection & Restoration Act (CWPPRA)

North American Wetlands Conservation Act (NAWCA)

Section 404 Regulations

Section 404(b)(1) Guidelines - guidelines, established by the EPA, that constitute the substantive environmental criteria used in evaluating activities regulated under Section 404 of the Clean Water Act
Text of 404(b)(1) Guidelines 40 CFR 230) (PDF format, 110KB)

Permit Regulations - regulations, established by the Army Corps of Engineers, that specifies the procedures and criteria for the issuance of Section 404 permits.
Text of Corps Permit Regulation (33 CFR 320-330)

Program Definitions and Permit Exemptions - established by the EPA, these definitions apply to the Section 404 program and clarify which activities are exempted from regulation under Section 404(f) of the Clean Water Act.
Text of Program Definitions and Permit Exemptions (40 CFR 232) (PDF format, 29 KB)

Section 404(c) Regulations - regulations to clarify EPA´s authority to restrict or prohibit the use of an area for discharge of dredged or fill material if the discharge will have unacceptable adverse impacts.
Text of 404(c) Regulations (40 CFR 231) (PDF format, 23KB)
Chronology of 404(c) Actions

Nationwide Permit Program - program established by the Army Corps of Engineers that allows the Corps to grant general permits for similar categories of discharges that will have only minimal adverse effects.
Issuance of Nationwide Permits; Notice - the Corps of Engineers March 12, 2007 final notice on the reissuance of existing Nationwide Permits, General Conditions, and definitions with modifications, with 6 new permits. (PDF format, 108 pages, 542KB)
Proposal To Reissue and Modify Nationwide Permits; Notice - the Corps of Engineers September 26, 2006 proposal to reissue all existing Nationwide Permits and introduce 6 new permits. (PDF format, 43 pages, 277KB
Chronical of other Nationwide Permit materials

Enforcement Regulations - regulations, established by the EPA, to outline options available to the agencies to enforce the provisions of Section 404.
Text of Enforcement Regulations (40 CFR, Part 22) (PDF format, 29KB)

State Assumption Regulations - regulations that specify the procedures and criteria used by EPA in assessing State assumption of section 404 programs.
Text of State Assumption Regulations (40 CFR 233) (PDF format, 97KB)

Tribal Assumption Regulations - regulations that specify the procedures and criteria used by EPA in assessing Tribal assumption of section 404 programs.
Text of Tribal Assumption Regulations (40 CFR, Part 233, Subpart G) (PDF format, 18KB)
 

Section 404 Jurisdiction

Generally

1989 Memorandum of Agreement- allocates responsibilities between EPA and the Corps for determining the geographic scope of the Section 404 program and the applicability of exemptions from regulation under Section 404(f).

Information pertaining to Wetlands Delineation

Geographic Jurisdiction

Information pertaining to Clean Water Act definition of "Waters of the United States"

Dredged Material

Information pertaining to Revisions to Clean Water Act Regulatory Definition of "Discharge of Dredged Material," January 17, 2001, Final Rule

Scope

Revisions to the Clean Water Act Regulatory Definition of "Discharge of Dredged Material," May 10, 1999, Final Rule

Memorandum on Issuance of Final Rule Responding to National Mining Association Decision, May 10, 1999 joint memorandum from EPA and the U.S. Army Corps of Engineers

Guidance Regarding Regulation of Certain Activities in Light of American Mining Congress v. Corps of Engineers, April 11, 1997 guidance from EPA and the U.S. Army Corps of Engineers.

Dredged Material Management

Comparison of Dredged Material to Reference Sediment
The Environmental Protection Agency (EPA) is proposing to revise the Clean Water Act Section 404(b)(1) Guidelines (Guidelines) to provide for comparison of dredged material proposed for discharge with "reference sediment," for the purposes of conducting chemical, biological, and physical evaluations and testing.

Inland Testing Manual - This joint EPA and Corps document, "Evaluation of Dredged Material Proposed for Discharge in Waters of the U.S. - Testing Manual" (ITM), provides guidance regarding technical protocols under Section 404 for evaluating proposed discharges of dredged material associated with navigational dredging projects.

Fill Material

Final Revisions to the Clean Water Act Regulatory Definitions of "Fill Material" and "Discharge of Fill Material"

Information pertaining to Proposed Revisions To The Regulatory Definition Of "Fill Material," June 16, 2000

1986 Memorandum of Agreement - outlines EPA and Corps approach to controlling discharges of solid waste into wetlands and other waters.

Dispute Resolution under Section 404(q)

1992 Memorandum of Agreement - establishes procedures for the Corps and EPA to minimize delays and resolve disputes in the issuance of Section 404 permits.

Establishing Appeals for Landowners

Final Rule for Appeals Procedure - Establishes a procedure to appeal a permit denied with prejudice by the District Engineer, as well as appeal of a declined proffered individual permit. (PDF, 115KB, 15 pages)

Compensatory Mitigation/Mitigation Banking

Information pertaining to Section 404 Compensatory Mitigation

Wetlands on Agricultural Lands

1990 Memorandum to the Field- explains the applicability of the Section 404 program to agriculture and clarifies agricultural exemptions under section 404(f).

Wetlands and Forestry

Summary of the Forestry Resolution- outlines the innovative resolution of a long-standing silvicultural issue affecting forested wetlands in the Southeast. The guidance clarifies where a wetlands permit is not needed when certain ´Best Management´ practices are conducted in association with forestry site preparation.

1995 Forestry Guidance - the full text of the guidance.

Coral Reef Guidance

1999 Memorandum to the Field - emphasizes the protection afforded the Nation´s valuable coral reef ecosystems under the Clean Water Act (CWA) Section 404 regulatory program, the Marine Protection, Research, and Sanctuaries Act (MPRSA) Sections 102 and 103 provisions, Rivers and Harbors Act (RHA) Section 10 requirements, and Federal Projects conducted by the Corps.

Regulatory Flexibility

1995 Memorandum to the Field - identifies regulatory flexibility under Section 404 of the Clean Water Act to those small landowners impacting less than two acres of wetlands on their property.

1993 Memorandum to the Field - clarifies that the level of review associated with a permit application is linked to the nature of anticipated environmental impacts. Thus, small projects with fewer impacts require less review.

Surface Coal Mining Operations

Joint Procedures Framework MOU for Surface Coal Mining Permit Applications - February 10, 2005 - The U.S. Office of Surface Mining (OSM), U.S. Army Corps of Engineers (COE), U.S. Environmental Protection Agency (EPA), and U.S. Fish and Wildlife Service (FWS) have coordinated in the development of a Memorandum of Understanding (MOU) to improve coordination and information sharing among the agencies responsible for reviewing and processing Surface Mining Control and Reclamation Act (SMCRA) and Clean Water Act (CWA) Section 404 dredge and fill permits.

EPA/Corps Memo on CWA Requirements and Coal Mining Operations - May 5, 2003 (PDF format, 179 KB).

1999 Memorandum of Understanding - establishes a process for improving coordination among the U.S. Office of Surface Mining, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and West Virginia Division of Environmental Protection, in the review of permit applications required for surface coal mining and reclamation operations resulting in the placement of excess spoil fills in the waters of the United States in West Virginia.

Wetlands and Water Quality

1990 National Guidance - Water Quality Standards for Wetlands - assists States in applying their water quality standards regulations to wetlands.

Wetlands and Non-point Source Control

1990 National Guidance: Wetlands and Non-Point Source Control - describes how State non-point source programs can use the protection of existing wetlands and the restoration of previously lost or degraded wetlands to meet the water quality objectives of adjacent or downstream water bodies.

Enforcement

1989 Memorandum of Agreement - establishes the allocation of enforcement responsibilities between EPA and the Corps for Section 404 of the Clean Water Act.

Corps Regulatory Guidance Letters

RGLs on the Corps of Engineers Home Page
access to the guidance the Corps issues to its field staff.
 

Scientific Documents

National Wetlands Inventory Report

Report to Congress on the Status and Trends of Wetlands in the Conterminous United States 1998 to 2004 - The report provides the most recent and comprehensive estimates of the current status and trends of wetlands in the conterminous 48 United States on public and private lands.

National Resources Inventory Report

2003 National Resources Inventory - The NRI is conducted by the U.S. Department of Agriculture´s Natural Resources Conservation Service, in cooperation with the Iowa State University Statistical Laboratory.

Biodiversity Values of Geographically Isolated Wetlands

Biodiversity Values of Geographically Isolated Wetlands in the United States - A study conducted by NatureServe which assesses the potential biodiversity impacts of the Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers (SWANCC) decision. Through literature review, expert opinion and compilation of existing occurrence data, NatureServe identified at-risk species and ecological communities that are supported by wetland habitats potentially affected by the court´s decision.

Hydrogeomorphic (HGM) Approach for Assessing Wetland Functions

HGM Action Plan - Federal Register notice -Through the National Action Plan, the Corps of Engineers is announcing the strategy the Corps and other Federal agencies will follow to implement the Hydrogeomorphic Approach for Assessing Wetland Functions (HGM Approach) through the development of regional guidebooks. The National Action Plan was developed by a National Interagency Implementation Team. For additional information on HGM, link to the Army Corps of Engineers Waterways Experiment Station Home Page

The Wetlands Conservation and Sustainability Project

The Handbook for Wetlands Conservation and Sustainability is the newest initiative of the Izaak Walton League of America´s Save Our Streams Program. http://www.epa.gov/owow/wetlands/guidance/index.html
US Environmental Protection Agency EPA

Wetland Laws

1.  There is no specific national wetland law.

2.  Wetlands have been managed under regulations related to both land use and water quality.

Important Laws

Rivers and Harbors Act, Section 10, 1899, gave the U.S. Army Corps of Engineers the responsibility to control dredge and fill operations in “waters of the United States”.

Federal Water Pollution Control Act as amended (Clean Water Act) 1972, 1977, 1982.

            Section 404 Dredge and fill permit (Corps)
           
            Section 208 Areawide Water Quality Planning (EPA)

            Section 303 Water Quality Standards (EPA)

            Section 401 Water Quality Certification (EPA)

            Section 402 National Pollutant Discharge Elimination  (EPA)

Executive Order 11990, 11988 (Jimmy Carter), 1977, protecting wetlands and floodplains.

“No net loss”.  Set as a goal by National Wetlands Policy Forum, 1988.  President Bush directed federal agencies to implement this goal.  It was not anticipated that there would be a complete halt to wetland loss, so restoration and construction was implied.

Clean Water Act Section 404 Program

Primary vehicle for wetland protection in U.S.

An extension of 1899 Rivers and Harbors Act, it requires anyone dredging or filling in the “waters of the United States”  to request a permit from the Corps of Engineers.

Wetlands are not even mentioned in the original wording, but court interpretations and later executive orders have required the Corps to assume their protection.

Obtaining a permit is a complex process (Fig 18-1).

No dredging or filling can occur if a practicable alternative exists.  The sequence of evaluation and the terms of the permit require the following:

            1.  Avoidance (avoid impacts where practicable)
            2.  Minimization (minimize the potential impacts to wetlands)
            3.  Mitigation (provide compensation for any remaining, unavoidable impacts   through the restoration or creation of wetlands.)

The EPA has veto power over the Corps’ decisions.

Swampbuster provision of  1985 Food Security Act

Eliminated the cross purposes of  Federal agencies.

SCS had been promoting wetland drainage while other agencies were mandated to protect wetlands.  This act withdrew any Federal support from farmers who filled wetlands.  This included all crop subsidies.

Wetland delineation

In 1987, the Corps published a wetland delineation manual requiring that three mandatory technical criteria be met (wetland soils, hydrology and vegetation) for declaring  a parcel a wetland.

In 1989, a four agency manual came out that allowed the delineator to infer some wetland features from others. 

Heavy lobbying resulted in the release of a modified manual in 1991, one that would have favored the needs of developers and would have resulted in fewer acres of wetland being delineated.   After public review, it was characterized as “unscientific” and was abandoned.  The 1987 manual is the version that is used.

National Academy of Science Study

The NRC study was published in 2001:  “Compensating for Wetland Losses Under the Clean Water Act”. 

It portrays a less than complementary picture of the effectiveness of the governmental apparatus for protecting the Nation’s wetlands.
 

In a 5-4 vote in the case Rapanos v. United States, a highly divided Supreme Court muddied the laws on wetland protection. 
Michigan resident John Rapanos argued that the EPA could not use the Clean Water Act (CWA) to establish jurisdiction over his property. The government argued that because water drained through his land, the EPA was justified in regulating it.
In the decision, the court ruled that the government may have interpreted the CWA too broadly and overstepped its jursidiction by regulating Rapanos’ land. Cato calls this a victory for property rights, but don’t get too excited. In failing to reach a consensus on exactly how far the government’s jurisdiction reaches, the court left the door open for more regulation and similar cases in the future. This split has left some interpreting the decision as a victory for federal regulation, as it does not explicity deny the EPA’s claim that wetlands can be regulated under the CWA.
In the end, this ruling simply complicates an already vague set of laws and leaves the lower courts to reach case-by-case conclusions.
 

Wisconsin Wetlands: Guide to Protection Laws

A Directory of Regulations, Regulators and Related Programs

Laws & Regulators

Local Zoning

Contact your local zoning office for general guidance and information, application forms for local zoning programs, review of wetland maps, assistance with wetland boundary determinations and explanation of permitted uses. In cities or villages, call the municipal office to reach the Zoning Administrator or Building Inspector.

Shoreland and Wetland Zoning: Counties (S. 59.971, Stats. & NR 115) Regulates general development & activities in wetlands adjacent to navigable waters ("shorelands"). May comment on state and federal permit applications.

Shoreland and Wetland Zoning: Villages & Cities (Ss. 61.351 & 62.231, Stats & NR 117) Regulates activities in wetlands adjacent to navigable waters ("shorelands"). May comment on state and federal permit applications.

Comprehensive and Other Zoning (Ss. 59.97, 61.35 & 62.23 and Ch. 91, Stats.) Regulates a wide range of land uses to protect public health, safety & welfare and offer wetland protection.

Wisconsin Department of Natural Resources (DNR)

Contact Water Management Specialists for general guidance and information, application forms and review of wetland maps. DNR also makes wetland boundary, ordinary high water mark (OWHM) and navigable water determinations for state programs.

Navigable Waters Protection (Ch. 30 & 31, Stats.) Regulates construction and waterway alteration in and adjacent to navigable waters, including dams, filling, water diversion, grading and dredging. Alteration of non-navigable waterways, such as dredging, is also regulated.

Shoreland and Wetland Zoning Oversight (Ss. 59.971, 61.351 & 62.231, Stats.) Statute requires DNR to provide technical assistance to local zoning officials, oversight of local decisions and general development & wetland protection standards for "shorelands" adjacent to navigable waters, which are administered by local government.

Water Quality Certification (S. 401 Federal Clean Water Act, NR 103, & NR 299) Advises the Corps when projects are inconsistent with state water quality standards. The federal permit won't be issued until the project becomes consistent with those standards.

U.S. Army Corps of Engineers

Contact the district office in St. Paul or one of the Corps field offices for information about federal regulations. Permit applications for Corps-regulated activities can be obtained from area DNR offices. Mailing address: U.S. Army Corps of Engineers, St. Paul District, Attn: Regulatory Branch, 190 Fifth Street East, St. Paul, MN 55101-1638.

Clean Water Act (S. 404) Regulates discharges to "waters of the U.S." including fill in any wetland. Preapproved "general" or "nationwide"permits may be available for specific minor activities. Compensatory mitigation is only accepted for unavoidable losses under federal program.

Rivers & Harbors Act (S. 10) Regulates most activities in "navigable waters of the U.S.," which include the Great Lakes and most major rivers and lakes.

U.S. Environmental Protection Agency (EPA)

EPA comments on federal permit applications. May veto Corp permit decisions and take action against violators. Offers support to state wetland programs.

Related Programs

Agricultural Stabilization and Conservation Service (ASCS)

Administers 1985 and 1990 federal Farm Bills, which make agricultural producers who alter wetlands ineligible for federal farm program benefits. County ASCS agents are best able to answer wetland questions related to these programs (Swampbuster and others) and can provide aerial land (crop) photos.

Soil Conservation Service

SCS field offices in most counties conduct wetland inventories and make wetland determinations for the Swampbuster provisions of federal Farm Bills. SCS wetland maps identify wetlands in agricultural regions based on presence of hydric soils and eligibility for federal farm program benefits; they are not a substitute for WWI wetland maps.

U.S. Fish and Wildlife Service (FWS)

Nine FWS field offices in Wisconsin assist with wetland restoration plans and management questions. The FWS field office in Green Bay reviews federal permit applications and related mitigation plans.

Local Plan Commission or Committee

Develops resource and other local land use plans and recommends regulatory ordinances to governing body. Directs local planning or zoning staff in administering local land use laws.

Wetland Glossary

Wetland - Wisconsin statutes define a wetland as "an area where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic ('water-loving') vegetation and which has soils indicative of wet conditions."

Ordinary High Water Mark - It is the point on the bank or shore up to which the presence and action of surface water is so (OHWM) continuous as to leave a distinct mark by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic. The OWHM defines the bed of a lake, river or stream.

Navigable Waters - The State of Wisconsin defines navigable waters as those with a bed differentiated from adjacent uplands and enough water to allow navigation by a recreational craft of the shallowest draft on an annually recurring basis. ("Navigable waters of the U.S." are different).

Mitigation - Mitigation means replacement of wetlands and their functions. It is required in the Corps process if alternative siting and efforts to reduce impacts still result in wetland loss.

Shorelands - For navigable lakes, ponds, or flowages, lands within 1,000 ft of the Ordinary High Water Mark. For navigable rivers and streams, lands within either the floodplain or 300 ft of the OWHM, whichever is greater.

Rezoning - In rare instances, a wetland lacks the functions for which they are valued. In such cases, the property owner may petition the local zoning office for a zoning map amendment. If approved, the "rezoned" wetland is not subject to the local zoning regulations described in this fact sheet; federal and state regulations still apply.

Permit Review Timetable

Times listed here represent a general range. Avoid longer timeframes by making a thorough property investigation and submitting accurate and complete maps, plans and narratives with your permit applications. It's most efficient to prepare and submit all applications at the same time.

Wisconsin Wetlands: Wetland Regulatory Programs

With the historic loss of wetlands in the state, people who work in wetlands recognize the increasing importance of protecting them. The following publications and web sites highlight such topics as: construction near wetland sites, wetland laws, wetland protection programs and the place of wetlands in commercial and private zoning. Use this information as a starting point for any building project or other wetland protection issues.

State Wetland Permits

If you are planning a project that proposes wetland impacts you will need to obtain a wetland water quality certification (permit) from the DNR approving the proposed wetland impact before you proceed with the project. As part of the certification process you will be required to explore various project alternatives that will avoid and minimize wetland impacts. In certain circumstances, we may be able to consider a wetland compensatory mitigation proposal when reviewing your permit application if offered as part of your permit application.

Wetland Rules

More Information

For more information regarding Wetland Regulatory Programs, please contact Dale Simon, Chief Biologist,     (608) 267-9868       .
 
Our publication Reversing the Loss: A Strategy for Protecting and Restoring Wetlands in Wisconsin (PDF, 1.03MB) charts a course for DNR programs involved in wetland education, protection, restoration, enhancement and management.

Progress Update for 2002-2003

The DNR's Wetland Team has produced this Reversing the Loss Progress Report for 2002-2003 (PDF, 625KB) outlining the accomplishments of the Reversing the Loss program so far, as well as the future goals and plans for the project.

Progress Update for 2001-2002

The DNR's Wetland Team also produced this Reversing the Loss Progress Report for 2001-2002 (PDF, 38KB).

More Information

For more information regarding the protection and restoration of wetlands in Wisconsin, please contact Pat Trochlell, Wetland Ecologist   (608) 267-24
 

The following is a reprint of the book's Foreword by Françoise Burhenne-Guilmin, Head of the IUCN Environmental Law Centre, Bonn, Germany
The idea for Wetlands, Water and the Law grew out of the Conference on Legal Aspects of the Conservation of Wetlands in Lyon, 1987, which was organised by the IUCN Environmental Law Centre. Since that time, there have been radical changes in international and national environmental policy and law. The Earth Summit at Rio has come and gone; concepts such as 'sustainable development' have entered daily language. We have seen the adoption of the Convention on Biological Diversity and other instruments that extend conservation and sustainable use measures to all natural systems and components and address social, economic and cultural considerations.
These developments have shaped wetland policy and law in far-reaching ways. The Ramsar Convention celebrated its twenty-fifth anniversary in 1996 with a set of comprehensive and forward-looking tools. While keeping its special relationship with waterbirds and nature conservation, Ramsar has expanded its focus to cover other species, sectors, actors and issues. It has drawn public and political attention to the contribution wetlands make to sustainable management of limited freshwater resources and thus to regional stability. This is one of the most critical issues facing our planet as we move into the next millennium.

Wetland conservation and wise use depends on a series of important relationships between:

Wetlands, Water and the Law provides a structured framework for considering these complex relationships. It sets wetlands in their scientific, economic and legal context, before describing the main legal issues involved in implementing the Ramsar Convention. Parts 3-6 take an increasingly broad focus, dealing respectively with site-specific and bioregional approaches to wetland management, generally-applicable techniques for managing damaging processes and activities and, lastly, regional and international frameworks for cooperation. These mechanisms overlap and interlock and should be mutually reinforcing.

The book complements the recent work of scientists and economists by describing how laws and institutions can work for (or against) wetland conservation and wise use. Each chapter makes the link between international legal obligations and national or local mechanisms for delivering implementation. Drawing on national practice around the world, the book illustrates how different legal approaches and techniques can be adapted to widely-varying national conditions and capabilities. Key components for legal and institutional frameworks suited to the challenge of wise use implementation are set out in the conclusion.

For nearly a decade, Clare Shine and Cyrille de Klemm have worked together on biological diversity issues and have produced several important reports and publications for the IUCN Environmental Law Programme. But this book is special. Not only was it prepared over a number of years during which both Clare and Cyrille attempted to synthesise the results of extensive research, observations and practice in the field of wetlands law. The book was also prepared at a time when Cyrille gradually lost his physical strength. It was finalised by Clare shortly after his death in April of 1999.

Wetlands, Water and the Law is thus the first monument to Cyrille's memory, and to his long collaboration with Clare. Without Clare's dedication to the task, and friendship with Cyrille, this book simply would not have been completed.
All those who recognized in Cyrille de Klemm a visionary in the environmental conservation law field will be grateful to him for making his last thoughts on the subject available to us. They will also be grateful to Clare, not only for her own expert contribution, but for carrying his torch. 

For further information about the Ramsar Convention on Wetlands, please contact the Ramsar Convention Bureau, Rue Mauverney 28, CH-1196 Gland, Switzerland (tel +41 22 999 0170, fax +41 22 999 0169, e-mail ). Posted 17 September 1999, Dwight Peck, Ramsar.
 

Cambridge's wetland protection laws
- ideas for improvement

(by Lew Weitzman, a member of the Alewife Study Group, updated Oct. 3 1999)
Cambridge is currently in the process of considering a conservation bylaw. 40% of Massachusetts' cities and towns already have conservation bylaws on the books. A good conservation bylaw can tremendously increase the ability of a municipality to protect its wildlife habitats and control flooding. Cambridge has the chance to once again show its leadership on environmental issues. A strong conservation bylaw should be enacted as soon as possible.

Background to the Massachusetts Wetlands Act
The commonwealth of Massachusetts now recognizes the importance of wetlands not only as a rich habitat for many forms of plants, birds and animals, but also as an important resource for citizens. Wetlands mitigate the dangers from toxic chemicals in the environment and act as buffer zone limiting the effects of flood damage during major storms.

The Massachusetts Wetlands Act (G.L. Ch.131 Section 41) was enacted in the late seventies. The Department of Environmental Protection (DEP) enforces the regulations that cover the Wetlands Act (CMR 10.50-10.60); However, it is up to each town's Conservation Commission to directly enforce these regulations and the DEP is generally only available for appeals.

The Wetlands regulations are very specific about which 'resource areas' fall within the jurisdiction of the Conservation Commissions. Resource areas are generally those that are near bodies of water such as rivers, pond or the ocean and/or contain wetlands habitats such as cattail marshes. The exact definitions are very technical and usually a biologist is required to make an exact determination of a wetland area.

100-year flood plains (and other lands subject to flooding) are also within the jurisdiction of the conservation commissions. FEMA publishes flood maps that are used to determine the boundaries of the 100-year flood plain.

Town Bylaws
The Wetlands Act regulations are generally considered a starting point for protecting wetlands and floodplains. 40% of the cities and towns in Massachusetts have passed their own bylaws clarifying and adding to the protections afforded by the Act. At the present time Cambridge does not have a conservation bylaw.

Bylaws can be passed as zoning or as non-zoning regulations. If they are passed as zoning they require a two third vote of the city council (six votes) and would be administered by the planning board. If they are passed as a non-zoning regulation they require a simple majority of the city council (five votes) and would be administered by the conservation commission.

Most towns have chosen to pass their bylaws as non-zoning regulations administered by their conservation commissions.

The Need for Conservation Bylaws in Cambridge
Only a few wetlands remain in the city of Cambridge. A strip lines the Charles River and surrounds Fresh Pond and a few other small bodies of water. The most significant wetland and flood plain is at Alewife along the Alewife Brook and the Little River. The 115 acre Alewife Reservation is part of this wetland area.

As a direct result of development on the Alewife flood plain and its low elevation, there is periodic and significant flood damage in the surrounding communities. A 1981 study by the MDC found property damage in the Alewife area to be the highest of any portion of the Mystic River watershed of which it is a part.

During flood events at Alewife, the Mystic River backs up into the Alewife Brook and Little River areas. Flood waters from Belmont also empty into this area during storm events. During the flood of October, 1996, the Alewife Brook flooded over the Alewife Brook Parkway and into North Cambridge neighborhoods. East Arlington neighborhoods adjacent to Alewife were also inundated with flood water. The Arthur D. Little parking lot was covered by several feet of flood water.

The flood event of 1996 was estimated to be a '30-40 year' event by the national weather service. The '100-year' event would be significantly worse and could even pose a threat to the city drinking supply at fresh pond.

Development pressures will continue to pose an immediate threat to Cambridge's remaining wetland and flood plain areas. For all of these reasons Cambridge is in desperate need of conservation bylaws.

Jurisdiction of the Conservation Commission
The first goal of a Cambridge conservation bylaw should be to expand the jurisdictional authority of the Cambridge Conservation Commission. Activities immediately adjacent to resource areas can have a significant impact and should be monitored. For example the construction of buildings immediately adjacent to a wildlife habitat can have significant effects on habitat. For this reason, many municipalities in Massachusetts have extended the jurisdiction of their conservation commissions to 100 feet outside of the 100-year flood plain.

Expanding Habitat Protections
The wetlands regulations as written provide almost no protection for wildlife habitats outside of actual wetlands. For example wildlife habitats within the 100-year flood plain are virtually unprotected. The Bedford conservation bylaw has corrected this by requiring that construction in their 100-year flood plain not "alter the ability of the land to provide breeding habitat, escape cover, or food for wildlife." Duxbury's conservation bylaw emphasizes the significance of their flood plain to their adjacent wetlands. Dunstable's conservation bylaw adds new protections to their 100-year flood plain and protects its 'aesthetic character'.

The existing wetlands regulations provide no protection to wildlife, only their habitats. This strange distinction needs to be clarified in any conservation bylaw. In one Massachusetts town a fence was erected that blocked animals from getting into a wildlife area but the town was unable to do anything about it as the DEP appeals court ruled that the Act only protected the habitat and not the animals that lived in it!

Construction in the Flood Plain
The Wetlands Act does not prohibit construction in flood plains. It does require compensatory storage be provided for any lost volume of flood storage. This new flood storage must be in an area that is not already in the flood plain and at similar elevations as that which was lost.

Even with the best of compensatory storage schemes it is clear that flooding continues to increase where construction occurs. Therefore, it is the recommendation of FEMA that no construction occur in the 100-year flood plain and this is also the policy of the Cambridge emergency response plan.

The state Zoning Act (G.L. Ch. 40A) also encourages municipalities to prohibit or regulate development on flood plains.

The town of Brewster conservation bylaw does not permit construction of any kind in their flood plain. Cambridge may want to consider a similar policy given the extent of construction that has already occurred on their few remaining flood plain areas and the threat to property and water supply that exists. At the very least loopholes in compensatory storage ought to be closed.

Compensatory Storage
In the past developers have been able to create large parking lots without having to compensate for its effect on the volume and velocity of floodwater. Meadows and wetland areas absorb floodwater and slow down its speed during a major storm. Paved parking lots do not do this.

Bedford has recognized this phenomenon by requiring no more than 25% impervious surfaces in the 100-foot buffer zone to wetlands. Bedford also requires that construction in their flood plain "neither decrease the flood storage capacity nor decrease the groundwater infiltration rate".

The weight of built structures has a significant effect on flood capacity and ought to be a factor in calculating compensatory storage. The weight of a building will compress soil so that it can no longer hold as much water.

A loophole has allowed developers to excavate compensatory storage from ground areas that already contain groundwater. Clearly these types of flood storage areas would add nothing to total flood storage capacity and should not be accepted as meeting the intent of the law. The Danvers conservation bylaw has closed this loophole by requiring that "storage capacities shall be based on the volume of active storage above maximum seasonal groundwater levels".

And, finally, there has been no consideration given to area-wide flooding conditions. Until now a developer has been allowed to focus exclusively on their own contribution to flooding without an analysis of the general conditions in their area. The Danvers conservation bylaw has corrected this oversight by requiring that "hydrologic analysis shall be based on a reasonable estimate of developed conditions within the entire watershed".

Wetlands Replication
The Wetlands Act allows the destruction of up to 5,000 square feet of wetlands so long as they are replicated elsewhere in the watershed. This policy is now being reconsidered by many municipalities.

The Dover conservation bylaw concludes that "wetlands replication is generally unsuccessful". The Chicopee conservation bylaw goes further and states that "the quality and quantity of Chilcock's (a significant wetlands in the town) wetlands shall be increased and restoration and replacement shall undo past damage."

A policy of increasing wetlands similar to that adopted by Chicopee is in line with Governor Cellucci's goal of creating 3,000 new acres of wetlands by the year 2010.

Contact the Alewife Study Group, North Cambridge Massachusetts, by email at information@alewife.org