Michigan State University Extension
Ag Experiment Station Research Report - RR554098
01/08/99
Michigan Agricultural Experiment Station Michigan State University
October 1997 Research Report 554
Table of Contents
Foreword
Summary
Introduction
Defining wetlands International National United States and the state of Michigan Canada Europe
Wetland functions and values Socioeconomic values Hydrological and biochemical values Ecosystem values
Global wetlands History Trends in wetland areas International protection of wetlands International criteria for wetland classification and designation
Wetlands in the United States History Trends in wetland areas Wetland protection in the United States Legal system Wetland protection policies Federal laws Planning and zoning Michigan Michigan laws Local regulations in Michigan: land use planning and zoning Criteria and classification of wetlands of the United States
Europe History Trends in wetland areas Wetland protection in Europe Pan-European European Union Criteria and classification of wetlands of Europe
The Netherlands History Trends in wetland areas Wetland protection in the Netherlands Legal system Laws National planning policies Regional and local planning and zoning in the Netherlands National park De Weerribben Criteria and classification of wetlands in the Netherlands
United Kingdom History Trends in wetland areas Wetland protection Legal System Laws Wetland restoration criteria in the United Kingdom
Germany History Trends in wetland areas Wetland protection in Germany Legal system Laws Planning Zoning
Sweden History Trends in wetland areas Wetland protection in Sweden Laws
Denmark History Trends in wetland areas Wetland protection in Denmark Legal system Laws Planning
Norway Trends in wetland areas Wetland protection Legal system Laws Planning
Finland History Trends in wetland areas Wetland protection in Finland Laws
Discussion and conclusions Discussion Conclusions
Appendices
Appendix 1-Michigan local governments with local
wetland ordinances
Appendix 2-National ecological network of the
Netherlands
Bibliography
Wetland Identification and Protection: North American and European Policy Perspectives(1)
By: Gerhardus Schultink and Richard van Vliet(2) Department of Resource Development, Michigan State University
Foreword
This research report is part of an effort to assist Michigan units of government in identifying wetlands, their functions, perceived public values and critical roles in contributing to the quality of life (QoL) of its residents. Comparative perspectives and approaches to wetland identification and preservation are useful in developing guidelines for local governments, which, under Michigan legislation, are faced with a delegated mandate to protect wetlands of 5 acres or less.
At the core of this issue is the conversion of rural space, including wetlands, resulting from new settlement patterns. Increasingly, Michigan's citizens, elected officials, planning professionals and scientists are expressing concerns about the impacts of urbanization (expansion of residential, commercial, transportation and industrial land uses) on open space, resulting in a rapid conversion of prime farmlands, wetlands and woodlands, and environmental degradation. Estimates indicate that land use conversions have exceeded 200 acres per day in the mid-1990s. According to Rusk (1996), during the 1960-90 period, Michigan urbanized growth areas (with population increases ranging from 40 to 90 percent) have expanded at a rate 1.9 to 2.6 times faster than population growth, signifying a decreasing density of settlement patterns. The conversion rate is even higher for the relatively stagnant urban growth areas (2 to 17 percent population increases for the 30-year period), where a decline of socioeconomic conditions is marked by a "suburban flight" with rapid land conversion and population growth ratios of 6.9 to 27. In part, this is caused by an urban planning policy that lacks incentives to revitalize residential, commercial and industrial land uses of core urban areas. This has resulted in a decline of the urban service infrastructure, including a loss of quality in educational, medical, recreational, cultural and retailing functions, and an increase in crime rates.
Most notably, the population of older central cities has declined. Detroit, for instance, lost 821,000 persons in the 1950-90 period. Though a significant number of these population losses may be attributed to out-of-state migration in the Ô80s, this population movement illustrates the statewide process of urban to suburban migration, with land development ratios of up to 27 acres of rural land replacing one acre of urban land use.
For Michigan's rural areas, the USDA (1994) estimates that the total land area in farms declined from 17,562,000 acres in 1900 to 10,700,000 acres in 1994, or almost 40 percent. This trend is associated with an increase in land prices from $33 per acre to $1,212, a decline in the number of farms from 203,261 to 52,000, and an increase in average farm size from 86 to 206 acres.
Increasingly, environmental impacts associated with these land use conversions are becoming a significant concern in urbanizing and rural regions alike. Impacts vary from over extraction of groundwater resources by residential wells, groundwater contamination by nitrates and phosphates from private septic systems, and contaminated runoff caused by pesticide and fertilizer applications on golf courses and residential lawns, to contamination from industrial and commercial acreage and toxic substances from poorly designed landfills. In addition, land conversion reduces groundwater recharge rates, increases surface water runoff and flood risks, reduces open space and ecosystem habitat, and limits opportunities for recreation and tourism.
In light of these concerns, the beneficial functions of wetlands, with their ability to reduce and mitigate these impacts, are receiving increasingly international recognition. The identification of these functions and the public policies enacted to protect and enhance these functions in international settings are the focus of this comparative review. Wetland protection policies and strategies are also compared.
Acknowledgments
The authors wish to thank the various individuals and institutions that have graciously provided references and shared professional perspectives and insights. We especially appreciate the comments and suggestions from Kenneth Verburg, Delbert Mokma and Eckhart Dersch and the editorial assistance from Leslie Johnson at MSU.
(1) Research supported, in part, by funding and support from the Agricultural Experiment Station, Michigan State University.
(2) Respectively, professor of Resource Development, Michigan State University, and visiting M.S. scholar, Department of Environmental Sciences and Center for Energy and Environmental Studies, University of Groningen, the Netherlands.
Summary
This report presents a comparative literature review of wetland protection policies of the United States and several European nations. The Netherlands, Germany, the United Kingdom, Denmark, Norway, Sweden and Finland were selected because they represent regions with similar economic development impacts on the natural environment. Of these countries, the Netherlands, Germany and the United Kingdom exemplify the most significant population pressures.
In defining wetlands, European nations use the International Ramsar Convention definition. The U.S., in contrast, uses slightly different definitions originating from various federal agencies: the U.S. departments of the Interior and Agriculture, and the Environmental Protection Agency.
The United States lacks a comprehensive national wetland policy addressing specific wetland preservation goals, time-based planning objectives, evaluation measures and performance standards. Rather, wetland policy is somewhat fragmented by agency objective and regulatory initiative and by the optional delegation of protection measures to the states. For instance, the National Wetlands Priority Conservation Plan largely provides guidelines for wetland identification and mapping. Various wetland protection policies, laws and regulations represent the functional emphasis of U.S. policy measures. Examples include the establishment of the Wildlife Refuge System (preservation of waterfowl sanctuaries), and the Rivers and Harbor Act (maintain navigation by regulating dredging and filling), and the Water Pollution Control Act and its Amendments of 1972 (later called the Clean Water Act, emphasizing pollution control measures).
Many states rely on federal protection measures. A few state governments have chosen to self-regulate wetlands by adopting federal wetland protection measures, as is the case with Michigan's adoption of the Wetland Protection Act in 1979, later replaced by the Natural Resources and Environmental Protection Act. In Michigan, local governments are permitted to enact more specific wetland protection measures in the form of local ordinances. More recent amendments make this more difficult, however, because of the requirement to complete a wetland inventory as a basis for adopting wetland ordinances.
In spite of existing preservation policies, wetland acreage continues to decline in the U.S. and Europe. U.S. wetland conversions are expected to continue at a rate of 290,000 to 450,000 acres (117,408 to 182,186 ha.) annually. In Europe, the Netherlands represents a nation with a long, hierarchical land use planning history. Here, four planning documents are relevant to wetland protection. The Nature Policy Plan (Ministry of Agriculture, Nature Management and Fisheries) is the most significant. Its goal is to reverse the fragmentation of nature areas by establishing a National Ecological Network with wetlands representing mostly the "core areas". Ecosystem habitat protection is identified as the principal reason for wetland protection. As a result of these policies, the destruction of existing Dutch wetlands has almost been halted. For the remaining wetlands, problems such as fragmentation, pollution and eutrophication have yet to be resolved.
One unique aspect of Dutch wetland preservation policies is that new wetlands were created in areas reclaimed from portions of the Zuiderzee, a former tidal basin of the North Sea, and along some coastal areas. This includes the nature preserve "Oostvaardersplassen", about 13,000 acres in the most recently reclaimed Flevoland Polder, designated as a national biosphere preserve. In addition, discussions are taking place to take considerable lowland acreage out of agricultural production by raising the groundwater table and even inundating some polders reclaimed from inland lakes during the past three centuries. This last initiative reflects changed priorities in the EC and the Netherlands, where agricultural overproduction and its environmental impacts, combined with increasing awareness of the public values of wetlands, have started to reshape environmental policy.
Most other northwestern European countries preserve wetlands through nature and wildlife habitat protection measures. Norway and Finland have a Wetland Conservation Plan and River Protection acts, respectively. The efficacy of these measures seems unknown. In Denmark, the Danish Nature Protection Act is according to the Danish Bird Protection Association, adequate to meet its protection objectives. In most European countries, except for the less populated Scandinavian countries, wetlands suffer from increasing eutrophication and pollution.
Introduction
Wetland ecosystems, inland as well as coastal, are a landscape element that drew special attention in the late 1960s (Williams, 1990). This included the recognition that wetlands perform several important societal and environmental functions. Wetlands support many species during their life cycle, ranging from fish spawning to migratory birds' feeding and breeding habitat. They also protect shores from erosion through storm abatement, prevent flooding by increasing storage capacity and containing runoff, and are critical in recharging aquifers. In addition, wetlands enhance water quality by recycling nutrients and storing (toxic) chemicals.
Despite these widely established public values, wetlands are globally a highly threatened ecosystem. Europe has lost most of its natural wetlands and the U.S. more than 50 percent since early European settlement (Mitch and Gosselink, 1993). The rate of wetland conversion has decreased but continues.
In northwestern European countries and the U.S., attempts have been made to protect wetlands from uncontrolled development. The judicial systems and the perceived importance of public vs. private rights, responsibilities and values in the Old and the New World are somewhat different and lead to different policies, laws and regulations. In the U.S., for example, national and state-level laws aim to protect wetlands for various functional reasons, while optional development controls may be exercised at the local level. In the Netherlands, with its centralized policy framework, national preservation and restoration measures are emphasized. Policies and laws on both sides of the Atlantic may represent similar goals, but they differ in enforcement strategy, efficacy, and national and regional priorities. For example, one country may emphasize habitat or biodiversity protection, while another focuses on flood protection.
These differences make it difficult to measure the success of preservation policies. This is exacerbated by the differences in legal systems and emphasis on property rights, which plays a significant role. In the U.S., private land ownership historically involves property rights that includes a "bundle of rights" (Barlowe, 1972), including mineral and water rights, development rights, transfer rights by lease, mortgage or sale-with or without deed restrictions-or the provision of easements. Here, fee simple ownership of land entitles the owner to the most complete set of rights where use may include rights to exploit (emphasize short-term economic gain), degrade (exceed long-term use capacity) or even destroy the land by permanently altering its future economic or public use capacity. Although this right is the most complete and the broadest private property right yet developed, it is yet exclusive and not absolute. Ownership rights are always subject to limitations and conditions as promulgated by federal, state or local jurisdictions reflecting societal interests and values. Especially in the U.S., that difference in judicial interpretation of these formalized public interests, in the form of land use policies, laws and regulations, varies significantly by jurisdiction and over time. For instance, the perceived need and willingness to implement effective land use controls such as zoning and wetland ordinances at the local level and their practical implementation vary greatly.
As such, public land use controls for wetland protection are more difficult to exercise in the federal U.S. system than in European countries characterized by centralized and nationally consistent public policies. In the U.S., this especially influences nature conservation policy options because 74 percent of all wetlands in the contiguous 48 states are controlled by private landowners (USDI, 1990).
This comparative research addresses two primary world regions: Europe and the United States. The European countries of the Netherlands, Germany, Denmark, Norway, Sweden, Finland and the United Kingdom were chosen because they experience a degree of economic development pressure on wetland resources similar to that in the United States. Also, legislation of the European Union (E.U.) is discussed because all European nations included, except for Norway, are members.
Michigan serves as an example of state wetland legislation but does not necessarily represent the other states, which mostly rely on federal policies. Because Michigan, with its fresh-water ecosystems, has no marine and estuarine (tidal) wetlands, policies on marine coastal zone management were not included.
This research represents a comparative literature review of the most readily available sources. In addition, personal interviews were conducted with specialists from the several countries and state agencies.
Defining wetlands
During the past 20 years, a number of interested parties in the U.S. have challenged the principles and definitions used in federal wetland regulations. In part, this reduced the credibility of national and state regulatory practices, including methods of wetland characterization, delineation and functional evaluation. Though these issues are perceived as critical in many countries, no parallel to this challenge is evident in European countries.
The term "wetland" as a collective definition distinguishing it from terrestrial ecosystems has been used to replace the term "swamp" in the latter part of this century. The global extent of wetlands is estimated to be from 7 million to 8 million km2 (Mitch, 1994). Though international definitions vary, basic similarity exists in temporary or permanent waterlogging and peat-forming capacities due to an impermeable layer of clay. Differences are found in features such as salinity, hydrology, climate and successional stage (Williams, 1990). The term "wetland" is usually synonymous with several wetland ecosystems, such as marshes, (raised) bogs, mires, fens, swamps, carrs and schwingmoor. The term "mire" is more often used in Europe instead of peatland (National Science Foundation, 1995). When comparing wetland policies among countries, it is important to compare the practical implications of the scientific definitions in use.
International
During the Ramsar Convention of 1971 (IUCN, 1993), wetlands were identified as "areas of marshes, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine the depth of which at low-tide does not exceed six meters". Subsequently, most countries adopted this definition in their wetland identification and preservation efforts. In addition, the convention provides that wetlands may incorporate riparian and coastal zones adjacent to the wetland area, estuarine waters, and islands or bodies of marine water deeper than 6 meters at low tide lying within these wetlands. The convention's definition covers a wide range of ecosystem types, from rivers to coastal areas and even coral reefs.
National
The United States and the state of Michigan
According to the Conservation Foundation (1990), in the U.S. alone, more than 50 different non-regulatory definitions are in use. Because of the wide variety of landscape features (hydrology, sediment and climatic conditions), the composition and wetland functions are perceived as most important. All those regional definitions (marshes, fens, bogs, wet meadows, potholes, bottomlands, moor, etc.) fall under the common denominator of "wetlands" at the present.
In 1972, amendments to the Federal Water Pollution Control Act (later called the Clean Water Act (CWA) gave the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) authority to regulate uses in areas with potential pollution impacts on water quality. This included 15 percent of the total wetland acreage. Between 1972 and 1977, judicial authority broadened considerably and created a need for a regulatory definition of all wetlands in the United States. This definition was finalized in 1977 and upheld until 1985, when the Food Security Act (FSA), via the U.S. Department of Agriculture (USDA) established a separate regulatory definition used concurrently with the USACEs definition.
Given the need for greater national uniformity in the delineation and identification of wetlands, the USACE issued a national delineation manual in 1987 (USACE, 1987). After this, the USACE collaborated with the U.S. Department of the Interior's Fish and Wildlife Service (FWS), the EPA and the USDA in preparing a revised manual, released in 1989. These revisions were not implemented because the manual was strongly criticized by various individuals and special interest groups as being excessively inclusive. In their opinion, land that should not be defined as wetland was regulated under these provisions, strongly restricting future development. For instance, 80 percent of Louisiana would be protected from development (Davis, 1991). In 1991, the Bush administration attempted to create a revised manual, which also was not implemented because of criticism that too many wetlands were excluded from regulatory control. Estimates indicated that from 30 to 80 percent of wetlands now classified as such would have lost protected status in some regions (Engineering News Record, 1991) because inundation or saturation requirements were increased from 7 to 14 days (National Science Foundation, 1995 and Silverberg, 1993).
As a result, three definitions are used currently in the United States: the USACE 1977 definition, the Natural Resources Conservation Service (NRCS) definition in the Food Security Acts (FSA) of 1985 and the FWS 1979 definition (Cowardin et al., 1979). The USACE and the FSA definition have direct regulatory significance through implementation of the CWA and the FSA. The FWS definition is also significant because it captures the perspective of a federal agency that interacts with regulatory agencies, comments on permits, and is charged with reporting to the U.S. Congress on the statues of the nation's wetlands and serves as the basis for national assessment and mapping of wetlands (National Academy of Sciences, 1995).
U.S. Environmental Protection Agency and U.S. Army Corps of Engineers.
The federal regulation used by the U.S. Army Corps of Engineers for implementing a dredge and fill permit system required by section 404 of the 1977 Clean Water Amendments define wetlands as:
Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
U.S. Department of Agriculture
In the Food Security Act (1985), the following definition is used:
The term "wetland," except when such a term is part of the term "converted wetland", means land that:
A. Has a predominance of hydric soils;
B. Is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions; and
C. Under normal circumstances does support a prevalence of such vegetation.
For purposes of this Act and any other Act, this term will not include lands in Alaska identified as having high potential for agricultural development which have a predominance of permafrost soils.
U.S. Fish and Wildlife Service
The non-regulatory definition that the FWS uses defines wetlands in the following way:
Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. Wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes, (2) the substrate is predominantly undrained hydric soil, and (3) the substrate is non-soil and is saturated with water or covered by shallow water at some time during the growing season of each year (Cowardin et al., 1979).
Reference definition
Besides these official definitions, the National Research Council's Committee on the Characterization of Wetlands(3) developed a reference definition in 1995. This scientific definition, see also (Vis. 1) falls outside the mandate of any particular federal agency, policy or regulation. It states:
A wetland is an ecosystem that depends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate. The minimum essential characteristics of a wetland are recurrent, sustained inundation or saturation at or near the surface and the presence of physical, chemical and biological features reflective of recurrent, sustained inundation or saturation. Common diagnostic features of wetlands are hydric soils and hydrophytic vegetation. These features will be present except where specific physiochemical, biotic or anthropogenic factors have removed them or prevented their development (National Academy of Sciences, 1995).
(3) The National Research Council is an organization founded by the National Academy of Sciences in 1916.
Michigan
According to part 303 of Michigan's Natural Resources and Environmental Protection Act (1994), which replaced the Goemaere-Anderson Wetland Protection Act, a wetland is:
Land characterized by the presence of water at a frequency and duration sufficient to support and that under normal circumstances does support wetland vegetation or aquatic life and is commonly referred to as a bog, swamp or marsh and is any of the following:
(i) Contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream.
(ii) Not contiguous to the Great Lakes, an inland lake or a pond, or a river or stream; and more than 5 acres in size; except this subdivision shall not be of effect, except for the purpose of inventorying, in counties of less than 100,000 population, until the department certifies to the commission of natural resources it has substantially completed its inventory of wetlands in that county.
(iii) Not contiguous to the Great Lakes, an inland lake or pond, or a river or stream; and 5 acres or less in size if the department determines that protection of the area is essential to the preservation of the natural resources of the state from pollution, impairment or destruction and the department has so notified the owner; except this subdivision may be utilized regardless of wetland size in a county in which subdivision (ii) is of no effect; except for the purpose of inventorying at the time.
Canada
In Canada, the term "wetland" has been defined and used by various national and provincial agencies. The freshwater edges of lakes and rivers, inland marshes, swamps, sloughs and peatlands, the marine waters of estuaries and the tidal ocean shorezone are all identified as including wetlands. Following the Ramsar convention, Canadian wetlands meet national or provincial criteria related to the presence of soil and flora adapted to wet environments as well as the occurrence of waters that are generally restricted to a maximum depth of 2 meters.
In Canada, wetlands are defined as:
...land having the water table at, near or above the wetland surface or which is saturated for a long enough period to promote wetland aquatic processes as indicated by hydric soils, hydrophytic vegetation, and various kinds of biological activity which are adapted to the wet environment (Mitsch and Gosselink, 1993).
Europe
The Netherlands, the UK, Finland, Germany, Sweden, Denmark and Norway
In all these countries, the Ramsar wetland definition is used.
Wetland functions and values
Wetlands represent one of the most important landscape elements in preserving environmental quality. This includes protecting surface and groundwater quality and quantity; reducing loss of biological diversity and surface water runoff, thereby assisting in flood protection; and providing erosion and sedimentation control. Increasingly, citizens are becoming aware of the importance of wetlands in protecting public and private interests by preserving or enhancing property values, protecting the environment and preserving recreational opportunities. In Michigan, for instance, wetlands are of great importance in replenishing the groundwater supplies of shallow aquifers in rural areas and improving the water quality of residential wells by recycling and storing chemicals introduced by agricultural land use (e.g., nitrates, phosphates and pesticides) and runoff from residential properties.
Wetlands may be viewed as one of the most productive environments in the world, covering about 4 percent of the planet. They provide tremendous economic benefits to people through their production of fisheries resources, the maintenance of water tables for agriculture, timber production, water storage and reduction of natural impacts such as watershed flooding and shoreline erosion. According to Environment Canada (1997), wetlands have been estimated to provide over $10 billion a year in benefits to Canadian society. Wetlands' ecological functions and values include being sinks for natural contaminants, heavy metals and other pollutants; enhancing water purification; and providing popular recreational and hunting areas worldwide. In particular, wetlands include critical habitats for countless mammal, bird, reptile, amphibian, fish and invertebrate species. Especially in the industrialized world, many of these species are threatened with extinction.
The productivity and functional capacity of wetlands depend on their ecological quality. However, wetlands are among the most threatened habitats in the world because of drainage, eutrophication, land reclamation, pollution and incompatible land uses.
Wetland acreage losses in the conterminous U.S. and Michigan between the early settlement days and the National Wetlands Inventory in the mid-1980s (Dahl, 1990) are estimated to be 53 percent and 50 percent, respectively. Though most of the early losses can be attributed to the conversion of wetlands to agricultural use, more recent losses-especially since the 1950s-are mainly caused by conversion to residential, commercial and transportation uses. Drainage of wetlands for agricultural uses has significantly decreased since the 1970s as a result of the enactment of federal wetland protection measures and incentives in recent farm bills (Food Security Acts) such as the Conservation Reserve and Swampbuster programs.
The emphasis of this report is on wetland preservation policies and associated legislation. But because legislation aims to preserve publicly recognized values, this chapter discusses the most important functions and values. "Functions" generally refer to ecological processes, whereas "values" connote an anthropogenic orientation in monetary terms (Benhart and Margin, 1994). Most wetland values were not explicitly recognized in the past, but currently, most functions are more realistically valued and acknowledged by our society. More specifically, the contributions of the various wetlands function to the overall quality of life are increasingly recognized, especially in suburban and rural areas most affected by the environ-mental impacts. This in itself is very significant because most legal protection generally results from recognized societal values (Mitsch and Gosselink, 1993). In the view of many in the professional and scientific communities, however, much needs yet to be accomplished to raise public understanding and awareness.
Williams (1990) identified four broad categories of wetland functions:
1. Physical functions: flood mitigation, coastal protection, sediment trapping and climatic functions.
2. Chemical functions: pollution trapping, removal of toxic residues and waste processing.
3. Biological functions: productivity and provider of habitats.
4. Socioeconomic functions: food production (fish, fowl and fauna) and recreational and aesthetic benefits that are difficult to quantify.
Because the public understanding of these functions varies, they are valued differently by society. In general, values can be divided in three main categories: socioeconomic, hydrological/biochemical and ecosystem functions. All are not exclusive-many values fall into more then one category. The most important values are discussed below.
Socioeconomic values
Assessing the "real" public "values" of wetlands is one of the valuation challenges in resource economics. "Value", in the context of assessing wetland resources, has a different meaning to different users and specialists. To the general public, it may represent recreational opportunities such as hunting, fishing, boating or wildlife observation. To an ecologist, the value of a marsh may be its significance as critical breeding habitat. To a land use specialist or resource manager, it may be shoreline stabilization, sediment retention, flood control and groundwater recharge. All these values are based on important use functions of wetlands, frequently well documented in the form of empirical evidence and scientific theories, and some-times reflecting public perceptions and preferences based on personal experience, knowledge or private interest perspectives.
In this context, it is important to emphasize the fundamental purpose of impact assessment of land use alternatives on the sustained production capacity of our renewable resources. It necessarily represents the broader, long-term public interests of multiple generations rather than the short-term monetary gains of narrowly defined private interests.
Placing an economic value on the loss of natural resources or expressing public preferences associated with impacts of policy changes or project alternatives on the natural environment is an objective of environmental valuation and resource economics. As such, it represents a fundamental distinction from other disciplines-attempting to reflect the functionality or public utility in economic terms. This economic value is a measure of the extent to which a user is willing to forego one set of alternative goods and services to obtain or maintain a particular set of goods and services, such as those represented by a wetland. This concept is typically referred to as the willingness to pay (WTP) and reflects a welfare measure or desire to maintain a habitat in its original, undisturbed functional or unpolluted state.
Economic theory and federal laws and regulations have progressed to address the challenges of economic valuation and public policy analysis. In the U.S., environmental valuation has its origin in the River and Harbor Act of 1902, requiring a systematic assessment of project benefits and costs to commerce. Lipton et al. (1995) list other milestones of this legislative history: - The Flood Control Act of 1936.
- The national thrust to broaden valuation by including intangibles and concerns of the environmental movement in the '50s and '60s.
- The National Environmental Policy Act (NEPA) of 1969, with its systematic impact assessment requirements.
- The Clean Air Act of 1970.
- The Clean Water Act of 1972.
- The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, including natural resource damage assessment.
- Executive Order 12291 of 1981 on Regulatory Impact Analysis.
- The Oil Pollution Act of 1990.
With regard to mandates associated with coastal and marine resource management and public policy, the following legislation is specifically relevant:
- Section 404 of the Clean Water Act, which addresses the wetland permitting process necessary to convert wetlands for development. It charges the U.S. Army Corps of Engineers to assess public and private benefits and costs and, specifically, to take into account environmental values.
- Section 319 of the Clean Water Act, which establishes a national program on non-point pollution control.
- Section 6217b of the Coastal Zone Act Reauthorization Amendments of 1990, which requires that states with coastal management programs develop a Coastal Nonpoint Pollution Control Program for approval by the EPA and NOAA.
- The National Environmental Policy Act (NEPA), requiring federal agencies to assess environmental impacts of proposed legislation and "other major federal actions significantly affecting the quality of the human environment." Subsequently, this authority has been extended to include any (partially) government-funded actions, even carried out by the private sector, requiring an Environmental Impact Assessment (EIS). Though cost-benefit analysis is discussed under the NEPA, it is not required. When a cost-benefit analysis is conducted, discussion of the relationship between the analysis and the unquantifiable environmental impacts, values and amenities is mandatory.
- The Magnuson Fishery Conservation and Management Act of 1976 and its amendments, requiring the preparation of fishery management plans under federal jurisdiction by fisheries management councils. This act requires cost-benefit analysis under the regulatory impact review component of the plan. To assist in this process, the National Marine Fisheries Service, under the auspices of NOAA and the Department of Commerce, provides guidance.
- The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), which mandates the preparation of regulations to assess natural resources damage from oil spills or hazardous substances to compensate society for losses incurred prior to the full restoration of the natural resources.
- The Oil Pollution Act (OPA) of 1990, which specifically mandates regulations for the assessment of damages from oil spills. Both CERCLA and OPA require the development of a systematic damage claim by which the values of lost resources and service flows, pending full restoration, are to be included. This may also include the value of wildlife and the existence value that society attaches to a natural habitat or wilderness area. These acts are rather comprehensive in identifying valuation methods and the range and types of values that may be included.
- The Coastal Zone Management Act of 1972, which identifies coastal resource uses subject to management that may require benefit-cost analysis. These include the siting of major facilities such as energy, commercial and industrial development, transportation and recreation.
- The Marine Protection, Research and Sanctuaries Act of 1972 (as amended), which requires assessment of socioeconomic benefits derived from sanctuary designation, in combination with an EIS, and fisheries management guide-lines and pollution regulations.
- The National Estuary Program (NEP), established under sections 317 and 320 of the Water Quality Act of 1987 (amended to the Clean Water Act), which directs the development of comprehensive conservation and management plans (CCMPs), which are critically dependent on the valuation of estuarine functions and services.
Valuation of socioeconomic benefits may be based on the real market price of goods and services produced by wetlands or, alternatively, on the so-called non-market goods and services and non-use value, such as aesthetic considerations. The first category is represented by socioeconomic benefits such as food production (fish, fowl and fauna) and other animal products harvested. Another example is forested wetlands as a source of fiber with high harvest volumes due to high productivity rates-e.g., bottomland hardwood in the southeastern part of the United States. The second category, non- market goods and services, represents other societal benefits of wetlands not formally "traded" in the marketplace, such as flood protection, erosion and sedimentation control, preservation of biodiversity and the provision of recreational opportunities.
In assessing negative project impacts or cost, opportunity cost- representing (short-term) benefits foregone by not developing or exploiting wetlands-may be considered as well. Examples of these costs may include protection measures preventing use of bogs for cranberry production or other forms of agriculture in reclaimed (drained) wetlands with excellent soils for certain specialty crops due to high organic soil content, acidity or nutrient supply. Historically, drained wetland soils have typically contributed disproportionately more to the regional economy than higher situated mineral soils.
Another important example is the use of wetlands as a source of peat, a clean-burning fuel source with a relatively high caloric value. Peat production is concentrated in countries with vast deposits. These include Russia, with 89 percent of the world production total; Ireland, with 6.2 percent; and Finland, with 3.4 percent (Williams, 1990, and Mitsch and Gosselink, 1993). Peat mining in lowland areas of the Netherlands and northern Germany has created wetland resources with unique ecosystems, permitting various stages of wetland succession and habitat formation varying from floating bogs to forested wetlands. The mining of peat as a non-renewable energy source, however, typically destroys more unique wetland habitat than it creates. This is especially significant when it involves the destruction of elevated bogs, an oligotrophic ecosystem that, by its unique nature and limited acreage worldwide, is a scarcer ecosystem than lowland bogs, which are (increasingly) subject to eutrophication.
Recreational and aesthetic benefits are also non-market socioeconomic values. If hunting is seen as a form of recreation, hunter expenditures may be counted as revenues to the local community and as a contingent value of wetlands. Aesthetic values are more difficult to quantify, however, because of the inevitable subjectivity. Here contingent values may be based on the public's willingness to pay to have these values preserved.
Non-market goods and services provided by wetlands have traditionally been considered secondary in importance to the economic value of quantifiable market products. However, as more scientific knowledge and public understanding have emerged on the functional benefits of wetland protection, societal willingness to endorse preservation policies has increased.
Hydrological and biochemical values
Hydrologic values, because they represent significant aspects of the quality of life, may be viewed as part of socioeconomic values and, therefore, considered very important.
Wetlands in low-lying areas have an important water storage and peak-flow retention function, especially during severe rainstorms and during high water levels in the spring characterized by high soil moisture balances because of low evapotranspiration rates, high precipitation and melting snow. As illustrated in (Vis. 2), reducing peak runoff reduces flood risk.
In 1977, the Carter administration acknowledged this risk, specifically, by issuing an executive order to protect floodplains (see, Wetland protection policies). The accompanying statement indicated that the federal government had invested $ 10 billion between 1936 and 1977 to reduce flood hazards. Despite these efforts, annual losses from floods continued to increase (Environmental Law Institute, 1993). In 1975, U.S. flood damage was estimated at $3 billion to $4 billion.
Development in floodplains that reduces water storage increases flood risks. In general, the function of flood abatement seems undervalued - floodplain development is the most significant cause of wetland destruction (Darnay, 1994). Coastal wetlands can absorb most of the destructive power of storm surges. A 30-meter wetland buffer is enough to dissipate most wave energy, and at the same time, wetland vegetation, with its complex root systems, protects against erosion (Mitsch and Gosselink, 1993; Kusler, 1983; Williams, 1990).
Wetlands also perform an important function in maintaining water quality by recycling and accumulating nutrients, trapping sediments and transforming a variety of toxic chemical substances (National Science Foundation, 1995; Mitsch and Gosselink, 1993; Kusler, 1983; Williams, 1990). A study by Houck and Rolland (1995) indicated that a loss of 50 percent of America's remaining wetlands would result in increased sewage treatment plant expenditures of up to $75 billion just to remove nitrogen. A Swedish study concluded that the benefits of using land for wastewater treatment are greater than the value of the same land used for agricultural production (Benhart and Margin, 1994).
Ecosystem values
Globally, biodiversity is threatened. Present estimates indicate that one to six plant and animal species become extinct per day. According to Dannay (1994), this number will increase to one species per hour by the year 2000. Increasingly, biodiversity is recognized as an important socioeconomic value.
The presence of wetlands is highly correlated with biodiversity. Wetlands represent a fertile breeding habitat for many species of flora and fauna, and many plants exist only within wetland ecosystems. Scientists estimate that 150 bird species and 200 fish species depend entirely on wetland ecosystems (Berhart and Margin, 1994). Of the 97 species that became extinct since 1600, approximately one-third were wetland birds. Of the species vulnerable to extinction, 16 percent are wetland birds (Buisson, 1994). Many of Europe's most threatened species rely on wetlands for their survival, including 20 of Europe's most threatened birds. A quarter of the most threatened and most vulnerable plants are concentrated in wetland habitat (Institute for European Environmental Policy, 1991). Coastal wetlands are used as nursery ground for many fish species that feed on wetland-dependent food. Nearly two-thirds of the U.S. commercial and saltwater fish catch probably depends on the coastal estuaries and their wetlands (Williams, 1990).
The most well-known wetland function is providing wintering and breeding grounds to migratory birds. Scholars have discovered a strong correlation between the diminution of numbers of migratory birds and the reduction of wetlands through drainage and cultivation. The breeding and wintering areas of migratory birds are linked by several flyways, such as the Palearctic flyway in Europe (see European Union). The presence of small stopover wetlands along these flyways is crucial to the survival of migratory birds (IEEP, 1991), which, according to a Fish and Wildlife Service inventory, include more than 23.3 million birds (Williams, 1990). The Waddenzee, with almost half a million waders present, is a coastal wetland between the Netherlands, Germany and Denmark that is also of major significance for migratory birds (Williams, 1990). Some wetland waterfowl in the Netherlands are known to represent 20 to 77 percent of the total breeding population of western and central Europe (Ministry of LNV, 1990)
Global wetlands
Only wetlands of the selected countries are chosen for this comparative research. To present a contextual review, however, the global situation is also briefly discussed. This discussion includes aspects of international legislation because of its significant influence on wetland protection in the selected countries.
History
Several studies have estimated the global extent of wetlands. Estimates range from 5.25 million to 8.5 million square kilometers. Globally, wetland ecosystems (including rice paddies), at an estimated 7 to 8 million square kilometers, account for 6 percent of the land area (Mitsch, 1994; OECD, 1992).
As mentioned earlier, the total acreage of wetlands declined dramatically during the past decades. Wet-lands are considered to be among the most threatened ecosystems of all environmental resources. In Europe, except for Scandinavia, natural wetlands have vanished almost completely.
A significant proportion of the world's wetland ecosystems is peat-forming. Peatlands in the developed countries have been altered by two main processes: conversion to agricultural or forestry use, and mining of peat for energy and horticulture (IUCN, 1992). Peatlands in their natural condition impose restrictions on intensified agricultural utilization because of the high water table and the physical-chemical characteristics of the organic profile. Historically, peat has been cut in limited quantities to satisfy the energy needs of many isolated communities. Since the turn of the century, however, the use of peat on an industrial scale for power generation and district heating plants has expanded considerably. Fuel peat production worldwide nearly doubled between 1950 and 1980, from 47 million tons to 90 million tons (IUCN, 1992). For example, 90 percent of the peat cut in Finland is used to generate power. Estimates show that, on a global scale, 50 percent of the wetlands that once existed have been lost (IUCN, 1991).
Trends in wetland areas
Despite the increased recognition around the world of the importance of wetlands, their destruction continues (Mitsch, 1994). Contributing to the currently lower rate of wetland losses in the industrialized world is the fact that most sites that were readily accessible and could be reclaimed at a lower cost have already been lost. In the developed world, the network of protected areas covers only small portions of the total wetland area. Outside such parks and reserves, wetlands continue to decline (IUCN, 1991).
International protection of wetlands
Ramsar Convention (1971)
The Convention on Wetlands of International Importance, also known as the Ramsar Convention - named after the city in Iran - was adopted in 1971 through the cooperation of 18 nations. The convention is an intergovernmental treaty that provides the framework for international cooperation in conserving the world's wetland habitats.
All E.U. states and the United States are contracting parties of the Ramsar convention. At present, there are 96 contracting parties to the convention with 858 wetland sites, totaling nearly 55 million hectares, designated for inclusion in the Ramsar List of Wetlands of International Importance. Western Europe has 53 percent (408) of all Ramsar sites and North America has the greatest total area (14,894,800 hectares) designated under the Ramsar Convention (Wetland International, 1996). Convention parties formally recognized that wetlands are essential for hydrological and ecological processes, the rich flora and fauna and support of human activities. The convention's objectives focus on stemming the loss of wetlands and ensuring their conservation and sustainable wise use for future generations. The treaty is unique in its focus on a particular ecosystem and provides the framework for the international protection of wetlands as habitats for migratory fauna, for the benefit of human populations. Countries that have ratified the agreement commit themselves to "wise use" of all areas that constitute wetlands. It recommends the creation of nature reserves to conserve wetlands and waterfowl.
The Ramsar Convention Bureau fosters cooperation among countries by promoting wetland conservation, recognizing that many wetland systems either cross or are affected by international water systems. It also recognizes that migratory fauna management requires international cooperation. Hence, international action is required to promote the establishment and maintenance of an international network of protected wetland areas to ensure the conservation of critical functions and values. These objectives are enhanced by the promotion of sound national land use planning practices based on environmental carrying capacity. Contracting parties to the convention undertake to respect four main obligations:
- Designation of at least one wetland for inclusion in the List of Wetlands of International Importance.
- Promotion of the wise use of wetlands within their nation, particularly through the implementation of wetland conservation and management policies.
- Consultation with other contracting parties about implementing the obligations arising under the convention, particularly for those wetlands shared between nations.
- Establishment of protected wet-land areas throughout their nation.
One of the doctrines of the convention was the establishment in 1990 of the Ramsar Wise Use Principles, complementing global sustainable development goals. In industrialized and developing countries alike, land use impacts on wetlands are frequently incompatible with the objective of sustaining ecosystem functions. These principles address this issue by calling on the contracting parties to:
- Establish and implement national wetland conservation policies.
- Undertake review and revision of the legislative and governmental infrastructure to promote wetland conservation.
- Undertake wetland inventories for wetland management.
- Promote wetland research.
- Establish protected wetland reserves.
- Promote public education and awareness of wetland values and conservation.
Wetlands of International Importance are selected on the basis of ecological, botanical, zoological, hydrological, fisheries and human use criteria. Sites can be nominated because they represent rare or unusual wetland types in a biogeographical region. Sites of international importance that are subject to potential changes in ecological character due to technological developments, pollution or other human interference are listed in the "Montreux Record", an international "early warning" list maintained as part of the Ramsar Database. The record was established by recommendation 4.8 of the 1990 Mantras conference to identify priority sites for positive national and international conservation attention. The Mantras Record is reviewed regularly by the convention's Scientific and Technical Review Panel (Ramsar Convention Bureau, 1997).
World Heritage Convention (UNESCO, 1972)
The full name is the Convention for the Protection of the World Cultural and Natural Heritage. Its objective is to protect natural and cultural areas of outstanding value. These areas are selected by the World Heritage Committee and make up the World Heritage List or, for seriously threatened sites, the List of World Heritage in Danger. Each contracting party is obliged to take all possible measures to protect the sites included in these lists.
Bonn Convention (1979)
The Convention on the Conservation of Migratory Species of Wild Animals arose from one of the recommendations of the action plan adopted at the UN Conference on the Human Environment in Stockholm in 1972. Article III states that parties that are range (areas that a migratory species inhabits) states of a migratory species listed in the appendix shall endeavor to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction (Bonn Convention, 1979).
United Nations Conference on Environment and Development
The main objective of the Convention on Biological Diversity is to conserve biological diversity and its sustainable use of components of that biodiversity. Article 6a of the treaty states that: countries will develop national strategies, plans, or programs for the conservation, and sustainable exploitation of the biodiversity (UNCED, 1992).
International criteria for wetland classification and designation
International criteria for wetland classification are identified in the Ramsar Convention. Sites are designated on the Ramsar list on the basis of their international importance in ecology, botany, zoology, limnology or hydrology. The Ramsar criteria are classified into three groups (Wetlands International, 1996):
Criteria for representative or unique wetlands.
A wetland should be considered internationally important if:
1. It is a particularly good representative example of a natural or near-natural wetland characteristic of the appropriate biogeographical region.
2. It is a particularly good representative example of a natural or near-natural wetland common to more than one biogeographical region.
3. It is a particularly good representative example of a wetland that plays a substantial hydrological, biological or ecological role in the natural functioning of a major river basin or coastal system, especially where it is located in a trans-border position.
4. It is an example of a specific type of wetland rare or unusual in the appropriate biogeographical region.
General criteria based on plants or animals.
A wetland should be considered internationally important if:
1. It supports an appreciable assemblage of rare, vulnerable or endangered species or subspecies of plant or animal, or an appreciable number of individuals of any one or more of these species.
2. It is of special value for maintaining the genetic and ecological diversity of a region because of the quality and peculiarities of its flora and fauna.
3. It is of special value as the habitat of plants or animals at a critical stage of their biological cycle.
4. It is of special value for one or more endemic plant or animal species or communities.
Specific criteria based on the waterfowl.
A wetland should be considered internationally important if:
1. It regularly supports 20,000 or more waterfowl.
2. It regularly supports substantial numbers of individuals from particular groups of waterfowls indicative of wetland values, productivity or diversity.
3. Where data on populations are available, it regularly supports 1 percent of the individuals in a population of one species or subspecies of waterfowl.
These criteria led to the Ramsar classification (Vis. 3).
Figure 1. Diagram of relationship between the reference definition, criteria, general indicators and specific indicators for wetlands (source: National Science Foundation, 1995). (Vis. 1)
Figure 2. The general effect of wetlands on stream flow (Source: Mitsch and Gosselink, 1993). (Vis. 2)
Figure 3. Wetland classification used by the Ramsar Convention Bureau (Scott and Jones, 1995) (Vis. 3)
Wetlands in the United States
History
By means of the Swamp Acts between 1849 and 1860, the U.S. Congress gave 64 million acres (26.32 million hectares) of wetlands to 15 states, urging reclamation and sale. The president of the American Health Association declared in 1876: "The state cannot afford to be indifferent to the presence of swamps which check production, limit population, and reduce the standard of health and vigor." The land area that currently comprises the U.S. contained in 1780 almost 392 million acres (158.70 million ha) of wetlands, of which 221 million acres (or 89.5 million ha) were in the lower 48 states. In the 1980s, in the conterminous U.S., 104 million acres (42.1 million ha) of wetlands remained. Alaska has the vast majority of wetland acreage (Dahl, 1990). Since European settlement, the United States has lost 53 percent of all its wetlands (Cwikiel, 1992). California lost 91 percent and Alaska less then 1 percent (Dahl, 1990).
Conversion to agriculture accounted for 87 percent of the estimated 13.8 million acres of wetlands lost in the mid-1950s to mid-1970s period (Heimlich, 1989). The rate of conversion between 1954 and 1974 was about 500,000 acres annually. Between the mid-1970s and the 1980s, the loss was 290,000 acres per year (Dahl, 1991) and from 1987 to 1991, 105,000 acres per year (Danielson and Leitch, 1996). Conversions to agricultural use dropped to 54 percent. According to Darnay (1994), commercial development is the main cause of wetland destruction since 1985, accounting for more than 50 percent.
Trends in wetland areas
Predicting the future is difficult, but trends are evident (Tiner, 1984). A growing population increases development pressure. In addition, population is shifting from the industrialized Northeastern and North Central states to the Southeast and Southwest, which increases development pressures on wetlands in these regions. The National Planning Association estimated that 80 percent of the nation's population growth during the 1980-2000 period would occur in the South and the West. The top 10 states in projected population increases are California, Florida, Texas, Arizona, North Carolina, Georgia, Washington, Colorado, Virginia and Tennessee (USDI, 1989).
Especially in the Western states, competition for water increases between agricultural and non-agricultural users and reduces ecosystem availability. Suburban expansion means more acreage per household. The pressure to drain wetlands will continue to increase. The Fish and Wildlife Service estimated in 1989 that wetland losses were still continuing at a level as high as 450,000 acres annually (USDI, 1989) and will result in an additional 4,250,000 acres loss by the year 2000 (USDI, 1990).
Michigan
Michigan, situated in the heart of the Great Lakes Basin, is surrounded by freshwater. Like most of the other northern states, it is a product of glacial action, followed by the modifying influences of water, wind and revegetation. The interior is dotted with lakes and drained by major river systems (Michigan Society of Planning Officials, 1995).
Before European settlement, Michigan had a wide variety of habitats, largely forested in the Upper Peninsula and the northern half of the Lower Peninsula. The southwest was covered with oak savannas and prairies (MSPO, 1995). Almost one-third was wetland (Michigan DNR, 1988). In fact, wetlands attracted immigrants into the region in the 1600s because of the abundance of fur- bearing species that relied on wetlands. As soon as Michigan was ceded to the United States by Britain after the Revolutionary War, immigrants began to move into southern Michigan and clear land for farming.
With the completion of the Erie Canal from New York to Lake Erie in 1816, a rush of settlers entered the state. In 1810, Michigan had 4,762 residents; by 1840, mainly to drainage for agriculture, that figure had increased to 180,628 (MSPO, 1995). Michigan has lost about 50 percent of its wetland acreage since early settlement (MSPO, 1995, MDNR, 1988). This includes uses for horticultural crops and for specialty crops such as blueberries. Michigan farmers are being encouraged to cultivate cranberries by horticulture marketing experts. In addition, cranberry growers from southeastern Massachusetts are lured to Michigan (Goodenough, 1995). Urban sprawl, however, constitutes the most significant threat to wetlands. Though the population is barely rising, more space per capita is being used to house Michiganians (MSPO, 1995).
Wetland protection in the United States
Legal system
The U.S. national government delegates many powers and responsibilities to the individual states. In certain areas of public policy, state governments have a high degree of autonomy, as do local governments such as county and municipal governments (cities, boroughs, townships and villages). This autonomy is a direct result of the colonial history and dates back to the early 17th century English settlements, which experienced an acute localization of authority by scattered settlers. Counties were soon created as the basic unit of local government. In New England, seven towns were created shortly after the arrival of the first settlers and the town became the sole unit of local government. Consequently, local government gained a high degree of autonomy, which explains the current mistrust of distant central political power (Wood, 1996). This "home rule" principle is still quite prevalent.
A different legal issue in wetland protection is the broader debate over the protection of private property rights. It is more difficult to regulate private land use in the U.S. than in European nations. A primary reason is that there is no consensus about the proper reach of government and public authority (Reilly, 1996). In history, from the beginnings of European settlement of the North American continent, land-hungry immigrants arrived with one paramount goal: finding a piece of secure property. They also imported the feudal English common-law system (Farm Foundation, 1985) with a differentiated bundle of property rights. Private ownership was defined as the right to possess, to use, to manage, to benefit, to be secure and to alienate. This represents an exclusive rather than an absolute right. The latter disregards the interest of others in the exercise of ownership (Farm Foundation, 1985). The only rights retained by government were taxation rights, the right to acquire the land by eminent domain and compensation, and the right to regulate the use of land.
Even at present, national property rights movements, backed by provisions of the fifth amendment to the Constitution, have found powerful champions in the U.S. Congress. This is exemplified by the practical inclusion of development rights as part of private property rights and the compensation requirements as a result of the public "taking" right. According to a major ruling in 1992 (Lucas vs. South Carolina), the U.S. Supreme Court decided that regulations denying "economically viable use of land" require due compensation no matter how great the public interest involved. The "taking" issue is one of the dilemmas of valuing and protecting wetlands. In contrast, development rights are not inherently part of private rights in European countries, and therefore public land use restrictions limiting "highest and best use" of private property do not have to be compensated.
According to a 1994 study by the National Association of Home Builders, the value of private property is very dependent on its immediate surroundings. Favorable regulations that limit the expansion of incompatible land uses and thereby prevent the reduction of private property values are not directly compensated by beneficiaries. In essence, land use restrictions designed to improve or restore environmental quality may be viewed as a taking under the fifth amendment of the U.S. Constitution (Reilly, 1996). As part of the Bill of Rights, the "just compensation clause" is lodged in the fifth amendment protecting property owners against uncompensated government seizure of property for the public good. It states that "private property shall not be taken for public use without just compensation". With the industrialization of America, government found it necessary to impose regulations to protect the public's health and safety. In 1922, Justice Holmes decided that if a regulation goes too far, it would be recognized as a taking. In U.S. Claims Court, Judge Smith awarded $64 million plus interest to property owners injured by environmental regulations (Brookes, 1991).
Despite the "taking" issue, the constitutional hurdle remains high for property owners. First, owners are not automatically entitled to the most profitable use of their land. Local zoning, nuisance or wetland ordinances restricting the type and nature of development are examples of use limitations. Second, diminutions of value caused by government regulations are uniformly tolerated. Third, virtually all public interests to be served by environmental laws are legitimate in the context of the constitution. Last, such laws are usually found to substantially advance the public interest.
The impact of the property rights movement caused several states to adopt legislation to protect property rights. The first is the "Takings Impact Assessment" analogue on the environmental impact assessment (EIS). In 1988, the Reagan Administration issued Executive Order 12630, which requires state agencies to evaluate most government action to determine whether such action could result in a taking of private property. The second is compensation bills that require states to pay property owners when regulations decrease the property market value by a certain percentage.
Wetland protection policies
The first action taken to protect wetlands was by the Carter administration in 1977 with the issuance of two executive orders that established wetland protection as official federal policy. The first, Executive Order 11988 on Floodplain Management, established federal policy for the protection of floodplains. It directed agencies to revise procedures and consider the impact on floodplains and to avoid direct or indirect support of floodplain development if alternatives existed. The second, Executive Order 11990 on the Protection of Wetlands, required that all federal agencies minimize the destruction, loss or degradation of wetlands. In addition, the preservation and enhancement of natural and beneficial values of wetlands became part of an agency's responsibilities. Both executive orders applied to all property owned by the federal government.
No net loss
In 1987, a National Wetlands Policy Forum was convened to investigate the status of wetland management in the United States. The forum formulated as its major objective to achieve no overall net loss of the nation's remaining wetlands. This meant that if, for economic or political reasons, wetlands were destroyed, replacement was required by restoration or construction. This concept became a cornerstone of wetland conservation in the United States (Mitsch and Gosselink, 1993). In 1988, the Bush administration embraced this concept as a national goal. In response to this goal, a "no net loss" Wetland Action Plan was prepared by the U.S. Fish and Wildlife Service. This action plan draws on existing legislative authorities, regulations, and directives to focus and emphasize wetland conservation activities toward the goal of eliminating the net loss of wetlands (USFWS, 1990).
National Wildlife Refuge System
The well-being of wildlife depends on vital habitat. Besides regulating land, the federal government also acquires and manages wildlife habitat for wildlife conservation. The first attempt to create a systematic pro-gram of wildlife refuge acquisition was for migrating birds by means of the Migratory Bird Treaty Act of 1913. The success of this act was limited, and the Migratory Bird Conservation Act was passed in 1929 (Bean, 1977). Funding for refuge acquisition was obtained from the sale of duck stamps to hunters.
Federal laws
The United States does not have a formalized national wetland protection law. Rather, measures of protection are provided through laws that address other purposes (Mitsch and Gosselink, 1993). Wetlands are managed primarily under regulations related to land use and water quality.
Swamp Land Act of 1850
This act enabled states with considerable acreage of land that was "wet and unfit for cultivation" to reclaim and develop the land. It stated that land should be transferred from federal to state ownership to permit drainage of swamplands. In total, about 64 million acres (25.9 million ha) were granted to the states; half the land was considered suitable for farming (National Science Foundation, 1995).
River and Harbor Act of 1899
The River and Harbor Act (RHA) mandated the U.S. Army Corps of Engineers (USACE) to maintain navigation with the responsibility to regulate dredging and filling of "navigable waters." Subsequently, the courts gave the USACE authority to review fill permits of submerged land resulting in potential ecological damage. This resulted in the legal protection status of wetlands. Section 13 of the RHA, which makes it unlawful to discharge refuse into navigable waters without a permit, is superseded by the permit authority of section 402 and 405 of the Clean Water Act. Today, however, it still may be used for enforcement purposes (Goodenough, 1995).
Water Bank Act of 1970
The U.S. Department of Agriculture's Water Bank Program for Wetlands Preservation offers landowners of important migratory waterfowl nesting and breeding areas 10-year renewable agreements. In return for an annual fee, the landowners agree "not to drain, burn, fill, or otherwise destroy the wetland character or to use such areas for agricultural purposes" (Bean, 1977; Gosselink, 1990).
The Clean Water Act of 1972
Section 404 of the CWA is the primary vehicle for wetland protection and regulation. It is somewhat controversial because wetlands are not specifically mentioned. It provides authority to the Army Corps of Engineers to establish a permit system to regulate the dredging and filling of materials in all "waters" of the United States. Initially, this was limited to navigable waters, but after two court decisions (Natural Resources Defense Council v. Callaway and United States v. Riverside Bayview Homes), wetlands were explicitly included (Zinn and Copeland, 1996). As a result, the following waterways are included:
- All interstate waters, including interstate wetlands.
- All other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.
- All impoundments of water that fit these definitions.
- Tributaries of any defined waters.
- The territorial seas.
- Wetlands adjacent to waters, other than adjacent to other wetlands.
Furthermore, the EPA, to which the secretary of the army provides the permit review guidelines, controls which areas may be listed as suitable disposal sites and can prohibit certain materials from being discharged at an approved site on certain grounds. Permits expire at the end of five years (NWSTC, 1993).
Section 404(f)(1) provides the following statutory exemptions for permit application requirements:
- Normal farming, silviculture or ranching activities such as plowing, seeding, minor drainage and harvesting.
- Maintenance of structures such as dikes, dams, levees, breakwaters, causeways and bridge abutments.
- Construction or maintenance of farm ponds or irrigation or drainage ditches.
- Construction of temporary sedimentation basins on construction sites.
- Farm or forest roads, or temporary roads for moving mining equipment, under the condition that best management practices are met and the water is neither impaired nor permanently changed.
- Actions authorized by an approved state regulatory program.
However, these exemptions are subject to the "recapture" provision of 404(f)(2), which requires a permit if a discharge changes the use of water, impairs its flow or circulation, or reduces the reach of the water. This provides a balance between the exemptions and the recapture provision so that only routine activities with relatively minor water quality impacts are exempt.
Embodied in the CWA's statement of policies is Congress' intent to encourage state implementation of, among others, the federal 404 permit program (Environmental Law Institute, 1993). The 104th Congress indicated that environmental protection was best left to individual states and suggested that state government, being closer to the people, was more democratic (Goodenough, 1995). Until now, only Michigan (see Michigan laws) and New Jersey have received authorization to administer the 404 program. Oregon is about to be the next (Goodenough, 1995).
Endangered Species Act of 1973
This act protects threatened species throughout the country. The Endangered Species Act (ESA) plays a substantive role in 404 permitting of the CWA. Section 7 of the ESA prohibits all federal actions, including permit approvals, that would jeopardize listed endangered species or adversely modify habitats critical to their survival (Houck and Rolland, 1995).
Food Security Act (FSA) of 1985
The FSA, sometimes also referred to as the "farm bill", includes two provisions that are of special importance for wetland protection, namely the Swampbuster provisions and the Wetland Reserve Program.
Swampbuster
The Swampbuster provisions address general wetland preservation objectives and identify the presence of wetlands on the basis of three physical wetland features: wetland-type soils, wetland plants and water. Because normal agricultural and silvicultural activities were exempted from section 404 permit requirements, allowing farm wetland drainage and in commercial forests, these Swampbuster provisions were provided as a part of the 1985 Food Security Act. They deny federal subsidies to any farm owner who knowingly converts wetlands to farmland after the effective date of the act. Swampbuster enforcement is a two-step process (Zinn and Copeland, 1996). The Natural Resource Conservation Service (NRCS) determines first whether swampbusting has occurred. If so, the landowner is referred to the agencies administering farm benefit programs, which then render a decision on benefit denial.
Wetland Reserve Program
The Wetland Reserve Program was enacted in the 1990 farm bill. It is a voluntary program entitling land-owners to receive payments for restoring cropland converted from former wetland and protecting those wetlands (NRCS, 1996). The Wetland Reserve Program (WRP) is authorized by the Food Security Act of 1985 and was amended in the 1990 farm bill. The restoration cost-share can be up to 75 percent and additional economic return is possible. In this process, landowners are offered the appraised agricultural market value of their land in exchange for signing a permanent easement and restoring the land to wetland status. Easements for 30 years may also be offered for 50 percent of the appraised value. So far, the USDA has sought only permanent easements (Zinn, 1994).
Tax Reform Act of 1986
This act reduced the fiscal benefits of drainage by eliminating tax expensing of wetland drainage costs not in compliance with the Swamp-buster provision. Gains on sales of converted wetlands are treated as ordinary income rather than as capital gains and, therefore, taxed at a higher rate (Leitch, 1992).
Emergency Wetlands Resources Act of 1986
The U.S. Congress concluded that wetlands are nationally significant resources that contribute to the economy, food supply, water supply and quality, flood control, and fish, wildlife and plant resources. This 1986 act was enacted to promote the conservation of wetlands by intensifying cooperative efforts among private interests and local, state and federal governments for the conservation, management and/or acquisition of wetlands (USDI, 1989). Under the act, the USDI was directed by Congress to develop a National Wetlands Priority Conservation Plan. This plan identifies the locations and types of wetlands and interests in wetlands that should receive priority attention for wetland acquisition projects by federal and state agencies using Land and Water Conservation Fund appropriations. The primary purpose of the plan is to assist decision-makers in focusing their acquisition efforts on the more important, scarce and vulnerable wetlands in the nation (USDI, 1989).
Planning and zoning
State and local natural resource management dates back to the 1800s, when park, wildlife and forestry programs were established for lands in the public domain. Control of the private use of land was possible only by outright acquisition. It was not until the 1920s that states authorized local units of governments to adopt zoning and subdivision regulations. In practice, however, lack of effective local control and demand for land close to urban centers resulted in construction within floodplains and destruction of wetlands (Kusler, 1980).
Rural land use planning is often undertaken principally for economic development with limited emphasis on resource protection. Though a significant number of federal programs have an indirect impact on land use decision making (137 federal pro-grams in 1979-such as the Department of Housing and Urban Development (HUD) with its urban revitalization programs and USDA/NRSC with well intended efforts to preserve prime farmland, etc.), land use planning remains largely the domain of local government. Though some states' programs assumed some responsibilities after WWII, specifically in the 1970s, most states-including Michigan-re-delegated planning authority to the local level in the 1980-90 period. Oregon and New Jersey are notable exemptions because of their adoption of state-wide planning strategies and growth management policies. The federal role is mostly limited to providing funding for city and regional planning activities (Held and Visser, 1984), with specific allocations to public housing assistance (HUD), transportation and economic development (U.S. Department of Commerce, Economic Development Administration).
The implications of this "laissez-faire" policy are significant. Demand for indiscriminate conversion of open space, including prime agricultural land and wetlands, primarily for residential use, has exploded since World War II. This suburban sprawl is associated with a disinvestment in urban areas. As pointed out by Richmond (1997), during the 1980-90 period, the U.S. poverty rate in urban areas increased by 40 percent while the area associated with this poverty rate increased by 54 percent. On the basis of current and projected trends, Michigan's population increase over the 1980-2010 period is projected to translate into a tenfold residential area increase! Clearly, these trends are associated with erosion of the local tax base of the inner cities and a declining service infrastructure.
Nationally, land conversion for urban development, at current rates, is largely (80 percent) associated with single family residential use. The pull factors of urban sprawl include a higher quality of life with lower crime rates, better educational and recreational opportunities, increasing property values, comparatively low tax rates/house value and improved environmental quality.
Public investments associated with this development are not only costly and inefficient but they also effectively subsidize urban sprawl by providing the necessary capital expenditures and services, such as police and fire protection and infrastructural expansion. In reality, residential taxation rates are insufficient to cover the costs of infrastructural development and maintenance. Most of these costs are born by non-residential uses and, to some extent, by people outside local jurisdictions. Buchell (1997), in discussing the fiscal impacts of sprawl, indicates that in South Carolina, public investments needed to accommodate current growth patterns are directed primarily to road construction (50 percent). The remainder is distributed among education (20 percent), health services (15 percent), commerce (5 percent), environment (3 percent), and recreation and culture (2 percent). He states that this public investment, coupled with graduated tax abatements over a 33-year period to attract new industries in an attempt to generate employment opportunities, is clearly not directly borne by the principal recipients of these benefits-suburban residents. This shortfall in revenues associated with uncontrolled growth will have to be offset by increases in taxes on fuel, real estate and sales, toll roads and parking fees.
Michigan
Michigan laws
Clean Water Act
As mentioned above, Michigan is one of the two states authorized to administer the federal 404 permit program of the CWA. In 1977, the Michigan Department of Natural Resources (MDNR) and the U.S. Army Corps of Engineers signed a Memorandum of Understanding (MOU, 1977) stating that "a considerable portion of the duplication which necessarily results from processing permit applications independently can be eliminated if application processing is done in a joint matter". This MOU refers both to permits under the River and Harbor Act of 1899 and the Clean Water Act.
In 1984, a Memorandum of Agreement (MOA, 1984) between Michigan and the USACE delegated administrative authority for the section 404 program. In it, the corps also waived its right to review MDNR permits. Two exceptions were made. The first, for major discharges into areas that could affect existing or proposed Detroit District COE (Chief of Engineer) projects, and second, for discharges that may affect navigation in navigable waters of the U.S. "All waters within the state of Michigan shall be regulated by MDNR other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including wetlands adjacent thereto". Under these provisions, the EPA retains review authority.
Two laws primarily are used to regulate Michigan's waters and wetlands as provided under CWA's section 404: the Natural Resources and Environmental Protection Act and the Inland Lakes and Streams Act. The other laws are ancillary state statutes that partly overlap Michigan's wetland jurisdiction (Goodenough, 1995).
Natural Resources and Environmental Protection Act of 1994
Part 303 of the Natural Resources and Environmental Protection Act of 1994 (NREPA) replaced the Wetland Protection Act (Act 203) of 1979, in effect since 1980. The act prohibits draining, dredging or filling of regulated wetlands without a permit from the MDNR. Because of the broad definition of wetlands, the amount of wetlands regulated by the NREPA is considerable. The NREPA covers all wetlands contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream; and wetlands not contiguous to the Great Lakes or Lake St. Clair, an inland lake or pond, or a river or stream that are 5 acres (2.02 ha) or larger.
"Contiguous to the Great Lakes" includes every wetland within 1,000 feet of those lakes; or those located within 500 feet of an inland lake, river, pond or stream. Wetlands of any size in counties of fewer than 100,000 population are not covered by the NREPA wetland provision until the MDNR has conducted an inventory (Sadewasser, 1996). Wetlands contiguous and smaller then 5 acres can be protected under the NREPA if the MDNR designates them as "essential" (Michigan Compiled Laws Annotated, 324.303). State protection does not depend on the completion of a wetland inventory (Sadewasser, 1996).
To designate a wetland as "essential", one or more of the following criteria have to be met:
a. It supports state or federal endangered or threatened plants, fish or wildlife appearing on a list specified in section 36505.
b. It represents what the department has identified as a rare or unique ecosystem.
c. It supports plants or animals of an identified regional importance.
d. It provides groundwater recharge documented by a public agency.
A local unit of government in Michigan is allowed to protect contiguous or not contiguous wetlands that are smaller than 5 acres and meet the wetland protection provision of the NREPA. For wetlands between 5 and 2 acres, local governments have to comply with state regulation by using the same definition and completing an inventory. In 1995, 22 local governments had wetland protection ordinances (MDEQ *, 1995).
*In October 1995, the Department of Environmental Quality (DEQ) was separated from the MDNR. The DEQ is now responsible for regulatory wetland compliance issues.
If a local unit of government of Michigan has adopted a wetland ordinance for a site smaller than 2 acres, a development permit cannot be denied unless the site meets one of the following criteria:
a. The site supports state or federal endangered or threatened plants, fish or wildlife appearing on a list specified in section 36505.
b. The site represents what is identified as a locally rare or unique ecosystem.
c. The site supports plants or animals of an identified local importance.
d. The site provides groundwater recharge documented by a public agency.
e. The site provides flood and storm control by the hydrologic absorption and storage capacity of the wetland.
f. The site provides wildlife habitat by providing breeding, nesting or feeding grounds or cover for forms of wildlife, waterfowl-including migratory waterfowl-and rare, threatened or endangered wildlife species
g. The site provides protection of subsurface water resources and provision of valuable watersheds and of recharging groundwater supplies.
h. The site provides pollution treatment by serving as a biological and chemical oxidation basin.
i. The site provides erosion control by serving as a sedimentation area and filtering basin, absorbing silt and organic matter.
j. The site provides sources of nutrients in water food cycles and nursery grounds and sanctuaries for fish.
Potential wetland protection options in Michigan are summarized on the following (Vis. 4).
Part 301 of the NREPA replaced the Inland Lakes and Stream Act of 1972 (MCLA, 324.301). The Inland Lakes and Streams Act (ILSA) generally extends jurisdiction to any "natural or artificial lake, pond or impoundment, river, stream, or creek ... or any other body of water which has .. evidence of a continued flow or continued occurrence of water, including the St. Marys, St. Clair and Detroit Rivers." However, surface areas of less than 5 acres, the Great Lakes and Lake St. Clair are excluded from regulation under ILSA (Goodenough, 1995). Prohibited activities include dredging or filling bottomland, setting up constructions or making canals to connect with an inland lake or stream (ILSA, 1972).
Part 361 of the NREPA also replaced the Farmland and Open Space Preservation Act of 1974 (MCLA, 324.361)."This Act provides for farmland development rights agreements and open space development rights easements;...." Through the act, a "state or local governing body" can buy the development rights of a landowner for a period not less than 10 years by means of a development rights agreement or easement. Open lands that could be considered for an agreement or easement are areas "approved by the local governing body, the preservation of which area in its present condition would conserve natural or scenic resources, including: the promotion of the conservation of soils, wetlands and beaches...." As a practical matter, landowners may file an application to have land placed under the act in return for a reduction of tax liabilities. Early termination of such an agreement is subject to government review and approval and results in a (partial) restitution of the accumulated benefits.
Floodplain Regulatory Act of 1968
This act (Act 167) assesses the location and extent of floodplains, streambeds and stream discharge for the state's watercourses to prevent dangerous flooding events. Permits are required to alter a floodplain.
Part 17 of the NREPA is the former Michigan Environmental Protection Act of 1970 The Michigan Environ-mental Protection Act (MEPA). The MEPA prohibits any conduct that is likely to pollute, impair or destroy a lake, stream, wetland or other natural resources of the state. Exemptions are made if investigation shows that there are no less harmful feasible and prudent alternatives and the "conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction".
Soil Erosion and Sedimentation Control Act of 1972
This act (Act 347) is designed to protect the waters of the state from sedimentation caused by soil erosion. Permits are required for earth changes that disturb one or more acres of land or that are within 500 feet (150 m) of a lake or stream, or for alterations of the stream. Plowing, tilling, mining and logging are permitted under the act.
State Zoning Enabling Acts
The state can convey authority to local units through acts of the state legislature. Such powers take two forms, mandating and enabling. A mandating statute directs a township board to exercise certain powers and may vary from very detailed instructions, as in the laws governing uniform accounting and budgeting procedures, to broad grants of power, as for the responsibility to provide for the general health and welfare of the public.
Enabling or permissive statutes do not require local units to act but allow local officials to do so if they so desire. Once a township board votes to use the power, the enabling statutes often prescribe how the township should proceed in carrying out the functions. For instance, state law does not require a township board to adopt a zoning ordinance. But if it does, it must give proper public notice and create a zoning board of so many members and a board of zoning appeals (VerBurg, 1990).
Michigan has three zoning enabling acts for three types of local government.
The first is the City or Village Zoning Act of 1921.
This act provides a legal basis for ordinances that regulate "the use of land and structures, the height, the area, the size, and location of buildings ... the light and ventilation of those buildings". The density of population can also be regulated by ordinance and the designation of the use of certain state-licensed residential facilities.
The second, the County Rural Zoning Enabling Act of 1943, and the third, the Township Rural Zoning Act of 1943, serve the same purpose. The basis and considerations of both zoning ordinances are:
"The zoning ordinance shall be based upon a plan designed to promote the public health, safety and general welfare, to encourage the use of lands in accordance with their character and adaptability, and to limit the improper use of land, to conserve natural resources and energy, to meet the needs of the state's citizens for food, fiber and other natural resources, places of residence, recreation, industry, trade, service and other uses of land, to insure that uses of land shall be situated in appropriate locations and relation-ships, to avoid the overcrowding of population (to provide adequate light and air*) to lessen congestion on the public roads and streets, to reduce hazards to life and property, to facilitate adequate provision for a system of transportation, sewage disposal, safe and adequate water supply, education, recreation and other public needs, and to conserve the expenditure of funds for public improvements and services to conform with the most advantageous uses of land, resources and properties".
*Extra phrase of the Township Rural Zoning Act of 1943.
Local regulations: land use planning and zoning
Planning is accomplished by the development of a land use master plan and its implementation through local ordinances and regulations for zoning, subdivisions, housing, nuisance conditions, etc. As specifically authorized under the zoning acts, local authorities such as municipalities and townships may adopt zoning ordinances. In open space preservation and wetland protection issues, township actions are the most relevant, especially when bordering urbanizing regions.
The development of local government in the U.S. derives directly from the United Kingdom. The English shire, which was the unit for judicial administration and law enforcement, was the predecessor of the American county. The English parish, which was the unit for the maintenance of the established church, charities and local roads, became the American town or township. The English borough, a thickly populated area that had received a charter from the king to engage in business as well as governmental enterprises, was the prototype of the American municipality. There are distinctive differences in various parts of the country. In the South, the plantation system was adapted not to the town but to the county. In New England (northeastern states), the town is the principal unit of local government (Zimmerman, 1978).
Michigan local governments are patterned after the town meeting system of New England. Most counties have 36 townships, each generally comprising a 6-by 6-mile area. In the 19th century, these two forms of local government became inadequate for urban settlements where people needed more local services and required a government with stronger regulatory powers. The legislature provided for the establishment of city governments separated from the township governments. Villages are an intermediate level of government with most of the special powers of cities, but they remain part of the townships in which they are located. At present, Michigan has 83 counties, 1,241 townships, 271 cities and 263 villages (Legislative Council, 1995).
Local regulations pertaining to land use development and controls are implemented in the form of land use master plans and ordinances such as