What laws, regulations, and policies protect the wetlands?
- Federal Laws, Regulations, and Policies to Protect Wetlands
- California State Laws, Regulations, and Policies to Protect Wetlands
Wetlands in California are protected by many federal and state laws, regulations and policies that prevent further degradation and destruction. These regulations are enforced by a number of different agencies responsible for maintaining the many services and benefits people receive from wetlands by protecting wetland extent, water quality, wildlife and wildlife habitats, vegetation communities, and beneficial uses (see the sidebar).
Each law and regulation has been put into place over many decades to address different wetland protection needs, with responsibility for enforcement assigned to different agencies according to those agencies purposes. Understanding the different laws and the agencies that enforce them is necessary for a complete picture of wetland protection in California and the United States.
Some regulations affecting wetlands focus on protecting water quality and preventing activities that could introduce or discharge harmful substances into waters. Others focus primarily on protection of fish and wildlife habitats, especially for endangered species.
Water quality standards are an effective tool available to protect the overall health of wetland resources in California and the functions they provide, including shoreline stabilization, nonpoint source runoff filtration, wildlife habitat, and erosion control, which directly benefit adjacent and downstream waters. Water quality standards, including designated uses, criteria, and antidegradation policies can provide a sound legal basis for protecting wetland resources through State water quality management programs. Other regulations protect wetlands from damage, filling, or destruction through planned construction activities. Several additional programs safeguard wetland integrity, whether directly and indirectly, by preventing changes to important plant and animal habitat.
In addition to enforcing regulations, the United States and California have set an overarching goal to prevent further decline of wetlands through a “no net loss” approach, a goal recommended by the National Wetlands Policy Forum in 1987 and adopted in 1989. Other mechanisms for wetland protection include acquiring land in high priority areas, integrating knowledge of wetland resources into land use planning, mitigating the effects of construction activities (wetland creation or restoration in one area to account for destruction in another area), and creating disincentives for conversion of wetlands to other land uses. For example, state transportation agencies, such as Caltrans, are required to be in compliance with regulations pertaining to wetlands and to implement the state and federal policies of "no net loss" of wetlands. As a result of these policies, disturbances or impacts to wetlands due to transportation projects are compensated through the creation, restoration, enhancement, and/or preservation of wetlands.
While government regulatory efforts are important, they cannot protect the majority of California’s remaining wetlands alone. Partnerships have developed among nonprofit organizations, private landowners, and federal, state, tribal, and local governments to manage whole watersheds (large land areas where water drains to a common point). The goal of these partnerships is to comprehensively protect all of the connected waterways in a given watershed, including wetlands. Education and volunteer wetland restoration efforts are also helping to speed wetland recovery and increase appreciation of wetland functions and values among the public.
Federal Laws, Regulations, and Policies to Protect Wetlands
Clean Water Act
The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution and regulating water quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972. Two agencies have primary responsibility for enforcement of the Clean Water Act: The U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (USSEPA).
- One of the primary civilian missions of the U.S. Army Corps of Engineers is to manage the nation's waterways and wetlands. USACE activities include regulating activities in wetlands including issuing dredge and fill permits and authorizing the establishment of wetland areas. The Corps’ also builds and manages civil projects such as e, constructing projects approved by Congress for flood control, commercial navigation, or shipping channel maintenance; operating and maintaining flood control reservoirs and public reclamation facilities; and many other public works.
- The U.S. Environmental Protection Agency (USEPA) is responsible for implementing federal laws designed to protect air, water, and land. While this is done primarily through regulation, the USEPA has also developed a wide variety of funding, planning, and education programs. USEPA responsibilities which affect wetlands include, but are not limited to, developing rules to regulate municipal and industrial wastewater discharge, and stormwater discharge; overseeing drinking water quality; and overseeing USACE regulatory activities pertaining to wetlands protection, and dredge and fill activities.
Clean Water Act, Section 404
In 1972, Section 404 of the federal Clean Water Act (CWA) established a program to regulate the “discharge of dredged or fill material (such as soil or sediments) into water waters of the U.S.,” including wetlands. Dredged or fill materials can be almost any substance or pollutant that can adversely affect water quality or navigation. Section 404 permits are issued by the U.S. Army Corps of Engineers (Corps) for a range of activities such as construction, mining, and levee installation. Typically, the permit review process seeks to avoid or minimize impacts on aquatic ecosystems. If avoiding impacts is not possible, actions to offset the impacts by improvement or restoration of other sites (called “compensatory mitigation”) are needed.
- Section 404 Permits may be individual or general. General permits are given for up to 5 years for broad classes activities that are similar in nature and have minimal impacts. Activities that do not qualify for a general permit must be authorized individually through the Corps, requiring a public notice and comment period as well as specific environmental analyses. The U.S. Environmental Protection Agency (USEPA) examines proposed individual permits during the public review period and can elevate projects for closer scrutiny if needed. Corps and USEPA regulators also partner to conduct enforcement activities if discharges of dredged or fill material violations occur.
- Section 404 has evolved over the years, with the introduction of the latest Mitigation Rule which revised CWA Section 404(b)(1) which provides much detailed guidance on compensatory mitigation for impacts to wetlands.
The farm bill is the primary agricultural and food policy tool of the federal government. This comprehensive “omnibus bill” is passed every 5 years or so by the United States Congress. It deals with both agriculture and all other affairs under the purview of the United States Department of Agriculture. The Farm Bill provides regulations and guidance for wetland management and protection on agricultural lands that are enrolled in Farm Bill programs. Farm Bill programs are administered primarily by the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) and the Natural Resources Conservation Service (NRCS). (Wetlands on agricultural lands not enrolled in Farm Bill programs are regulated under the Clean Water Act section 404 just like any other wetlands).
- FSA directly administers programs such as the Conservation Reserve Program.
- NRCS makes wetlands determinations and delineations in agricultural lands for the U.S. Army Corps of Engineers and for Farm Bill purposes, but does not issue permits pertaining to wetlands. As part of the NRCS's Wetlands Protection Policy, landowners have the option of mitigating wetland impacts in order to continue receiving NRCS assistance.
- The NRCS has long provided technical assistance to those involved in land conservation and planning, and wetlands restoration and enhancement. The agency has assisted in wetlands restoration and enhancement through programs such as, the Water Bank Program, the Wetland Reserve Program, the Environmental Quality Incentives Program (EQIP) and the Small Watersheds Program (PL-566).
- The NRCS also provides substantial support and leadership for the Resource Conservation and Development Councils(RC&D), and local Resource Conservation Districts (RCDs) which are often active in wetland, stream and watershed restoration.
Rivers and Harbors Act, Section 10
The Rivers and Harbors Act of 1899, administered by the U.S. Army Corps of Engineers (Corps) is the oldest federal environmental law in the United States. Although many activities covered by the Rivers and Harbors Act are regulated under the Clean Water Act, the 1899 Act retains independent vitality. Section 10 of the River and Harbors Act prevents unauthorized obstruction or alteration of US waterways, including wetlands. As such, the Corps oversees and regulates any work activities (such as dredging, beach nourishment, and geotechnical surveys) or construction of structural features (such as piers, boat docks or ramps, wharfs, weirs, booms, breakwaters, bulkheads, and jetties) that would affect a wetland’s location, condition, or support capacities.
Coastal Zone Management Act
The U.S. Congress recognized the importance of meeting the challenge of continued growth in the coastal zone by passing the Coastal Zone Management Act in 1972. The Act, administered by the National Oceanic and Atmospheric Administration’s (NOAA) Office of Ocean and Coastal Resource Management, (OCRM) provides for management of the nation's coastal resources and balances economic development with environmental conservation. The CZMA outlines two national programs, the National Coastal Zone Management Program and the National Estuarine Research Reserve System. The 34 coastal programs aim to balance competing land and water issues in the coastal zone, while estuarine reserves serve as field laboratories to provide a greater understanding of estuaries and how humans impact them. The overall program objectives of CZMA remain balanced to "preserve, protect, develop, and where possible, to restore or enhance the resources of the nation's coastal zone."
- The National Marine Fisheries Service (NMFS), a division of the National Oceanic and Atmospheric Administration (NOAA), has the primary Federal responsibility for the conservation, management, and development of living marine resources and for the protection of certain marine mammals and endangered species on all lands public and private, under numerous federal laws. Often, these NMFS authorities have direct bearing on stream and wetland regulatory decisions.
Other Federal Agency Programs
- The National Park Service (NPS) has a multi-faceted program for protecting and managing wetland resources within the National Park System, which includes: protecting park wetlands from pollution; providing technical expertise and funding to parks for wetland inventory and restoration projects; providing up-to-date management techniques to preserve wetland functions and values; and protection or acquisition of water rights. Also, the NPS plays key roles in other local, state, and federal government wetlands-related programs including the Rivers and Trails Conservation Assistance Program, the Wild and Scenic Rivers Program, and the preparation of State Comprehensive Outdoor Recreation Plans. The U.S.D.A. Forest Service and the Department of Interior Bureau of Land Management also play key roles in Wild and Scenic River management, and are responsible for wetland protection on federal lands.
- The U.S. Fish and Wildlife Service, through its various divisions, is involved in many responsibilities and services related to wetland protection and restoration: Enforcing the federal Endangered Species Act; acquiring wetlands, fishery habitats, and other lands for restoration and preservation; managing National Wildlife Refuges; and reviewing and commenting on water resource projects. USFWS also manages many private-public partnerships for habitat conservation, notably through the Partners for Fish and Wildlife Program which supports thousands of wetland conservation sites nationwide. USFWS plays a key role as administrator of the North American Waterfowl Management Plan , under which extensive wetland projects in California are managed through the San Francisco Bay Joint Venture and the Central Valley Habitat Joint Venture.
Executive Order 11990, "Protection of Wetlands"
In 1977, Executive Order 11990 was signed by President Carter to ensure protection and proper management of wetlands by federal agencies. It requires federal agencies to avoid undertaking or providing financial assistance for new construction projects located within wetlands unless no practical alternative is available.
Executive Order 11988, "Floodplain Management"
Executive Order 11988, also issued in 1977 by President Carter, ensures federal agency activities reduce the risk of flood impacts and restore or preserve the natural beneficial values of floodplains. This guidance helps protect wetlands because they play an important role in buffering flood impacts and are often located in floodplains.
California State Laws, Regulations, and Policies to Protect Wetlands
The California Natural Resources Agency (Resources Agency) is composed of 18 State departments, boards, conservancies, and commissions. For wetland protection, the primary of role and responsibility of the Resources Agency is the implementation of the State Wetland Conservation Policy.
The California Environmental Protection Agency (Cal/EPA) is responsible for coordinating and prioritizing the State's efforts to protect the environment. Under the auspices of Cal/EPA, the State Water Resources Control Board (State Water Board) and the nine Regional Water Quality Control Boards (Regional Water Boards) are the state’s primary water quality regulatory agencies, tasked with protecting the beneficial uses of the waters of the state under the California Water Code.
Porter-Cologne Water Quality Control Act
In 1969, the California State Legislature enacted the Porter-Cologne Water Quality Control Act, the cornerstone of today’s water protection efforts in California. Porter-Cologne assigns overall authority for water rights and water quality protection to the State Water Resources Control Board and directs the nine Regional Water Quality Control Boards to develop and enforce water quality standards within their boundaries. The standards are based on formally-recognized beneficial uses for water bodies (such as drinking water, recreation or endangered species habitat protection), many of which pertain to wetlands and are used to protect them. The Water Boards are also responsible for regulating any activity, including waste discharges, that would, or that have the potential to, impair the beneficial uses of water bodies.
Clean Water Act, Section 401
Although the Clean Water Act is a Federal law, section 401 of that law recognizes that states have the primary authority and responsibility for setting water quality standards, and notifies federal agencies that it is their duty to obtain state certification that their actions do not violate state water quality standards. In California, under section 401, the State and Regional Water Boards are the authorities that certify that any federal license or permit does not violate California’s water quality standards; i.e., that they do not violate Porter-Cologne and the Water Code. These “401 certifications” are often associated with activities that discharge dredged materials into water bodies, or that alter water bodies as permitted under section 404, but may also arise in response to other federal actions.
- This permitting process between federal and state agencies recognizes that California regulators have an active role in decisions that affect wetlands, riparian areas, and headwaters, which are not systematically protected by other programs. In today’s economic climate, where state and federal regulatory staff limitations and reductions collide with public demand for even greater regulatory efficiency, section 401 can also be a useful tool in integrating state and federal programs, reducing overlap in a more holistic approach to resource management.
Executive Order W-59-93, State Wetland Conservation Policy
In 1993, Governor Pete Wilson signed Executive Order W-59-93, the state’s “No Net Loss” policy for wetlands, establishing a State Wetland Conservation Policy (SWCP) and providing comprehensive direction for the coordination of state-wide activities for the preservation and protection of wetland habitats. The SWCP was the first state-wide conservation policy of its type in the United States. The Natural Resources Agency and the California Environmental Protection Agency (CalEPA) are designated as co-lead to implement the goals of the SWCP.
The California Coastal Act
The California Coastal Act was adopted by the California legislature in 1976. It includes specific policies that address issues such as shoreline public access and recreation, lower cost visitor accommodations, terrestrial and marine habitat protection, visual resources, landform alteration, agricultural lands, commercial fisheries, industrial uses, water quality, offshore oil and gas development, transportation, development design, power plants, ports, and public works. The Coastal Act constitutes the primary statutory standard applied to planning and regulatory decisions made by the California Coastal Commission and by local governments, pursuant to the Coastal Act. The Coastal Commission's primary role in regards to wetland protection is the regulation of coastal development affecting wetlands in California's coastal zone.
- Under California’s federally-approved Coastal Management Program, the California Coastal Commission manages development along the California coast except for San Francisco Bay, where the San Francisco Bay Conservation and Development Commission oversees development. A third agency, the California Coastal Conservancy, purchases, protects, restores, and enhances coastal resources.
- The California Coastal Management Program is a combination of Federal, State, and local planning and regulatory authorities for controlling the uses of land, air, and water resources along the coast.
Department of Fish and Wildlife Programs and Regulations
Under section 1600 of the Fish and Game Code, the Lake and Streambed Alteration Program, the Environmental Services Division (ESD) of the California Department of Fish and Wildlife (DFW) must be notified of any proposed activity that may substantially modify with rivers, streams, or lakes. If DFW finds an activity in a stream or lake may adversely affect fish and wildlife resources, a Lake or Streambed Alteration Agreement will be prepared outlining reasonable conditions to protect the at-risk resources. This authority covers wetlands primarily when wetlands occur in or directly adjacent to the “bed and banks” of a stream or lake. CDFW also regulates wetlands under the California Endangered Species Act when endangered species habitats are present.
The wetland activities of the California Department of Fish and Wildlife (CDFW) are divided primarily between its Environmental Services Division (ESD) and the Wildlife Management Division (WMD). ESD conducts all aspects of wetlands regulation, permitting, and mitigation in conjunction with other State and Federal government agencies that issue wetlands permits. WMD's major role in wetlands management is to meet the wetlands protection, restoration, and enhancement goals through various public and private programs, such as the San Francisco Bay Joint Venture and the Central Valley Habitat Joint Venture, components of the North American Waterfowl Management Plan. These habitat goals are achieved on state-owned wildlife areas and on private land enrolled in WMD's voluntary wetland incentive or easement programs. WMD's wetlands goals are completely separate from any wetland permitting or mitigation activities conducted by ESD, although the two DFG divisions work together to achieve common resource benefits.
Other State Agency Programs Affecting Wetlands
Many other state agencies have missions and responsibilities that make significant contributions to wetland protection and restoration in California. All of the departments, boards and commissions discussed below are subdivisions of the Natural Resources Agency except the State Lands Commission, which is administered as a branch of the governor’s office.
- Department of Water Resources: The Department of Water Resources (DWR) was established for the purpose of constructing, operating, and maintaining the State Water Project. Today, DWR is also charged with the administration of the California Water Plan and various programs to prevent and respond to floods, droughts, and catastrophic events that would threaten public safety, water resources and management systems, the environment, and property. In meeting these responsibilities, DWR’s role and responsibilities in wetlands management include avoidance and mitigation of wetlands impacts, wetlands protection and restoration, and technical assistance regarding water management. For example, the DWR’s Central Valley Flood Management Planning Program includes extensive planning for extensive wetland and riparian mitigation and restoration projects. DWR also sponsors watershed planning grants, such as the Integrated Regional Water Management grants, which often include stream and wetland restoration elements.
- Department of Parks and Recreation: The California Department of Parks and Recreation (DPR) plays a major role in the protection, restoration, and interpretation of the wetlands within the state park system. DPR is also involved in wetlands protection and restoration through the administration of local grants programs, such as the California Land and Water Conservation Fund and the Habitat Conservation Fund.
- Wildlife Conservation Board: The Wildlife Conservation Board (Board) is responsible for wetlands protection through the acquisition of fee and lesser interests, such as conservation easements. In addition, the Board assists local agencies, special districts, and nonprofit organizations with cost-share projects which restore and enhance public and privately owned wetlands. The Board is also responsible for managing the Inland Wetlands Conservation Program. This program assists the Venture in meeting specific objectives which protect, restore, and enhance public and privately owned wetlands in the California Central Valley.
- Coastal Conservancy: The California Coastal Conservancy (Conservancy) is an independent state agency that works through non-regulatory means to protect, restore, and enhance coastal resources, including wetlands. The Conservancy works in partnership with public agencies, nonprofit organizations, community groups, landowners, and business interests in resolving land use conflicts, developing restoration and enhancement plans for coastal and San Francisco Bay wetlands and watersheds, and implementing these plans, including land acquisition.
The Conservancy cooperates closely with the California Coastal Commission in implementing projects around San Francisco Bay. The Conservancy also undertakes enhancement or restoration projects directly, or provides funding and technical assistance to local agencies or nonprofit organizations.
- For example, the Conservancy supports the work of the Southern California Wetlands Recovery Project (SCWRP), a broad-based partnership that has public agencies, non-profits, scientists, and local communities working cooperatively to acquire and restore rivers, streams, and wetlands in coastal southern California.
- Department of Conservation: The California Department of Conservation (DOC) has diverse missions. A key responsibility is the regulation of oil and gas drilling, mining, and mine reclamation. DOC’s Land Resource Protection division administers many programs for watershed improvement and agricultural land protection, all of which provide for wetland protection and restoration. Key programs include its Watershed Program and administration of the Williamson Act. DOC is the primary state agency supporting Resource Conservation Districts (RCDs).
- State Lands Commission: The California State Lands Commission (Commission) manages the use of State owned wetlands through leases to other public agencies and private parties. Private parties may also apply to lease lands for wetlands or habitat purposes for environmental mitigation.
Eelgrass Mitigation Policy
Despite the habitat value of eelgrass and other seagrasses, the past three decades have seen a nearly quarter million acre loss worldwide due to a combination of human pressure and climate change. Protection of eelgrass’ ecological and economic benefits is a high priority for the National Oceanic and Atmospheric Administration (NOAA). The Southwest Region of NOAA’s National Marine Fisheries Service released a draft California Eelgrass Mitigation Policy in 2011 to provide guidance on eelgrass mitigation efforts. It is an expansion of an earlier policy from southern California implemented in 1991, which has led to recommendations for an integrated eelgrass monitoring and assessment program for the southern California coast.
California Senate Bill 1070, Coordination of Monitoring, Assessment and Reporting
In November 2007, pursuant to California Senate Bill 1070 (Kehoe, 2006) a Memorandum of Understanding was signed by the Secretaries of California Environmental Protection Agency (Cal/EPA) and the California Natural Resources Agency to establish the California Water Quality Monitoring Council. This required the boards, departments and offices within Cal/EPA and the Natural Resources Agency to integrate and coordinate their water quality and related ecosystem monitoring, assessment, and reporting.
One of the workgroups of the California Water Quality Monitoring Council is the California Wetland Monitoring Workgroup (CWMW). The CWMW has the primary responsibility to review technical and policy aspects of wetland monitoring tool development, implementation and use of data to improve wetland management in California. It developed a Wetland and Riparian Area Monitoring Plan to increase coordination and cooperation among local, state, and federal agencies, tribes, and non-governmental organizations that monitor and assess wetlands in the state.
California State Wetland and Riparian Protection Policy
The State Water Resources Control Board is currently developing a new Wetland and Riparian Area Protection Policy , designed to protect and enhance these resources, bring consistency to regulatory efforts by the State Water Board and the nine Regional Water Quality Control Boards, and to provide a common framework for monitoring and reporting water quality. This Policy is being implemented in three phases which will allow for necessary infrastructure and program development. This Policy will provide a State analogue to the federal program that reaches all waters of the state, including those areas or circumstances beyond the jurisdiction of the federal Clean Water Act.