Other Federal Wetlands Laws and Programs

• Author: Margaret 'Peggy' Strand/Lowell Rothschild
• Pages: 207-227

Page 207

Chapter 9

Other Federal Wetlands Laws and Programs

Numerous other federal programs provide protection of wetlands in a variety of ways. e DOI, in

particular the FWS, administers wetlands programs and lends its expertise in wetlands through

consulting roles. NOAA, within the U.S. Department of Commerce,administers a number

of laws addressing the coastal zone, including coastal wet lands. ere have also been Executive Orders

(EOs) and presidentia l policies addressing wetlands. Other federa l laws recognize the importance of

wetlands and oer protection or consideration of these natura l resources. Some of these programs are

summarized below.1

e federal government also authorizes and conducts projects that manage water resources and gener-

ally do impact wetlands and streams, such as water resource projects of the BLM2 and the Corps’ Civil

Works program. Each of these agencies has regulations and programs addressing evaluation and protection

of aquatic resources associated with their particular missions, but their core missions of necessity change

aquatic resources. e irony that one arm of the Corps is charged with regulating wetlands while another

arm of the Corps constructs water resource projects that frequently impact wetlands has not been lost on

participants in the wetland policy debates. However, Congress implements many national policies, includ-

ing support of major water resource programs and wetlands protection. Since these kinds of programs are

specic to particular federal actions, rather than applicable in general to wetlands and streams, they are not

addressed further in this Deskbook.

I. U.S. Department of the Interior Programs

A. Fish and Wildlife Service Resources

e vast majority of species of interest to the FWS use aquatic and/or wetlands habitat that is regulated

under the CWA. As a result, the FWS has expertise in wetlands issues and is regularly involved as the

Corps evaluates wetland permits. In addition, the agency has specic statutory responsibilities for wetlands-

related information. e FWS has responsibility for certain national wetland information. FWS maintains

the National Wetlands Inventory (N WI), a series of maps and information concerning the nation’s wet-

lands.3 As a general matter, this project has been underfunded, so that National Wetlands Inventory maps

1. Many federal statutes or actions that require consideration of environmental impacts generally may include wetlands among the resources

considered. Examples of such laws include: NEPA of 1969, 42 U.S.C. §§4321–4370f, ELR S. NEPA §§2–209; the ESA, 16 U.S.C.

§§1531–1544, ELR S. ESA §§2–18; RCRA, 42 U.S.C. §§6901–6992k, ELR S. RCRA §§1001–11011; and CERCLA, 42 U.S.C.

§§9601–9675, ELR S. CERCLA §§101–405. In most cases, if wetlands are addressed under these other statutes, a CWA wetlands permit

will be involved but there are exceptions to this general principle. In addition, the National Park Service administers properties that in some

cases consist almost entirely of wetlands. An example would be the Everglades National Park Protection and Expansion Act of 1989, Pub. L.

No. 101-229, 103 Stat. 1946 (codied at 16 U.S.C. §§410r-5 to r-8).

2. See generally www.usbr.gov, for descriptions of the dams, power plants and other projects that fall under this bureau within the Department of

the Interior. See generally www.usace,army.mil/Missions/CivilWorks.aspx, for descriptions of the dams, levees, navigation and other projects of

this arm of the Corps of Engineers. A 2008 report by the Congressional Research Service also provides a good overview of the Corps’ program.

See CRS Report RL 36024, Army Corps of Engineers, Water Resources Projects: Authorization and Appropriations, available at http://www.

waterprotectionnetwork.org/sitepages/downloads/ArmyCorpsofEngineersWaterResourcesProjectsCRS_Report_Nov08.pdf.

3. See http://www.fws.gov/wetlands/.

Page 208 Wetlands Deskbook, 4th Edition

may vary in utility depending upon their age. As of 2012, approximately 66% of U.S. wetlands have been

mapped.4 FWS also periodically prepares reports on Wetland Status and Trends based on research on the

wetlands of the United States.5

Until recently, the FWS maintained and periodically updated the wetland plant list, used for wetland

delineation.6 In 2006, the lead responsibility for updating this list was transferred to the Corps through

a four-agency memorandum of agreement (MOA), involving EPA and NOAA, as well as the Corps and

FWS.7 is MOA provides that the Corps will fund and take the lead in maintaining and updating the

list, but the other agencies will participate in technical determinations of plants to include on national and

regional lists, as well as the wetland indicators to assign to those plants. As described in Chapter 2, on May

9, 2012, the Corps published a revised National Wetland Plant List.8

e FWS provides assistance to land owners on wetlands and wildlife habitat conservation through the

Partners for Fish and Wildlife Program. is program has been in place for over 20years and was updated

under the 2006 Partners for Fish and Wildlife Act.9 e law authorized up to $75 million per year through

2011 for technical and nancial assistance to private landowners engaged in habitat improvement and

restoration, including with respect to wetlands. Under the American Recovery and Reinvestment Act of

2009, Congress provided additional funding to the Program.10 Later authorizations provided discretionary

funding through scal year 2015.11

e Partners Program is guided by a national policy (U.S. Fish and Wildlife Service Manual, §640

FW1)12 that identies the following objectives:

• Promote and implement habitat improvement projects that benet Federal Trust Species;

• Provide conservation leadership and promote partnerships;

• Encourage public understanding and participation; and

• Work with U.S. Department of Agriculture (USDA) to implement conservation programs.

e FWS is also an active partner in most of the federal interagency policies on wetlands, working with

EPA and the Corps on wetlands policy. For example, the FWS was an active member of the interagency

team working on the National Wetlands Mitigation Action Plan.13 e FWS regularly sits on the Inter-

agency Review Teams that review and approve wetland mitigation banks and in lieu fee programs.14 e

FWS also administers certain laws related to sheries, wildlife, and habitat that address wetla nds, some of

which are summarized below.

B. National Wildlife Refuge System Administration Act of 1966

e National Wildlife Refuge System Administration Act of 196615 provides for the administration and

management of the National Wildlife Refuge System. e FWS is the principal federal agency responsible

for conserving, protecting, and enhancing sh, wildlife, plants, and their habitats.16 e FWS manages

4. U.S. Fish and Wildlife Service Fiscal Year 2009 Budget Request at HC-24, available at http://www.fws.gov/budget/.

5. Status and Trends of Wetlands in the Conterminous United States 2004–2009, available at http://www.fws.gov/wetlands/Documents/Status-

and-Trends-of-Wetlands-in-the-Conterminous-United-States-2004-to-2009.pdf.

6. See, e.g., U.S. Fish and Wildlife Service, 1988, National List of Vascular Plant Species at Occur in Wetlands. U.S. Fish & Wildlife Service

Biological Report 88 (26.9).

7. See http://www.fws.gov/wetlands/Documents/Memorandum-of-Agreement-Transferring-Responsibility-for-Updating-and-Maintaning-the-

National-List-of-Vascular-Plant-Species-at-Occur-in-Wetlands.pdf.

8. See http://www.gpo.gov/fdsys/pkg/FR-2012-05-09/pdf/2012-11176.pdf.

9. Pub. L. No. 109-294, 120 Stat. 1351 (codied at 16 U.S.C. §§3771–3774).

10. See htt p://www07. grants.gov/ search/syn opsis.do;j sessionid= MCqMQ4jpmB sPys1G7sx1 PLbKkKhLsH s2nh5mYHdZwl FBDjNp1M

tf!-1052363440.

11. See https://www.cfda.gov/?s=program&mode=form&tab=step1&id=7c7e2eb3197c631c83511c6adb3cf2e1.

12. See http://www.fws.gov/policy/640fw1.html.

13. See www.fws.gov/habitatconservation/MAPwithsignatures.pdf.

14. 33 C.F.R. §332.8(b)(2).

15. 16 U.S.C. §668dd–ee.

16. Id. §668dd(a).