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9 WAS Lai HHE ffifflON CENTER Coastal Zone W,211977 Information Center Wrm.TLA D SE 111WISC-011sill PRESENT POLICIES & REGULATIONS A Part of VISIONS OF TOMORROW: A Comprehensive Plan for the Management of Wisconsin's Water Resources Department of Natural Resources KFW2851.7 Madison, Wisconsin .A841 1976 1976 0 Property of CSC Library WETLAND USE IN WISCONSIN: PRESENT AON POLICIES AND REGULATIONS WISCONSIN DEPARTMENT OF NATURAL RESOURCES Box 7921, Madison, Wisconsin 53707 OFFICE OF PLANNING AND ANALYSIS W. Michael Ley, Administrator BUREAU OF PLANNING US Department of Commerce rthur D. Doll, Director qZq40AA coactal Oznqmerce TEXT - Jean G. Heitz NOAA Coastal serviced Center Library Statewide Water Resources Planning Section 2234 South Hobson Avenue Douglas B. King, Supervisor Charleston, SC 29405-2433 DESIGN and ILLUSTRATION - Georgine Price The preparation of this report was supported by funds provided qQ by the U.S. Water Resources Council as authorized under the Water Resources Planning Act of 1965, Public Law 89-80. tq+ TABLE OF CONTENTS INTRODUCTION .......................................................... 4 WISCONSIN WETLANDS LEGISLATIVE EFFORTS WETLANDS ................................................................. 5 Wetlands' Protection Bills ........................................ 19 LAWS, POLICIES AND REGULATIONS Definitions ............................................................ 19 In the Beginning ....................................................... 6 Methods of Protection and Regulation ................. 19 Constitutionality ................................................... 6 Basic Standards and Funding Needed ................. 20 Power of Eminent Domain .................................... 6 Exercise of the Police Power ................................ 7 The Question of Compensation and the APPENDIX A ................................................................ 21 Tax Base ........................................................... 7 Aquisition Programs FEDERAL JURISDICTION OVER WETLANDS Federal Historical Background ............................................. 8 Wisconsin Extension of Corps' Regulation in Navigable APPENDIX B ................................................................ 22 Waters ................................................................... lo Current Drainage Laws and Policies Wetlands and the "404 Permit" System .................. 14 Wisconsin Drainage Laws and Policies STATE-LOCAL JURISDICTION OVER WETLANDS Federal Drainage Laws and Policies Shoreland and Flood Plain Zoning ........................... 15 Funding for Cost Sharing Shoreland Zoning .................................................... 15 ASCS General Policy Flood Plain Zoning ................................................... 16 SPS General Policy Shoreland and Flood Plain Zoning as Wetland Management Tools .............................................. 17 COMBINED LITERATURE CITED AND Just v. Marinette County .......................................... 18 BIBLIOGRAPHY ...................................................... 23 INTRODUCTION This report is one of a series of reports written for the Statewide Water Resources Plan, Visions of Tomorrow. Phase one of the plan was published in November, 1973. The purposes of the Plan are to: ( 1) describe water resource management alternatives; (2) examine the tradeoffs associated with each; (3) solicit people's preferences with respect to the alternatives; (4) present this information to decision makers; and (5) publish the decision makers'choices, which in effect become the plan. A previous publication, Wetland Use in Wisconsin: Historical Perspective and Present Picture 21 provided an historical analysis of wetlands and wetland use in Wisconsin. This report presents an overview of the mosaic of policies, regulations and laws which apply to these wetlands. Both reports were written to provide backgrou 'nd information needed in consideration of alternative futures, policies and regulations for the use of the state's wetlands. 4 When wetlands are destroyed, for example by dredging and filling operations, the loss of wetland functions follows. Fish and wildlife die off due to loss of habitat and breeding grounds. Runoff increases, increasing nutrient and sediment input into lakes and streams. Floods peak higher and become more destructive. Storm waters run off more quickly reducing the opportunityfor recharge. Ground water levelsmaybe reduced. In presettlement days, Wisconsin was estimated to have approximately 10 million acres of wetland S.2, Early settlers built near waterways and benefited from the plentiful fish, game and wild crops of the wetlands. However, as population and "The land belongs to the people-a little of it to those development increased, wetlands came to be looked upon as clead-some of it to those living ... but most of it belongs to "public menaces". In 1850, Congress passed the Swamp Land those yet to be born." (Quote on Jackson County Act granting existing public domain states full title to all lands in Courthouse Letterhead ) 24 swamp or subject to overfl OW.21 28 Wisconsin was granted about 3.3 million acres of swamp or overflow land. Almost all of this had been sold to private individuals or investors by the early 1 900'S.26 WETLANDS The general purpose of the Swamp Land Act was elimination Wetlands are, in general, wet lands, e.g. swamps, marshes, of wetlands. Wetlands were to be drained and leveed to provide wet meadows, bogs, fens, and are usually defined in terms of flood protection to settlements and reduce mosquito breeding water level, soil type and vegetative characteristics. In nature ground S.28 Subsequent legislation and regulations relating to wetland definition is difficult - soil and vegetation types grade wetlands have been curiously at odds with each other. Historical into each other and water levels may vary gradually over a definitions of private property rights become incompatible with continuum of depths. Therefore wetland definition and the public good or interests. Wetland conservatio 'n efforts classification have become controversial subjects. Wetland counter those for fill and/or drainage. Increasing recognition of functions are however more easily recognized and agreed upon. the value of wetlands in an undeveloped state has led to Wetlands serve as: numerous efforts by state and federal governments to reacquire a. wildlife habitat and breeding grounds, these lands or regulate their use in the public interest. However, b. natural "croplands" producing harvests of minnows, only in cases where wetlands lie in public control does the marsh hay, blueberries, wild rice, sphagnum moss, regulation become relatively simple. c. ground water storage or recharge areas, Today an estimated 2.5 million acres of Wisconsin's wetlands d. natural breakwaters in erosion prevention, remain, 1.6 million acres being in private ownership.2, The rest e. flood detention and runoff stabilization areas, were drained, filled or otherwise altered or destroyed in f. outdoor classrooms and laboratories for students and development of cities, muck and other farms, recreation sites, scientists, and as e.g., marinas, resorts, cottages. If we are to retain a significant g. perhaps the last natural open space available in areas of part of the remainder, a management program specifically high population density. designed for wetland management is needed. At present Wisconsin has no single law or policy directed Note: Reference citations are numbered in alphabetical order in a "Combined specifically at wetland use or management. Current wetland Literature Cited and Bibliography". Number codes are used to indicate references in the text. "Footnotes" provide additional information and are coded "management" policy derives from a mosaic of bits and pieces by lower case letters in the text. of local, state and federal regulations, policies and legislation. 5 LAWS, POLICIES AND REGULATIONS Wisconsin's surface waters, in other words waters bordering the In the beginning: state and all navigable waters within the state, to the state government. In general, this control is exercised for regulation of "The Congress shall have the Power ... To regulate private water rights, creation of certain property rights and the Commerce with foreign Nations, and among the several police power necessary for regulation of property in the public States, and with the Indian Tribes." Article 1, Section 8 interest, e.g. zoning.16 In the absence of specific land or water d U.S. Constitution. rights' legislation or regulation the riparian doctrine applies. In "The powers not delegated to the United States by the other words, the owner (riparian) of land bordering a lake or Constitution, nor prohibited by it to the States are reserved other waterway has rights to reasonable use of the water. to the States respectively, or to the people" Amendment Reasonableness is dependent upon the effect of a use upon 10, U.S. Constitution. other riparians. Water laws, like most laws, evolved under a system of dual Constitutionality sovereignty, each state developing its own laws and regulations The 5th Amendment of the U.S. Constitution guarantees that no person shall "be deprived of life, liberty or property without subject to ultimate sanction of federal law and the question of due process of law, nor shall private property be taken for public constitutionality. Federal jurisdiction over navigable waters is use, without just compensation." established in the Commerce Clause of the Constitution (Article Article 1, Section 13 of the Wisconsin Constitution declares 1, Section 8). Over the years, commerce has come to include that "the property of no person shall be taken for public use regulation of transportation a and in turn, control of navigable without just compensation therefor." waters for the purpose of navigation.b," Therefore, any substantial restriction on the use of wetlands, "Navigable waters" have also undergone substantial shorelands or other_privately owned lands must be shown to be redefinition. Traditional federal definition held navigable waters for the public good or purpose and not to constitute an to be the "waters below the mean high water or mean high tide." inequitable restriction or a taking of land without compensation. The Federal Water Pollution Control Act Amendments of 1972 The government, state or federal, may restrict land use under defined navigable waters as "the waters of the U.S. including the the power of eminent domain, or by means of the police power territorial seas." This definition is now interpreted to include granted it through established laws or regulations. almost anything that is wet, that is traditional navigable waters, Power of Eminent Domain their tributaries-primary, secondary, tertiary, etc. - and all Under the power of eminent domain land use may be contiguous or adjacent wetlandva restricted in the public interest via condemnation and purchase. Wisconsin statutory law declares that " (a)l 1 lakes wholly or The purchase price must reflect a fair and joint evaluation of the partly within this state which are navigable in fact are declared to property value arrived at between government and privately be navigable ... and (a)l 1 streams, sloughs, bayous and marsh retained assessors. The government may purchase full title outlets which are navigable in fact for any purpose whatsoever, ("fee simple interest") to the land in question or may establish are declared navigable..." The Wisconsin Supreme Court an easement that is, condemn only certain uses of the land decision, Muench v. Public Service Commission', established as compensating the landowner for value lost. In the latter case, a test of navigability that "any stream is navigable in fact which is land ownership remains in private hands but some public use is capable of floating any boat, skiff or canoe of the shallowest allowed or development use prohibited, for example, public draft used for recreational purposes." access to a waterway is allowed or drainage and fill is Federal regulatory powers over water resources are exercised prohibited.4- through the Corps of Engineers, the Federal Power Commission, aGibbons v. Ogden, 22 U.S. (9 Wheat.) * 1 (1824) the Coast Guard, the Department of the Interior, and the Environmental Protection Agency. The state's rights to regulate bGilmanv. City of Philadelphia (70 U.S. (3 Wall.) 713 (1865)). water are derived from the 10th Amendment to the U.S. c261 Wis. 492, 53 NW 2d. 514 (1952). Constitution. While subject to all federal water laws, Article IX, dThe riparian doctrine remains applicable in the State of Wisconsin and most section 1 of the Wisconsin Constitution delegates control over states east of the Mississippi River. 6 Exercise of the Police Power At present compensation for value lost could take several Exercise of the police power in enforcement of laws or forms: regulations restricting land use (e.g. zoning) which do not a. The state or federal government would reimburse the provide for compensation in some form may raise the landowner for the value removed due to the restrictions constitutional question of taking. The question of taking arises applied.3, when restrictions on property become so severe or diminish its b. Should the restrictions constitute an exercise of eminent value so greatly that the private landowner is made to pay for the domain, the state or federal government would purchase maintenance of the public good. In order for the regulation to the fee simple interest (title) to the land, thereby removing remain valid "just compensation" must be paid .31 Since no it from private ownership and from the tax rolls. convenient scale has been established to determine how severe a restriction or regulation must be to constitute a taking, all such Since the property tax represents Wisconsin's largest single determination must be carried out on a case by case basis. source of revenue 4public ownership and preferential taxation provisions are often criticized on the basis that they remove The Question of Compensation and the Tax Base dollars from the tax base. Programs such as Wisconsin's aids- In 1973 the Wisconsin Legislature passed Assembly Joint in-lieu of taxes' tend to offset tax losses. Under this program Resolution 1 (AJR 1). Upon ratification, AJR 1 amended the state in-lieu payments on DNR lands (e.g. recreation, forest or Uniformity Clausee of the Wisconsin Constitution to provide that state park lands) are made to eligible cities, villages and towns. agricultural or other undeveloped, e.g. conservancy, lands need Currently, these payments are made at a rate of 50 cents per not be taxed on a par with developed lands as was previously acre .31 It is obvious that this rate may be far below the tax which required. would be levied if the land in question were fully developed. If legislation is adopted formalizing Assembly Joint Resolution However, concern over possible loss to the tax base often 1, agricultural or conservancy lands will 'be eligible for results in failure to recognize the value of land in its natural state, preferential taxation that is, a reduction of the private property either as current or potential agricultural land or simply as open taxes based on use value rather than market value assessment. space. Provisions for such a system of preferential taxation were set I Hugo Fisher, Administrator of the Resources Agency of forth in 1975, Assembly Bill (AB) 1082, "Taxation and California in 1967, argued that development of land is not always Preservation of Agricultural and Conservancy Lands".s As long the more profitable alternative for a community: as designated lands remain in agricultural or conservancy uses I"...( land ) in parks is almost always more profitable in a they would be eligible for reduction in property taxes. Such a community than the same land would be on the tax rolls. Most program would allow private citizens interested in preserving urban land on the tax rolls goes into residential developments. land in its natural state or for agricultural purposes to do so Before accepting the tax roll argument, I suggest we add up without the burden of increasing tax rates which result from the the costs of the new schools, the new streets, the police and pressure of nearby development. fire protection, the sewage facilities and all the other services In the absence of preferential property taxation, land necessary to any housing development. Then ... contrast this continues to be taxed based on market value assessment. with the increased values in areas surrounding the land Therefore, police power regulations which restrict land to dedicated as parks or open space. Why is the highest priced conservancy or "limited development" uses may cause the land often around parks and golf courses?"2, individual landowner to pay for preservation of the public good. eArticle Vill, Section 1 of the Wisconsin Constitution. in such a case, the regulations would represent a form of taking and would require compensation. fChapter 90 Laws of 1973. 7 FEDERAL JURISDICTION OVER WETLANDSg Historical Background Article 1, Section 8 of the U.S. Constitution gave Congress the right to "regulate Commerce with foreign nations, and among t e,everal states, and with the Indian tribes." In 1899 Congress passed the Rivers and Harbors Appropriation Act (the Act). (See inset The Rivers and Harbors Appropriation Act of 1899.) The original purpose of the Act was to provide a measure of police power in preventing unreasonable obstruction to navigation and thereby to commerce. In fact, prior to the 1970's, the Rivers and Harbors Act provided the basis for almost all federal regulation of commerce and navigation on U.S. waterways and represented the only federal legislation which held any hope for controlling development on lands adjacent to waterways, including wetlands. Since its enactment, numerous legal interpretations have been applied to the-Act. Section 10 in particular has undergone considerable reinterpretation. This section outlines activities in 0 or adjacent to navigable waters which are to be controlled, e.g. i dredge and fill operations. In 1925, the Attorney General delegated control over these activities to the Corps of Engineers (Corps) and the Secretary of the Army. However, this authority remained subject to Congressional consent. Four years later, in a strict reading of Section 10, the Supreme Court removed the requirement for Congressional consent. This decision as set forth in Wisconsin v. 111in- OiS hgranted the Secretary of the Army (and thereby the Corps) independence in issuing permits under Section 10. Though the permit granting authority changed hands over the years, the basic intent of the Act remained the same, that is control of commerce and navigation. However, reasons for which a permit might be issued or denied are not expressly outlined in Section 10. In other words, nothing explicitly limited the Secretary of the Army to consideration of commerce and navigation alone. Unless otherwise specified information in this section is referenced to articles 15 and 28, h278 U.S. 399.49 S. Ct. 163, 73 L.Ed. 426 (1929). 8 "...many things which happened many years ago will "Section I I of the River and Harbor Act approved March 3, 1899 (30 seem nearly related to the present, and many things which Stat. 1151; 33 U.S.C, 404) authorizes the Secretary of the Army to are recent will seem ancient." - Leonardo da Vinci establish harbor lines channelward of which no piers, wharfs, bulkheads, or other works may be extended or deposits made without approval of the The Rivers and Harbors Appropriation Act of 1899 Secretary of the Army. Regulations have been promulgated relative to this Originally enacted as Act of March 3, 1899 ch. 425 30 Stat. 1151, the authority and published as Title 33 of the Code of Federal Regulations, Rivers and Harbors Act has been amended, the original Act and Section 209.150. By policy stated in those regulations effective May 27, amendments appearing in USC 33 . . 401 et. seq. (1970). The following 1970, harbor lines are guidelines only for defining the offshore limits of interpretation of the Act is excerpted directly from the Department of the structures and fills insotar as they impact on navigation interests. Permits Army, Corps of Engineers 1974 publication: Applications for Department for work shoreward of those lines must be obtained in accordance with of the Army Permits for Activities in Waterways.' For original wording of Section 10 of the same Act, cited above. the Act see reference 27. "Section 12 of the River and Harbor Act approved March 3, 1899 (30 "The principal laws administered by the Corps of Engineers in Stat. 1151, 33 U.S.C. 406) provides for penalties of up to $2,500 and/or regulating structures and work in or affecting navigable waters of the one year imprisonment for violation of the Act as well as removal of United States, the discharge of dredged or fill material into navigable unauthorized structures. waters, and the transportation of dredged material for the purpose of "Section 13 of the River and Harbor Act approved March 3, 1899 (30 dumping into ocean waters are as follows: Stat. 1152; 33 U.S.C. 407) provides that the Secretary of the Army, "Section 9 of the River and Harbor Act approved March 3, 1899 (30 whenever the Chief of Engineers determines that anchorage and Stat. 1151; 33 U.S.C. 401) prohibits the construction of any dam or dike navigation will not be injured thereby, may permit the discharge of refuse across any navigable water of the United States in the absence of into navigable waters. In the absence of a permit such discharge of refuse Congressional consent and approval of the plans by the Chief of is prohibited. While the prohibition of this section, known as the Refuse Engineers and the Secretary of the Army. Where the navigable portions of Act, is still in effect, the permit authority of the Secretary of the Army has the water body lie wholly within the limits of a single state, the structure been superseded by the permit authority provided the Administrator, may be built under authority of the legislature of that state, if the location Environmental Protection Agency, under Sections 402 and 405 of the and plans or any modification thereof are approved by the Chief of Federal Water Pollution Control Act (PL 92-500, 86 Stall. 816) . Engineers and by the Secretary of the Army. "Section 14 of the River and Harbor Act approved March 3, 1899 (30 "Section 10 of the River and Harbor Act approved March 3, 1899 (30 Stat. 1152; 33 U.S.C. 408) provides that the Secretary of the Army on the Stat. 1151; 33 U.S.C. 403) prohibits the unauthorized obstruction or recommendation of the Chief of Engineers may grant permission for the alteration of any navigable water of the United States. The construction of temporary occupation or use of any sea wall, bulkhead, jetty, dike, levee, any structure in or over any navigable water of the United States, the wharf, pier, or other work built by the United States. This permission will excavation from or depositing of material in such waters, or the be granted by an appropriate real estate instrument in accordance with accomplishment of any other work affecting the course, location, existing real estate regulations. condition, or capacity of such waters are unlawful unless the work has "Section I of the River and Harbor Act of June 13, 1902 (32 Stat. 37 1; been recommended by the Chief of Engineers and authorized by the 33 U.S.C. 565) allows any persons or corporations desiring to improve Secretary of the Army. The authority of the Secretary of the Army to any navigable river on their own expense and risk to do so upon the prevent obstructions to navigation in the navigable waters of the United approval of the plans and specifications by the Secretary of the Army and States was extended to artificial islands and fixed structures located on the Chief of Engineers. Improvements constructed under this authority, the outer continental shelf by Section 4 of the Outer Continental Shelf which are primarily in Federal project areas, remain subject to the control Lands Act of 1953 (67 Stall. 463; 43 U.S.C. 1333 (f.) and supervision of the Secretary of the Army and Chief of Engineers." 9 Extension of Corps Regulation in Navigable Waters Concern over Corps regulated programs, affecting wetlands Legislation Relating to the Corps Current 404 Permit in particular, was brought out in an investigation by the House System Committee on Government Operations in 1970. This Committee 1. Fish and Wildlife Coordination Act, 1958' urged the Corps to use its powers as delegated under Section 10 In order to maintain the quality of the aquatic environment and protect not only in preservation of navigation but also in preservation of fish and wildlife resources: the natural associations contiguous to navigable wat&s, e.g. "Whenever the waters of any stream are to be diverted, controlled or modified, the channel deepened or water impounded so as to result in an wetlands. In other words the Corps was asked to assert its impoundment having a surface area of at least 10 acres, the U.S. Fish and powers as a protector of the environment. Such powers seem Wildlife Service and the State Agency having jurisdiction over the wildlife clearly established when the authority delegated to the Corps resources must be consulted."13 under Section 10 is coordinated with the responsibilities 2. Memorandum of Understanding Between the Secretary of the Interior outlined in the Fish and Wildlife Coordination Act @ and the and the Secretary of the Army, July 13, 1967.jj National Environmental Policy Act. (See inset on Legislation In granting permits for work in wetlands the Corps is required to "give great weight" to the views of the Fish and Wildlife Service and the National Relating to the Corps' current 404 Permit System for more Marine Fisheries Service as well as to the water quality views of the complete explanations.) Environmental Protection Agency. No permit is to be granted for work in Referring to the Corps' past performance, the Committee wetlands identified as important by the above agencies "unless the public described the Corps'policy as "largely laissez-faire ... concerning interest requires otherwise".', " land fills and construction on submerged lands and tidewaters 3. The National Environmental Policy Act of 1969J1 declares the national landward of harbor lines, (thereby violating) its statutory policy to encourage a productive and enjoyable harmony between man responsibility to protect all aspects of the public interest in those and his environment. Section 102 of that Act directs that "to the fullest extent possible: (1) the policies, regulations, and public laws of the lands. ' '2e The Committee, therefore, recommended that the United States shall be interpreted and administered in accordance with Corps revise its requirements to allow for permit refusal on the policies set forth in this Act, and (2) all agencies of the Federal natural conservation or public interest grounds. A restrictive Government shall-ensure that presently unquantified environmental view of its responsibilities, in other words, control of navigation amenties and values may be given appropriate consideration in decision making along with economic and technical considerations 1v alone and its restrictive definition of navigable waters would no (emphasis added) longer be accepted. 4. Zabel v. Tabb v As a result of its investigation the House Committee prepared The Zable v. Tabb decision represented the first case law authorization House Report 91-917, "Our Waters and Wetlands: How the which allowed the Corps of Engineers to deny dredge and fill permits on Corps of Engineers Can Help Prevent Their Destruction and nonnavigational, e.g. environmental grounds. The Corps' authority was Pollution". The five major recommendations contained in this expanded to protection of fish and wildlife resources upon which report are outlined as foliows.7 commerce is often highly dependent. Estuarine and other wet lands represent primary breeding and habitat areas for many important species of fish and wildlife. The Corps was therefore given power to regulate 1. In evaluating permit applications for dredge and fill or dredge and fill operations which may tend to destroy the ecological construction activities, the Corps was urged to consider the balance in such areas. 8,28 effects such activity would have not only on navigation but also on the public interest, for example conservation of I natural resources, fish and wildlife, air and water quality, aesthetics. 3. The Committee recommended establishment of some 2. The Corps was urged to increase its protective and police public hearing mechanism to encourage public input into power functions especially for submerged and tidal water Corps' proposals for modification of waterways, e.g. lands and lands lying between designated harbors and modification of harbor lines. shorelines. '1958 as amended (48 Stat. 401, 16 U.S.C.A. 661 et seq.). 10 5. Federal Water Pollution Control Act of 1972v' this section, the Administrator can prevent the issuance of a permit under The Federal Water Pollution Control Act (FWPCA) recognizes and this authority if he finds that the dumping of the material will result in an designates that the Corps of Engineers in its operations (e.g. dredge and unacceptable adverse impact on municipal water supplies. fill; surveying and planning for reservoirs) follow guidelines established by Section 302 of the Marine Protection, Research, and Sanctuaries Act the Environmental Pr6tection Agency (EPA) which will include of 1972 x' authorizes the Secretary of Commerce, after consultation with consideration of the effect such projects will have not only on navigation, other interested Federal 'agencies and with the approval of the President, but also on water supplies, recreation, aesthetics and fish and wildlife." to designate as marine sanctuaries those areas of the ocean waters or of The FWPCA in conjunction with Ocean Dumping Act of 1972 and the Great Lakes and their connecting waters or of other coastal waters Section 12 of the Rivers and Harbors Appropriations Act of 1899 which he determines necessary for the purpose of preserving or restoring establishes legally enforceable pollution standards (in this case especially such areas for their conservation, recreational, ecological, or esthetic for estuarine and coastal areas) which carry the additional weight of values. After designating such an area, the Secretary of Commerce shall strong criminal and civil penalties for noncompliance." issue regulations to control any activities within the area. Activities in the Section 401 of the Federal Water Pollution Control Act'v, " requires sanctuary authorized under other authorities are valid only if the Secretary any applicant for a Federal license or permit to conduct any activity which of Commerce certifies that the activities are consistent with the purposes may result in a discharge into navigable waters to obtain a certification of Title III of the Act and can be carried out within the regulations for the frorn the State in which the discharge originates or will originate, or, if sanctuary. appropriate, from the interstate water pollution control agency having 7. CoastalZoneManagementAct, 1972'"" jurisdiction over the navigable waters at the point where the discharge Section 307 (c) (3) of the Coastal Zone Management Act of 1972 x originates or will originate, that the discharge will comply with the requires any applicant for a Federal license or permit to conduct an applicable effluent limitations and water quality standards. A certification activity affecting land or water uses in the State's coastal zone to furnish a obtained for the construction of any facility must also pertain to the certification that the proposed activity will comply with the State's coastal subsequent operation of the facility. zone management program. Generally, no permit will be issued until the Section 404 of the Federal Water Pollution Control Act authorizes State has concurred with the applicant's certification. This provision the Secretary of the Army, acting through the Chief of Engineers, to issue becomes effective upon approval by the Secretary of Commerce of the permits, after notice and opportunity for public hearings, for the discharge State's coastal zone management program. of dredged or fill material into the navigable waters at specified disposal sites. The selection of disposal sites will be in accordance with guidelines developed by the Administrator of the Environmental Protection Agency i as amended (48 Stat. 401, 16 U.S.C.A. 661 et. seq.) (EPA) in conjunction with the Secretary of the Army. Furthermore, the ii 33 C.F.R. 209.120 (d) (11 1) (1972) Administrator can prohibit or restrict the use of any defined area as a iii 42 U.S.C. 4321-4347 disposal site whenever he determines, after notice and opportunity for iv Excerpted directly from 10. public hearings, that the discharge of such materials into such areas will v 430 F 2d. 199 (5th Cir. 1970) cert. denied 1971 have an unacceptable adverse effect on municipal water supplies, shell vi P.L. 92-500, 86 Stat. 816 fish beds and fishery areas, wildlife or recreational areas. vii P.L. 92-500, 86 Stat. 816, 33 U.S.C. 141 1 6. MarineProtectionResearchandSanctuariesAct, 1972'v"@ viii P.L. 92-500, 86 Stat. 816, 33 U.S.C. 1344 Section 103 of the Marine Protection Research and Sanctuaries Act of ix P. L. 92-532, 86 Stat. 1052 1972' authorizes the Secretary of the Army to issue permits, after notice x P. L. 92-532, 86 Stat. 1052, 33 U.S.C. 1413 and opportunity for public hearings, for the transportation of dredged xi P.L. 92-532, 86 Stat. 1052, 16 U.S.C. 1432 material for the purpose of dumping it in ocean waters. However, similar xii P.L. 92-583, 86 Stat. 1280 to the EPA Administrator's limiting authority cited in paragraph (b) (7) of xiii P.L. 92-583, 86 Stat. 1280, 16 U.S.C. 1456 (C) (3) 4. The Corps was encouraged to strengthen permit 5. The Committee recommended strict enforcement of the requirements for establishment of sewage outfalls into Refuse Act I requiring permits for any direct discharge of navigable waters. Such requirements were.to include the refuse or polluting materials into navigable waters or onto effect of the outfall upon water quality as well as upon their banks. navigation. 'Section 13 of the Rivers and Harbors Appropriation Act, 1899. As the Corps made efforts to carry out the House Committee's Included in the report are: recommendations it became obvious that development of new 1 . specific definitions for: navigable waters ( to include definitions and tougher permit granting policies were needed to contiguous wetlands) dredge and fill material, ordinary significantly alter established patterns and practices. The Corps high water mark... regulations as they stood lacked sufficient definition, manpower 2. the new 404 permit system for specified activities in and established enforcement poliCy.k navigable waters. The Committee's recommendations were further emphasized by subsequent court decisions, legislative and regulatory 3. a three year phased program for extending the permit actions. (See inset p. 10.) For example, Section 404 of the regulations from what are traditionally considered Federal Water Pollution Control Act (FWPCA) as amended navigable waters to "all waters of the U.S.". ('Section 404' ( 1972) gave the Corps primary responsibility in regulating Permit Program, an inset, explains the program in more disposal of dredge and fill materials in the navigable waters of detail.) the U.S. Traditional definition held that navigable waters were those "which (were) navigable in fact when ... used or ... susceptible of The Corps' permit program provides a general framework for being used in their original co 'ndition" for conducting travel or protection of navigable waters and wetlands. Each state retains trade "in the customary modes of travel and trade on water", as the power to deny a 404 permit on water quality standards (as adapted from the Supreme Court decision in the Daniel Ball per Section 401, FWPCA). Each state also retains the power to Case.1-7 develop its own waters or wetlands protection programs. As In 1975 the Corps was ordered to redefine its navigable waters expressed in the Corps' Administrative Procedures: "...we are to include "(all) waters of the U.S. including the territorial mindful that many states have existing permit programs to seas", and in general to revise its dredge and fill permitting regulate the same types of activities that will be regulated activities to reflect the intentions of Section 404 of the FWPCA.m through Section 404 of the FWPCA by the Corps of Engineers. The Corps' authority to deny dredge and fill permits on To the extent possible, it is our desire to support the state in its environmental rather than navigational grounds had been decision. Thus, where a state denies a permit, the Corps will not n established in a previous court decision. issue a Section 404 permit. On the other hand, if a state issues a In response to these and other orders and decisions, the permit, the Corps would not deny its permit unless there are Corps issued new permit regulations for activities in navigable overriding national factors of the public interest which dictate waters. Revised final regulations were published in the July 25, such action. We believe that this type of situation can be kept to 1975 Federal Register, titled "Permits for Activities in Navigable a minimum provided the State's permit program has built into it Waters or Ocean Waters". The definitions and regulations the policies, procedures, goals, requirements, and objectives outlined in this report became effective on that date subject to embodied in the Corps' permit program and the national further refinement over a 90 day period. legislation which molded and supports it.",* kIn 1973, the Corps reported 732 cases of illegal wetland dredging or filling. as established in Section 12 of the Rivers and Harbors Act (33 U.S.C. 406 The total number of illegal projects which go undiscovered or unreported is amended). This policy has been in effect since 1974. unknown. Those illegal projects which were discovered could be granted "after '33 CFR 209.260 (a) as adapted from 77 U.S. (10 Wall.) 557, 563 (1870). the fact" permits. Since these permits were frequently granted, previous Corps policy "in effect sanctioned such illegal operations".8.7 This is no longer the case. m Natural Resources Defense Council v. Callaway, 1975. Under the Memo of Understanding (33 C. F.R. 209.120) the Corps reports illegal "Zabel v. Tabb, 1970 - cert. denied, 197 1. dredge and fill operations to the U.S. Attorney General for criminal or civil action 12 "Section 404" Permit Program- Under the laws of the United States, Congress has assigned to the U.S. disposal of dredged or fill material to the traditional "navigable waters of Army Corps of Engineers certain non-military functions. These include the the United States" and contiguous or adjacent wetlands. Phase 11, better-known traditional missions in navigation, flood control, effective July 1, 1976, will expand the Corps' permit program into primary hydropower production, water supply storage and recreation. Congress tributaries of navigable waters of the United States, lakes, and the has also given the Corps of Engineers regulatory responsibility to protect contiguous or adjacent wetlands. After July 1, 1977, the Corps will our navigation channels and harbors against encroachments and more exercise its Section 404 authority over all waters of the United States. recently to restore and maintain water quality by regulating the discharge Moderate, Reasonable Approach, The Corps of Engineers will use of dredged or fill material in coastal and inland waters and wetlands. This common sense, good judgment, and moderation in carrying out the pamphlet describes this latest regulatory program. purpose of the Section 404 permit program. The Corps and the Authority. The basis for the U.S. Army Corps of Engineers' Environmental Protection Agency have worked hard together to develop responsibility to regulate the disposal of dredged or fill material is the a meaningful, manageable program which will protect the quality of Our Federal Water Pollution Control Act Amendments of 1972. Section 404 of waters and preserve the environmental assets of our coastal and inland that Act charges the Secretary of the Army, acting through the Chief of waters and wetlands. Public cooperation and voluntary compliance will be Engineers, to regulate the discharge of dredged or fill material in the encouraged, and prosecution will be recommended only when all other waters of the United States. Initially, the Corps of Engineers limited its options have been exhausted. regulatory authority under Section 404 to waters which are presently Activities Included. Along with the discharge of material which has used, were used in the past, or could be used by reasonable been dredged or excavated from any waters of the United States, the improvements to transport interstate commerce. following additional types of activities will also be. regulated by this Limiting the Corps' authority under Section 404 to navigable waters of program: site developmental fills for recreational, industrial, commercial, the United States was successfully challenged in the U.S. District Court f or residential, and other uses; causeways or road fills; dams and dikes; the District of Columbia. On March 27, 1975, the Court directed the Corps artificial islands; property protection and/or reclamation devices such as of Engineers to extend its responsibility to regulate the discharge of riprap, groins, seawalls, breakwaters and bulkheads and fills; beach dredged or fill material under Section 404 to all waters of the United nourishment; levees; sanitary landfills, and backfill required for the States - (including the territorial seas) and to revise its regulation placement of structures such as sewage treatment facilities. accordingly. A proposed draft regulation was published in the Federal Registeron May 6, 1975, for comment, and an interim final regulation was Farming Exempt. The Section 404 permit program does not apply to published on July 25, 1975, and became effective on that date. An normal farming practices such as plowing, cultivating, seeding, and additional 90-day comment period was provided to further refine the harvesting. Nor does it apply to such farm and ranch conservation regulation. practices as terracing, land levelling and the construction of check dams unless they occur in a water of the United States. However, damming of Purpose. The.purpose of this program, which is part of the Corps of major streams, diking, and the discharge of dredged or fill material in Engineers' overall regulatory authority, is to insure that the wetlands associated with farm practices will require permits. chemical/ biological integrity of waters of the United States is protected from the irresponsible and unregulated discharges of dredged or fill Grandfather Clause. Discharges of dredged or fill material which material that could permanently destroy or alter the character of these occurred in waters other than traditional navigable waters before July 25, valuable resources. 1975, or which are less than 500 cubic yards and will be completed within This program provides for the consideration of all concerns of the six months of that date will generally not require permits. In addition, public - environmental, social, and economic - in the Corps' decision discharges of dredged or fill material which are completed before an making process to either issue or deny permits. As part of its effective phasing date or which generally involve minor bulkhead and fills responsibility to protect water quality, the Corps of Engineers' Section of less than 500 feet in length and 500 cubic yards in volume will not 404 permit program will be extended to many areas that have never been require individual permits provided certain conditions can be met. Water regulated before. quality and coastal zone management certifications must be obtained The public is thereforeurged to understand and support this program. before such discharges can occur, however. And the District Engineer Phased Program. The Corps of Engineers will expand its authority in a may still require an individual to submit an application for a particular three-phase program over the next two years. discharge falling within one of these exceptions if he feels the interest of Phase 1, effective July 25, 1975, extends the Corps' regulation of water quality requires it. 13 Wetlands and the "404 Permit" System (iii) Although a particular alteration of wetlands may constitute a minor change, the cumulative effect of numerous In its published rules and regulations, the Corps recognizes such piecemeal changes often results in a major impairment of the many values of wetlands. The following excerpts are from the the wetland resources. Thus, the particular wetland site for rules and regulations published in the July 25, 1975 Federal which an application is made will be evaluated with the Register,c recognition that it is part of a complete and interrelated wetland area. In addition, the District Engineer may undertake reviews of (3) Effect on wetlands. ( 1 ) Wetlands are those land and particular wetland areas in response to new applications, and in water areas subject to regular inundation by tidal, riverine, or consultation with the appropriate Regional Director of the facustrine flowage. Generally included are inland and coastal Bureau of Sport Fisheries and Wildlife, the Regional Director of shallows, marshes, mudflats, estuaries, swamps and similar the National Marine Fisheries Service of the National Oceanic areas in coastal and inland navigable waters. Many such areas and Atmospheric Administration, the Regional Administrator of serve important purposes relating to fish and wildlife, recreation the Environmental Protection Agency, the local representative and other elements of the general public interest. As of the Soil Conservation Service of the Department of environmentally vital areas, they constitute a productive and Agriculture, and the head of the appropriate State agency to valuable public resource, the unnecessary alteration or assess the cumulative effect of activities in such areas, destruction of which should be discouraged as contrary to the (iv) Unless the public interest requires otherwise, no permit public interest. (ii.)Wetlands considered to perform functions shall be granted for work in wetlands identified as important by important to the public interest include: subparagraph (ii) above, unless the District Engineer (a) Wetlands which serve important natural biological concludes, on the basis of the analysis required in paragraph (f) functions, including food chain production, general habitat, and of this section, that the benefits of the proposed alteration nesting, spawning, rearing and resting sites for aquatic or land outweigh the damage to the wetlands resource and the species; proposed alteration is necessary to realize those benefits. (b) Wetlands set aside for study of the aquatic environment (a) In evaluating whether a particular alteration is necessary, or as sanctuaries or refuges; the District Engineer shall primarily consider whether the (c) Wetlands contiguous to areas listed in paragraph proposed activity is dependent upon the wetland resources and (g) (3) (ii) (a) and (b) of this section, the destruction or environment and whether feasible alternative sites are available. alteration of which would affect detrimentally the natural (b) The applicant must provide sufficient data on the basis of drainage characteristics, sedimentation patterns, salinity which the availability of feasible alternative sites can be distribution, flushing characteristics, current patterns, or other evaluated. environmental characteristics of the above areas; (v) ... state regulatory laws or programs for classification and (d) Wetlands which are significant in shielding other areas protection of wetlands will be given great weight. from wave action, erosion, or storm damage. Such wetlands As written, the 404 permit system provides Wisconsin perhaps often include barrier beaches, islands, reefs and bars; the most comprehensive program currently established for (e) Wetlands which serve as valuable storage areas for storm wetland protection and conservation. The potential value of the and flood waters; and program depends upon public awareness of and interest in (f) Wetlands which are prime natural recharge areas. Prime wetland protection, as well as the Corps' ability to apply and recharge areas are locations where surface and ground water enforce the stated policies and regulations. The effectiveness of are directly interconnected. the program has yet to be tested. 14 STATE-LOCAL JURISDICTION OVER WETLANDS -(In 1973) the Wisconsin Land Resources Committee Interpreted very loosely, the Act recognizes the need for concluded that 'land use protection and regulation is development of some shoreland areas while at the same time basically a local matter because most land use is only of recognizing that for others the best use may be no use at all. In local importance'. However, selective resources 'are of other words, a balance should be maintained between: wider significance' and should be subject to state policies a. Developed areas needed to accomodate an expanding and standards. The committee recommended that state population's demands for additional recreational, standards in the form of laws and regulations be set 'to agricultural and commercial enterprises; and control the regulation by local government of land uses b. natural undeveloped areas necessary for the protection of which are widespread in scope and impact' . "30 water quality, fish and wildlife reproduction, and natural beauty. This statement suggests that the state's policy should be to In recognition of this balance, a model ordinance prepared by protect public rights to the natural environment and in effect the state outlines the three main zoning divisions or use districts supports selective statewide zoning or land use development established for various shoreland areas. practices for such purpose. State laws and regulations enacted to prevent pollution and protect the land and waters of the state I .Wetland areas failing under the regulations would be are therefore recognized as valid expressions of the police placed into conservancy districts. power. 2. The majority of all recreational lake or river shoreland would be put into recreational-residential districts. Shoreland and Flood Plain Zoning 3. The remainder of shoreland areas would fall into general The State Water Resources Act 0 authorized what is now the purpose districts. DNR to "order abatement of all forms of pollution and to require Permitted uses in conservancy districts are those which would construction of waste treatment facilities' ' .21 In line with these have minimal effects on the wetland environment, e.g. hunting general goals, the act also created the Wisconsin Shoreland and fishing, forestry, harvesting of wild crops, display of certain Zoning Act,P and the Flood Plain Zoning Act.q Minimum signs. Special exception uses include: dams, flowages, removal standards and criteria necessary to meet the objectives of these of top soil or peat, general farming, cranberry bogs and other acts are set forth in Chapters NR 115 and NR 116 respectively of uses not involving resident structures, but which may have the Wisconsin Administrative Code. substantial effect on the existing wetland environment. Shoreland Zoning' Under the Shoreland Zoning Act, shorelands of navigable waters are to be. managed as special units. Individual counties OCh. 614, Laws of 1965. are delegated the duty to establish zoning ordinances for Psections 59.971 and 144.26 of the Wisconsin Statutes. unincorporated shorelands of navigable waters which lie within ('Section 87.30 of the Wisconsin Statutes. " 1,000 feet of a lake, pond, or flowage; (or) 300 feet from a river runless otherwise specified information in thissection isfrorn 2, 23, 26 and 33. or stream or to the landward side of the floodplain, whichever distance is greater.s sSection 59.971 (1) Wisconsin Statutes (Suppl. Vol. 3, 1965). 15 Recreational-residential districts, in addition to the uses any river or stream..." The flood plain is the area of "land permitted in conservancy districts, permit development in the adjacent to a body of water which has been or may be hereafter form of seasonal and year round family dwellings with covered by flood waters..." For the most part, the floodway is corresponding accessory uses. Special exception permits are. limited to open space use. Fill and construction are not allowed required and allowed primarily for recreational, commercial type except for that associated with permitted open space uses. Such uses, e.g. hotels, restaurants, marinas. Permits issued for such structures must not be intended for human habitation, must not uses may apply additional conditions to the development, e.g. adversely impede flood flow and must have low flood damage increased minimum lot sizes, including increased setbacks and potential (e.g. bridges). The administrative rules do not greater separating distances and special screenings. establish any specific use patterns for flood plain areas. Rather General purpose districts allow for conservancy, residential- they state that " (a) 11 flood plain developments shall be recreational, commercial and agricultural uses. compatible with a local comprehensive plan. In the absence of a The following must be established and regulated for all lands formal plan, development shall be compatible with uses zoned under the shoreland zoning ordinance: permitted in the adjoining district." The rules do require Minimum standards for water supply and waste disposal however that any structure built in the flood plain will not have systems adverse effects on flood plain drainage or storage capabilities. In Structure setbacks from highways or navigable waters addition, structures are to conform to certain construction, flood Minimum lot sizes and widths (to vary or be conditional proofing and sanitary regulations. (For a more complete upon use) discussion see: NR 116, 2, 12, 26, and 33. ) Lagooning and dredging regulations Both the shoreland and flood plain model ordinances provide Filling and grading controls only minimum standards. Counties and localities may at their discretion establish stricter provisions for the protection and The last two types of activity require special permits if the land regulation of such areas. Where an ordinance is not adopted or under consideration lies within 300 feet of and has surface fails to meet reasonable minimum standards for shoreland drainage toward navigable water and exceeds a minimum size protection, the DNR is authorized to establish an acceptable and slope as established under the ordinance. The primary ordinance to be administered at the county or local level."," purpose of such regulation is to prevent excessive Violations of ordinances are declared public nuisances and sedimentation or erosion from exposed shoreland and to are punishable under Section 87.30 of the Wisconsin Statutes. prevent structural development on wetlands. Court action may be brought about by any municipality, the state or any citizen thereof to stop and/or remove any construction or action found in violation of the ordinance. A maximum 50 dollar Flood Plain Zoning fine may also be assessed against the violator, each day of In contrast to shoreland zoning, where the probability for violation being considered a separate offense. serious flooding damage exists, cities and villages as well as counties are required to adopt flood plain ordinances. The tUnless otherwise indicated quoted definitions and rules are from Chapter NR general criteria for regulation are established in Chapter NR 116 116 of the Wisconsin Administrative Code. of the Wisconsin Administrative Code! As outlined in the code "Sections 59.971 and 87.30 Wisconsin Statutes. flood plain zoning requires that local ordinances for areas vTo date all counties have adopted and had approved shoreland zoning subject to flooding (a) contain a map delineating the floodway ordinances. Milwaukee County is an exception since all county lands are and flood plain, and (b) set out applicable restrictions for incorporated. In addition, of the 71 counties, 48 have adopted some form of floodway and flood plain use which become the text of the flood plain zoning ordinance; 18 of these have been approved. Of an ordinance. approximate 500 affected communities, 161 have adopted some form of flood The floodway is defined as "the channel of a stream and those plain zoning ordinance, 145 of which are approved.13 Though statutes require that shoreland and flood plain ordinances be met by January 1, 1968, flood plain portions of the flood plain adjoining the channel that are zoning in particular has lagged behind, due for the most part to limitations in required to carry and discharge the flood water or flood flows of manpower and difficulties inherent in delimiting floodways and flood plains. 16 Shoreland and Flood Plain Zoning as Wetland Management Tools Wisconsin's Shoreland and Flood Plain Zoning ordinances currently represent the most "active" and "extensive" state- local programs in wetland conservation. How "active" the ordinances are is determined by the style and manner in which they are enforced, local political arrangements, economic pressures and perhaps most importantly the local interest in wetland conservation. The "extent" of the authority over wetlands, although applying at a minimum to those contiguous to navigable waters, may be expanded to non-contiguous wet areas or wetlands under the regular zoning powers exercised by local governments. In enforcing the ordinances several problems have been encountered. For example: 1 .No complete inventory of Wisconsin's remaining wetlands exists. Sound scientific data and identification of important wildlife habitat areas, floodways and flood plains are also not yet available. 2. Continual policing and strict enforcement are necessary to ensure the ordinances are carried out. Presently manpower and funding limitations preclude effective enforcement. 3. Uniform application of the various provisions is often lacking. 4. Even should the zoning restrictions be strictly and uniformly enforced, the question remains whether the restrictions provided in the model ordinances are sufficient to preserve scenic beauty, water quality and wildlife habitat. 5. While presumed constitutional as drafted, shoreland and flood plain zoning ordinances may still be challenged as they apply overall or to individual properties. No zoning ordinances may represent an unconstitutional taking of private property for the public good; nor may it become so restrictive that it allows a landowner no reasonable use of his property. The challenge of constitutionality has been addressed in at least one decision, the Wisconsin Supreme Court case, Just v. Marinette County. For the most part the other problems and criticisms await resolution. 17 Just v. Marinette Countyw Following adoption by Marinette County of a shoreland zoning of the police power and condemnation has been said to be a ordinance, the Justs (husband and wife) began fill operations matter of degree of damage to the property owner... on a parcel of their land. The land in question was designated as "Many years ago, Professor Freund stated in his work on the swamp or marsh on United States Geological Survey (U.S.G.S.) Police Power, Sec. 51 1, at 545-547, 'it may be said that the state maps and according to the provisions of the shoreland takes property by eminent domain because it is useful to the ordinance was therefore zoned a conservancy district. Unless a public, and under the police power because it is harmful ... From conditional use permit is obtained from the Marinette County this results the difference between the power of eminent domain zoning commission, fill is not allowed on conservancy land. The and the police power, that the former recognizes a right to Justs had not obtained a permit. compensation while the latter on principle does not...' Marinette County therefore brought suit to stop the fill and "An owner of land has no absolute and unlimited right to require the Justs to pay a fine for violation of the ordinance. The change the essential natural character of his land so as to use it Justs appealed the trial court decision to the Wisconsin for a purpose for which it was unsuited in its natural state and Supreme Court on the grounds that: which injures the rights of others. The exercise of police power in a. their property was not a "wetland" (swamp or marsh) and zoning must be reasonable and we think it is not an therefore not subject to the ordinance; unreasonable exercise of that power to prevent harm to public b. the prohibition against fill . on private property was rights by limiting the use of private property to its natural uses. unconstitutional; The active public trust duty of the State of Wisconsin in respect c. the shoreland zoning ordinance itself was unconstitutional. to navigable waters requires the state not only to promote navigation but also to protect those waters for fishing, recreation Marinette County also appealed with the State of Wisconsin and scenic beauty, Muench v. Public Service Commission... intervening in their behalf. "it seems to us that filling a swamp not otherwise The following is excerpted from the Wisconsin Supreme Court commercially useable is not in and of itself an existing use, which decision handed down by Chief Justice Hallows.19 is prevented, but rather is the preparation for some future use "There can be no disagreement over the public purpose which is not indigenous to a swamp. Too much stress is laid on sought to be obtained by the ordinance. Its basic purpose is to the right of an owner to change commercially valueless land protect navigable waters and the public rights therein from when that change does damage to the rights of the people. degradation and deterioration which results from uncontrolled "By the Court - The judgement ... dismissing the Just's use and development of shorelands. . . action, is modified to set forth the declaratory adjudication that "To state the issue in more meaningful terms, it is a conflict the shoreland zoning ordinance of respondent Marinette County between the public interest in stopping the despoilation of is constitutional; that the Just's property constitutes wetlands natural resources, which our citizens until recently have taken as and that particularly the prohibition in the ordinance against the inevitable and for granted, and an owner's right to use. his filling of wetlands is constitutional ... The judgement declaring a property as he wishes. The protection of public rights may be forfeiture (by the Justs) is affirmed." accomplished by the exercise of the police power unless the This decision clearly supports conservation of wetlands, damage to the owner is too great and amounts to a confiscation. particularly where such wetlands play an important role in The securing or taking of a benefit not presently enjoyed by the maintaining the water quality of our lakes and strea MS.21 It rests public for its use is obtained by the government through its with the courts to decide how narrowly or broadly to interpret power of eminent domain. The distinction between the exercise this decision in future cases. w1972,56 Wis. 2d. 7. 18 WISCONSIN WETLANDS' LEGISLATIVE EFFORTS "The lessons as well as the beauties of marshes await the definition and classification system. Permitted activities should perceptive, as do the lessons and beauties of the skies, of be those which will not significantly alter or harm the character the seas, of the mountains and of the other places or function of a given wetland. Prohibited activities include those remaining where man can still reflect upon the lessons and which would alter or harm wetlands. Such activities may be beauties that are not of human making. `17 reversible to, some extent, but in general tend to be irreversible in nature. Exemptions are defined as those activities whose importance to the general public or the general good outweigh Currently only about 2.5 million acres of Wisconsin's original the values of wetlands in their normal state. In establishing 10 million wetland acres remain. Since 1971, the Wisconsin exemptions, some flexibility is provided in application and Legislature has been involved in attempts to pass a wetlands' -administration of the bill. protection bill. The various wetlands' bills proposed are outlined Methods of Protection and Regulation- in Legislation Relating to Natural Resources .3s To date, none of Wetlands regulation or protection measures may take any of these bills have succeeded in passing both houses of the several forms, including permit systems, protective order legislature. Nevertheless, it has been and remains obvious that a systems and those which combine the two. A permit system puts good wetlands' protection bill is needed. a blanket order regulation on all wetlands defined or designated Wetlands' Protection Bills in the legislation. Both nonregulated uses and regulated uses requiring a permit are defined in the legislation. A protective Definitions order system designates or identifies specific wetlands which At a minimum, a wetlands' protection bill should define: are to fall under regulation and in addition defines activities or wetlands, permitted or prohibited activities, exempted activities uses to which these areas may or may not be put. For example, and methods of regulation or protection. Definition of a wetland the Massachusetts' protective order system specifically should include, but not be limited to such conditions as water identifies areas under protection and the uses in such areas levels or general hydrology, soil conditions and vegetative which are prohibited. characteristics. While U.S.D.I. Circular 3932 definitions have Under either system, the state would establish minimum classically been used to identify wetlands, it may prove more standards for wetland regulation or protection. Since each useful, both in identifying wetlands and in administering permit application would require individual appraisal employing proposed regulations, if Wisconsin devised its own wetlands' established state standards, permit systems would likely be 19 administered at the loc@l (county) level. On the other hand, effectively protect and conserve wetlands and should reflect protective order systems which single out various state wetlands both public and private rights and interests in the land. Effective for protection may be more suited to administration at the state protection would require an inventory or mapping of Wisconsin's level. In this way, counties which may contain large tracts of -wetlands, an accurate system for recording changes in wetland protected wetlands would not be overburdened with their status, size and type, and a system of policing to ensure that administration. regulations are upheld. As with almost any strategy, there are advantages and The Wisconsin DNR estimated that the cost of wetland disadvantages associated with each system. Permit systems mapping alone should range from $500,000 to $1,000,000. provide immediate and comprehensive protection to all When the costs of evaluating wetland quality and maintaining an wetlands as defined in the legislation. However, the permit up to date inventory of wetland status are included this figure process requires case by case evaluation. In addition, the increases to $3.5 million.x Put in perspective, this figure is less general public may not be aware of the legislative regulations. than one dollar per Wisconsin resident. No matter what the cost, On the other hand, protective order systems would allow passage of effective wetland regulatory and protective protection to concentrate first on the most important wetlands; legislation requires a real compromise between various groups the owners would be notified of the action and the orders with vested interests in wetlands. More important, it requires publically recorded. However, only the specified wetlands would greater public recognition and understanding of the value of be protected. To gain the benefits and reduce the detriments of undisturbed wetlands. each approach, the best form of wetlands' legislation may prove to be a combination of both systems. Basic Standards and Funding Needed xEstimate is in 1976 dollars and is based on the New York wetlands inventory Whatever form the wetland legislation ultimately takes, it estimates provided by Dr. Ernest Hardy, Cornell University, Ithaca, N.Y, should at a minimum provide regulations or standards which will (personal communication). 20 APPENDIX A Acquisition Programs "By far the greatest recognition of wetlands has been at Wisconsin Statutes providing for privately run game and fur the public level both nationally and in Wisconsin and @has farms (29.574), licensed shooting preserves (29.573) and fish largely been in connection with game and fish hatcheries (29.52) also afford some protection to wetlands. management. "- (See references 11 and 14 for more comprehensive outlines of State and federal acquisition programs have traditionally Wisconsin Statutes aimed at protecting state wetlands and been geared toward protection of areas important to migratory waters.) waterfowl as well as toward protection of breeding grounds Private organizations have also been active in wetland important for sport fish such as pike, muskie and walleye. By conservation and acquisition. Included among these are: definition these areas include wetlands. - the Citizens Natural Resources Association, promoting The Department of Natural Resources (DNR) has been active wetland conservation for Wildlife Inc.; and, in wetland acquisition and restoration since 1930 when it began purchasing land on Horicon Marsh. To date, the DNR has -the Wisconsin Chapter of the Nature Conservancy.- acquired over 270,000 acres of wetlands, most of which is Where regulation or legislation have failed to conserve managed primarily for fish and game production. Wisconsin's wetlands, acquisition has often proved the last resort. Today publically owned wetlands total approximately 911,000 acres approximately 1.6 million acres of Wisconsin wetlands remain in when wetlands in county and federal forests, the Necedah private ownership. While the state and federal governments may Refuge (Central Wisconsin Conservation Area) and the national have plans for acquisition of some of these wetlands, funding for wildlife refuges are added to those acquired by the DNR.25 public acquisition and maintenance of all Wisconsin's wetlands Various state and federal legislative acts, programs or public is out of the question. The majority of these wetlands will laws passed to provide funds for acquisition of public lands were therefore remain in private ownership. For these lands some outlined in Wetland Use in Wisconsin: Historical Perspective and compromise between private interest and public good must be Present Picture.t, These include the following legislation: established. Federal - Pittman-Robertson Act, 1937 - Dingell-Johnson Act, 1952 - Acquisition Act, 1958 (P.L. 85-585) (monies were first made available to W.isconsin under this act in 1974) Wisconsin � Voluntary Sportsmen's License Act, 1937 and, � Outdoor Recreation Act Program (ORAP), 196 1. 21 APPENDIX B Current Drainage Laws and Policies Drainage Laws have existed since territorial days. Initially, AS CS General Policyl these laws stressed drainage and organization of drainage The ASCS has a general policy against drainage which will districts. Many such laws have since been repealed or modified .4 bring new land into agricultural production. Such projects are Wisconsin Drainage Laws and Policies not eligible for cost sharing. A special provision excepts low Current rules regulating drainage and drainage districts in income farmers allowing them to receive federal cost sharing to Wisconsin are contained in Chapter 88 of the Wisconsin bring new land into production. In all other cases, cost sharing Statutes. This chapter outlines: for drainage may be provided on "farmland used during at least two of the last five years to produce cultivated crops or crops -establishment of drainage districts, normally seeded for hay or pasture in the area." Cost sharing -special procedures in cases affecting navigable waters, policies apply only to types 1 and 2 wetlands; types 3 through 5 -procedures for hearings on the organization of drainage are not eligible.* Maximum cost sharing is not to exceed 50 districts, percent of the cost and in general is limited to 30 percent. -regulations for construction, maintenance and improvement SCS Policy of drains, The SCS has technical responsibility for establishing drainage -regulations for enlargement, consolidation, division and systems which qualify for federal cost sharing under ASCS dissolution of drainage districts. programs. In accord with ASCS policy, the SCS will not provide Federal Drainage Laws and Policies technical or financial assistance for any drainage or alteration of In the 1940's, the federal government established the wetland types 3 through 20. It is also a stated policy of the SCS Agricultural Stabilization and Conservation Service (ASCS) to to "assist in restoring damaged wetlands that are not provide for cost sharing to both individual and group drainage irrevocably committed to other use' ' 39 and to encourage wetland projects. Responsibility for providing technical assistance to preservation programs and establishment of wetland habitat ASCS funded projects was assigned to the Soil Conservation where possible. Service (SCS) in 1952. Both ASCS and SCS policies have been The federal laws, policies and regulations described in this modified and changed over the years. Current policies are section apply only where landowners request assistance in outlined briefly below. drainage enterprises. They do not prohibit individual landowners Funding for Cost Sharing from converting any land into arable land. They simply make Cost sharing for drainage was dropped from the national such programs ineligible for technical or financial assistance.- program in 1971 with the provision that counties could elect to continue cost sharing for drainage in 1971, 1972 and 1973 if it The 1962 Reuss Amendment to the Federal Agricultural Appropriations Act was in their 1970 program. The option was not available in 1974 prohibits the government from subsidizing any.drainage on wetlands classed as and 1975 but was reinstituted in 1976. types 3, 4 and 5. Wetland types are based on the USDI Circular 39 definition. 32 22 COMBINED LITERATURE CITED AND BIBLIOGRAPHY 1 .Agricultural Stabilization and Conservation Service. 1970. 11. Department of Natural Resources. (No date.) Existing Agricultural Conservation Program Handbook. Washington Environmental Protection Division Programs of Significance D.C. to Wetlands. (mimeo.) 2. Anderson, Robert. 1976. Shoreland and Floodplain Use in 12. Department of Natural Resources. 1970. Guide for Flood Wisconsin: Present Policies and Regulations. Dept. of Plain Management in Wisconsin. (A J oi nt- Local -State- Natural Resources publication. (in press) Federal Effort to Promote Wise Use of Flood Plains.) 3. Bedford, Barbara, Elizabeth Zimmerman and J. H. Madison, Wis. Zimmerman. 1974. The Wetlands of Dane County, 13. Department of Natural Resources. January 11, 1976. Flood Wisconsin. Cooperative publication of the Dane County Plain Status Report. (mimeo) Regional Planning Commission and the Wisconsin 14. Department of Natural Resources. 1975. Wisconsin Natural Department of Natural Resources. Resource Use Controls and Assistance. Pub. 3-8800(75) 4. Boykoff, T. M. 1974. Background Information for the Special (pamphlet). Madison, Wis. Committee on Preserving Agricultural and Conservancy 15. De Weerdt, J. L. and P. M Glick (editors). 1973. A Summary Lands. Informational Bulletin 74-3. Wisconsin Legislative Digest of the Federal Water Laws and Programs. National Council Staff. June 25, 1974. State Capitol, Madison, Wis. Water Commission publication. U.S. Government Printing 5. Boykoff, T. M. 1975. Legislation Relating to Preserving Office: 1973 0-497-569. Agricultural and Conservancy Lands. AB 1082, Taxation and Preservation of Agricultural and Conservancy Lands. 16. Ellis, H. H., J. H. Beuscher, C. D. Howard, and J. P. BeBraal. Wisconsin Legislative Council Report #15 to the 1975 1970. Water Use Law and Administration in Wisconsi 'n. Legislature. Sept. 24, 1975. Department of Law, University Extension, University of Wisconsin in cooperation with the Natural Resources 6. Bray, J. 0., A. Cole and R. J. Hammond. 1968. The North Economics Division, Economic Research Service, United Dakota Wetlands Problem. Prepared for: North Dakota States Department of Agriculture. State Water Conservation Commission. Stanford Research Institute, Menlo Park, Calif. .17. Errington, P. L. 1957. Of Marshes and Men. MacMillan. 7. Committee on Government Operations. 1972. Increasing 18. Goldstein, J. H. 1971. Competition for Wetlands in the Protection for Our Waters, Wetlands and Shorelines: The Midwest. Resources for the Future, Inc., Washington, D.C. Corps of Engineers. Report No. 92-1323. In: House Reports 19. Chief Justice Hallows. 1972. State of Wisconsin: in Supreme 918-1610 with exceptions. 92d Congress, 2nd Session. Court. August Term, 1972. No.'s 106 and 107. Appeal from 8. Conservation Foundation Letter. September, 1974. The judgements of the circuit court for Marinette County: James Wetlands: How Well Are They Protected? A. Martineu, Circuit Judge. Modified and, as modified, affirmed. 9. Department of the Army, Corps of Engineers. 1974. Applications for Department of the Army Permits for 20. Hine, Ruth L. and G. J. Knudsen. 1975. The Parade of Activities in Waterways. 1 October 1974. Pamphlet No. Plants. 1. Wetlands. Department of Natural Resources 1145-2-1. publication. Pub. 3-2400(75). 10. Department of Defense, Corps of Engineers. 1975. Permits 21. Johnson, Carolyn. 1976. Wetland Use in Wisconsin: for Activities in Navigable Waters or Ocean Waters. Federal Historical Perspective and Present Picture. Wisconsin Register. July 25, 1975. Washington, D.C. Vol. 40, No. 144, Department of Natural Resources publication. Pt IV. 23 22. King, D. 1973. Visions of Tommorrow. Phase 1: Overview. 35. Stute, D. J. 1975. Legislation Relating to Natural Resources; Department of Natural Resources, Madison, Wis. AB 604, Protection of Wetlands. Legislative Council Staff 23. Kusler, J. A. 1970. Zoning for Shoreland Resource Publication, April 28, 1974, State Capitol, Madison, Wis. Protection: Uses and Limitations. PhD Thesis. University of 36. Thompson, D. R. 1969. Wetlands. In: Water Use: Principles Wisconsin. and Guidelines for Planning and Management in Wisconsin. 24. Lehmann, R. A. 1973. Supplementary Reporter's Comments Wisconsin Chapter, Soil Conservation Society of America, to Just v. Marinette Co., 24ZD319: Public Rights Versus Madison, Wisconsin. Private Resources: Striking a Balance. Zoning Digest. pp. 37. Water Resources CouncH. 1968. The Nation's Water 114-119. Resources. Washington, D.C. 25. Natural Resources Committee of State Agencies. 1967. 38. U.S. Army Corps of Engineers. 1975. "Section 404" Permit State of Wisconsin. State Laws, Policies and Programs Program. (pamphlet) (The inset on the "Section 404" Pertaining to Water and Related Land Resources. Prepared Permit Program is an almost complete excerpting of the by the Water Subcommittee of the Natural Resources pamphlet.) Committee of State Agencies. 39. U.S. Department of Agriculture. 1975. Conservation 26. Natural Resources Council of State Agencies. 1973. Planning Memorandum. May 5, 1975. U.S.D.A., S.C.S., Managing Wisconsin's Natural Resources. Washington D.C. 20250. 27. Reitze, A. W., Jr. 1972. Environmental Law. Vol. One, North American International, Washington, D.C. 28. Reitze, A. W., Jr. 1974. Environmental Planning: Law of Land and Resources. North American International, Washington, D.C. 29. Rienow, R. and L. T. Rienow. 1967. Moment in The Sun. Ballantine Books, New York. 30. Robbins, Patricia V. 1973. Statewide Land Use Programs. Informational Bulletin 73-113-6. October 1973. Legislative Reference Bureau, State Capitol, Madison, Wisconsin. 31. Shairer, J. E. 1974. Natural Resources and Environmental Legislation Enacted in the 1973 Session. Wisconsin PREVIOUS PUBLICATIONS OF THE STATEWIDE WATER Legislative Council Staff Information Memorandum 74-6. RESOURCES MANAGEMENT PLAN 32. Shaw, S. P. and G. C. Fredine. 1956. Wetlands of the United Visions of Tomorrow: Overview, 1973. States. U.S. Department of the Interior, Fish and Wildlife. Circular No. 39. (reprinted 1971 ) An Investigation of the Accessibility of Wisconsin's Lakes and Streams, 33. Shoreland and Floodplain Protection Manual for Local 1975. Governmental Units. Preliminary Draft, August, 1967. Prepared by Department of Natural Resources, Division of Wetland Use in Wisconsin: Historical Perspective and Present Picture, Resource Development. University of Wisconsin, Extension 1976. Division. 34. Stute, D. J. 1974. Protection of Wetlands. Informational Economic Forecasts for Water Resources Planning, 1976. Bulletin 74-4. Wisconsin Legislative Council Staff Using Input - Output to Estimate Economic Impacts in Wisconsin, Publication. July 22, 1974, State Capitol, Madison, Wis. 1976. 24 2000-3J70025-76 NATURAL RESOURCES BOARD THOMAS P, FOX, Chairman Washburn CLIFFORD F. MESSINGER, Vice-Chairman New Berlin MRS. G. L. McCORM ICK, Secretary Waukesha JOHN C. BROGAN Green Bay LAWRENCE DAHL Tigerton DANIEL T. FLAHERTY La Crosse HAROLD C. JORDAHL, JR. UW-Madison DEPARTMENT OF NATURAL RESOURCES ANTHONY S. EARL Secretary ANDREW C. DAMON Deputy Secretary 3 6668 00000 1299