State Policy Options for Wetland Protection and Management

Historically the protection, restoration and stewardship of wetlands began with state and local initiatives.  Although there is now a strong national regulatory program administered by the EPA and the Army Corps of Engineers, states continue to play a key role in wetland management.  States are typically considered to have primacy in issues related to land use and wildlife management, as well as public trust responsibilities in state waters, and may use many different approaches to achieve state goals. 

State programs may be regulatory, non-regulatory, or both.  General information for both types of programs is summarized below.  Some additional references:

Restoring and Protecting Wetlands: State Policy Options

- Larry Morandi, National Conference of State Legislatures

A Guide for State Legislators: Wetland Protection and Restoration – Common Questions

- Jon Kusler, Association of State Wetland Managers

Core Elements of an Effective State or Tribal Wetlands Program

- USEPA, Office of Wetlands Oceans and Watersheds

State regulatory options  About 20 states have developed permit programs that may be completely independent from Section 404, but are more often coordinated with federal agencies to limit duplicative requirements.  Operating a state regulatory program is beneficial for a number of reasons including

  • Maintenance of state control over water and wildlife resources
  • Assured attention to those resources that are of particular interest to the state – e.g. habitat for species that are locally rare, wetlands that have cultural significance, wetland adjacent to state preserves, wetlands that provide local flood protection
  • Provision of a faster permit response than federal permit programs – if the state enters into an agreement to coordinate with the Corps of Engineers, federal permitting may also be expedited.

States have a great deal of flexibility in defining the extent of state regulations, and the extent of state-federal cooperation.  State-federal regulatory cooperation generally falls into the following three categories (see hyperlinks for additional information, and state case studies for each option).

  • Section 401 Water Quality Certification.   Under Section 401 of the Clean Water Act a federal agency cannot issue a permit or license for an activity that may result in a discharge to waters of the U.S. until a State or tribe has granted of waved 401 Certification. This provision includes actions by any federal agencies but is most often applied to the U.S. Army Corps of Engineers for Section 404 permits and the Federal Energy Regulatory Commission for hydropower license. Section 401 of the Clean Water Act prohibits the Corps of Engineers from issuing a dredge and fill permit until it has obtained certification from the impacted state that the project will not violate state water quality standards, or associated regulations.   Many states use this process as a means of reviewing proposed Corps permits, and providing state conditions for permits that are issued.   This option is available to all states, regardless of whether state wetland regulations have been put in place.
  • State Programmatic General Permits.   In a number of states, the Corps has issued a Programmatic General Permit that essentially relies upon a state’s decision with regard to a regulated activity for specified wetland impacts; the Corps permit may be issued with limited or no direct Corps review.   This reduces duplication, and can significantly expedite the permit process — in some cases reducing the time typically needed for approval of smaller projects from several months to several days. 
  • 404 Program Assumption.  This option gives approved states primary responsibility for dredge and fill permits in all waters except for traditionally navigable interstate commerce waters (e.g. tidal wetlands, major freshwater systems such as the Great Lakes and large rivers, and adjacent wetlands).  Most dredge and fill projects in states with assumed 404 programs do not require a Corps permit — that is, the state permit provides authorization under Section 404.  However, EPA provides program oversight, and the agency may comment on some categories of applications.

ASWM is actively working with the states and federal agencies to improve wetland permit processes.  Click here for additional information.

Non-regulatory options  State may decide not to regulate wetlands directly in light of cost, lack of public support, or other state priorities.  However, many states (including those with and without permit programs) actively engage in other types of wetland management to provide significant public benefits –  including protection of drinking water,  avoidance of flood damage, protection of water quality, and protection of habitat for fish and wildlife.  ASWM has compiled detailed summaries of state wetland programs – prepared by state staff – that may be useful in comparing states in a region, or those with similar resource management concerns

Active state wetland programs often include one or more of the following activities:

  • Watershed planning: State and local government agencies, NGO’s, and landowners may cooperate in management of land and water within a river basin or watershed.   They may use a variety of tools to evaluate past wetland loss and current wetland values, and to help set priorities for wetland restoration or stewardship, all based on local concerns and goals.   For more information, click here.

  • Monitoring and assessment:   Wetlands provide a variety of functions, but not all wetlands are equally important to the public.  Scientists and managers have developed a range of wetland assessment methods that help to objectively define the functions and benefits that are provided by various wetlands. 

    Like other waters, wetland habitat may also be degraded by pollution or land use activities.  State wetland monitoring programs help to define the condition of the state’s wetland resources, and to track changes in the quantity and quality of wetlands over time.  Click here for additional information on monitoring and assessment methods.
  • Wetland restoration and stewardship Voluntary restoration and protection of wetlands is a win-win approach broadly supported by government agencies, NGOs, and private landowners to improve habitat, protect water quality, to meet other water management goals.   On a national basis, the majority of wetland restoration has been carried out in partnership with landowners in rural areas primarily to improve waterfowl and wildlife habitat – often with financial support to the landowner from USDA and USFWS programs, along with technical support from private organizations such as Ducks Unlimited.

    Increasing attention is also being given to the restoration of wetlands to meet water quantity and water quality management goals.  Restoration projects may be small, local volunteer efforts that pay major dividends in a local watershed.  There are also many examples of large national efforts – such as Everglades restoration, protection and restoration of freshwater marshes in the Mississippi River delta, and restoration of Great Lakes coastal wetlands.

Click here for a state by state list of links to wetland restoration activities.

  • Outreach and education One of the most effective approaches to wetland management may be better education of the public, and increased reliance on sound land management by private property owners.  Numerous materials are available to assist in educational projects, from basic wetland science in K-12 programs, to more technical materials for landowners, local planners, and watershed managers.   For more, click here.