wetland birds“There are many places where the ground is literally covered, and the whole heavens completely blackened, with innumerable flocks of countless numbers of geese, ducks, brants, cranes, and all the various noisy tribes, of all the feathered creation.” -Lansford W. Hastings in The 1845 Pioneers Guide for the Western Traveler

Since colonial times Americans have worked fervently to drain and fill the estimated 225 million acres of wetlands that graced what eventually became the contiguous United States.The Swamp Land Acts of 1849, 1850, and 1860 formally declared wetlands a menace and hindrance to land development, and encouraged their drainage and development. America agreed, and worked to dry up more than half of the sponge that absorbs and stores floodwaters; to scoop out the great marshy gills that filter pollutants from runoff; and to dredge the productive nurseries that maintain aquatic and avian life. America’s wetlands, that support one-third of our threatened and endangered species, continued to suffer from railroads that made agriculture more profitable, a growing taste for beaver pelts and sugar, and muddled laws that regarded land as private and water as public. The Industrial Revolution as well as growth and development of our U.S. Government led military presence have also clearly extracted their toll. It wasn’t until the last few decades that the irreplaceable value of wetlands and importance of water quality has become clearer. And while we have a better understanding today of how wetlands benefit our environment, calculating the ecological services wetlands perform is still an evolving science. Knowing our history and understanding our loss is an important step to begin to compensate for our nation’s mistakes during a time when we knew no better. When Americans know the story of their wetlands, they will understand why remaining swamps and marshes at the edges of their fields, their subdivisions, their shopping malls, and their industrial parks, all require and need protection.

History of Federal Wetland Law

The first regulatory recognition of the need to protect wetlands is found in the 1972 Clean Water Act (CWA). Specifically, Section 404 of the CWA requires a permit to discharge dredged or fill materials into waters of the U. S. Two other key provisions of the CWA include the requirement to avoid and minimize impacts when possible, and the requirement to provide compensatory mitigation for unavoidable impacts. These clauses are still prevalent today and referred to as sequencing. In 1977 President Jimmy Carter signed Executive Order 11990 into law requiring Federal government agencies to take steps to avoid impacts to wetlands when possible. The national policy of “No Net Loss” of wetland values and functions was established by President George H.W. Bush in 1988. From this policy statement the concepts emerged of “like kind replacement” and “functional as opposed to spatial replacement.”

In 1993, the Clinton Administration released a comprehensive package of improvements to federal wetlands programs that included support for the use of mitigation banks. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) subsequently released interim guidance (RGL 93-2) clarifying the role of mitigation banks in the CWA 404 permitting program. This guidance was subsequently expanded in November 1995 to include guidelines for the establishment and use of mitigation banks. In 1998, President Clinton signed into law Pub. L. No. 105–178: the Transportation Equity Act for the 21st Century (TEA-21). TEA-21 authorizes programs for highway, highway safety, transit, and other surface transportation. A significant provision in TEA-21 endorses using wetlands banks for mitigation of transportation projects, making TEA-21 the first substantial legislative act to specify a preference for mitigation banking where compensatory mitigation is required. In 2004, the National Defense Authorization Act (PL 108-136) called for the development of regulations, consistent with Section 404 of the Clean Water Act, that establish equivalent standards and criteria for mitigation banks, in-lieu fee programs and permittee-responsible mitigation After four years of deliberation with significant public input the federal rule became final in December, 2008. Implementation of this Rule continues to revolve around acceptance that engaging private capital to invest in the restoration of what we have impacted the last 10 decades is well worth the result.



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