Though there are no federal laws are designed specifically to protect our wetland resources, it is the stated goal of the United States government to maintain our current acreage of wetlands. Formally adopted in 1989 by the George H.W. Bush administration, and re-endorsed in each subsequent administration, the “No Net Loss” policy utilizes various regulations and incentives to slow development on wetlands, and to offset wetland loss with compensatory mitigation.
Wetlands are generally protected from filling and development under Section 404 of the Clean Water Act (CWA). The primary goal of the CWA is to regulate the “waters of the United States”, including wetlands, from discharge of dredge or fill materials. While all wetlands within the U.S were once considered waters of the United States, the interpretation of this definition has changed based on two recent Supreme Court rulings. Today, only those wetlands that have a significant connection to navigable waters of the United States are included under the jurisdiction of the CWA, leaving many isolated wetlands unregulated.
CWA regulation requires permitting for all activities that dredge or fill any waters of the United States. Environmental impacts are to be avoided if possible, and mitigated if necessary. Permits are granted by the U.S. Army Corps of Engineers. If there is no practicable alternative to the filling of a wetland, the particular development project requires compensatory mitigation. Methods of mitigation can include the restoration of a previously existing wetland, the establishment of a new wetland, the enhancement of an existing wetland, or the preservation of an existing wetland. Though mitigation is the responsibility of the permittee, other avenues of mitigation exist which allow third parties to take on the mitigation responsibility. Mitigation banks are wetland areas that have already been created or restored to offset wetland impacts. Permittees can pay these mitigation banks based on how many mitigation credits they require for the size of their development project. Alternatively, In-Lieu Fee Mitigation involves a third party that collects mitigation funds from a large number of permittees and pools these financial resources to create a new mitigation wetland.
Though mitigation requirements are designed to keep wetland acreage across the United States from declining further, exemptions to the CWA exist for farming practices. Private landowners are exempt from the Section 404 if the discharge of dredge or fill materials into wetlands are part of “normal farming practices”.
Within Colorado, all wetland impacts are regulated by the U.S. Army Corps of Engineers. There are three Corps districts in Colorado. Wetland permits and questions are typically addressed by the nearest office. If you are in need of assistance from one of these offices, use the following contact information to contact your nearest office.
Because many wetlands on private agricultural lands are not subject to Section 404 regulation, the Swampbuster program exists as an incentive for farmers to maintain wetlands on their land. Many farmers and ranchers rely on subsidies provided by the Farm Bill. The Swampbuster program discourages farmers from altering wetlands by withholding funds from the Farm Bill from any landowner who negatively impacts wetlands on their land. Farmers and ranchers cannot access Farm Bill funds if they 1) plant agricultural commodities on a wetland that was converted by drainage, dredging, leveling, or by any other means, or 2) converts a wetland for the purpose of commodity production.
The Wetlands Reserve Program (WRP) is a voluntary program for landowners to protect, restore, and enhance wetlands on their property. The USDA natural Resource Conservation Service provides landowners with technical and financial assistance in the restoration and protection of private wetlands. Wetlands can be protected for various amounts of time, and the landowner can be compensated for lost revenue during that time under the WRP.
The State of Colorado does not have any specific laws or regulations to protect our wetland resources. The State of Colorado does recognize wetlands under the definition of “state waters” and therefore subject to basic standards for water quality.
The Wetland Wildlife Conservation Program is a voluntary, incentive based program to protect wetlands and wetland dependent wildlife on public and private land. Since its inception in 1997, the Program has restored more than 220,000 acres of wetlands and more than 200 miles of streams with a almost $40 million in total funding devoted to wetland preservation.
The program provides funding for 1) wetland and riparian creation, restoration, and enhancement, 2) conservation easements and fee-title purchase, 3) wildlife and aquatic resource inventories, 4) education and outreach, and 4) project monitoring and evaluation.
Because most wetlands are regulated at the federal level, only those counties and cities that are interested in having stricter regulations than the federal level devote resources for wetland regulation. Contact your local government for information pertaining to wetland regulation in your area. Larimer County’s regulations are outlined below as an example.
Larimer County land Use Code 8.2 - Wetland Areas
Damage to wetlands within Larimer County is still subject to permits from the U.S. Army Corps of Engineers, but the county furthered the federal regulations, necessitating local permits as well. The land use code prohibits development on lands that will adversely impact wetlands in the following ways:
If development occurs in a wetland or buffer area without approval, restoration of the original wetland is required, including the restoration of the original wetland configuration (width, depth, length), soil types, buffer areas, and wetland functions.