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Wetlands provide habitat for a variety of plants and animals, including certain endangered species. Wetlands also help moderate floodwaters, control sediments, and improve water quality. The tranquility and beauty of wetland areas make them popular for recreation and relaxation as well.

On the other hand, drained wetlands are attractive for agricultural uses and for commercial and residential development. They make good agricultural fields because of their productive soils, high water table, and flat topography. Large, efficient farming equipment is easier to use on drained wetlands than on steeper land. Wetlands are also in demand as building sites, especially if they are near rapidly growing communities where their development can increase the tax base. In coastal areas, where suitable homesites are in short supply, drained wetlands are highly valued for residential development.

The United States Fish and Wildlife Service (USFWS) estimates that the United States originally had 221.1 million acres of wetlands in the lower 48 states (Figure 1).

Figure 1. General distribution of U.S. wetlands. Shaded portions incorporate general wetland areas.

By the 1970s, wetlands were being drained rapidly for agriculture and forestry in response to favorable economic conditions. Salt marshes were filled to provide building sites along the coast. In some places, essentially all wetlands were gone. Today, 53 percent of the nation's original wetland acreage has been converted to other uses (Table 1). In North Carolina, about 49 percent of the wetlands have been converted. Most North Carolina wetlands are located in the eastern part of the state (Figure 2), but wetlands can be found in every county.

If you own property classified as a wetland, state and federal laws affect the use of that land. Some agricultural and silvicultural activities are exempt, but others are not. Failure of landowners to protect wetlands can lead to legal penalties, loss of federal benefits, or both. Before undertaking any activity on a known or suspected wetland, contact the appropriate authorities.

Fortunately, steps are now being taken to protect our nation's wetlands. However, the process is complicated, and it often leads to conflict among individuals and groups with differing opinions about the use of wetlands. All users of wetlands can defend their positions in some way. Often there is no right or wrong answer but instead a difficult choice between two potentially beneficial alternatives.

Wetlands are difficult to define. They commonly occur in transition zones between well-drained uplands and true aquatic habitats, yet they often have no clear boundary. Developing a widely accepted definition is also complicated by the diversity of wetland types, functions, ecosystems, and regions. As a result, many different wetland classification schemes have been proposed.

Until the late 1980s, three federal agencies—the USFWS, the Environmental Protection Agency (EPA), and the U.S. Army Corps of Engineers (Corps used their own definitions of wetlands to identify the land over which they had jurisdiction. After wetland protection rules were added to the 1985 Food Security Act, the Soil Conservation Service (SCS) became involved and developed its own wetland definition.

Although the Corps of Engineers has the greatest involvement in regulating wetlands, the lack of a single wetland definition for all agencies led to confusion. Landowners were told by one agency that an area was protected wetland, yet another agency might not claim jurisdiction. In an effort to arrive at a single definition under federal jurisdiction, the four agencies adopted the rules of the 1989 Federal Manual for Identifying and Delineating Jurisdictional Wetlands. The manual states that to fall under federal jurisdiction, wetlands must meet three criteria: they must possess hydrophytic vegetation, hydric soils, and wetland hydrology.

Figure 2. Major area of Histosols (organic soils) and dark-surfaced mineral soils in North Carolina.

Hydrophytic Vegetation. The site must be dominated by plants that require or prefer wet soils. This criterion can be difficult to apply because it is often hard to identify the many plant species on a given site and to determine their relative abundance there.

Hydric Soils. In general, hydric soils are wet and anaerobic (lacking in oxygen) for one week or more during the growing season. Unfortunately, it is not easy to identify soil properties in transitional areas with enough certainty to satisfy this requirement.

Wetland Hydrology. The hydrology criteria are based on the depth from the surface to the water table and the length of time the water table remains at that depth. The hydrology factor is the most difficult of the three criteria to quantify because it can change rapidly with rainfall or flooding. In addition, wet conditions may occur only seasonlly or at irregular intervals. The site may have to be monitored for an extended period to determine its hydrology.

Although the new manual defined wetlands more precisely and uniformly, landowners and developers complained that the criteria for identifying wetlands were too restrictive, especially in regard to hydrology. Less stringent criteria were proposed in 1991, but many environmentalists objected because these new criteria would have removed some land from jurisdiction. As a result, Congress has asked the National Academy of Sciences to review the literature on wetlands and help formulate a wetland definition. Until the matter is resolved, Congress has directed the Corps of Engineers to use their 1987 wetlands manual.

Concerned over the rate at which our nation's wetlands were being converted to other uses, President Carter issued an executive order establishing wetland protection as an official policy of all federal agencies in 1977. In the same year, amendments to the Clean Water Act strengthened wetland protection efforts. Section 404 of the act increased the Corps of Engineer's authority to regulate wetlands adjacent to navigable waters. Furthermore, the law requires that the Corps heed comments from the USFWS and the National Marine Fisheries Service (NMFS) about impacts on wetlands when reviewing permit applications, thus increasing the influence of these agencies in wetland protection. However, because of the various agency objectives and interpretations of the law, the 404 permit process has been a source of controversy and litigation.

Today, Section 404 allows the Corps to issue nationwide permits that involve little or no paperwork to authorize minor activities on wetlands, such as installing navigation aids, constructing small docks and piers, and making temporary arrangements for construction and access. However, a number of regional conditions must be met, and in some cases the Corps must be notified before any activity begins. Therefore, before undertaking activity that may affect a wetland area, landowners and others involved should learn the latest regulations and check with the appropriate authorities.

The permit that most often affects the general public is number 26, designated "Headwaters and Isolated Waters Discharges." Nationwide permit 26 allows dredge-and-fill materials to be deposited on wetlands without prior approval if the area affected is less than a specified size (generally 1 acre or less) and if it consists of isolated, low-flow wetlands. Furthermore, these materials may be deposited on Wetland Issues up to 10 acres of such wetlands if the Corps is notified in advance. It is important to check the latest regulations because the size requirements may change. Certain areas, such as trout waters, are not included.

Under a provision of Section 404, lands used for normal agricultural and silvicultural activities are exempt from Corps regulation. In Regulatory Guidance Letter 90-7, the Corps ruled that "prior converted cropland," or land placed into agricultural production before December 23, 1985, is not subject to Section 404. Wetland permits are not required for any normal activity on exempt land. However, the definition of normal is being debated. The courts have ruled that clearing land for agriculture is not an exempt activity. Also, the 1985 and 1990 farm bills include provisions that tend to stop wetland clearing; violators may lose USDA benefits.

Forestry activities on wet soils have also become controversial. Drainage, bedding, and water management have traditionally been considered normal silvicultural practices on wet soils. Environmentalists, however, want such practices removed from North Carolina's list of Best Management Practices for forestry. They contend that establishment of pine plantations results in loss of wetland functions. As with agricultural areas, owners of wetlands should be sure to learn the latest regulations before undertaking forestry activities on wet soils.

In the case of wetlands, mitigation is the process of lessening the impact of an activity on the wetland or replacing destroyed or damaged wetlands by creating comparable new wetland areas. Mitigation has become an important part of the process of issuing permits under Section 404. In 1989, the EPA and the Corps reached an agreement on a mitigation procedure that centers on the concept of "no net loss" of wetlands. The "no net loss" policy has increased wetland protection by federal agencies. The agencies adopted the Council on Environmental Quality's list of options for preventing or mitigating the environmental impact of a proposed activity.

Avoiding wetland disturbance is preferred, but at times, mitigation is the only alternative if development is permitted. Constructing new wetlands or restoring existing ones are ways that have been proposed for mitigating the effects of development. Some wetland defenders, however, are concerned that constructed or restored wetlands may not fully compensate for the loss of natural wetland functions even when wetlands are replaced on a greater than one-to-one (acre-for-acre) basis.

With the passage of the 1985 Farm Bill, wetland regulations became even more complicated. For the first time, landowners were required to protect wetlands to be eligible for USDA benefits. Any farmer who planted certain crops on drained wetlands after December 23, 1985, could lose all benefits. The program is administered by the USDA's Agricultural Stabilization and Conservation Service (ASCS). The SCS, however, is responsible for identifying wetlands.

The 1990 Farm Bill continues and expands the wetland conservation provisions of the 1985 Farm Bill. These are some of its key provisions:

Wetland preservation (swampbuster). This provision is similar to that of the 1985 bill. The definition of a wetland is reaffirmed, requiring all three criteria (wetness, soil, and vegetation) for wetland determination. In contrast to the 1985 Farm Bill, more latitude is given to minimal effect determinations, and there are provisions for mitigation. In addition, graduated penalties and a "good faith" exemption replace the sudden and irrevocable loss of benefits. One of the most significant changes is that under the new law, violations are regarded as beginning when the land is converted to a new use rather than at the time a crop is planted.

Wetland and Environmental Easement Program. The 1990 Farm Bill created a wetland and environmental easement program that establishes a National Agricultural Wetland Reserve. The goal is to place in reserve 2.5 million acres between 1990 and 1995, but the level of funding is in question. SCS personnel can provide the latest information.

Office of Environmental Quality. An Office of Environmental Quality was created to evaluate the effects of agricultural programs on the environment. Preserving our wetlands is vitally important to our nation's environment and economy.

Laws and regulations protecting wetland areas are certain to remain in force and are likely to become more stringent. Wise landowners, farmers, and foresters will make every effort to protect wetland areas from damage, not only to protect their legal rights and eligibility for government program benefits, but to uphold their long tradition of good citizenship and good stewardship of the land. For more information, contact your county Cooperative Extension Center.

Wetland Issues

Table of Contents

The Value of Wetlands

Defining Wetlands

Protecting Wetlands

For Further Reference