No net loss policy in the United States

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"No Net loss" is the United States government's overall policy goal regarding wetlands preservation. The goal of the policy is to balance wetland loss due to economic development with wetlands reclamation, mitigation, and restorations efforts, so that the total acreage of wetlands in the country does not decrease, but remains constant or increases.^[1][2]

To achieve the objective of No Net Loss, the federal government utilizes several different environmental mitigation tools which legally protect wetlands, provide rules and regulations for citizens and corporations interacting with wetlands, and incentives for the preservation and conservation of wetlands. For example, compensatory mitigation, including wetland mitigation banking. Mitigation banking is a system of debits and credits that is market-based. It is used primarily in the United States as part of the No Net loss Policy. This involves a system of mitigation banks. This is an area where projects to restore and enhance the wetlands can be carried out in advance of impacts.

Given the public benefits provided by wetland ecosystem services, such as flood control, nutrient farming, habitat, water filtration, and recreational area,^[3] the estimations that over half the acreage of wetlands in the United States has been lost within the last three centuries is of great concern to local, state, and federal agencies as well as the public interest they serve. The world has lost over 87% of their Wetlands since the 1700's. [1]

Areas of land that are wet by surface water or groundwater for long periods of time so that the animals and plants adapt to them for a part of their lifecycle are considered Wetlands. This includes areas that are inundated with fresh or saline water. Lagoons, lakes, rivers, estuaries, swamps, coral reefs and seagrass beds are examples of wetlands.

Wetlands that are healthy provide services to local, regional communities such as nurseries for fisheries, tourism opportunities, grazing and agriculture. Swamps and rivers also provide a cultural focus for many different regional communities.

At a larger level, No Net Loss will only be achieved if the incentives in the system are aligned. The project needs to be designed in a way that is deliverable in ways that make it tangible, measurable and meaningful for both the people and biodiversity. The government organizations need to set clear and well-enforced legislation to ensure that the developers are not undercut by compensation. Developers should have incentives and be educated that on the topic. They should support positive biodiversity impacts and support a positively biodiverse outcome. [2]

Since the 18th century, wetland area has decreased from nearly 220 million acres (890,000 km²) in the lower 48 states to 107.7 million acres (436,000 km²) in 2004.^[4] Since the 1950s, over fifty percent of this loss has come from wetlands being transitioned to agricultural lands.^[5] Other contributing factors to wetlands loss include, but are not limited, to development and forestry.

Over one billion of the world's population relies on fish that are harvested from the Wetlands as their primary source of protein. For another two billion people, fish harvested from the wetlands accounts for 15% of their diets. Wetlands play a significant role in the diets of many people all over the world. Wetlands are home to over 100,000 biodiverse species of plants, animals, and bacteria. Wetlands are crucial to for the development of society, as they account for more than a billion services and jobs a year, which is valued at $47 billion worldwide. [3]

No Net Loss as a goal for wetland's policy was recommended in 1987 at the National Wetlands Policy Forum .^[6] It was first adopted by President George H.W. Bush administration in 1989. The policy, which represented compromise between development and conservation, was grounded on the needs to protect the wetlands by creating and restoring the wetlands. The United States is not the only nation interested in the conservation of wetlands. International cooperation exists in the form of the Ramsar Convention on Wetlands.

No Net Loss is a mitigation policy goal aiming to prevent and offset the destruction or degradation of wetlands. Under this bi-partisan policy, wetlands currently in existence are to be conserved if possible. No Net Loss is achieved through a coordinated effort of:^[7]

• wetlands protection
• creation of new wetlands
• restoration, enhancement, and management
• education, research, and information

"No Net Loss" of wetlands was first adopted as a national goal under Jimmy Carter's administration in 1977. This was under the Executive Order 11990. George H. W. Bush’s administration in 1989, emphasized three elements on its policy: strengthening the wetland conservation and acquisition measures, revising the delineation manual, and improving and streamlining the wetlands regulatory program.^[8] All of these measures are aimed at maintaining the overall quality and quantity of Wetlands biodiversity.

During his presidency, Bill Clinton's administration reiterated the same pledge by endorsing and updating the No Net Loss policy. The Clinton Administration’s commitment was to increase the fairness and flexibility. as well as speed of permit issuances over dredged or fill materials into waters as a part of the implementation of the Section 404 of the Clean Water Act. It also aimed to resolve the differences in the delineation of wetlands area. Finally, the administration committed to increasing funding for wetland restoration measures, such as Wetland Reserve Program under the USDA, voluntary wetlands restoration programs, non-regulatory conservation initiatives, and mitigation banks.^[9] The Clinton administration's 1998 Clean Water Action Plan aimed for a net gain of 100,000 acres (400 km²) of wetlands each year.^[10]

The administration of George W. Bush endorsed the No Net Loss goal in December 2002, when it released the National Wetlands Mitigation Action Plan. This plan outlined improvements to be implemented in wetland protection and mitigation by the Army Corps of Engineers, the Environmental Protection Agency, the National Oceanic Atmospheric Administration, the Department of the Interior, the Department of Agriculture, and the Federal Highway Administration.^[11] Additional action by the Bush administration includes a push to clarify and redefine wetlands under the Clean Water Act. This proposal, published on January 10, 2003 guided federal agencies to not require Clean Water Act permits for non-navigable and isolated wetlands.

Following the lead of the previous three presidential administrations, Barack Obama also pledged his commitment to No Net Loss. The Obama administration increased funding of the North American Wetlands Conservation Act to ensure No Net Loss consistency, however funding has been cut in the current budget.^[12] Obama campaigned to amend the Clean Water Act and to extend the Swamp buster program, however these commitments have yet to be followed-through with. Barack Obama’s administration is also working with Congress to amend the Clean Water Act so that isolated wetlands will fall under the Act’s protection.^[13]

Wetland habitats that are typical in New South Wale include marshes and meadows, lagoons and swamps, lakes and rivers, flood dependent forests and woodlands springs, saltpans and claypans; and saltmarsh, mangrove and seagrass meadows in estuaries and near shore environments. New South Wales has approximately 4.5 million hectares of mapped wetlands. This constitutes to about 6% of the state’s area.[4]

Impacts on coastal wetlands include increased biodiversity loss, habitat migration and inundation. Habitat migration and habitat loss are at high risk as a result of the rising sea levels.

The New South Wales government related the NSW Wetlands policy in 1996. This helped to manage activities around and the wetlands which were guided by rehabilitation and conservation efforts. Land managers who have wetlands on their property continue to educate the community about the importance of wetlands for the wellbeing of the state.

Restoring Wetlands allows for many benefits. This can present a valuable and cost-effective opportunity for society to enhance the their health and well-being. [5]

Restoration interventions can help to improve and bring back lost ecosystems. It can help to increase the heterogeneity of wetland functions and its biodiversity. By maintaining and restoring wetlands, it can allow cost savings, as compared to manmade infrastructures.

In an effort to meet the United States' policy objectives under the International Ramsar Convention and the national goal of No Net Loss of wetlands, a variety of policy instruments are utilized within and between the federal, state and local spheres, as well as the private sector. Due to the fact that 70% of wetlands^[14] are located on private lands, cooperation between government agencies and landholders is a critical component of most policy implementation approaches.

Under the Commerce Clause in the United States Constitution, the federal government derives authority to regulate pollution of United States waters if interstate commerce is affected. The Clean Water Act (CWA), in particular §404, regulates discharge into "waters of the United States". Permitting is required under the CWA §404 for activities that dredge or fill in this jurisdiction, which can include wetlands.^[15] Under this permitting program, environmental impacts are to be avoided if possible, reduced and mitigated if necessary.^[16] Permits are limited to a maximum period of five years and use public notice and comment procedures. While the U.S. Army Corps of Engineers issues the permit, responsibility for enforcement is shared between the U.S. Army Corps of Engineers and the EPA.^[17][18] However, the scope of what constitutes a wetland and thus what falls under CWA command and control regulation has changed over time. Two recent Supreme Court decisions have impacted the definition of wetlands under the Clean Water Act:

Rapanos et ux, et al v. United States (2006)

• determination of whether or not a wetland falls under the definitions of "water of the United States" was not limitless^[19]
• wetlands adjacent to navigable waters are "waters of the United States"
• no clear definition of navigable waters or majority opinion so jurisdiction under the CWA if one of the following two standards is met:^[20]
  • Justice Kennedy’s Test: a "significant nexus" must be found between the wetland and traditional navigable waters
  • Plurality Test: a "continuous surface connection" needs to flow between the wetland and navigable waters

• rejection of migratory bird habitats to constitute as intrastate waters
• determined the Migratory Bird Rule, under which the Army Corps of Engineers extended jurisdiction for §404 to include migratory bird habitat, was outside the scope of authority granted in the CWA^[21]
• Other key federal policy instruments

Additional federal policy instruments include private-public sector collaborations such as educational efforts, conservation easement programs, land banking,^[30] and numerous voluntary programs.

States government tools for addressing wetland protection, include but not limited to:

1. Police powers to regulate use of water and land
2. Zoning authority
3. Land use designation
4. Benchmarks regulating net gain or loss
5. State Wetland Conservation Plans^[31]
6. Wetlands mitigation banking (compensatory mitigation where wetlands credits are acquired through the restoration of wetland areas and can be used or sold through market trading)^[32]

Local Wetland Protection^[33] Local governments tools for addressing wetland protection, include but are not limited to:

1. Stakeholder involvement
2. Local Wetland Strategic Plans (outlining conservation opportunities, research, and wetlands management)^[34]
3. Ordinances regarding protection, zoning and development plans
4. Local wetlands mitigation banking

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• Political considerations
  • Interest groups and constituents can lobby or exploit political influence to receive exemptions or change the scope of wetlands policy. Likewise, politicians and bureaucrats may also change the scope of wetlands policy and its implementation in an effort to cater to constituents and generate political goodwill.
• Economic considerations^[35]
  • opportunity cost associated with foregone agricultural and development use
  • value of wetlands services such as recreation, flood control, filtration
  • value wetlands confer on surrounding property through hedonic pricing
  • there is no consensus on a valuation system for wetlands^[36]
• Other considerations
  • The processes of wetland restoration, including restoring it to its original function and becoming stable enough as a wetland ecosystem, takes many years. Those processes are also very expensive.^[37] Based on the study done in the Kentucky Bottomland Forest, the wetland restoration takes forty-two years, particularly the process of 95% of the carbon accumulation that is stored in natural wetland.^[38] Therefore, in achieving the No Net Loss wetlands policy goal in relation to area, it is often questionable whether those efforts are worth with the expense for the quality.

• Mitigation banking
• Environmental mitigation
• Wetlands of the United States
• Wetland conservation in the United States
• Clean Water Act
• Ramsar Convention