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 is to balance wetland loss due to economic development with wetlands reclamation, mitigation, and restorations efforts, so the total acreage of wetlands in the country remains constant or increases. [1] [2]

Contents

To achieve this objective, the federal government uses environmental mitigation tools which legally protect wetlands, provide rules and regulations for citizens and corporations interacting with wetlands, and incentives preservation and conservation of wetland. For example, wetland mitigation banking, a system of market-based debits and credits where projects to restore and enhance the wetlands are carried out in advance of impacts, is used.

Land that is wet by surface water or groundwater for long periods of time so that 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.

Wetland ecosystem services provide many public benefits, such as flood control, nutrient farming, habitat, water filtration, and recreational area. [3] It is estimated that over half the acreage of wetlands in the United States has been lost within the last three centuries, causing great concern to local, state, and federal agencies as well as the public interest they serve. The world has lost over 87% of wetlands since the 1700s.

Healthy wetlands provide services to local and regional communities such as nurseries for fisheries, tourism opportunities, grazing, and agriculture. Swamps and rivers provide a cultural focus for many 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 people and biodiversity. The government organizations need to set clear and well-enforced legislation to ensure developers are not undercut by compensation. Developers should have incentives and be educated on the topic. They should support positive biodiversity impacts and a biodiverse outcome.

Wetland in Everglades National Park Everglades National Park cypress.jpg
Wetland in Everglades National Park

Origins

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 include, but are not limited to, development and forestry.

Over one billion of the world's population rely on fish harvested from wetlands as their primary protein source. For another two billion people, fish harvested from wetlands accounts for 15% of their diet. Wetlands are home to over 100,000 biodiverse species of plants, animals, and bacteria. Wetlands are crucial to the development of society, annually accounting for more than a billion services and jobs, valued at $47 billion worldwide.

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 needs to protect wetlands by restoring wetlands and creating 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.

Definition

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]

No Net Loss policy under past administrations

"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] These measures aimed to maintain the quality and quantity of wetlands biodiversity.

Bill Clinton

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, flexibility, and speed of permit issuances over dredged or fill materials into waters as part of the implementation of the Section 404 of the Clean Water Act (CWA). It aimed to resolve differences in the delineation of wetlands area. The administration committed to increasing funding for wetland restoration measures, such as Wetland Reserve Program under the United States Department of Agriculture, voluntary wetlands restoration programs, non-regulatory conservation initiatives, and mitigation banks. [9] The Clinton administration's 1998 Clean Water Action Plan aimed for an annual net gain of 100,000 acres (400 km2) of wetlands. [10]

George W. Bush

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 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 included a push to clarify and redefine wetlands under the CWA. This proposal, published on January 10, 2003, guided federal agencies to not require CWA permits for non-navigable and isolated wetlands.

Barack Obama

Following the lead of the previous three presidential administrations, Barack Obama 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, though funding was cut in the 2011 budget. [12] Obama campaigned to amend the CWA and to extend the Swampbuster program, however these commitments were not carried out. Obama's administration was working with Congress to amend the CWA so isolated wetlands would fall under the Act's protection. [13]

No Net Loss policy under current administration

Donald Trump

The Trump administration departed from the "No Net Loss" wetlands policy through regulatory rollbacks and funding proposals. CWA protections were narrowed, excluding isolated and ephemeral wetlands under administrative rules and the Supreme Court's Sackett v. EPA decision limiting jurisdiction to wetlands with a continuous surface connection. [14] [15] [16] Budget plans proposed cuts of over 30% to the Environmental Protection Agency, reducing enforcement and restoration capacity. Environmental groups estimated that tens of millions of acres lost protection, with associated risks of flooding and pollution. [17]

Reasoning for Wetland Restoration

Restoring wetlands provides benefits and can present a valuable and cost-effective opportunity for enhancing society's health and well-being. Restoration interventions can help improve and restore ecosystems previously impacted by anthropogenic disturbances, and often involves the purchase of uplands in various conditions. This process can help increase the heterogeneity of wetland functions and its biodiversity.

Policy instruments

Aiming to meet the United States' policy objectives under the International Ramsar Convention and the national goal of No Net Loss of wetlands, various policy instruments are used within and between the federal, state and local spheres, alongside the private sector. Due to 70% of wetlands [18] being on private lands, cooperation between government agencies and landholders is crucial to most policy implementation approaches.

Federal

Command and Control Regulation under the Clean Water Act

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, 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. [19] Under this permitting program, environmental impacts are to be avoided if possible, reduced and mitigated if necessary. [20] Permits are limited to 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. [21] [22] 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 [23]
  • 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: [24]
    • 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
Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers (2001)
  • 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 [25]
  • Other key federal policy instruments
ProgramAgencyYear ImplementedPurpose
Conservation Reserve Program FSA Farm Bill [26] Conservation Easement
Wetlands Reserve Program NRCS 1990 Farm Bill Conservation Easement
Swampbuster Provision USDA 1985 Food Security Act [27] Converting wetlands to croplands results in a loss of federal funds
Migratory Bird Rule Army Corps of Engineers & EPA 1996Overturned by U.S. Supreme Court in 2001 [28] [29]
Migratory Bird Hunting and Conservation Stamp Act USFWS & State Wildlife Agencies1934Fee on consumptive use of waterfowl to fund conservation efforts (such as SWAP [30] )
§101, 303, 319, 402 of Clean Water Act EPA 1972Command and Control Regulations on discharge of pollutants into waterways
Water Bank Act [31] USDA 1970Allows trading of wetlands mitigation property rights
217 of Coastal Zone Act Reauthorization Amendments (CZARA [32] ) EPA 1990Voluntary Program
EPA Grants [33] EPA VariousProvides direct funding for projects through a competitive grant process

Additional federal policy instruments include private-public sector collaborations such as educational efforts, conservation easement programs, land banking, [34] and numerous voluntary programs.

State

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

Local

Local Wetland Protection [37] Local governments tools for addressing wetland protection, include but are not limited to:

Barriers to Implementation

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 change the scope of wetlands policy and its implementation to cater to constituents and generate political goodwill.

Spending on wetlands policy leads to opportunity cost associated with foregone agricultural and development use. The value of wetland services, such as recreation, flood control, and filtration must be considered, as well as the value wetlands confer on surrounding property through hedonic pricing. This may be challenging due to lacking consensus on a valuation system for wetlands. [39] [40]

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 expensive. [41] 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. [42] 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

See also

References

  1. ↑ "Nowhere near no net loss" (PDF). National Wildlife Federation. Retrieved 31 March 2011.[ dead link ]
  2. ↑ "No Net Loss Policy" (PDF). University of Florida Law. Archived from the original (PDF) on July 20, 2011.
  3. ↑ "EPA Wetlands Fact Sheet". Environmental Protection Agency. Archived from the original on July 29, 2012. Retrieved 31 March 2011.
  4. ↑ Copeland, Claudia. "Specialist in Resources and Environmental Policy" (PDF). Congressional Research Service. Retrieved 30 March 2011.
  5. ↑ Hansen, Leroy. "AREI Chapter 2.3: Wetlands: Status and Trends". USDA Agricultural Research Service. Archived from the original on August 2, 2012. Retrieved 1 April 2011.
  6. ↑ "History of Federal Involvement in Wetlands" (PDF). THE Ohio State University. Retrieved 31 March 2011.
  7. ↑ "660 FW 1, Wetlands Policy and Action Plan". USFWS. Archived from the original on September 30, 2006. Retrieved 30 April 2011.
  8. ↑ Heimlich, Ralph. "Wetlands Policy in Clean Water Act" (PDF). Archived from the original (PDF) on July 24, 2011.
  9. ↑ Blumm, Michael. "The Clinton Wetlands Plan: No Net Gain in Wetlands Protection" (PDF). Archived from the original (PDF) on November 27, 2010.
  10. ↑ "Clean Water Action Plan". US EPA. Retrieved 31 March 2011.
  11. ↑ "National Wetlands Mitigation Action Plan" (PDF). US EPA. Archived from the original (PDF) on October 2, 2006. Retrieved 31 March 2011.
  12. ↑ "DOI Budget FY2011" (PDF). DOI. Archived from the original (PDF) on February 8, 2010. Retrieved 31 March 2011.
  13. ↑ "BARACK OBAMA: SUPPORTING THE RIGHTS AND TRADITIONS OF SPORTSMEN" (PDF). BarackObama.com. Archived from the original (PDF) on August 28, 2008. Retrieved 31 March 2011.
  14. ↑ Wittenberg, E. A. Crunden, Pamela King, Ariel (2023-05-25). "Supreme Court erases protections for most wetlands". E&E News by POLITICO. Retrieved 2025-09-05.{{cite web}}: CS1 maint: multiple names: authors list (link)
  15. ↑ Volcovici, Valerie; Volcovici, Valerie (2025-03-12). "EPA moves to narrow regulation of US waterways". Reuters. Retrieved 2025-09-05.
  16. ↑ Phillis, Michael (2025-03-12). "EPA likely to move to further limit federal protections for wetlands". AP News. Retrieved 2025-09-05.
  17. ↑ Milman, Oliver (2023-10-29). "How the US supreme court and an Idaho couple upended wetlands protection". The Guardian. ISSN   0261-3077 . Retrieved 2025-09-05.
  18. ↑ "NRCS Testimony" (PDF). NRCS. Archived from the original (PDF) on October 17, 2010.
  19. ↑ "Federal Wetland Policies and National Trends" (PDF). US Department of Agriculture. Archived from the original (PDF) on November 1, 2004. Retrieved 31 March 2011.
  20. ↑ US Fish and Wildlife Service. "Clean Water Act Section 404". Archived from the original on August 2, 2012. Retrieved 30 April 2011.
  21. ↑ U.S. Environmental Protection Agency. "Wetlands Enforcement". Archived from the original on July 31, 2012. Retrieved 1 May 2011.
  22. ↑ U.S. EPA. "Section 404 Permitting" . Retrieved 2 May 2011.
  23. ↑ Supreme Court of the United States. "Rapanos et ux, et al v. United States" (PDF). Archived from the original (PDF) on January 9, 2009. Retrieved 1 May 2011.
  24. ↑ US Army Corps of Engineers & EPA. "Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States" (PDF). Archived from the original (PDF) on January 9, 2009. Retrieved 2 May 2011.
  25. ↑ Supreme Court of the United States. "Solid Waste Agency of Northern et al Cook Cty v. United States Army Corps of Engineers" (PDF). Archived from the original (PDF) on November 16, 2007. Retrieved 1 May 2011.
  26. ↑ "Food, Agricultural, Conservation and Trade Act". Archived from the original on November 7, 2004.
  27. ↑ "MEMORANDUM OF AGREEMENT". Archived from the original on September 17, 2012.
  28. ↑ Meltz, Robert. "The Supreme Court Addresses Corps of Engineers Jurisdiction Over "Isolated Waters": The SWANCC Decision". Archived from the original on 17 June 2011. Retrieved 28 April 2011.
  29. ↑ "1996+migratory+bird+blue+law*wetlands" "1996 migratory bird rule".
  30. ↑ "SWAP". USFWS. Retrieved 28 April 2011.
  31. ↑ "Water Bank Act". USFWS. Archived from the original on November 7, 2004. Retrieved 28 April 2011.
  32. ↑ "CZARA". EPA. Archived from the original on July 29, 2012. Retrieved 28 April 2011.
  33. ↑ "EPA Grants". Archived from the original on July 10, 2012. Retrieved 2 May 2011.
  34. ↑ Powers, Elizabeth. "Land Banking" (PDF). Retrieved 2 May 2011.
  35. ↑ US EPA. "What is a State Wetland Conservation Plan?". Archived from the original on August 1, 2012.
  36. ↑ U.S. EPA. "Mitigation Banking Factsheet". Archived from the original on November 5, 1999. Retrieved 1 May 2011.
  37. ↑ Turner, Marjut; et al. "WATERSHEDSS: Water, Soil and Hydro-Environmental Decision Support System". North Carolina State University. Archived from the original on January 1, 2004.
  38. ↑ ROCKY MOUNTAIN BIRD OBSERVATORY and the PRAIRIE AND WETLANDS FOCUS AREA COMMITTEE. "PRAIRIE AND WETLANDS FOCUS AREA STRATEGIC PLAN" (PDF). Retrieved 1 May 2011.
  39. ↑ King, Dennis. "kingeconomics.com" (PDF). Environmental Law Institute. Archived from the original (PDF) on August 19, 2011. Retrieved 2 May 2011.
  40. ↑ King, Dennis. "The dollar value of wetlands" (PDF). Archived from the original (PDF) on August 19, 2011. Retrieved 30 April 2011.
  41. ↑ "The Ramsar Convention on Wetlands Resolution IX.4 Annex: The Ramsar Convention and Conservation, Production and Sustainable Use of Fisheries Resources" (PDF).
  42. ↑ "SOIL CARBON AND MICROBIAL COMMUNITIES AT MITIGATED AND LATE SUCCESSIONAL BOTTOMLAND FOREST WETLANDS" (PDF).
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