Chapter 15

Introduction

Characteristics and Functions: Delmarva inland wetlands

• Intercept and filter sediments, fertilizer, and chemicals that otherwise runoff from agricultural land to the Chesapeake Bay, causing eutrophication;

• Detain and store flood waters, thereby reducing flooding in neighboring and downstream areas;

• Serve as discharge areas from groundwater aquifers to maintain more regular baseflows, to supply downstream aquatic areas, and to offset the effects of drought on neighboring cropland;

• Provide food and habitat, supporting the greatest diversity of species found on the Peninsula, including the endangered Delmarva fox squirrel.

Current Acreage: Although figures are not available for the Delmarva Peninsula per se, Table XV-1 describes acreages in the three States and losses suffered between the mid-1950s and late 1970s.

NOTE: If this table does not appear as a table, please click on this link to view it as a graphic file.
Table XV-1 (5Kb gif)

Trends: Statewide over the past 200 years, Delaware has lost approximately 257,000 acres of wetlands, 54 percent of its original complement; Maryland has lost over 1.21 million acres, 73 percent of its original wetlands; and Virginia has lost approximately 774,000 acres, 42 percent of the original acreage (Dahl 1990). Between the mid-1950s and the late 1970s, the average annual wetland loss in Delaware was 1600 acres, in

Maryland 1000 acres, and in Virginia 3000 acres (Tiner and Finn 1986). The current rate of loss is unknown.

Factors Adversely Affecting Wetlands

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Table XV-2 (5Kb gif)

Drainage and channelization of streams often follows a common pattern. Forested freshwater wetlands are often cleared for timber sales, then ditched, drained, and converted to croplands. Streams are widened, deepened, and straightened to provide outlet channels to accommodate the increased water from drainage activities. Typically, conversion involves constructing a 16 to 20 foot maintenance road next to the channel. The construction destroys emergent and forested wetland vegetation along the edges of the waterways. After vegetation removal, spoil is placed on one or both sides of the channel on top of the previously wooded area, and grass is planted on the leveled spoil. Often the land is plowed for crops right up to the edge of the waterways. The loss of riparian vegetation eliminates the erosion control and water retention and filtering capacities once provided by the wetlands. This impairs water quality in the Chesapeake Bay and its tributaries, degrading fish spawning grounds and nurseries. A policy of clearing and depositing spoil on just one side of a stream, establishing a minimal width for vegetative clearing, and replanting shrubs and trees instead of crops and grass would reduce some of the impacts of channel building.

Ironically, channelization programs that serve to increase the flow of chemicals and nutrients into the Bay and its tributaries continue in the face of a $390 million effort to clean up Chesapeake Bay, an effort designed primarily to reduce nonpoint runoff. The Federal Government along with the States of Maryland, Virginia, Pennsylvania, and the District of Columbia are attempting to stem the pollution by adopting measures to reduce the amount of nutrients reaching the Bay by 40 percent by the turn of the century. These measures include such actions as upgrading sewage treatment plants, reducing urban and agricultural runoff, and requiring practices to control soil erosion. While the current effort to restore the Bay does not address channelization, a well-documented source of the problem, section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 will require the States to address this source. The continuing channelization and drainage removes much water that, if held in reserve, could lessen the impacts of drought, a serious problem of late on the Delmarva Peninsula.

Once in place, the channels serve as convenient outlet ditches and promote additional farm drainage. These channels and ditches draw down the ground water and deplete the water in neighboring wetlands. Thus, the effect of the original channel construction extends well beyond the acreage originally intended.

After drainage and channelization, the construction of lakes, reservoirs, and ponds ranks as a factor in wetland demise. This occurs to provide habitat for waterfowl or a source of water for cattle or for sediment control. In the process, a broad expanse of shallow, slowly flowing water becomes a smaller, standing, deeper pool. These hydrological changes modify the flora and fauna and further impair the pollution and flood control functions of the wetlands. Some coastal wetlands, too, are lost to the construction of freshwater ponds for migratory waterfowl.

Filling and dredging for urban development and creation of open water account for a substantial loss of estuarine wetlands. Filling occurs in order to build houses, business sites, industrial facilities, and highways, while dredging of shallow fresh and salt waters occurs to create access for private boats. In estuarine areas, bulkheading and filling accompany the dredging for boat access, adding to the shallow water losses. Dredging of ditches for mosquito control also eliminates estuarine wetlands, but this technique is rarely used now.

Section 404 of the Clean Water Act is designed to protect wetlands from environmentally unacceptable discharges of dredge or fill material (33 U.S.C. Section 1344(e)).1 As administered, Section 404 does not always achieve this goal. In the past, the FWS and Corps have frequently disagreed regarding what constitutes a wetland. This problem was addressed on January 10, 1989, when EPA, the Corps, the FWS, and the Soil Conservation Service adopted a single method for identifying and delineating jurisdictional wetlands.2 The change proved controversial, however, and in August, 1991, the Administration proposed changes to the Manual. Those changes proved equally controversial, and were not adopted. At the direction of Congress (EPA's FY93 appropriations bill), the National Academy of Science (NAS) is studying the wetland identification/delineation issue. In the interim, Congress directed the Corps, through the FY92 and FY93 appropriations bills, to revert to its 1987 wetlands delineation procedures for determining jurisdictional wetlands under section 404. In January 1993, EPA joined the Corps in using the Corps' 1987 Wetlands Delineation Manual pending the results of NAS study.

Section 404 was never intended to stop all wetland conversions. It allows for certain exemptions to the permit process.3 It also authorizes the Corps to issue general permits on a State, regional, or nationwide basis.4 For activities that require an individual permit, the Section 404(b)(1) Guidelines set a high standard when a "non-water dependent" activity is proposed for a "special aquatic site."5 The guidelines create two rebuttable presumptions for non-water dependent activities: i) that practicable alternative sites which do not involve discharges to wetlands are available, and ii) that such alternatives are less environmentally damaging than the proposed project.6 The Corps also engages in a more general public interest review in which it weighs the benefits that would reasonably accrue from a discharge against the reasonably foreseeable environmental effects. The Corps includes over 20 factors in its public interest review.7 The limits imposed on the Corps' public interest balancing by the 404(b)(1) Guidelines' presumption against wetland fills are not clear. The criteria contained in the 404(b)(1) Guidelines (especially the criterion having to do with nonwater dependent uses) have recently been given greater weight by the Corps in comparison to the highly flexible public interest balancing process.

Federal Programs and Projects

Agricultural Programs

Incidental Drainage: SCS regulations implementing the Executive Orders on Wetland Protection and Floodplain Management allow drainage of existing cropland, but not of wetlands. Wetland drainage that occurs "incidentally" to draining cropland, however, is allowed and potentially introduces a way around the restrictions of Swampbuster, because "incidental" drainage can be significant.

The magnitude of wetland losses that can occur from "incidental" drainage is illustrated by the Upper Chester River Project, a project proposed by SCS in the early 1980s. Under the original design, SCS and the State of Delaware would each have channelized about 100 miles of stream, and the resulting on-farm ditching was estimated at 150 miles. Although these 350 miles of channels and ditches were designed to drain existing cropland only, the FWS estimated that more than 3100 acres of wetlands could have disappeared as a result of incidental drainage. The Federal Government has decided to withhold funds for this project, partly because of the "incidental" impact on wetlands and partly because the project would have increased production of surplus crops. Nonetheless, SCS will provide technical assistance for design and engineering of the drainage ditches, thus allowing the project sponsors to construct a somewhat smaller project.8

Technical Assistance: Although SCS policy generally prohibits technical assistance for wetland drainage, assistance can be extended to landowners who intend to drain anyway, especially when denial of assistance could result in even greater environmental harm. The Fish and Wildlife Service has expressed concern about abuses of this policy and about personnel who disregard the regulations and continue to render technical assistance.

Consultation, Review, and Mitigation: From the point of view of the FWS, consultation and review under the PL-566 program is inadequate and has exacerbated the effects on wetlands:

• Wetlands effects have been consistently underestimated. For example, an FWS study of the Upper Choptank River Project found that instead of destroying 1050 acres of wetlands as predicted in the EIS, 2778 acres disappeared, 2.5 times the prediction (Tiner and Finn 1986; Zinni 1986).

• Until 1982, SCS maintained that seasonally-flooded, freshwater wetlands were not high value wetlands, and did not mitigate for damages done to them. Such wetlands are valuable for retaining flood waters for gradual release during drought periods and for reducing nitrogen loads into the streams and ultimately the Chesapeake Bay. In 1982, SCS issued regulations to comply with the Wetlands Executive Order (EO 11990). Those regulations allow wetland alteration without mitigation in certain circumstances for seasonal and semi-permanent wetlands.

• The USDA Solicitor ruled (April 15, 1970) that PL-566 projects are not subject to the constraints of the Fish and Wildlife Coordination Act.9 Consequently, the FWS's review falls under National Environmental Policy Act authority and section 12 of PL-566. NEPA review occurs much later in the process when the alternative courses of action remaining are limited.

• Section 12 of PL-566 provides the opportunity for the Secretary of the Interior to evaluate water projects and make recommendations to minimize adverse impacts to fish and wildlife. However, under section 12, only those recommendations acceptable to local sponsoring agencies and the Secretary of Agriculture need be included in the project design. Changes that would cost the local sponsors more money or decrease project efficiency are often not accepted.
  The Channel Modification Guidelines of 1979 (CMG) guide the FWS and SCS personnel in identifying when and where channel modification may be used as a technique for implementing water and related land resource projects. The CMG governs the planning of all SCS projects or measures qualifying for technical, financial, and/or credit assistance under SCS authorities. The CMG provides that channel modifications will not be considered if a practical alternative (as defined in the CMG) exists. Thus, channel modification is supposed to be a measure of last resort, but as indicated in the next bullet, channelization has often been the only option given serious consideration by project sponsors in Delmarva. Under the CMG, the FWS assists the SCS in developing, evaluating, and recommending alternatives to channel modification, when the channel modification is expected to cause, directly or indirectly, measurable losses of fish and wildlife resources. The CMG details the involvement of the FWS during each step of project planning, and specifies the process for the resolution of differences.

  The Department would prefer to have PL-566 review occur under the authority of the Fish and Wildlife Coordination Act (FWCA). This would entail modifying the FWCA to require consultation for all projects receiving Federal financial or technical assistance. It would also be helpful to amend section 12 of PL-566, striking reference to recommendations agreed to by local sponsors.

  During early project planning a range of options for water management problems are supposed to be considered by SCS and the project sponsors. Until recently, channelization was the only option given serious consideration for PL-566 projects proposed for Delmarva. Adopting non-structural measures would reduce erosion and impacts on fish and wildlife. However, non-structural measures tend to be more expensive and not as efficient at removing water. According to the SCS, project sponsors are now incorporating water control structures in channels to improve water quality and reduce lateral effects on wetlands, but FWS has seen no evidence of these improvements. (See footnote 8.)

  Scrutiny of SCS projects by Congressional subcommittees can be avoided if the Federal share of projects is kept under $5 million and the total capacity of any single structure is less than 2,500 acre feet. The SCS Chief can approve projects up to $5 million, while the SCS State conservationist can approve projects up to $2 million.

Future of PL-566: On direction from the Secretary of Agriculture, the Director of the SCS issued a Watershed Planning Guidance Letter on June 18, 1987, halting new starts for PL-566 drainage projects designed to increase crop production. This policy was adopted following the controversy surrounding the Upper Chester River Project. That project would have used Federal funds to drain land for surplus crops, crops that would have been eligible for Federal price and income supports. Some believe that this letter heralds the gradual demise of the drainage portion of the PL-566 program. SCS channel construction activities in the Delmarva have declined since the letter.

Even in the absence of new Federal construction projects, a considerable Federal investment can still occur in the form of technical assistance. For example, some projects formerly proposed by SCS are being developed by the State of Delaware with SCS technical assistance, the Upper Chester River Project being a case in point. In Delaware, where State regulations restricting drainage are lax, localities are paying the construction costs, but SCS is providing technical assistance. This practice is less common in Maryland where, although regulations do not prohibit drainage, they do require a great deal more documentation as to the effects. Even if technical assistance and new starts are curbed, the 1987 changes in the PL-566 program stem not from statutory law, but from policy guidance from the Director of the Soil Conservation Service. Without a change in departmental regulations, a new SCS Director could quickly reverse policy.10

Conservation Operations Program: Under this program, by far SCS's largest, individual farmers receive technical assistance on maintaining soil productivity through conservation measures, "wetland improvement" for waterfowl, and drainage for cropland.11 On Delmarva where the level of program activity is significant, farmers generally believe poor natural drainage limits productivity. Hence, technical assistance aims to lower the groundwater tables and increase channel outlet capacity. Occasionally this type of assistance includes not only existing cropland but small isolated wetland areas. The aggregate wetland acreage lost from all of these isolated occurrences remains undocumented, but the FWS believes it to be significant.

Agricultural Conservation Program: The Agricultural Conservation Program, administered by the Agricultural Stabilization and Conservation Service, allocates cost-sharing funds to farmers for the installation of conservation measures requested by the producer and reviewed through the SCS technical assistance program. A State committee decides on the eligibility of measures for State cost sharing, and county committees select measures from the State list. The State list includes on-farm drainage ditches or tile drainage as legitimate cost sharing items. These are entirely private activities, and their subsidization is difficult to justify. Currently only drainage of existing cropland is approved, but incidental drainage of wetlands occurs. Moreover, by reducing drainage costs on existing cropland, a farmer can better afford small drainage measures on wetland areas.

Resources Conservation and Development Program: This program offers technical and financial assistance to local sponsors in designated project areas. The activities funded under this program are typically smaller than under PL-566 and include recreational development, erosion control, and drainage projects. The Federal share of costs ranges from 50 to 80 percent. The budget for new projects has declined sharply in recent years.

Commodity Programs: Price and income support programs have made it more attractive to convert wetlands to cropland, but in general the level of program participation on Delmarva has been low. Because Swampbuster's effectiveness depends on the withholding of programmatic benefits, the low participation rates in the commodity programs on the Delmarva Peninsula mean that Swampbuster's forcefulness is diminished here.

As discussed in chapter 3, legislative reforms in the 1985 and 1990 Farm Bills have made it much more difficult for new acreage to qualify for price and income supports, and hence, have significantly diminished the incentives in Federal agricultural law to convert wetlands to cropland. As with Swampbuster, however, the traditionally low participation rates in the commodity programs on the Delmarva Peninsula mean that the diminished incentives in the law will not significantly reduce the threat of conversion for wetlands on the Peninsula.

Crop Insurance: The Federal Crop Insurance Corporation (FCIC) or private insurance companies that the Federal Government reinsures offer crop insurance that protects farmers from the risk of drought, flood, fire, and insects. Farmers are supposed to buy the insurance to be eligible for FmHA disaster emergency loans, but Congress has routinely waived this requirement in disaster relief legislation. Figures for the Maryland portion of Delmarva indicate a 20 to 25 percent participation rate in the crop insurance program which is about the national average.12 FCIC data for Delaware for 1987 show only a 5.4 percent participation rate (GAO 1988). Premiums paid by farmers do not cover the cost of the insurance offered. The Government subsidizes this insurance by paying all administrative costs and up to 30 percent of a grower's insurance premiums. One possible explanation for the relatively low level of participation is the expectation by farmers that the Government will provide disaster relief.13 Phasing out the premium subsidy and holding firm on the policy to deny disaster relief where crop insurance is available would provide a strong incentive for farmers to find other ways to control risks. These could include wetland enhancing measures such as not planting in floodplains and other wetland areas and retaining and restoring riparian vegetation to slow and gradually release floodwaters.

Although subsidized crop insurance may in the past have induced conversion and cultivation in wetland areas, if enforced, Swampbuster should effectively eliminate any incentive due to this program to convert wetlands.

Programs Promoting Conversion to Water Impoundments: As noted above, conversion of inland and coastal wetlands to ponds is a significant source of wetland loss. Several programs are involved. The Conservation Operations Program offers technical assistance for "wetland improvement" for waterfowl, while the Agricultural Cost-Share Program provides funds for activities approved by State and county committees. Funds for ponds are approved by the State and by some counties as a means to retain sediments. The ASCS will pay for 50 percent of construction costs for sediment control ponds.14 The Resources Conservation and Development Program offers funds for recreational development. Thus, Federal funds contribute not only to wetland conversion to agriculture, but also conversion to ponds.

Urban Development

Federal highway funds also pose a threat to wetlands directly and indirectly by the development they promote. However, the Intermodal Surface Transportation Efficiency Act (ISTEA) now requires federally supported highway construction to adhere to best management practices required by section 6217 of the Coastal Zone Act Reauthorization Amendments. Maryland has initiated extensive highway redevelopment plans to enhance access to coastal areas. The "Reach the Beach" program includes major upgradings of Route 50/301 on Kent Island, a new Kent Narrows high bridge, upgrading Route 50 to Route 404, the new Choptank River Bridge, the Vienna Bypass, the Salisbury Bypass, upgrading Route 404, and numerous improvements to major roadways leading from the western shore to the Bay Bridge.

Status and Prospects

The policy guidance issued by the Director of the SCS has prohibited new planning starts for PL-566 drainage projects designed to increase crop production. This may portend the demise of the drainage portion of the PL-566 program. The House, however, continues to appropriate funds for the program and USDA regulations remain unchanged by the letter. Pressure to drain wet croplands remains strong on Delmarva, and so the tendency may be to construe the letter narrowly. Moreover, a guidance letter is easily rescinded. In addition, technical assistance for locally funded drainage activities continues unabated, checked only by the stringency of State regulations. The budget for the smaller scale Resource Conservation and Development Program has also declined in recent years, but as with PL-566, a resurgence cannot be ruled out.

The construction of ponds for waterfowl and cattle can be expected to increase. The States of Maryland, Delaware, and Virginia all have programs to assist private landowners in developing waterfowl ponds. Maryland offers tax breaks for those who enter their program. The Soil Conservation Service is also very active through their Conservation Operations Program in providing technical assistance to landowners for waterfowl ponds, which are usually located in freshwater wetlands. The Department believes that Federal funds and technical assistance should not be available to convert freshwater or tidal wetlands to waterfowl or sediment control ponds.

Urban and recreational development are likely to increase on Delmarva, and lead to further pressures on coastal wetlands in particular. Federal funds for highways will promote these developments. The Coastal Barrier Resources Act has slowed development on undeveloped barrier islands on the Atlantic and Gulf Coasts.15 The Coastal Barrier Improvement Act of 1990 significantly expanded the Coastal Barrier Resources System (System), including 36 secondary barriers in Maryland and 47 in Virginia in the Chesapeake Bay. The expansion of the System included associated aquatic habitats16 and secondary barriers, i.e., barriers not directly on the ocean, such as those within major embayments like the Chesapeake. These additions should further reduce development affecting Delmarva's coastal wetlands.

Recommendations

1. Water Management:

   a. Eliminate, by statute, PL-566 small watershed projects authorized before 1980.

   Channelization aided by this program is the single greatest cause of wetland loss on Delmarva. By destroying the streamside vegetation and straightening streams, channelization also increases downstream flooding, generating calls for more channels. The loss of vegetation and temporary, isolated wetlands also increases the impact of drought. Moreover, without the filtering vegetation, agricultural runoff and eroded soil flow into the waterways, impairing the water quality of the Chesapeake Bay and Eastern Shore tributaries and leading to declines in fisheries and waterfowl habitat.

   By 1980, the statutory criteria governing SCS cost sharing for small watershed projects involved stringent environmental constraints. Projects authorized prior to 1980 are more environmentally damaging. Since small watershed projects often have many separable elements that are constructed over long periods of time, deauthorizing the earlier projects now would prevent significant environmental damage.

   b. If the above recommendation is determined not to be feasible, PL-566 small watershed projects should be substantially modified so that recommendations by the FWS are accorded greater weight in the planning and mitigation processes.

   As currently structured, the PL-566 program allows for Service review under the National Environmental Policy Act, but not for review under the Fish and Wildlife Coordination Act. NEPA review comes late in the planning process, but FWCA review comes much earlier. Moreover, only recommendations acceptable to the Secretary of Agriculture and the local sponsoring agencies are implemented. Alternative forms of water management to channelization are rarely considered seriously. Finally, damage to seasonally flooded wetlands that have important flood control and pollution control benefits can sometimes go unmitigated under SCS policy.

   c. Develop a wetland restoration and development program to reestablish wetlands altered or destroyed as a result of PL-566 drainage projects.

   Congress set a precedent for this with the Water Resources Development Act of 1986. The WRDA authorizes wetland restoration and mitigation of losses and degradation due to past Corps activities. Thus far, monies have not been appropriated, although they have been requested to aid in the restoration of the channelized Kissimmee River in Florida to its original riverbed. Selective restoration could prove a cost-effective method of dealing with flooding, drought, and water quality problems.

   d. Eliminate Federal funding and technical assistance for the conversion of freshwater or tidal wetlands to ponds for waterfowl, sediment control, or cattle.

   The construction of ponds ranks high as a factor causing the loss of freshwater and coastal wetlands on Delmarva. The States and the Federal Government are promoting this practice. Maryland, Delaware, and Virginia all have programs to assist private landowners in developing waterfowl ponds. Maryland offers tax breaks for those who enter their program. The Soil Conservation Service is also active through the Conservation Operations Program by providing technical assistance to landowners for waterfowl ponds. The increase in waterfowl habitat is coming at the expense of pollution and flood control benefits offered by naturally occurring wetlands.

2. Agricultural Programs:

   Phase out the premium subsidy for crop insurance. Refrain from waiving the statutory requirement that farmers purchase crop insurance in order to be eligible for FmHA disaster emergency loans. Insist on participation in the crop insurance program as an eligibility condition for disaster relief.17

   The Federal Crop Insurance Corporation or private insurance companies that the Federal Government reinsures offers crop insurance that protects farmers from the risk of drought, flood, fire, and insects. Farmers are supposed to buy the insurance to be eligible for FmHA disaster emergency loans, but Congress routinely waives this requirement in disaster relief legislation. Figures for the Maryland portion of Delmarva indicate a 20 to 25 percent participation rate in the crop insurance program, which is about the national average. Premiums paid by farmers do not cover the cost of the insurance offered. The Government subsidizes this insurance by paying all administrative costs and up to 30 percent of a grower's insurance premiums. One possible reason for the relatively low participation rate is the expectation by farmers that the Government will provide disaster relief and waive the eligibility requirement for emergency loans. This expectation has been reinforced frequently. Withholding disaster relief and emergency loans unless crop insurance was acquired could provide a strong incentive for a farmer to find more environmentally sound ways of controlling risks, such as not planting in floodplains and other wetland areas and retaining and restoring riparian vegetation to slow and gradually release floodwaters. A precedent for the withholding of disaster relief benefits already exists for those who live in designated flood-hazard zones: a recipient of disaster relief must purchase flood insurance for the subsequent three years in order to be eligible for future relief.

References

EcolSciences. 1976. An Assessment of Economic and Environmental Effects of Completed PL-566 Channel Modifications Projects in Worcester and Wicomico Counties, Maryland. USDA-SCS College Park, Maryland, 433 pp.

Hall, T. N. 1985. Impact of Agricultural Drainage Activities in Coastal Flats Region of the Chesapeake Bay. Wetlands of the Chesapeake--Proceedings, 389 pp.

Jones, M. Claudia, Timothy N. Hall, and Robert L. Zepp, Jr. 1986. Agricultural Drainage and Wetland Loss on Delmarva. Background Report. Office of Policy Analysis, U.S. Department of the Interior, Washington, DC, 20pp.

Myhrum, 1979. "Federal Protection of Wetlands Through the Legislative Process," 7 B.C. Envtl. Affairs 567, 620-625.

Natural Resources Law Institute. 1988. "A Guide to Federal Wetlands Protection under Section 404 of the Clean Water Act," Anadromous Fish Law Memo, Issue 46. Lewis and Clark Law School, Portland, Oregon, August.

Tiner, R. W., Jr. and J. T. Finn. 1986. Status and Recent Trends of Wetlands in Five Mid-Atlantic States: Delaware, Maryland, Pennsylvania, Virginia, West Virginia. U.S. Fish and Wildlife Service, Newton Corner, Massachusetts and U.S. Environmental Protection Agency, Philadelphia, Pennsylvania, 40 pp.

U.S. Congressional Budget Office. 1989. Reducing the Federal Deficit: Spending and Revenue Options, A report to the Senate and House Committees on the Budget--Part II, as required by P.L. 93-344, 1989 Annual Rept. Government Printing Office, Washington, DC, February.

U.S. General Accounting Office. 1988. Crop Insurance; Participation in and Costs Associated with the Federal Program. U.S. General Accounting Office, Washington, DC, July.

Zinni, W. 1986. Unpublished staff analysis. U.S. Fish and Wildlife Service, Newton Corner, Massachusetts.

Footnotes

2 Federal Manual for Identifying and Delineating Jurisdictional Wetlands, January, 1989.

3 Exemptions from permit requirements include some federal projects and activities with minor effects. Exempted minor activities are rather complex and have been rather narrowly construed. Some exempted activities include "normal" farming, ranching, and forestry activities (but not establishing a new agricultural use), constructing and maintaining stock ponds or irrigation ditches (but not converting or significantly modifying wetlands or other aquatic areas), and constructing or maintaining farm, forest or mining roads.

4 Categories of activities eligible for general permits include fish harvesting, bank stabilization, bridge building and minor road crossings. Classes of waters to which general permits apply include discharges in wetlands under 10 acres located above the headwaters of nontidal waters where streamflow is less than five cubic feet per second or in "isolated waters" not part of a surface tributary system. The authorizations for individual permits in isolated waters apply to some 17 million acres of wetlands, permitting about 40,000 discharges annually. They have proved quite controversial.

5 Under the guidelines an activity is considered non-water dependent if it does not require access to, proximity to, or siting within a special aquatic site to fulfill its basic purpose. The guidelines list the following areas as special aquatic sites: wetlands, mud flats, vegetated shallows, riffle and pool complexes, sanctuaries and refuges, and coral reefs.

6 The Corps will often limit its consideration of alternatives to granting or not granting a permit rather than exploring alternative projects. This may skew the public interest balancing towards the applicant's version of the purpose and need for the project (Natural Resources Law Institute 1988).

7 These range from environmental concerns to energy needs to considerations of property ownership.

8 Maryland has decided not to go forward with its portion of the project, but Delaware is proceeding. According to SCS, Delaware has proposed supplementing the Upper Chester River Project with 226 water control structures. These structures would reduce sedimentation and nutrient deposition in the watershed, as well as lateral wetland losses. However, FWS monitoring data during 1992-93 indicates that nutrients are being flushed from Delaware fields directly into the tributaries of the Upper Chester and eventually into the Chesapeake Bay. The nutrient levels in Delaware (where the channelization has occurred) are markedly higher (10 times) than in Maryland. This suggests that water control structures may be planned, but they have not been constructed.

9 The FWCA applies to activities authorized or undertaken by a Federal agency. PL-566 projects are funded by SCS but not directly undertaken or authorized by it. Hence the ruling by the USDA Solicitor.

10 The 1987 Guidance Circular was to remain in effect until the National Watershed Manual (NWM) was amended to reflect the new policy. The NWM was revised and reissued in March, 1993, and all existing circulars were canceled. The revised NWM does not include the policy embodied in the June, 1987 circular, but SCS maintains that current program priorities reflect the intent of the 1987 Guidance Circular.

11 Although agriculture is the primary target of assistance, any individual may request assistance for any problem within SCS's range of expertise. In some urban areas, for example, SCS expends much effort reviewing stormwater management plans for new subdivisions.

12 Telephone communication with the Maryland office of the FCIC.

13 One suggestion for increasing participation rates is to require crop insurance coverage by participants in the price and income support programs.

14 ASCS's contribution is limited to $3,500.

15 The CBRA requires that to be included in the system, coastal barriers be a minimum of one quarter mile of shoreline in length and that they be largely undeveloped from the beach to the inland side.

A NAME="foot16" HREF="#footback16">16 The original units of the Coastal Barrier Resources System included only a minimum number of associated aquatic habitats (adjacent wetlands, marshes, estuaries, inlets, and near-shore waters).

17 The Congressional Budget Office estimates that eliminating the premium and administrative subsidy for crop insurance from 1990 through 1994 would save $1.2 billion. The probable savings resulting from a reduction in expenditures for disaster relief are not included in these estimates.