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Riparian Areas: Functions and Strategies for Management (2002)

Chapter:4 EXISTING LEGAL STRATEGIES FOR RIPARIAN

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Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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4
Existing Legal Strategies for Riparian Area Protection

Public recognition of the importance of wetlands resulted in the 1970s in a national-level regulatory system for their protection (NRC, 1995). Not until the 1990s, however, have riparian areas begun to receive legal recognition as places requiring special attention. During the last decade, a patchwork of federal, state, and local laws and programs has developed that, directly and indirectly, begins to acknowledge the importance of riparian areas and to require or encourage special management to restore or protect their essential functions. The degree of protection, the focus, and the spatial coverage of these laws and programs are highly variable at federal, state, and local levels. Although riparian areas perform many valuable functions, it is their importance to stream water quality and fisheries that prompted most of the laws and programs that afford them protection.

A key differential in the level of protection given to riparian areas is their ownership status. There are approximately 2.3 billion acres of land in the United States, including Alaska and Hawaii. Of this total, 550 million acres are owned by the federal government—about 24 percent. The proportion of land in the public domain varies from state to state, from less than 0.2 percent in Iowa to 77 percent in Nevada. The largest federal government holdings are in the 12 western states (AK, AZ, CA, CO, ID, MT, NM, NV, OR, UT, WA, and WY) with much of this land being managed by the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM).

Ownership may be shared, as where a stream forms the boundary between adjoining tracts, or along federally defined navigable waters where the state owns the bed and banks, but the adjacent lands above the mean high water are owned by another entity. An additional property interest is ownership of the water itself

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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or of a right to its use. Thus, legal protections for riparian areas and any recommendations for changes in their management must account for both the property interests in the relevant waters and lands and the fact that most riparian areas are linear features that cross ownership/jurisdictional boundaries. An example of this complexity is the Interior Columbia River Basin, which contains 74 separate federal land units, including 35 national forests and 17 BLM districts, as well as significant private, state, and tribal holdings—all of which must be taken into account when formulating a joint, comprehensive management plan.

Protection of riparian areas has been approached in a variety of ways (Table 4-1). One approach, exemplified by the National Environmental Policy Act (NEPA)—and comparable laws in some states—is to require identification and analysis of adverse environmental effects that would be caused by federal actions, along with consideration of less environmentally damaging alternatives. Such an approach is not specific to riparian areas, nor does it require their protection, but it does ensure attention to their environmental values if they would be potentially affected by a proposed federal action. Examples in which environmental impact statements have focused on riparian values are discussed in this chapter.

A second approach is to place special limitations on activities in riparian areas on publicly owned lands. For example, in the Pacific Northwest logging and other activities are restricted in riparian reserves that have been established on federal lands in order to protect salmon. Many of the benefits provided by riparian areas—wildlife habitat, water quality protection, channel stability, and maintenance of fisheries—are public in nature.

A third approach is to regulate activities on private riparian areas. Such regulation must necessarily protect the legal rights of property owners while limiting those land uses deemed unacceptably harmful to public interests. Protec-

TABLE 4-1 General Approaches for Riparian Area Protection

Approach

Example

1. Required impact identification Environmental Policy Acts

National Environmental Policy Act and State

2. Special management areas on public lands

Northwest Forest Plan

3. Private land development/use regulation

State and local stream buffer requirements

4. Financial incentives, technical assistance, education

Farm Bill programs

5. Public/nonprofit purchase of private riparian lands or interests in lands

Greenway programs, conservation easements

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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tion of riparian habitat essential for federally protected endangered species is one example of this approach. Other examples are found in statewide programs that restrict certain types of activities on lands adjacent to waterbodies, such as the Massachusetts Rivers Protection Act and the New Hampshire Comprehensive Shoreland Protection Act. Many states restrict timber harvesting on private lands adjacent to streams. In addition, many local communities use their land-use authority to limit new construction in streamside areas.

Fourth, incentives such as cost-sharing, low-cost loans, or tax reductions may be used to encourage good practices on private riparian areas, and special technical assistance and education may be used as well. At the national level, several Farm Bill programs provide incentives for moving intensive agricultural practices away from streams; several states have similar programs.

Fifth, privately owned riparian lands can be purchased—either in fee or by easement—for public management. The desirability of riparian areas for recreational use has prompted urban areas to acquire riparian lands for greenways (Smith and Hellmund, 1993). The remarkable growth in the number of land trusts in recent years has provided another vehicle for protection of private lands utilizing conservation easements. Federal—and an increasing number of state—tax laws provide incentives for landowners to donate such easements.

This chapter sets out the general legal and management frameworks that now apply to the protection of riparian areas. First reviewed are the federal, state, and local laws and programs directed, at least in part, to protect and restore essential functions and values of privately owned riparian lands. Both regulatory and nonregulatory approaches are discussed. Then, federal laws and policies applying to publicly owned riparian areas are presented, organized by category of federal public land. Next, laws governing the use of water resources are considered in relation to supporting riparian areas. Two federal programs that have significant potential to expand protection of riparian areas are given in-depth consideration. A final section considers the efficacy of the existing framework and evaluates the need for additions and changes.

PROTECTION OF PRIVATELY OWNED RIPARIAN AREAS

Most riparian lands are in private ownership, especially in the eastern portion of the United States. The value of riparian lands to a private landowner most often is measured in terms of their economic benefits rather than their ecological functions. Private owners of riparian lands typically have only limited motivation to use these areas in a manner protective of their functions. In the absence of improved education about riparian functioning, legal strategies for protecting the ecological values of privately owned riparian lands must be based either on implementing regulatory requirements or on providing special incentives. Alternatively, such areas may be purchased for public ownership and management.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Regulatory Approaches

Regulatory approaches are especially well suited to situations in which private gain from the development and use of land and natural resources causes unacceptable public loss, with the negative consequences of the action falling largely or entirely on someone other than the developer or user. Typically, land and resource developers may be required through a permit process to alter or restrict the manner of development in order to reduce its negative effects. Even-handed application of the requirements imposes the same burden on all similarly situated land and resource owners and developers. Regulatory approaches must further a legitimate public purpose and cannot deprive a property owner of all economically beneficial use of the property (unless the government pays compensation).

Federal Programs

Except for wetlands, there is no national regulatory program that attempts to manage ecologically harmful activities within riparian areas. Although the link with water, and hence commerce, has provided a legal basis for federal control of dredge-and-fill activities in wetlands, private land-use regulation generally is within the province of states. Nevertheless, there are federal programs that apply to certain activities in riparian areas.

National Environmental Policy Act. The National Environmental Policy Act (NEPA) requires federal agencies to examine the potential adverse environmental effects of proposed major actions that would significantly affect the quality of the human environment. Alternatives to the proposed action must also be considered. NEPA is not itself a regulatory law in that no particular result is required by this statute, but the environmental analysis serves to disclose both the existence of environmental problems and less environmentally damaging approaches. Although NEPA applies only to proposed federal actions, it often extends to private activities requiring some form of federal approval or receiving federal financing.

Litigation under NEPA involving riparian areas has chiefly involved claims that environmental impacts were not adequately addressed or mitigated. Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989 (9th Cir. 1993), for example, considered whether likely impacts of a proposed hydroelectric power facility on a riparian area and its bald eagle habitat were adequately evaluated. The need to prepare a full environmental impact statement rather than simply an environmental assessment has been the subject of other litigation. For example, in Sierra Club v. Babbitt, 69 F. Supp. 2d 1202 (E.D. Cal. 1999), a federal district court concluded that a National Park Service environmental assessment of a proposed highway reconstruction project provided insufficient details to assess the likely project impacts on the Merced River or its riparian corridor.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Clean Water Act. The Clean Water Act (CWA) has the stated goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. It focuses jointly on human and aquatic ecosystem health by establishing a water-quality goal of “fishable and swimmable” and “zero pollution” for all bodies of water. Although many sections of the act indirectly address riparian areas, the section most relevant to their protection (other than Section 404) is Section 303(d), which requires states and the U.S. Environmental Protection Agency (EPA) to identify waters not meeting state water-quality standards and to develop Total Maximum Daily Loads (TMDLs). A TMDL is the maximum amount of a pollutant that a water-body can receive and still be in compliance with state water-quality standards. After determining TMDLs for impaired waters, states are required to identify all point and nonpoint sources of pollution in a watershed that are contributing to the impairment and allocate reductions to each source in order to meet the state standards. Although TMDLs have been required under the Clean Water Act since 1972, their development did not begin in earnest until forced by widespread litigation during the 1990s (Houck, 2000; NRC, 2001).

Although it has been a matter of debate for some time, recent court rulings have confirmed that the TMDL program applies to both point and nonpoint sources of pollution (Pronsolino v. Marcus, 1999). Thus, it is likely that implementation plans to achieve water quality standards in impaired water-bodies will involve a variety of management strategies in riparian areas. The potential for such strategies, and for application of the TMDL program in general, to protect and restore riparian areas is considered in depth later in this chapter.

Wetlands Regulation. Section 404 of the Clean Water Act provides authority for a national program supervising the discharge of dredged and fill materials into “waters of the United States,” defined by regulation to include at least some wetlands.1 Under this regulatory program, wetlands that meet the jurisdictional definition cannot be dredged or filled without a permit from the U.S. Army Corps of Engineers (Corps). The Corps subjects permit applications to a review that considers a wide range of factors, including whether there are reasonable alternative locations. If no reasonable alternative can be identified and the need for the activity is demonstrated, consideration is given to mitigation measures and, as a last resort, to compensation for lost wetlands.

Although some wetlands occur within riparian areas, many riparian areas do not meet the jurisdictional definition of wetlands. Thus, activities occurring in

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The Supreme Court case known as SWANCC, decided in January 2001, raises some doubts as to whether all wetlands are within the Corps’ regulatory jurisdiction. A federal judge in Virginia is currently considering whether the Corps has authority to require a 404 permit to fill a wetland that is not adjacent to a navigable stream.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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such areas are not subject to the permit requirements of Section 404. Moreover, Congress and the Corps have exempted from 404 requirements normal farming, silviculture, and ranching activities as well as maintenance of structures such as dikes, levees, and dams and construction and maintenance of irrigation and drainage ditches.

Floodplain Regulation. The federal government spends several billion dollars a year on flood control and related water management projects in an attempt to reduce the roughly $4 billion per year of flood losses that occur in this country (Federal Interagency Floodplain Management Task Force, 1992). Encouraged by the National Flood Insurance Act of 1968, all states now have legislation authorizing local governments to adopt regulations restricting certain types of development within floodplains. Several states have adopted statewide floodplain management regulations. To be eligible for federal flood insurance, state and local programs must delineate the “regulatory floodway”—an area capable of passing a 100-year flood without increasing the water surface elevation by more than one foot. “Encroachments” such as buildings that would increase this elevation more than one foot may not be permitted.

Traditionally, floodplain management has focused on human safety and protection of investments. Riparian protection has not been a stated objective of such management. In fact, many of the structural responses to flood control, such as construction of levees and straightening of stream channels, have been harmful to riparian areas. The Interagency Floodplain Management Review Committee (the Galloway Committee) recommended more explicit recognition of the environmental values of floodplains in its 1994 report Sharing the Challenge: Floodplain Management into the 21st Century. In particular, the committee recommended a better-focused and more coordinated federal effort under the U.S. Department of the Interior to purchase either fee or conservation easement interests in frequently flooded lands with environmental values. In addition, it urged the commitment of ongoing federal funding following construction of federal flood-control projects to protect associated environmental values. It encouraged expanded use of the authority now given to the Corps to mitigate the environmental losses associated with already-constructed flood-control projects. In response, Congress expanded the 1996 Water Resources Development Act, Section 1135, program to allow for small environmental restoration projects when it is found that a Corps project has contributed to environmental degradation.

Endangered Species Act. The federal Endangered Species Act (ESA) has served as authority to regulate the development and use of land in riparian areas that provide essential habitat for a listed threatened or endangered plant or animal species. Under this law, federal agencies are prohibited from taking any action likely to jeopardize the continued existence of protected species, including destroying or adversely modifying their designated critical habitat. Moreover, the

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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ESA makes it unlawful for any person to “take” a protected animal species, defined to include harming, harassing, or killing such species.

Because riparian areas provide habitat for an abundance of plant and animal species, especially in the more arid western states, they have been the focus of the ESA is some cases. For example, federal land management agencies in the Pacific Northwest have established extensive networks of riparian reserves along streams in national forests and other federal public lands to afford protection to the Northern spotted owl and anadromous fish. These riparian reserves are expected to also provide habitat protection to a wide range of other aquatic and terrestrial wildlife species.

The prohibition against “taking” a protected species is motivating habitat protection on private lands as well, sometimes in riparian areas. Authorized under Section 10 of the ESA, habitat conservation plans provide a means whereby otherwise lawful activities that might incidentally cause take of a protected species can go forward in return for implementation of conservation measures. For example, as a condition of undertaking development that would destroy the riparian habitat of a protected species, a habitat conservation plan could provide for protection of similar habitat on some other private land. Such an approach is now under development in the Front Range of Colorado to provide protection for the Preble’s meadow jumping mouse, a listed threatened species found only within riparian areas of foothills streams (see Box 4-1).

Riparian areas are entitled to affirmative protection under the ESA if (1) they occur on federal lands and provide habitat to any listed species or any species proposed for listing or (2) if they are within designated critical habitat. Riparian habitat has been included in the critical habitat designations for numerous fish species or stocks (e.g., coho salmon, steelhead, winter-run chinook, desert pupfish, Sonoran chub, Railroad Valley springfish), mammals (riparian brush rabbit and riparian woodrat), birds (least Bell’s vireo and southwestern willow flycatcher), and reptiles (concho watersnake) (50 C.F.R. §§ 17.11, 17.95, 226.10, 226.12, 226.204).

Surface Mining Control and Reclamation Act. The Surface Mining Control and Reclamation Act (SMCRA) sets permitting requirements, environmental protection performance standards, and reclamation requirements for surface coal mines on private and public lands. The regulatory structure can afford protection of riparian areas. For example, applicants for permits are required to submit site-specific information about fish and wildlife resources when the permit area or adjacent area is likely to include “habitats of unusually high value for fish and wildlife such as important streams, wetlands, [and] riparian areas” (30 C.F.R. § 780.16). Applications must also include a protection and enhancement plan, which includes “protective measures that will be used during the active mining phase,” such as establishing buffer zones and monitoring surface water quality and quantity. The plan must also include “enhancement measures that will be used during

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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BOX 4-1
Preble’s Meadow Jumping Mouse

On May 12, 1998, the U.S. Fish and Wildlife Service (FWS) listed the Preble’s meadow jumping mouse as a threatened species under the Endangered Species Act. The Preble’s mouse, an 8- to 10-inch-long mouse with a tail that accounts for at least 60 percent of its length and with long hind feet adapted for jumping, lives only in well-vegetated riparian areas along the foothills and adjacent plains of the Front Range of Colorado and Wyoming. Sites with willows are particularly favored. Preble’s mice are nocturnal creatures, and they hibernate for a good portion of the year. Always considered rare, the Preble’s mouse has been declining in numbers in recent years. Fragmentation and loss of its riparian habitat from human use and development have been identified as the primary factors causing this decline.

The Endangered Species Act attempts to protect listed species in two primary ways. First, it prohibits a federal agency from taking an action that might adversely affect the continued existence of the species, including modification of its designated critical habitat. Second, it prohibits any person subject to the jurisdiction of the United States from “taking” a listed species. “Taking” is defined to include harassing, harming, or killing a species, as well as destroying its habitat.

Counties along the rapidly growing Colorado Front Range are attempting to develop habitat conservation plans that will provide for long-term protection of riparian habitat needed by the Preble’s mouse. Likely conservation strategies include precluding or minimizing new development within known or likely Preble’s habitat, requiring new activities within riparian areas to use best management practices to minimize impacts, and developing habitat “banks” of preserved or restored riparian areas to compensate for habitat unavoidably lost to new development.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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the reclamation and postmining phase of operation to develop aquatic and terrestrial habitat,” such as stream and wetland restoration.

Mine operators are directed to use the best technology available to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and to “achieve enhancement of such resources where practicable” (30 C.F.R. § 816.97a). Operators must further “avoid disturbances to, enhance where practicable, restore, or replace wetlands, and riparian vegetation along rivers and streams and bordering ponds and lakes,” as well as “habitats of unusually high value for fish and wildlife” (30 C.F.R. § 816.97f). Generally, mining is not to occur within 100 feet of a stream.

Coastal Zone Management Act. Originally enacted in 1972 and significantly amended by the Coastal Zone Act Reauthorization Amendments of 1990, the Coastal Zone Management Act (CZMA) authorizes significant federal financial and technical assistance to states that establish a satisfactory Coastal Management Plan. All federal actions occurring within or affecting the coastal zone are to be “consistent” with the state Coastal Management Plan. Minimum plan requirements include identification of permissible land uses within the coastal zone; designation of areas of particular concern; identification of means for controlling land uses; and establishment of planning processes for providing public access to beaches and other high-value areas, for preventing erosion, and for siting of energy facilities.

The 1990 amendments required states to develop a coastal nonpoint source pollution control program and to submit it to the National Oceanic and Atmospheric Administration (NOAA) and EPA for approval. NOAA and EPA must evaluate whether the state’s coastal zone boundary extends inland sufficiently far to control land and water uses significantly impacting coastal waters. EPA guidance for program compliance endorses many familiar best management practices for controlling nonpoint source pollution, including “streamside special management areas” to protect streams from logging and measures for controlling grazing in erosion-sensitive areas such as riparian areas and wetlands (EPA, 1993). The guidance recognizes both the pollution-abatement functions of riparian areas as well as their potential to become sources of nonpoint pollution if degraded. Because the CZMA is designed to protect water quality, and riparian areas are the last line of defense between receiving waters and upland sources of pollution, most state CZMA programs require riparian area protection as a means of meeting the goals of the CZMA. This is being done through protection of functioning riparian areas and restoration of nonfunctioning riparian areas where possible.

Federal Power Act. Under the Federal Power Act, the Federal Energy Regulatory Commission (FERC) regulates essentially all nonfederal hydroelectric power facilities. In 1986, Congress amended the Federal Power Act to require FERC to give “equal consideration” to energy conservation, protection of fish

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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and wildlife, protection of recreational opportunities, and preservation of general environmental quality, along with the power generation potential of a river, in its licensing and relicensing process. FERC’s “Manual of Standard Special Articles” requires license applicants to submit a wetland mitigation plan and a wildlife mitigation plan that will be included in their license (FERC, 1992). In addition, for projects with a reservoir, the applicant must provide a management plan providing for a shoreline buffer zone.

The relicensing process on the Deerfield River in Vermont and Massachusetts in the early 1990s provides an example of the act’s potential for protecting riparian areas. New England Power Company (NEP) operates eight dams along the river with 15 generating units, all covered by a single FERC license that expired in 1991. As part of its license-renewal process, NEP worked out a comprehensive settlement with 15 parties that included commitments to maintain flows below each of its dams at levels sufficient to protect fisheries and to make scheduled white-water releases for boaters. In addition, NEP committed to spending $200,000 to improve waterfowl and wildlife habitat and to permanently protect (with conservation easements) over 18,000 acres of riparian and watershed lands owned by NEP—primarily as shoreline buffers around its reservoirs (Kimball, 1997).

State and Local Regulatory Programs

States can regulate land use in the exercise of their sovereign police power. Traditionally, states have delegated this authority to local government. For matters determined to be of statewide importance, however, states may exercise this authority directly. The importance of protecting riparian areas has prompted several states to establish state-level regulatory programs beyond those authorized for floodplain regulation. The most common form of regulation is to establish buffer zones (setbacks) adjacent to waterways in which development is precluded or limited. It should be noted that state and local setback regulations on private land have been or are likely to be ruled constitutional, as discussed in Box 4-2.

Statewide Shoreline or Riverfront Protection. Several states have made riparian areas a subject of special attention. A comprehensive approach has been taken by Massachusetts. The 1996 Rivers Protection Act established a state-level permit system for development activities within a “riverfront” area (Rivers Protection Act, MGL chapter 131). A riverfront area is defined as a corridor 200 feet wide (or 25 feet on each side in large municipalities and in densely populated areas) along all perennial rivers and streams. Proposed development in riverfront areas must demonstrate no significant adverse effects on water supplies, wildlife habitat, fisheries, shellfish, groundwater, and flood and pollution prevention.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Moreover, there must be no practicable economic alternatives to the development for which effects would be less adverse.

New Hampshire enacted the Comprehensive Shoreland Protection Act in 1994. Under this law, shorelands within 250 feet of public waters are designated for special protection. Public waters are defined to include all fresh waterbodies, natural or impounded; coastal waters; and rivers of fourth-order size or greater. Certain types of activities, such as solid or hazardous waste facilities and automobile junkyards, are prohibited within protected shorelands. Statewide minimum standards, which relate to such things as location of septic systems, sediment controls, tree cutting, and minimum lot size, are established to govern all development within protected shorelands (North Country Resource Conservation and Development Area Inc., 1995).

Wisconsin has a “shoreline” zoning program regulating property uses within 1,000 feet of a lake or 300 feet of a stream or its floodplain (Wis. Admin. Code ch. NR 115). This program establishes minimum lot sizes within a shoreline area, requires a 75-foot setback for buildings, and restricts clearcutting activities.

The Montana Natural Streambed and Land Preservation Act requires any person or entity proposing to do work that would physically alter the bed or banks of a perennial stream on public or private land to obtain a permit from the Board of Supervisors of the local Conservation District.

Forest Practices Acts. Forestry practices on private riparian forestlands are prescribed by the individual states. Oregon enacted the first legislation for private forest practices in 1972. Since that time, 40 states and U.S. territories have established either mandatory forest practices or best management practices (BMPs) (Figure 4-1). Oregon, Washington, California, Idaho, Montana, Alaska, and Minnesota have established regulations for forest practices on private lands that generally specify widths of riparian management zones (RMZs) and the amount of partial timber harvest allowed within the RMZs. RMZs on private lands generally apply to riparian areas within 100 feet or less of perennial streams. Additional rules address road building, road crossings, yarding systems, replanting, leave trees, and harvest unit dimensions. Thirty-three (33) states and territories have used voluntary programs based either on best management practice guidelines or on achieving water-quality standards. These programs rely on training and education programs and on voluntary compliance by forest operators. Almost a quarter of the states have no explicit guidelines or legislation for private forest practices. Table 4-2 lists the riparian management approaches required by state forest practice acts in states and territories and the agencies responsible for their enforcement (if necessary).

In general, riparian buffers on public lands are often more extensive than those on private lands. On public lands, buffer widths range from less than 25 ft (7.5 m) to more than 500 ft (150 m), while widths of riparian buffers on private

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

BOX 4-2
Takings

Land-use regulation to protect riparian areas may be hindered by private property rights-related concerns that stem in part from “takings” law. Takings law derives from the Fifth Amendment to the U.S. Constitution, which states “nor shall private property be taken for public use without just compensation.” In other words, governments are not prohibited from “taking” property; they are only forbidden to appropriate property for a nonpublic purpose or to appropriate it without paying for it. A taking can be direct, physical occupation or confiscation of property, or it may result from a regulation that restricts property use. Physical invasions by government are more readily ruled takings than are restrictions of use, known as “regulatory takings.” Only rarely have courts ruled that land-use regulation has “taken” property in violation of the Constitution.

Defining an unconstitutional taking is difficult. The U.S. Supreme Court’s approach involves ad hoc, factual inquiries rather than developing a set formula for determining when “justice and fairness” require that the economic injuries caused by public action be compensated by the government (Penn Central Transportation Co. v. City of New York, 1978). Key considerations, however, include the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation interferes with distinct, investment-backed expectations, as well as “the character of the government action” (Ibid).

The Court has often said mere diminution in the value of property is insufficient to demonstrate a taking. For instance, the Court upheld a Los Angeles zoning ordinance, which reduced the value of property by 92 percent by forbidding the continuation of brick-making (Hadacheck v. Sebastian, 1915). Comprehensive zoning regulations, which can sharply reduce property values, have long been upheld (Euclid v. Ambler Realty Co., 1926).

One example of a regulation having gone too far was established in Lucas v. South Carolina Coastal Council (1992). The Court held that a regulation that “deprives land of all economically beneficial use” effects a taking, unless the “proscribed use interests were not part of the [landowner’s] title to begin with.” Courts have long recognized that private property rights are not absolute; for instance, they are subject to the state’s power to abate “nuisances.” The Lucas Court explained that if the government prohibits some use (here, the right to build on beachfront property) not traditionally prohibited or deemed a nuisance under state law, and thus destroys the economic value of private property interests that pre-date the regulatory prohibition, it must pay for the property taken.

One difficulty with takings law is identifying the relevant parcel or unit of property—i.e., the “denominator.” For example, if a landowner challenges a regulation that prevents her from building on two riparian acres of an undivided ten-acre tract, a court should examine not the reduced value of the two acres, but the impact of the prohibition on the entire tract. However, not all courts have concurred. In Loveladies Harbor, Inc. v. U.S. (1994), the Federal Circuit Court of Appeals was asked to decide whether the

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Corps’ refusal to issue a permit to fill wetlands “took” the plaintiff’s property. Before wetlands regulation, Loveladies had developed and sold the majority of a 250-acre tract. In the 1980s, Loveladies was denied a federal permit to develop the remaining 12.5 acres. The court decided that 12.5 acres was the proper denominator. The fair market value of the 12.5-acre tract fell from $2,658,000 to $12,500 after permit denial. The court concluded that this was a taking.

Another wetlands case, Florida Rock Industries v. United States, took up a different issue—whether a regulation that “deprives the owner of a substantial part but not essentially all of the economic use or value of the property, constitute[s] a partial taking, and is it compensable as such.” According to the Federal Circuit, the line between a compensable partial taking and a noncompensable “mere diminution” is unresolved. This issue, it said, necessitates a balancing of the benefits to the public (of which Florida Rock is a part) and the burden on the individual owner. Compensation is due, the court said, when application of the Penn Central tests “indicates that this plaintiff was singled out to bear a burden which ought to be paid for by society as a whole.” The claims court concluded that Florida Rock was such a plaintiff because its investment-backed expectation had been entirely frustrated and the government had entirely taken the company’s common-law right to remove minerals from its property.

A more recent Supreme Court takings case examined not a denial of development rights, but the conditions placed on development. Dolan v. City of Tigard (1994) involved the expansion of a retail store. By a 5-4 vote, the Court struck down building permit conditions requiring the property owners to dedicate to the city about ten percent of their property, within the floodplain of a creek, for use as a public greenway and bicycle path. The Court said the city had not justified why the Dolans must dedicate property to the city, as opposed to simply leaving it undeveloped, nor had the city documented the bike path’s effect on traffic congestion. The majority did not discuss the fact that the regulation would affect only ten percent of the property, nor that the property’s value would be increased as a result of the conditional permit. The majority did express concern that the permit condition would deny the owner “one of the most essential sticks in the bundle of rights that are commonly characterized as property”—the “right to exclude” the public.

Thus, several takings issues remain unresolved: (1) whether and how other courts will distinguish between compensable partial takings and noncompensable mere diminution in property values, (2) how to determine the denominator in takings analyses, (3) whether Dolan applies to all conditions on development permits or only to required dedications of land, and (4) how courts should weigh benefits of a land-use regulation to the public against its burden on an individual property owner. Despite this uncertainty, certain predictions concerning riparian area regulations are possible. First, protecting or restoring riparian areas is undoubtedly a public purpose. Thus, a regulation that restricts or conditions use of property to promote that purpose would not likely be deemed to “take” property unless it (1) left the owner no economically viable use of the entire parcel, (2) authorized public access, and/or (3) imposed a burden on the landowner that is disproportionate to the impact of the desired property use.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

FIGURE 4-1 Proportion of states and U.S. territories with regulations on forest practices, with best management practice guidelines (includes use of BMPs or water quality standards), and with no legislated guidelines.

commercial forest lands, if required, generally range from 25 to 100 ft (10–30 m). Although an increasing number of states have incorporated regulatory buffers into forest practice rules, no states have regulatory buffer requirements for agricultural or grazing practices.

Special Area Protection. Some state legislatures have identified areas in which protection of riparian areas is particularly important and have established a special program for this purpose. For example, in the Delta Protection Act of 1992, California established special planning requirements for activities on lands within the delta of the Sacramento and San Joaquin Rivers—a 738,000-acre area that drains 40 percent of the state’s water. One of the requirements is to preserve and protect riparian and wetlands habitat. In 1999, the North Carolina Environmental Management Commission adopted rules to protect 50-ft-wide riparian buffers along waterways in the Neuse and Tar-Pamlico river basins. Although existing uses are exempt, new activities and land uses are prohibited within 50 feet of waterbodies, unless approved by the state. The primary motivation for establishing these buffers was to reduce nutrient loadings.

On a larger scale, the federal and state governments have combined to establish the Chesapeake Bay Program to restore and protect this major estuary. Parties to the 1983 Chesapeake Bay Agreement include Maryland, Pennsylvania, Virginia, the District of Columbia, the Chesapeake Bay Commission (a tri-state legislative body), EPA, and others. As part of its ongoing efforts to reduce water pollution, the Chesapeake Executive Council adopted a directive in 1994 to protect and restore riparian buffer forests along tributaries to the Chesapeake Bay.

The Chesapeake Bay states themselves have established special programs. Virginia’s 1988 Chesapeake Bay Preservation Act defines “resource protection areas” as “sensitive lands at or near the shoreline that have an intrinsic water

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

quality value due to the ecological and biological processes they perform or are sensitive to impacts which may cause significant degradation to the quality of state waters” (Section 9VAC10-20-80 A). The act designates a riparian buffer of not less than 100 ft wide along the bay and its tributaries in which activities are significantly restricted. Vegetation “effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution” is to be retained if present or established if it does not exist. The act further requires that local governments use their land-use authority to, for example, subject proposed development within the 100-ft buffer to a water-quality impact assessment and to limit development to facilities that are “water-dependent” or that constitute redevelopment of existing facilities. The width requirements are lessened for agricultural lands enrolled in a government-funded BMP program or a soil and water-quality conservation plan. Special provisions apply to forestry within Streamside Management Zones—areas 50–200 feet from a stream.

In 1984, Maryland established the Chesapeake Bay Critical Area Program. The “critical area” consists of all land within 1,000 feet of the mean high-water line of tidal waters or the landward edge of tidal wetlands or tributary streams. The program’s goals are to minimize adverse impacts on water quality that result from pollutants; conserve fish, wildlife, and plant habitat in the critical area; and establish land-use policies for the Chesapeake Bay Critical Area that accommodate growth. Similar to Virginia, Maryland has established criteria to minimize the adverse effects of human activities on water quality and natural habitats and to foster consistent, uniform, and more sensitive development activity within the critical area. These criteria involve classifying land as “intensely developed areas,” “limited development areas,” or “resource conservation areas” and regulating activities accordingly. In addition, local jurisdictions are required to designate habitat protection areas, which include the naturally vegetated 100-ft buffer along waterways; nontidal wetlands; the habitats of threatened and endangered species and species in need of conservation; significant plant and wildlife habitat; and anadromous fish-spawning areas. Even agricultural lands within the critical area are required to control nutrient runoff by establishing a 25-ft vegetated filter strip along tidal waters, wetlands, or tributary streams or by using equivalent BMPs.

Local Land-Use Regulation. Far more common than statewide or special area regulatory programs are local government regulations for land use adjacent to water. State statutes authorizing local governments to regulate land use within their jurisdiction often include language specifically authorizing protection of environmental values. Such regulations usually establish setbacks along streams or around lakes within which certain types of land uses—most commonly, the building of homes or other structures—are discouraged or prohibited. For example, to protect its drinking water supply, New York City has entered into a Watershed Memorandum of Agreement with local governments in the upstate

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

TABLE 4-2 Riparian Management Approaches on Private Forest Lands in States and Territories

State

Approach

Regulatory Guidelines

Voluntary Guidelines

Management Area Width

Harvest Practices

Alabama

BMP

None

Primary

35–50 ft

Not limited

Alaska

Regulations

Primary

 

100 ft

Partial

Arizona

BMP

None

Primary

 

Not limited

Arkansas

BMP

Secondary

Primary

35–150 ft

Not limited

California

Regulations

Primary

Secondary

100 ft

Partial

Colorado

BMP, Reg.

Secondary

Primary

 

Not limited

Connecticut

WQ Std

None

Primary

 

Not limited

Delaware

BMP

None

Primary

 

Not limited

District of Columbia

None

None

None

 

Not limited

Florida

BMP

Secondary

Primary

35–200 ft

Not limited

Georgia

BMP

Secondary

Primary

15 ft

Not limited

Hawaii

WQ Std

None

None

35–160 ft

Not limited

Idaho

Regulations

Primary

Secondary

30–75 ft

Partial

Illinois

BMP

None

Primary

 

Not limited

Indiana

BMP

None

Primary

75–200 ft

Not limited

Iowa

WQ Std

None

None

50–150 ft

Not limited

Kansas

None

None

None

 

Not limited

Kentucky

BMP

Secondary

Primary

 

Not limited

Louisiana

WQ Std

None

None

35–100 ft

Not limited

Maine

BMP

None

Primary

 

Not limited

Maryland

BMP

Secondary

Primary

75–250 ft

Not limited

Massachusetts

BMP

None

Primary

50–450 ft

Partial

Michigan

BMP

Secondary

Primary

 

Not limited

Minnesota

Regulations

Primary

Secondary

50–250 ft

Partial

Mississippi

BMP

None

Primary

30–60 ft

Not limited

Missouri

None

None

None

 

Not limited

Montana

Regulations

Primary

Secondary

 

Partial

North Carolina

BMP

Secondary

Primary

 

Not limited

North Dakota

BMP

None

Primary

 

Not limited

Nebraska

BMP

None

Primary

50–200

Not limited

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Agencya

Legislative Authorization

Alabama Forestry Commission

None

Alaska DNR

Alaska Forest Resources and Practices Act

Arizona DEQ

Arizona Nonpoint Source Pollution Program

Arkansas Forestry Commission

None

California Dept. of Forestry

Z’Berg-Nejedly Forest Practice Act of 1973

Colorado State Forest Service

Forest Management Definitions; Statute 39-1-102

Connecticut DEQ

Water Quality Standards

Dept. of Agriculture/ Forest Service

Watershed Protection Program

Dept. of Trees and Lands, District Government

None

Florida Division of Forestry

None

Georgia Forestry Commission

Best Management Practices for Forestry

Dept. of Health, Clean Water Branch

Administrative Rules; Water Quality Standards

Bureau of Forest Assistance

Idaho Forest Practices Act

DNR, Division of Forestry

Conservation and Water Resources Statutes

DNR, Division of Forestry

Water Quality and Wetland Statutes

DNR, Division of Forestry

Water Quality Standards

NA

None

Kentucky Division of Forestry

Kentucky Forest Conservation Act; Kentucky Agriculture Water Quality Act

Louisiana Dept. of Agriculture and Forestry

Water Quality Standards

Maine Forest Service

None

DNR, Forest Service

Maryland Best Management Practices for Forest Harvests; Maryland Forest Service Tree Laws; Forest Conservation Act, Maryland Seed Tree Law; Maryland Reforestation Law; Maryland Tree Expert Law; Roadside Tree Law

NA

None

DNR, Forest Management Division

Best Management Practices for Water Quality; Michigan Public Act of 1994; DEQ Regulations

DNR, Division of Forestry

Minnesota Sustainable Forest Resources Act of 1998; Forest Management Guidelines

Mississippi Forestry Commission

None

Dept. of Conservation

None

Dept. of Natural Resources & Conservation, Forestry Division

Montana Forest Practices Statutes; Montana Streamside Management Zone Law

North Carolina Division of Forest Resources

Sedimentation Pollution Control Act; Forest Practices Guidelines and Best Management Practices

North Dakota Forest Service

Forest Resource Management Program

Dept. of Forestry, Fish, & Wildlife

None

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

State

Approach

Regulatory Guidelines

Voluntary Guidelines

Management Area Width

Harvest Practices

Nevada

BMP

Primary

Secondary

 

Partial

New Hampshire

WQ Std

Secondary

Primary

50–150 ft

Not limited

New Jersey

WQ Std

None

None

 

Not limited

New Mexico

BMP

Secondary

Primary

 

Not limited

North Carolina

BMP

None

Primary

20–200 ft

Partial

New York

None

None

None

 

Not limited

Ohio

BMP

None

Primary

 

Not limited

Oklahoma

BMP

None

Primary

 

Not limited

Oregon

Regulations

Primary

Secondary

20–100 ft

Partial

Pennsylvania

BMP

None

Primary

35–250 ft

 

Puerto Rico

None

None

None

 

Not limited

Rhode Island

None

None

None

 

Not limited

South Carolina

BMP

None

Primary

40–160 ft

Not limited

South Dakota

BMP

Secondary

Primary

 

Not limited

Tennessee

BMP

None

Primary

 

Not limited

Texas

BMP

None

Primary

50 ft

Not limited

Utah

BMP

None

Primary

35–100 ft

Not limited

Vermont

None

None

None

 

Not limited

Virginia

BMP

None

Primary

35–50 ft

Not limited

Washington

Regulations

Primary

Secondary

50–200 ft

Partial

West Virginia

BMP

None

Primary

50–100 ft

 

Wisconsin

WQ Std

None

Primary

35–100 ft

Not limited

Wyoming

BMP

None

Primary

 

Not limited

aDNR: State Department of Natural Resources; DEQ: State Department of Environmental Quality.

NA: Information not available.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Agencya

Legislative Authorization

Dept. of Conservation & Natural Resources, Division of Forestry

Nevada Administrative Code for Forest Practices; Nevada Administrative Code for Forest Practices and Division Reforestation

Division of Forests and Lands

New Hampshire Rivers Management and Protection Program; Water Quality Standards

State Forestry Service

Water Quality Standards

New Mexico Energy, Minerals, and Natural Resources Dept.

None

NA

NA

Division of Lands and Forests

None

DNR, Division of Forestry

Ohio Sustainable Forestry Initiative

Oklahoma Forestry Services

Extension Circulars

Oregon Dept. of Forestry

Oregon Forest Practices Act of 1972

Bureau of Forestry

None

Forest Services Bureau

None

Division of Forest Environment

None

Forestry Commission

State Endangered Species Act, Best Management Practices Guidelines

Division of Resource Conservation and Forestry

Cooperative Forestry Assistance Act of 1978

Division of Forestry

Tennessee Forest Practices Guidelines

Texas Forest Service

Texas Water Code; State Water Plan

DNR, Division of Forestry, Fire, and State Lands

Utah Code/Water Quality Act; State Water Plan

Dept. of Forest, Parks, and Recreation

Water Quality Issues

Dept. of Forestry

None

Dept. of Natural Resources

Forest Practices Act of 1976

Forestry Division

NA

DNR, Division of Forestry

Nonpoint Source Abatement Program, Water Quality Standards

Office of State Lands and Investments, Forestry Division

Wyoming Rules and Regulations Database

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Catskill, Delaware, and Croton watersheds that includes a variety of setback regulations for activities considered potentially harmful to water quality. Activities such as the placement of septic systems, siting of wastewater treatment plants, pesticide application, and construction of new impervious surfaces are prohibited on lands directly adjacent to reservoirs, streams, and wetlands in the watershed, although agricultural activities are exempt (NRC, 2000).

Incentive-Based Approaches

A growing number of inducements are available to encourage private landowners to protect riparian areas. These inducements take the form of direct payments to landowners not to develop riparian lands, payments to encourage use of environmentally compatible practices, payments or tax benefits for placing a conservation easement on the property, funding for restoration or demonstration projects, stewardship education and technical assistance, and outright purchase of the lands. To be effective, incentives generally must at least equal the value of other use options available to the landowner.

Payments to the Landowner from Public Programs

Typically, there have been no economic incentives for private landowners to protect the ecological functions of riparian areas. However, an increasing number of public programs are offering some form of payment in return for such protection. Since 1985, Congress has been authorizing Farm Bill programs that provide for retirement of croplands for environmental benefits in return for annual payments. The largest of these Farm Bill programs is the Conservation Reserve Program (CRP) under which highly erodible or environmentally sensitive cropland may be retired for a period of years in return for annual rental payments and cost-share assistance for converting and maintaining the land. About 36 million acres of farmland are enrolled in CRP (which has a legal limit of 36.4 million acres). Annual payments amount to approximately $1.8 billion, an average of approximately $50 per acre. Since its inception, the program has increasingly emphasized the importance of water quality and wildlife habitat benefits as priority objectives for land retirement. Lands providing filter strips and riparian buffers adjacent to waterbodies have been given special attention, including a 10 percent incentive payment to landowners to enroll.

The Conservation Reserve Enhancement Program (CREP) brings federal funding to state-initiated and supported programs focused on converting agricultural lands for conservation benefits. Maryland established the first CREP program to create buffer strips within 150 feet of a stream. The impact of the CRP and CREP programs on protection of riparian areas is considered in detail later in this chapter.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

The Wetlands Reserve Program (WRP) provides payments to agricultural landowners who enter into conservation easements under which croplands are turned back into wetlands for at least 30 years. In addition, a restoration cost-share agreement provides up to 75 percent of the cost of wetland restoration. If the landowner agrees to a permanent easement, the U.S. Department of Agriculture (USDA) will pay 100 percent of the costs of restoring the wetland. As of July 2000, about 915,000 acres were enrolled in this program.

Some of the incentives-based programs discussed above require landowners to protect highly erodible lands, wetlands, and riparian areas as a condition for participating in federal farm programs that subsidize agricultural production. This “conservation compliance” approach has resulted in the protection of many environmentally sensitive areas and particularly riparian areas, as farming was not profitable in many areas of the country without participation in the subsidy programs. Conservation compliance was based on the conviction that, because the agricultural community was receiving tens of billions of dollars per year in subsidies, it was reasonable for the agricultural community to protect water quality. Unfortunately, conservation compliance ended in 1995 with the passage of the Freedom to Farm Act, which in theory terminated most agricultural commodity subsidy programs along with the incentive to participate in conservation programs. There may be an opportunity to reintroduce conservation compliance in the near future because agriculture has not been very profitable since the end of crop subsidy programs, and there is some support for reintroducing a formal federal price support system.

Cost-Share Programs

Cost-sharing programs are used alone or in combination with land retirement as a means of generating conservation benefits. In return for making improvements or utilizing management practices deemed environmentally beneficial, the landowner receives back some share of the associated costs. An example is the Environmental Quality Incentive Program, established in the 1996 Farm Bill. The landowner submits a conservation plan, prepared with assistance from the Natural Resources Conservation Service (NRCS), proposing practices to address environmental concerns in priority areas. Up to 75 percent of the costs may be reimbursed during the period of the contract. In some instances, special incentive payments are available to pay 100 percent of the associated costs. Under the Wildlife Habitat Incentives Program, cost-sharing assistance is available to landowners to develop wildlife habitat. Partners for Fish and Wildlife, administered by the U.S. Fish and Wildlife Service and state wildlife agencies, also provides cost-share funding to landowners interested in protecting or restoring wetland habitat on their lands. Still another source of federal cost-share funding is the Rivers, Trails, and Conservation Assistance Program, administered by the Na-

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

tional Park Service (NPS). Cooperative projects directed toward river and trail enhancement are eligible for funding and technical assistance.

In an effort to encourage riparian buffers in agricultural areas, the USDA initiated the National Conservation Buffer Initiative (NCBI) in 1997. Designed as a private–public partnership, this effort has established a goal of 2 million miles of buffer by 2002. The initiative includes corporate support through a subsidiary group—the National Conservation Buffer Council. To date the primary emphases of NCBI have been marketing and education; no additional funds have been made available through the initiative to support buffer implementation. As of March 1, 2001, NCBI reported that over 1 million miles of buffers2 had been established through many buffer programs (e.g., CRP, CREP, WRP). However, there is little landowner knowledge of NCBI (NRCS, 1999), and there is no way to determine whether the efforts of NCBI have had any appreciable effect on the rate or extent of buffer installation.

Conservation Easements

Apart from public programs, nearly every state allows for conservation easements. The use of such easements for environmental protection of private lands has expanded exponentially in recent years (NRC, 1993). An easement is a legally enforceable agreement between a landowner and another party to maintain private lands for specified conservation purposes in perpetuity (Land Trust Alliance, 1996). Potential incentives to the landowner are the ability to limit future uses of land (e.g., to keep the land in agricultural use or as permanently protected open space), receipt of the fair market value of the easement (generally the development value of the property), and various tax incentives (described below). A nonprofit land trust, a conservation organization such as The Nature Conservancy, or a government agency typically holds the easement and is responsible for ensuring its implementation. The land remains in private ownership. No organization acquires conservation easements specifically for protection of riparian areas. Yet, because in the West riparian areas provide essential habitat for a large number of plant and animal species, conservation efforts in this region often emphasize protection and restoration of riparian lands.

North Carolina enlisted the use of conservation easements as a means of voluntarily moving swine operations out of the 100-year floodplain following the massive flooding caused by Hurricane Floyd in 1999. Landowners were invited

2  

This figure includes riparian buffers, filter strips, grassed waterways, shelterbelts, windbreaks, living snow fences, contour grass strips, cross-wind trap strips, shallow water areas for wildlife, field borders, alley cropping, herbaceous wind barriers, and vegetative barriers. These buffers are not equivalent to fully functioning riparian areas as described in Chapter 2. In addition, some of the buffers are “in field” rather than in the riparian area.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

to submit a bid to the North Carolina Department of Environment and Natural Resources for purchase of a perpetual easement that would prohibit use of the land as a feedlot or for associated animal waste operations, prohibit non-agricultural development, require a soil and water conservation plan, and require implementation and maintenance of a minimum 35-ft forested riparian buffer along adjacent perennial or intermittent streams.

Tax Incentives

A growing number of tax incentives encourage landowners to protect the environmental values of their property. An important incentive for landowners to voluntarily donate a conservation easement on their property to a qualified organization is that federal income tax law allows a deduction over a 6-year period of the fair market value of the easement from the landowner’s adjusted gross income (not to exceed 30 percent of the total income in any year) (Small, 1995). Many states offer a similar incentive. In addition, federal estate taxes may be reduced because the easement is deemed to have limited the value of the inherited property. Finally, some states authorize reduced local property tax assessments on properties covered by conservation easements.

A number of states have tax incentives directed specifically at, or applicable to, riparian lands. For example, Virginia authorizes local governments to exempt “riparian buffers” from property taxation (Va. Stat. § 58.1-3666). Under this statute, a riparian buffer is defined as “an area of trees, shrubs or other vegetation, subject to a perpetual easement permitting inundation by water, that is (i) at least 35 ft in width, (ii) adjacent to a body of water, and (iii) managed to maintain the integrity of stream channels and shorelines and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.” Idaho offers income tax credits to landowners equal to half of the costs of fencing riparian areas for managing livestock grazing or for controlling erosion (Id. Stat. § 63-3024B).

Restoration/Protection/Demonstration Programs

A number of federal and state programs provide funding for projects that can restore impaired or lost ecological functions of riparian areas. Funding made available under Section 319 of the Clean Water Act is intended to encourage demonstration projects addressing nonpoint source pollution. In many cases, these projects focus on improvements in riparian areas. For example, the Lake Champlain Basin Agricultural Watersheds Project utilized grazing management, livestock exclusion, and streambank protection as tools to reduce concentrations and loadings of phosphorus, nitrogen, suspended solids, and bacteria in two treatment watersheds. Riparian fencing was used to exclude cattle access, and bioengineering techniques were used to restore streambanks. After two years,

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

significant reductions in all parameters were documented. In North Carolina’s Neuse River Basin, a 319 project is evaluating the effectiveness of vegetative riparian buffers and controlled drainage in order to determine the preferred best management practice for reducing nutrients.

Since 1986, Congress has been increasing the role of the Corps in river channel and wetlands restoration. The 1986 Water Resources Development Act declared that all environmental improvements included by the Corps within their projects are to be considered economically justifiable. The act specifically authorized fish and wildlife mitigation measures, and it provided authority for the Corps to undertake restoration activities as needed to offset the environmental problems created by previous flood-control and navigation projects. A dramatic example of this new role is the half-billion-dollar Kissimmee River Restoration Project, which is reestablishing wetland conditions in the river’s historic floodplain (see Chapter 5).

BOX 4-3
Riparian Restoration at Bear Creek, Iowa

Management agencies often struggle with designing effective riparian programs because of funding constraints within individual agency programs and the limited nature of agency expertise. This suggests that development of interdisciplinary research teams (including soil scientists, geologists, ecologists, economists, fisheries and wildlife scientists, and others) and partnerships among local, state, and federal agencies, nongovernmental organizations (NGOs), and private industry could expedite protection of riparian areas. The Bear Creek, Iowa, riparian demonstration project along with the development of the Riparian Management System (RiMS) exemplifies both of these characteristics and has become a role model for subsequent research, demonstration, and management.

Initiated simply as an effort to accomplish research in an agricultural setting, the project has grown from working with a single landowner on a modest section of Bear Creek to its present state of nearly eight miles of riparian restoration. It is run by a partnership of diverse research and funding entities. The RiMS project has also been adopted as the guiding principle for buffer development by the nonprofit group Trees Forever, which has a five-year goal of 100 riparian demonstration or project sites in Iowa and which has just recently expanded into an Illinois buffer initiative of comparable magnitude.

The Bear Creek watershed is a 3,100-acre (7,661-ha) agricultural area located just northeast of Ames, IA. Narrow (2–4 miles or 3–6 km) and long (22 miles or 35 km), the watershed is 87 percent row crops, primarily in private ownership, and has a highly modified hydrology. In general, the watershed is typical of many Midwestern water-

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

States also have established programs to support restoration and protection efforts, including ones benefiting riparian areas. Arizona’s Water Protection Fund provides funding for measures to enhance and restore rivers and streams and associated riparian habitats. California has established the Riparian Habitat Conservation Program, which uses funding from federal grants, private donations, and other sources to preserve and enhance riparian habitat. As part of a statewide program for developing water basin plans for wetlands and riparian area restoration, North Carolina established a Riparian Buffer Restoration Fund for restoration, enhancement, or creation of riparian buffers. Oregon has an extensive program promoting watershed management in which management and protection of riparian areas are the principal goals, with funding made available from the Oregon Watershed Enhancement Board. As described in Box 4-3, restoration and demonstration projects in riparian areas often require multiple sources of funding and interdisciplinary participation to achieve success.

sheds from Ohio to the eastern Dakotas. Presettlement conditions in the Bear Creek watershed consisted of rolling prairie, marshes, and very limited forest, with stream flows being intermittent and seasonal. Defined stream channels were difficult to find in many areas of the watershed based on 1847 land survey notes. As early as 1902, major changes to the watershed were brought about by drainage and land conversion. Significant channelization occurred into the 1970s, resulting in vastly altered hydrology and in changes in the biota, reflecting degraded habitat, increased turbidity, and warmer water temperatures (Schultz et al., 1995; Isenhart et al., 1997).

In 1990, initial headway was made by developing a partnership with a local conservation-minded landowner willing to allow experimentation with riparian management systems on his property. Ironically, many of the funding programs such as continuous CRP that are currently available to landowners were not available to the owners of the original study property. Hence, riparian management has expanded into upstream areas supported by funding that was not available to the people who took the initial risk. Nonetheless, working in the production agriculture setting forced the development of a riparian management system that is economically viable and practical to implement.

Also vital to the success of the Bear Creek project has been the cooperative nature of the research partners. Partners involved in the research component of Bear Creek include scientists from Iowa State University, the Leopold Center for Sustainable Agriculture, National Soil Tilth Laboratory, EPA, NRCS, and others. Current research and demonstrations are being conducted on riparian lands owned by ten farmer cooperators. In addition, 11 professional consultants from various government agencies and NGOs are cooperating with the team. The Bear Creek project demonstrates the importance of a collegial atmosphere among participants, obtaining funding from a wide variety of sources, and patience and perseverance.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Summary

Table 4-3 summarizes the many regulatory and nonregulatory approaches used by the states to address protection of privately owned riparian areas. The extreme variation in approaches is remarkable. A significant limitation of many of the approaches is that their success is measured by the number of practices implemented and rarely by actual environmental improvements. For example, the National Conservation Buffer Initiative, the goal of which is to install 2 million miles of new riparian and upland buffers by 2002, is being touted as a means of improving water quality. Rather than requiring the collection of water-quality data to determine if water quality is actually improving, program success is measured by counting the “number of miles of buffers installed.” The program has no systematic and scientific means of targeting efforts to the riparian areas that would most protect water quality.

Such indirect metrics of success are typical of state and federal conservation programs, and they are partially justifiable given the ease with which such measurements can be made. Indeed, actually measuring improvements in water quality and habitat may take decades, given the lag time between implementation of restoration activities and riparian system response. To convince policy makers and the public that progress is being made—even if there is no measurable improvement in water or habitat quality—these indirect measures are often used. Because of these uncertain metrics, and because many restoration programs are relatively new, it is difficult to know whether the federal, state, and local programs described above have been or will be effective in restoring structure and functioning to riparian areas on privately owned land.

PROTECTION OF FEDERAL LANDS

Nearly 40 percent of the land area of the United States is in public ownership, primarily federal (Figure 4-2). In 1911, the U.S. Supreme Court in Light v. United States stated: “All of the [federal] public lands of the nation are held in trust for the people of the whole country.” Congress can legislate to protect the public lands or any of the components thereof (e.g., wildlife, water, vegetation, or other resources) and to provide for the use, management, or disposal of the lands or their contained resources. States retain broad police powers over federal lands, subject to the federal government’s power to preempt any state law that conflicts with a federal law or regulation. For example, states retain general authority to set hunting and fishing seasons and limits. Although only Congress may establish federal land policy, administrative agencies have extremely broad latitude to determine and conduct the day-to-day management of federal lands and resources (United States v. Grimaud, 1911).

All laws governing federal lands potentially affect riparian areas on those lands. Very few federal statutes, however, provide expressly for riparian area

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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TABLE 4-3 Types of State Laws and Policies for Protecting Privately Owned Riparian Areas in Representative Statesa

State

Zoning or “Buffer” Regulationsb

Permits or Preconstruction Approvalc

Tax Incentives

Other Incentives to Private Ownersd

Conservation Easementse

Timber Harvest Standards

Incentives ($ and/or Tech. Asst.) to Citiesf

Land Acquisition Funds

Watershed Planning (nonregulatory)

General Policy Statement

Alaska

 

 

 

 

 

X

 

 

 

 

Arizona

 

 

 

 

 

 

 

X

 

X

California

X

 

 

X

 

 

X

X

 

X

Florida

 

 

 

 

 

 

 

X

 

 

Kansas

 

 

 

X

X

 

 

 

 

 

Idaho

 

 

 

 

 

X

 

 

 

 

Maine

 

 

 

 

 

 

 

 

X

 

Maryland

 

 

 

X

 

 

X

 

 

 

Massachusetts

X

 

 

X

 

 

X

X

 

 

Michigan

 

X

 

X

 

 

 

X

X

 

Montana

 

 

 

 

 

X

 

 

 

 

Nebraska

 

 

 

X

 

 

 

 

 

 

N. Mexico

 

 

 

 

 

 

 

X

 

 

N. Carolina

X

X

 

X

 

 

 

X

X

X

Oregon

X

X

X

X

 

X

X

 

X

X

Virginia

 

 

 

 

 

 

 

 

X

 

W. Virginia

 

 

 

 

 

 

 

 

 

X

Wisconsin

X

 

 

X

 

 

 

 

 

 

aThis table is merely illustrative of the range of approaches states take to recognizing and protecting riparian values. It does not purport to catalogue all state laws and policies.

bZoning regulations and buffer requirements may be difficult to distinguish. Each connotes regulation of development within a specified distance or a mapped district, and may include performance standards. Excluded from this category are timber harvest standards or similar “streamside management zone” regulations, which are referenced in the “Timber Harvest Standards” column of the table.

cRefers to something less comprehensive than zoning regulations or buffer requirements, e.g., Michigan’s requirement of a permit and soil erosion plan for developments (other than logging or agriculture) within 500 feet of a water body.

dIncludes economic incentives, education, and technical assistance.

eNote: Nearly all states provide by law for conservation easements. This column refers to those states that provide for state ac quisition of an easement for such purposes. Several states authorize the expenditure of funds to acquire lands or waters, or interests therein, in riparian areas. These laws are referenced in the “Land Acquisition Funds ”column of the table.

fIncludes planning and restoration assistance, Greenbelt programs, training, etc.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

FIGURE 4-2 Percentage of land in public domain by state.

management or protection. (An exception is the National Wild and Scenic Rivers Act.) Thus, it is not surprising that federal agencies are not required to coordinate their riparian management activities. Conversely, no law prohibits them from doing so.

Most agencies have adopted rules or policies governing activities in, or potentially affecting, riparian areas. But vague or nonexistent legislative mandates and the lack of any coordination requirement have resulted in inconsistent riparian management—as exemplified in the Greater Yellowstone area (Harting and Glick, 1994). Moreover, federal agency responsibilities with respect to riparian areas vary greatly. Agencies may have regulatory authority but no land management authority (e.g., EPA). They may manage some lands but have only regulatory authority over other lands (e.g., FWS and the Corps). They may possess full regulatory and land management authority over lands entrusted to them by Congress (e.g., BLM, USFS, and NPS), or they may exercise service, technical, or advisory functions but possess no regulatory or land management powers (e.g., NRCS). Several federal regulatory or management regimes may apply to a given tract of land, and more than one federal agency may be responsible for implementing or overseeing those laws. For example, several agencies exercise authority under a panoply of statutes on the national forests. The USFS has primary responsibility for managing all surface resources, but BLM is responsible for managing and conveying interests in minerals. FWS and/or National Marine Fisheries Service have technical, regulatory authority with respect to federally listed threatened or endangered species (under the ESA), and the Corps

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

is responsible (under the CWA) for regulating dredge-and-fill activities in wetlands and streams. To further complicate matters, certain federal subsidies and policies, such as those related to flood prevention and control and agricultural practices, actually encourage the destruction of riparian habitat (Kusler, 1985).

Each of the land management agencies has some mandate to manage public lands with the national interest in mind. But “national interest” has no immutable, absolute meaning; indeed, its interpretation varies by land system. Moreover, such directives are usually paired with provisions allowing or requiring multiple uses and permitting individuals to obtain property or other interests in federal resources (such as timber contracts, mining claims, oil and gas leases, national park concessions, and federal grazing permits). Thus, riparian ecological concerns are balanced against (or reconciled with) other agency objectives for land and resource management. But unlike on private property, no individual user of federal land resources can maintain that a public riparian area should be managed for his benefit to the disadvantage or exclusion of others.

Finally, the federal government is required to comply with applicable state environmental laws and regulations—governing, e.g., water and air pollution—which may impact use and management of riparian areas on federal lands. Land-use planning is the domain primarily of states, but the federal government has prescribed planning and management standards for each system of federal public lands. In addition, federal agencies are generally directed to “coordinate,” where possible, their planning activities with those of local and tribal governments.

This section describes (in alphabetical order) the major federal land systems and the respective agencies, statutes, and programs that encompass riparian area/ resource considerations. The discussion is not exhaustive, as a complete survey of regulations and policies was not feasible. Statutes of minor importance have been omitted. Moreover, several statutes that affect management of federal lands and may bear on riparian area protection (e.g., NEPA, ESA, CWA, SMCRA) were discussed in the prior section. This section ends with a brief examination of state-owned submerged lands.

Bureau of Land Management Lands

The Bureau of Land Management (BLM) manages approximately 267 million acres of land (including both surface and mineral estate), chiefly in the 11 western states and Alaska, along with an additional 300 million acres of subsurface mineral resources under lands owned or managed by others. Including Alaska, BLM lands contain 24 million acres of “riparian wetlands” and 178,000 miles of “riparian streams,” 174,000 of which are fishable. Only about 1.2 million acres managed by BLM outside Alaska are riparian. More than 2,000 miles (25 miles in New Mexico with the rest in Oregon) of rivers on BLM lands are designated wild, scenic, or recreational. These designations encompass nearly 1 million acres of land (BLM, 2000a).

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Management of BLM lands is governed by the Federal Land Policy and Management Act (FLPMA, 43 U.S.C. §§ 1701–1784). FLPMA prescribes sustained-yield management principles, which apply to an open-ended list of “renewable and nonrenewable resources,” including fish and wildlife, recreation, timber, range, wilderness, minerals, watershed, and natural, scenic, scientific, and historical values. The act further directs BLM, in managing the public lands, “to take any action necessary to prevent unnecessary and undue degradation of the lands.”

Although riparian habitat is not expressly mentioned in FLPMA, many of its provisions implicitly authorize protection of riparian areas, and several BLM rules address riparian management and protection. Perhaps of greatest significance is FLPMA’s requirement that the BLM “give priority to the designation and protection of areas of critical environmental concern,” or ACECs. ACECs are defined to include areas “where special management attention is required … to protect and prevent irreparable damage to important … scenic values, fish and wildlife resources or other natural systems or processes.” As of the end of 1999, BLM had designated nearly 13.1 million acres of ACECs, 5.9 million of which are in Alaska (BLM, 2000b). Riparian values are frequently a motivating factor for designating ACECs, especially in the Southwest. In a San Miguel River (Colorado) ACEC, for example, BLM proposed to “close relic [sic] riparian communities to all Bureau authorized actions,” leaving the rest of the ACEC “open only to those Bureau authorized actions with an overriding public need that would not cause long-term visual impacts or damage riparian systems” (BLM, 1992). In 1986 the Alaska BLM proposed five ACECs in the Central Yukon Planning Area, one of which was established to “protect crucial riparian habitat associated with known peregrine falcon nesting areas.” Four other ACECs with fish protection objectives included 300 feet along each side of the designated river (BLM, 1986).

Although ACECs often protect stream-related resources, riparian resources or values are often not expressly referenced as such in the designation notices. For example, in 1984 the Oregon BLM Office designated 35 special management areas, including ACECs, in part to protect riparian habitat or values. The descriptions of the areas used terms such as river canyons containing relict stands of old-growth trees, a river corridor with important scenic, fisheries, wildlife and botanic values, and a lake and bog ecosystem (BLM, 1984).

FLPMA requires BLM to prepare resource management plans (RMPs), which describe generally how an area will be managed to provide resources and services demanded by the public and commodity groups, while protecting the lands. In preparing and revising plans, the BLM is to use an interdisciplinary approach, incorporate current resources inventory data, weigh long-term benefits to the public against short-term benefits, provide for compliance with applicable environmental laws, and coordinate with state, local, and tribal land-use plans. Although FLPMA does not specify that RMPs consider riparian area values, at least

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

since 1990, BLM has pursued riparian management in planning documents and on-the-ground activities. In a 1991 initiative, BLM established national goals for wetland-riparian resources on public lands, including the objective of achieving proper functioning condition (PFC) for 75 percent of riparian areas by 1997 (BLM, 1991a). Furthermore, in 1994 the agency committed to several ecosystem management principles, including reconnecting isolated parts of the landscape: “Rivers will be managed in association with floodplains, and management activities in upland habitats will be considered for their effects on riparian areas” (BLM, 1994).

Since issuing its riparian initiative, BLM has been restoring 23.7 million acres of riparian wetlands. In 1993 the agency revised 180 site-specific management plans, surveyed nearly 2,000 miles of streams, constructed 567 riparian habitat improvement projects, acquired nearly 37,000 acres of riparian habitat, and implemented management plans on 145 riparian acres through partnerships with state and private cooperators. The agency’s Fish and Wildlife 2000 initiative also focuses attention on riparian restoration in its range administration program. Finally, BLM, NRCS, and USFS participate in a National Riparian Service Team, which, along with its private and local government partners, is pursuing restoration efforts across the country on rivers such as the Mississippi, Sacramento, and San Pedro Rivers.

In 1994, BLM promulgated significant new rules governing livestock grazing. The rules were preceded by an environmental impact statement, in which the BLM and USFS concluded that “watershed and water quality would improve to their maximum potential” if livestock were removed entirely from federal lands (BLM and USFS, 1994). Instead of eliminating livestock grazing, however, the BLM required its managers to take appropriate action to ensure that:

  1. watersheds are in, or are making significant progress toward, properly functioning physical condition, including their upland, riparian-wetland, and aquatic components; soil and plant conditions support infiltration, soil moisture storage, and the release of water that are in balance with climate and landform and maintain or improve water quality, water quantity, and timing and duration of flow.

  2. ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow, are maintained, or there is significant progress toward their attainment, in order to support healthy biotic populations and communities.

  3. water quality complies with state water quality standards and achieves, or is making significant progress toward achieving, established BLM management objectives such as meeting wildlife needs.

  4. habitats are, or are making significant progress toward being, restored or maintained for federal threatened or endangered species, federal proposed species, Category 1 and 2 federal candidate species and other special status species.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

These “fundamentals of rangeland health” are followed by standards and guidelines for grazing administration. The regulations prescribe several minimum requirements, including “maintaining, improving, or restoring riparian-wetland functions, including energy dissipation, sediment capture, groundwater recharge, and stream bank stability” (43 C.F.R. § 4180.2(e)(3)). “Fallback” requirements apply where state or regional standards and guidelines had not been developed by late 1997. (Standards were not completed for all western states until late 2000.) A key fallback standard requires that riparian-wetland areas be in properly functioning condition.

Riparian area protection has also been proposed or accomplished on BLM lands through land exchanges and by withdrawing river corridors from mining. In addition, oil and gas operators on both BLM lands and national forests are required by regulation to protect riparian areas, floodplains, and wetlands.

National Forests

The U.S. Forest Service (USFS) is responsible for managing approximately 140 million acres of national forests and 51 million acres of national grasslands. The bulk of USFS lands are managed for multiple uses—outdoor recreation, grazing, timber, watershed, and wildlife and fish. Uses of some national forest areas, however, are more restricted. Approximately 49.9 million acres (26 percent) of USFS lands were managed primarily for “conservation” as of 1994 (GAO, 1996). This included 34.6 million acres within the National Wilderness Preservation System, 128,000 miles of rivers and streams, 239,000 acres of national rivers (as of 1991) and 618,000 acres of designated wild and scenic rivers (as of 1994), 2 million acres of lakes and reservoirs, and 14 million acres of wetlands and riparian areas (half of which are in the West). National forests provide more than half of all steelhead and salmon spawning habitat—15,000 miles of anadromous fish habitat in the Columbia River Basin alone (Feldman, 1995).

Under the 1897 Organic Administration Act, national forests are established to “furnish a continuous supply of timber” and “secure favorable conditions of water flows,” the latter of which is highly relevant to riparian area protection. This act authorized the USFS to issue regulations to meet these objectives and to prevent the destruction of the national forests. The National Forest Management Act of 1976 (NFMA) governs administration of the national forests. Most NFMA provisions are procedural, relating to the management plans that the USFS is required to prepare for each forest. Planning must be interdisciplinary, incorporate NEPA procedures, and reflect multiple-use, sustained-yield principles. The NFMA requires that the agency (1) determine which lands are physically and economically suitable for logging and (2) maintain “diversity of plant and animal species,” including the “diversity of tree species similar to that existing in the region.” In a number of places, the NFMA calls for consideration and protection

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

of watercourses and watersheds. One NFMA implementing regulation requires management of fish and wildlife habitat so as to “maintain viable populations of existing native and desired non-native vertebrate species” (36 C.F.R. § 219.19). Given the dependence of a high proportion of the West’s fauna on riparian habitats, this mandate necessitates protecting riparian areas.

Despite the absence of explicit references to riparian areas in USFS authorizing legislation, riparian protection is an important objective on national forests and grasslands. The agency’s 1990 Strategic Plan, which focused on enhancing recreation and fish/wildlife resources among other things, identified the effect of management actions on riparian areas as one of the most important issues facing the agency (Mohai and Jakes, 1996). As of 1993, the agency had made riparian wetlands management a priority and was increasing use of watershed analysis and assessment, modifying management practices, and undertaking an aggressive restoration program. Moreover, riparian ecosystem research is an important component of USFS biodiversity research efforts (Keystone Center, 1991).

National Forest Plans

Though not in its guiding legislation, riparian protection is explicitly mentioned in USFS regulations, which prescribe minimum specific management requirements to be met in accomplishing goals and objectives for the National Forest System (36 C.F.R. § 219.27). Specifically, forest plans are directed to give “special attention” to

land and vegetation for approximately 100 feet from the edges of all perennial streams, lakes, and other bodies of water. This area shall correspond to at least the recognizable area dominated by the riparian vegetation. No management practices causing detrimental changes in water temperature or chemical composition, blockages of watercourses, or deposits of sediment shall be permitted within these areas which seriously and adversely affect water conditions or fish habitat.

Management prescriptions also must “protect streams, streambanks, shorelines, lakes, wetlands, and other bodies of water,” “maintain diversity of plant and animal communities,” and “provide for adequate fish and wildlife habitat to maintain viable populations of existing native vertebrate species.” Vegetative manipulations, including silvicultural practices, must ensure conservation of soil and water. For the Toiyabe National Forest in Nevada, the forest plan states that “in the event of conflicts between resource uses, the protection of riparian areas would be given ‘preferential consideration’” (Nevada Land Action Association v. U.S. Forest Service, 1993). In 1997, the secretary of agriculture appointed a Committee of Scientists (COS) to provide technical and scientific advice on land and resource planning on the national forests and grasslands. Interestingly, the first component of a six-part strategy for conserving and restoring watersheds for

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

purposes of meeting ecological sustainability goals was to “provide conditions for the viability of native riparian and aquatic species” (COS, 1999).

Forest plans delineate categories of management areas, one of which typically emphasizes riparian management. Thus, some national forests establish riparian habitat conservation areas along perennial and intermittent streams to which specific management constraints apply. In the Idaho Panhandle National Forests, for instance, timber harvest is not allowed in these areas (USFS, 1998). The USFS’s most stringent riparian area protections are found in the Northwest Forest Plan, which governs management of both BLM lands and national forests and prescribes requirements for land uses and management activities within ri-

BOX 4-4
Northwest Forest Plan

The Northwest Forest Plan for federal lands within the range of the Northern spotted owl represents the largest scale application of riparian conservation and restoration within the framework of a landscape-management plan. This plan for federal lands uses site-potential tree heights as a functional basis for delineating boundaries for riparian reserves. Site-potential tree height, which varies by species and region, represents the height of the dominant overstory trees in late succession. Riparian reserves are two site-potential tree heights wide (approximately 300–450 ft) on each side of perennial streams and one site-potential tree height wide on intermittent and ephemeral streams. All floodplains are protected, and no timber harvest occurs within them. Default management criteria call for no timber harvest within riparian reserves unless silviculturally required to attain desired ecological conditions along stream corridors. Thinning of young stands is permitted only to accelerate recovery of riparian forests and development of more natural patterns of forest structure. These riparian reserves account for 2.6 million acres (approximately 11 percent) of the land base under the Northwest Forest Plan.

Part of the plan calls for the identification and protection of key watersheds or strongholds to help maintain landscape and aquatic integrity and to provide refugia. Key watersheds are basins where objectives for aquatic resources, wildlife, and ecological functions are the primary management criteria. These watersheds include areas for forest harvest, but timber production is secondary to watershed function. The primary key watersheds account for 8.1 million acres of the 24.4 million acres of USFS and BLM lands within the Northwest Forest Plan.

The Northwest Forest Plan applies to federal forests within the range of the Northern spotted owl in western OR, western WA, and northern CA. Federal agencies in the western United States have developed several other regional conservation strategies that protect and restore riparian systems and watersheds. PACFISH applies to federal forests outside the range of the Northern spotted owl but within the range of anadromous salmonids in eastern OR, eastern WA, ID, and parts of CA. INFISH is a management plan for USFS lands outside the ranges of both the Northern spotted owl and anadromous salmonids but for drainages with native fish in eastern OR, eastern WA,

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

parian reserves (see Box 4-4). Riparian protection is also mandated by 1990 legislation specific to the Tongass National Forest in Alaska. Commercial timber harvesting is prohibited (unless the timber had already been sold) within a buffer not less than 100 feet wide on each side of certain streams.

Riparian restoration is an implicit objective of the use of “range betterment” funds, which are collected from western national forest grazing permittees. Regulations governing the Hells Canyon National Recreation Area in Idaho, managed in part by the USFS, require grazing permits to “provide for terms and conditions which protect and conserve riparian areas.” Similarly, USFS rules governing grazing fees in the eastern United States authorize fee credits for range improve-

ID, western MT, and parts of CA. Like the Northwest Forest Plan, these strategies call for combinations of riparian reserves and key watersheds to provide ecological strongholds and landscape connectivity. These strongholds retain the habitats of anadromous and resident fish stocks and support aquatic and terrestrial biodiversity at a landscape scale. This emphasis on identification of strongholds and their conservation is a unique aspect of all these programs—one that is rarely found in other riparian management approaches. Similar approaches have been recommended in conceptual aquatic conservation strategies (Moyle and Sato, 1991; Doppelt et al., 1993; Bradbury et al., 1995). Riparian practices in the Northwest Forest Plan are compared to the other regional federal riparian policies in the table below.

One of the potential barriers to implementing these progressive strategies is legal challenge based on monitoring requirements. The Northwest Forest Plan requires that more than 70 species be monitored for before any ground-disrupting activities occur. Legal challenges have been based on not conducting a full survey, even for small activities over several square meters. Legal challenges based on requirements designed for larger landscape elements but applied to far smaller spatial extents undermine the intent and successful application of the regional strategy embodied by the Northwest Forest Plan.

Riparian Management Criteria Under Various Federal Plans

 

Width (in Site-Potential Tree Heights) on One Side of Bank-full Channel

Waterbody Type

NW Forest Plan

PACFISH

INFISH

Fish-bearing streams

2 tree height

2 tree height

2 tree height

Perennial streams w/o fish

2 tree height

1 tree height

1 tree height

Ephemeral/intermittent streams

1 tree height

1 tree height

1 tree height

Lakes

2 tree height

1 tree height

1 tree height

Wetlands

1 tree height

1 tree height

1 tree height

SOURCES: USFS and BLM (1994a,b); USFS (1995).

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

ments that meet specified requirements, including enhancement or protection of riparian values. Finally, oil and gas leasing operations are prohibited in national forest riparian areas and wetlands.

National Parks

The National Park Service (NPS) manages a nationwide system consisting of 376 units and about 80 million acres, two-thirds of which are located in Alaska. The system consists of designated areas of “land and water,” including national parks, monuments, seashores, trails, and recreation areas. System units are highly diverse, ranging from the 2.2 million-acre Yellowstone National Park to urban parks such as the Washington Monument. The agency is responsible for protecting the natural, historical, and cultural resources of these areas, while promoting recreation opportunities.

The NPS was created by the National Park Service Organic Act of 1916, which states that the fundamental purposes of national parks and monuments are to conserve their scenery, natural and historic objects, and wildlife and to provide for their enjoyment so as to leave them unimpaired for future generations. The act also states that regulation of park system units must be consistent with these purposes. Although many parks contain rivers and streams with associated riparian areas that clearly contain the above-mentioned resources (e.g., scenery, natural objects, and wildlife), the act contains no express reference to riparian areas. The mandate to conserve natural objects and wildlife thus serves as the foundation of any NPS responsibilities with respect to riparian areas. The act further authorizes the secretary of the interior to issue regulations deemed necessary for use and management of the parks, in particular concerning activities on or relating to waterbodies located within the national park system. A general management plan is required for each park system unit, although the act makes only very general prescriptions about plan contents.

In at least one area, the NPS has developed policies that may bear on riparian area management. The agency’s Floodplain Management Guideline (NPS, 1993) was developed to comply with federal directives concerning floodplain management. The guideline applies to all NPS actions that “have the potential for adversely impacting the regulatory floodplain or its occupants, or which are subject to potential harm by being located in floodplains.” Guideline objectives include defining the regulatory floodplain, defining or assessing hazards, and providing guidance for managing activities that modify or occupy floodplains or impact their values. Once the regulatory floodplain is determined, the NPS develops information concerning flood conditions and hazards, then it designs actions to manage flood conditions (e.g., by selecting alternative sites, using mitigation, warning users, and developing contingency and evacuation plans). The NPS also has a separate wetland management policy.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

At least one court case suggests that NPS attention to riparian management may have been deficient. A federal appellate court in California rejected the NPS’s determination that highway reconstruction-related impacts to the Merced River and its riparian corridor were acceptable under the National Wild and Scenic Rivers Act (Sierra Club v. Babbitt, 1999).

National Wildlife Refuges

The U.S. Fish and Wildlife Service (FWS) oversees the National Wildlife Refuge System, administers fish and wildlife research and habitat conservation activities, manages migratory species hunting and conservation activities, and implements and enforces the Endangered Species Act (ESA). The agency manages about 93 million acres of land, including 530 national wildlife refuges, 111 research and field stations, and 75 wilderness areas.

The National Wildlife Refuge System is a complex of federal lands designated in 1966 in conjunction with the passage of the first ESA and managed principally for wildlife conservation purposes. President Teddy Roosevelt established the earliest individual refuges in the first decade of the twentieth century. Refuges have been reserved from multiple-use (or public domain) lands or acquired with funds from various sources, including the sale of duck stamps. They range in size from a few acres (e.g., Pelican Island, Florida) to more than 1 million acres (e.g., Alaska’s Arctic National Wildlife Refuge). Wetland habitats (marine, estuaries, rivers, lakes, and marshes) comprise almost 37 percent of the refuge system (Keystone Center, 1991).

Management of the refuge system is guided primarily by the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Acts of 1997 and 1998. These statutes do not refer expressly to riparian resources. However, the agency clearly has management authority over riparian areas on refuge lands, and it has ample authority (if not an obligation) to manage them to maintain and restore their animals, plants, and habitats, to “ensure their biological integrity, diversity and environmental health,” and to monitor their status. According to the acts, the mission of the refuge system is to “administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats … for the benefit of present and future generations.” The law directs that each refuge be managed to fulfill this mission, as well as the specific purposes for which that refuge was established. It further directs the interior secretary to maintain adequate water quantity and quality to fulfill the mission of the National Wildlife Refuge System and the purposes of each refuge and to acquire water rights needed for refuge purposes. To carry out such objectives, a comprehensive conservation plan is required for each refuge, although to date few plans have been prepared. Plans are supposed to identify the

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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distribution and abundance of fish, wildlife, and plants and their related habitats; significant problems affecting those species and habitats; and opportunities for compatible wildlife-dependent recreational uses.

The following examples reveal FWS authority to manage riparian areas on refuge lands. In Hart Mountain National Wildlife Refuge, Oregon, refuge managers had determined that eroded stream channels and deficiency of riparian vegetation along a majority of streams, among other resource-related problems, were preventing the Refuge’s goals from being achieved. They proposed a comprehensive management plan that included discontinuing livestock grazing for 15 years and allowing passive restoration of riparian areas (except in limited areas where prescribed burnings, willow plantings, and check dams would be used) (FWS, 1994). Although FWS cautioned that improved soil productivity and native plant community restoration might not occur for 100 years, according to the Oregon Natural Desert Association, significant improvements in riparian vegetation and streambank conditions were evident within a few years after removal of livestock. Unfortunately, funding for an ecological study of streamside vegetation and bird populations was terminated by the FWS after four years, and in fact FWS has removed livestock exclosures that had been in place for decades (Durbin, 1997a,b).

Riparian habitat concerns also prompted the FWS to phase out livestock grazing in the Cabeza Prieta National Wildlife Refuge in Arizona. Livestock grazing was deemed to conflict with the refuge’s primary purpose—assisting in the recovery of desert bighorn sheep—as well as with providing crucial habitat for one of the last remaining herds of the endangered Sonoran pronghorn antelope. The agency noted the importance of “dry riparian habitats” to refuge wildlife, including pronghorn antelope and bighorn sheep. Riparian and tidal restoration were also identified as major issues to be addressed in Washington’s Nisqually National Wildlife Refuge’s comprehensive conservation plan in order to ensure sanctuary for migratory birds. Finally, in Alaska’s Arctic National Wildlife Refuge, the agency forbids movement of any equipment associated with geological and geophysical exploration of the coastal plain through riparian willow stands, except with prior expressed approval (50 C.F.R. § 37.31(b)(3)).

The FWS recently acquired new responsibilities that may result in greater riparian area protection on lands managed by federal agencies. A presidential executive order issued January 2001 directs all federal agencies whose actions may affect migratory birds to work with FWS to develop an agreement to conserve these birds. The order also establishes a Council for the Conservation of Migratory Birds to serve as a clearinghouse for information. It directs agencies to ensure that their NEPA analyses consider potential effects on migratory birds, and it requires agencies to control the introduction and spread of nonnative animals and plants that might harm migratory birds. Many shorebirds, waterfowl, and neotropical migrants that depend heavily on riparian areas and wetlands stand to benefit if the new order is vigorously implemented.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Wild and Scenic Rivers

The national Wild and Scenic Rivers Act (WSRA) of 1968 sets forth congressional policy that certain rivers, which, “with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition and … protected for the benefit and enjoyment of present and future generations.” As of 1994, the system exceeded 1 million acres (see http://www.nps.gov/rivers/index.html for an update). River designations usually extend one-quarter mile from the normal high-water line on each side of the river, for an average of 320 acres of land per mile of river. Federal agencies are authorized to acquire nonfederal lands within the boundaries of any designated river segment, subject to certain area limits. The act necessarily, though only implicitly, governs management of designated rivers’ riparian areas.

The WSRA designated the initial components of the system and established the criteria and procedures by which additional river segments could be added. Three designations were created—wild, scenic, and recreational. Wild rivers are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines primitive and waters unpolluted. Scenic rivers differ from wild rivers only in that they may be accessible in places by roads. Recreational rivers are readily accessible by road or railroad and may have some development along their shorelines, or they may have undergone some impoundment or diversion in the past.

USDA and the Department of the Interior are charged with studying rivers identified by Congress and recommending whether they should be included in the system. These agencies are further directed to consider potential additions to the system in the course of their regular land and resource planning. Rivers may be designated by Congress, or they may be included in the system if designated by state legislation after review and approval of the interior secretary, in consultation with the heads of other federal departments.

A key provision that affects riparian areas is the restriction on water projects in or affecting designated river segments. The act prohibits construction (and federal assistance for construction) of any dam, water conduit, or other water project “that would have a direct and adverse effect on the values for which the river was established.” In addition, the Federal Energy Regulatory Commission is forbidden to license any water project on or directly affecting any of the rivers identified by Congress for possible inclusion in the system.

Another significant provision of the act is the withdrawal of all public lands within designated components “from entry, sale, or other disposition under the public land laws.” Subject to valid existing rights, lands within one-quarter mile of designated rivers are thereafter unavailable for mining. Miners may continue to develop existing, valid claims (subject to regulation) after designation of a river, but they may not patent their claims unless they had already applied for a

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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patent and met all the patenting requirements. Prospecting can continue, also subject to regulations imposed by the land manager.

Components of the WSRA system are to be managed to protect the values for which they were designated, with primary emphasis on a river’s “esthetic, scenic, historic, archeological, and scientific features.” Land management agencies prepare management plans for rivers under their jurisdiction and manage them using their general statutory authorities (e.g., the National Park Service Organic Act for the NPS). The act specifies that federal agencies should pay particular attention to timber harvesting, road construction, and similar activities that might be contrary to the purposes of the WSRA. Managing agencies are further directed to cooperate with EPA for the purpose of combating water pollution.

Recent court cases have examined some of these planning and management requirements. First, failure to prepare a comprehensive management plan violates the WSRA (National Wildlife Federation v. Cosgriffe, 1998; Sierra Club v. Babbitt, 1999). Such plans must contain management prescriptions not just for the area within the river’s designated boundaries, but also for other lands managed by the agency if activities conducted there might impact designated river segments. Impacts to riparian areas have been at issue in several cases. An Oregon court held that the BLM had violated substantive requirements of the WSRA by failing to provide, in a river management plan, protection against the effects of livestock grazing in riparian areas (Oregon Natural Desert Association v. Green, 1997). Further, the agency should have examined, in an environmental impact statement, the effects of both grazing and planned road and parking improvements. Another court concluded that the “WSRA gives the BLM authority to eliminate cattle grazing, or any other commercial use, if doing so is consistent with the mandate to protect and enhance the river values” (Oregon Natural Desert Association v. Singleton, 1999).

Submerged Lands

“Submerged lands” is a shorthand reference for the state-owned beds and banks of navigable waters. Title to these submerged lands passed to states upon their admission to the Union (Pollard’s Lessee v. Hagan, 1845). Federal law determines navigability; a body of water is navigable if it was usable by customary modes of travel, in its natural and ordinary condition, at the time of statehood. “Natural and ordinary” means without artificial improvement through activities such as dredging or impoundment. At least one court has held that present transportation methods may be considered (Alaska v. Ahtna, 1989).

These submerged lands are subject to a public trust, first enunciated by the U.S. Supreme Court in 1892. In Illinois Central Railroad Co. v. Illinois, the Court ruled that the Illinois state legislature could not transfer title of the Chicago waterfront and part of the submerged lands in the Chicago harbor because those

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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lands, which the state had acquired at statehood, were held in trust for the benefit of Illinois citizens. The Court held that a state could permissibly convey a temporary interest in, or even sell, parcels of submerged lands if such conveyances were in the public interest. But a state may never transfer “the whole property.” The Illinois Central Court distinguished the nature of the state’s title to lands beneath navigable waters from the title that the United States holds in the public lands that are open to preemption and sale.

Identifying what waters were navigable at the time of statehood, and hence which lands are held in trust by the states, has become an issue in determining title to minerals in submerged lands, in establishing management responsibilities on rivers within national parks or other federal lands, and in evaluating the legality of disposal of state lands. For example, in Alaska v. United States (1997), the U.S. Supreme Court concluded that the United States had expressly reserved title to submerged lands in the National Petroleum Reserve and what is now the Arctic National Wildlife Refuge in Alaska. Thus, Alaska did not acquire title to these lands at statehood, and the United States had authority to offer these lands for mineral leasing. All 38 states that have considered the issue have concluded that the state holds lands beneath navigable waters in trust for the people. In Arizona Center for Law in the Public Interest v. Hassell (1991), an Arizona appeals court invalidated a state law that relinquished the State’s interest in riverbed lands, holding that it violated the public trust doctrine and the gift clause of the Arizona Constitution. Although it did not adjudicate the navigability of any Arizona streams, the court did find substantial evidence that “portions of Arizona rivers and streams other than the Colorado” met the federal test at statehood in 1912. Ironically, the invalidated Arizona legislation included a requirement that record owners of lands under the Colorado, Gila, Salt, and Verde Rivers pay a quitclaim fee to the state of $25 per acre, with the revenue to be used to acquire riparian lands for public benefit.

It seems plain that the existence of a public trust in submerged lands has implications for riparian area management and protection. Each state must develop its own jurisprudence for administering these lands. Although the trust is plainly enforceable, practical obstacles include the difficulty of identifying rivers that were navigable at statehood, determining which lands should be retained and which lands (or interests therein) could be relinquished, and how public interests can best be protected.

Summary

The use and management of public lands and resources are governed by both federal and state laws. The specific federal laws that apply depend on which system (e.g., national forest, BLM land, wild and scenic river) the land is included within and what resources are at issue. Each federal land system is impressed with some broad, national interest criterion. Each managing agency af-

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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fords some consideration to riparian areas and resources, whether by regulation or in an internal manual or policy handbook. Few specific provisions for riparian areas have been established in congressional legislation by or in executive orders, but agencies have considerable latitude to decide how and to what extent their planning and management activities will account for these areas. One result is that individual districts or units within agencies may vary in their interpretation and implementation of riparian measures established administratively. Thus, while different and additional constraints apply to management of federal riparian lands compared to privately owned riparian lands, the constraints on federal lands are not uniform from system to system, nor uniformly interpreted and applied within systems, and for the most part have been established principally by administrative action, not by legislation, and thus are subject to administrative change.

PROTECTION OF WATER RESOURCES

Protection of riparian areas often is premised on their importance in protecting waterbodies. However, the reverse can also be true—protecting stream flows and lake levels can help preserve the structure and functioning of adjacent riparian areas. This section explores how laws relating to instream flows and uses of water can benefit riparian areas.

Current Water Law

Riparian Doctrine

The legal system regards water as a public resource. Allocation and use of water are governed by state law. In those states following the riparian doctrine (generally those located east of the ninety-eighth meridian), the owner of land adjacent to a waterbody (the riparian landowner) is regarded as holding a legal right to make use of the water. Riparian water rights are a product of English common law, generally adopted by the eastern states. The right to use water is simply an extension of the ownership of land adjacent to that water. It is an acknowledgment of access to waterbodies that riparian land ownership provides.

The nature of the legal interest in adjacent water is somewhat ill defined. The riparian landowner has the ability to enjoy the benefits of using water—a so-called usufructory right—but does not own water. The purposes for which a riparian owner may use water are open-ended, constrained only by the limitation that the use may not unreasonably interfere with the equivalent right of all other riparian owners to their enjoyment of the resource. In short, it is a correlative system in which the interests of all riparian landowners in use of the shared water resource are to be balanced. Generally this means that riparian uses must be

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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“reasonable.” Ultimately, in a common law system, the arbiter of what is reasonable is a judge.

This system works reasonably well in places with an abundance of water and when rivers and lakes are valued by humans primarily for their navigation and power-generation (instream) benefits. As demands have grown for out-of-stream uses of water (such as for drinking water, industrial cooling water, and irrigation), many eastern states have developed a permit system. Persons desiring to use river or lake water must apply to a state agency, specifying the purpose(s) of use and the quantity of water. Permits authorize the use for a specified term, at the conclusion of which the user must request a renewal.

Increasing out-of-stream uses have prompted some states to begin establishing base flow levels for rivers and lakes regarded as necessary to protect existing fish populations, water quality, or other considerations. Permits for out-of-stream diversions are constrained such that they do not reduce flows or water levels below the established minimum. For example, Florida law directs the regional water management districts to establish a minimum flow for all surface watercourses and a minimum water level for all aquifers. These minimum flows and levels are to be established in the amount “at which further withdrawals would be significantly harmful to the water resources [or ecology] of the area” (Florida Statutes § 373.042(1)).

Prior Appropriation Law

Settlement of the American West in the 1800s depended on active control and use of the limited water resources available in streams and rivers. Because the United States owned nearly all the land in the West at that time, riparian land ownership made little sense as the basis for determining legal rights of individuals to use water. Early gold miners vied for control of streams just as they vied for control of land containing mineral deposits. A common custom emerged—the first to take control of and actively develop and use the resource held a protectable legal right to the land and water against all other claimants. For water, this custom of “first-in-time, first-in-right” came to be called the prior appropriation doctrine.

Under the prior appropriation doctrine, the legal basis of an individual’s right to use water is physical possession of water and its application to a beneficial use. In virtually all western states, a would-be user applies to a state agency for permission to use some quantity of water from a particular source for a particular purpose. Once the water has actually been put to beneficial use, the permit holder’s interest ripens into a permanent property interest in the right to make continued beneficial use of the water. The core of the right is the priority date. The more senior the right, the more likely it is that the right holder can divert and use their full entitlement of water. Unlike riparian rights, appropriative rights are not correlative—the senior appropriator is entitled to use all of the water autho-

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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rized by their right ahead of more junior appropriators from the same source of water.

A prior appropriation water right traditionally required the physical control of water with a dam or a diversion structure. Only through this physical appropriation of water could a legal right be established. Moreover, beneficial use has been viewed in utilitarian and economic rather than ecological terms, as demonstrated by Empire Water & Power Co. v. Cascade Town Co., 205 Fed. 123 (8th Cir. 1913). The Cascade Town Company owned a tourist resort located at the base of a waterfall on Cascade Creek, near Colorado Springs. The company sought to prevent a hydroelectric project from diverting the creek upstream of the resort, partly on the basis that the diversion would harm the “exceptionally luxuriant growth of trees, shrubbery, and flowers … produced by the flow of Cascade Creek through the cañon and the mist and spray from its falls.” The court noted the substantial investment made by the resort and its dependence on this natural setting but found that “the laws of Colorado are designed to prevent waste of a most valuable but limited natural resource [The Cascade Town company] cannot hold to all the water for scant vegetation which lines the banks but must make the most efficient use by applying it to lands.”

Incorporating Natural Systems Needs into Water Law

Existing water law does not readily address the water-related needs of riparian areas. This is most apparent in the preference for economical uses of water common to prior appropriation states, as discussed above. The riparian doctrine was meant to limit uses to those that would leave the stream “undiminished in quantity and unimpaired in quality,” and indeed the reasonable use standard has been applied to prevent users from withdrawing substantially all water from a stream during a drought (Collens v. New Canaan Water Company, 234 A.2d 825, 1967). Nonetheless, courts have chosen not to protect the right of riparian landowners to continue to benefit from natural inundation of their bottomlands in preference to the expressed need for upstream storage of water that would eliminate such flows (Herminghaus v. Southern Cal. Edison Co., 252 P. 607, 1927).

From a water rights perspective, the only clear strategy for assuring that riparian areas receive sufficient water is to divert and deliver water directly to such areas. In theory, such irrigation would attempt to mimic the seasonal rewatering of naturally occurring overbank flows or groundwater recharge. In a few instances, western states have granted water rights for the purpose of “irrigating” wetlands or have determined that water rights for irrigation purposes may also apply to providing water for wetlands. For example, policy guidance recently issued in Colorado supports the use of an irrigation water right to provide water for wetlands (Stenzel, 2000). The guidance recognizes wetland irrigation as a beneficial use “as long as the water is diverted from a stream and applied for

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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the purpose of the growth, irrigation, and maintenance of wetland plants.” Riparian vegetation presumably could be irrigated in this same manner.

As appreciation of the instream benefits of water has grown, including water’s essential role in supporting the ecological functioning of river corridors, water law has broadened. Riparian law states are developing permit systems, many of which account for environmental considerations, and instream purposes are increasingly being recognized as legitimate uses for river water. As shown in Table 4-4, some states are allowing federal agencies to acquire instream water rights, which could be important to the protection of riparian areas, as federal agencies tend to have different environmental objectives than those reflected in state law.

Instream Flow and Groundwater Protection Programs

Virtually all prior-appropriation states now have programs that authorize the use of water for “instream” purposes (Gillilan and Brown, 1997). Approaches vary considerably, but the core of these programs is to authorize legal protection for maintaining designated flows of water between points along a stream channel or maintaining designated lake levels. Such flows must not have already been appropriated for out-of-stream use. In practice, protecting the minimum flow of water necessary to sustain fish populations has been the primary purpose of these programs to date. Generally only a state agency may hold an instream flow water right.

State instream flow programs typically set aside flows on the basis that they are the minimum needed for protection of an existing fishery—e.g., flows sufficient to allow fish passage through riffles in a stream channel. Generally such claims are made to a single minimum level of flow year-round rather than to flows that change throughout the year to mimic the natural hydrograph. That is, such flows prevent a stream from being totally dewatered, but they do little to benefit riparian areas that depend on variable flows to regenerate and maintain native vegetation or to ensure the occurrence of channel processes necessary to maintain instream habitats (e.g., sediment transport and pool formation).

Nevertheless, these programs have the potential to protect a river’s existing hydrograph or selected portions of the hydrograph. An instream flow claim could be made for all unappropriated or otherwise unclaimed water in a specified reach of a river or stream. In this case, no additional water development would be possible. Alternatively, additional water development and use could be limited to periods of time and portions of the hydrograph regarded as less critical to system functioning. Perhaps only certain designated peak flows could be protected along with acceptable minimum flows that mimic the natural hydrograph.

A few state instream programs have allowed such claims. The Nature Conservancy, for example, has been successful in obtaining certified instream water

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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TABLE 4-4 Ability of Federal Agencies to Protect In-Place Values and Uses of Water Within Western State Water Law Systems

State

In-Place Beneficial Uses Recognized Under State Law

Alaska

Protection of fish and wildlife habitat, migration, and propagation; recreation and parks purposes, navigation and transportation purposes; sanitary and water quality purposes, Alaska Stat. §46.15.145 (1992)

Arizona

Recreation and wildlife including fish, Ariz. Rev. Stat. Ann. §45.151.A (1987)

California

Preserving or enhancing wetlands habitat, fish and wildlife resources, or recreation in or on the water, Cal. Water Code §1707 (West Supp. 1993)

Colorado

To preserve the natural environment to a reasonable degree, Colo. Rev. Stat. §37-92-102 (1990)

Idaho

Protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values and water quality, Idaho Code §41-1501 (1990)

Kansas

Water quality, fish, wildlife, aquatic life, recreation, general aesthetics, domestic uses, and protection of existing water rights, Kan. Stat. Ann. §85a-928i (1989)

Montana

Fish and wildlife, recreational uses, and maintenance of water quality, Mont. Code Ann. §85-2-316 (1993), Mont. Admin. R. §36-16.102(3)

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Special Restrictions on In-Place Water Protection

Can Federal Agencies Hold In-Place Appropriative Rights?a

Provision for Federal Agency Involvement in State In-Place Water Protection Program

—Reservations only

—Reviewable every 10 years for continuing need

Yes, reservation is regarded as an appropriation

Instream flow statute lists the federal government as a party allowed to apply for instream reservation

—Special administrative review procedure

Yes (two such permits issued to date)

There is no state program for protecting instream flows

—Applies only to changes of use of existing water rights

Only by changing the use of existing water rights

Only through participation as protestant in state water rights proceedings

—“Minimum” streamflow

—Restricted to Colo. Water Conservation Board (CWCB)

—Must be a natural environment that can be preserved

Yes, but only if a diversion of water is involved

CWCB does “request recommendations” from the Departments of Agriculture and Interior

Recommendations must be made “with specificity and in writing”

—The minimum amount required to protect beneficial uses, which is capable of being maintained

—Approved by the legislature

Not settled

Federal agency may request Idaho Water Resources board to consider a minimum flow

—Minimum desirable streamflow

—Approved by the legislature

No

No

—The amount must be necessary for purpose and cannot exceed 50 percent of average annual flow on gaged stream

—Reservation only

—Reviewed at least once every 10 yrs; may be modified in 5 yrs

Yes, but only if a diversion of water is involved

The U.S. or any agency there of may apply to reserve a minimum stream flow

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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State

In-Place Beneficial Uses Recognized Under State Law

Nebraska

Recreation, fish and wildlife, Neb. Rev. Stat. §46-2,108 (1988)

Nevada

Any recreational purpose, Nev. Rev. Stat. Ann. §533.030(2); wetland protection, Nev. Rev. Stat. §502.322.

New Mexico

No statutory in-place protection

North Dakota

No statutory in-place protection

Oregon

Conservation, maintenance and enhancement of fish and wildlife habitat, Or. Rev. Stat. §537.336 (1988)

South Dakota

No statutory in-place protection

Utah

Propagation of fish, public recreation, the reasonable preservation or enhancement of the natural stream environment, Utah Code Ann. §73-3-3 (1993 Supp.) and Stat

Washington

Protecting fish, game, birds, or other wildlife resources, or recreation or aesthetic values of said public waters whenever it appears to be in the public interest, Wash. Rev. Code. Ann. §90.22.010 (West 1992)

Wyoming

To establish or maintain new or existing fisheries, Wy. Stat. Ann. §41-3-1001 (1993 Supp.)

aGenerally, federal agencies cannot hold an instream water right issued under state law. This column indicates if they can hold such rights. In some cases, the instream water right is only given if a diversion structure exists on the river. Normally, such structures would remove water from the river, but in the case of instream rights, they are simply placeholders for the right. For example, in Colorado, structures used to control the flow for kayaking purposes have qualified as diversions for the purposes of appropriating rights, even though no flow is removed from the river.

SOURCE: Reprinted, with permission, from MacDonnell and Rice (1993). © 1993 by Natural Resources Law Center.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Special Restrictions on In-Place Water Protection

Can Federal Agencies Hold In-Place Appropriative Rights?a

Provision for Federal Agency Involvement in State In-Place Water Protection Program

—Minimum amount necessary

—Available only to Game and Parks Commission or a natural resources district

No

Only as a party to state allocation decision process

 

Yes (at least 2 such permits granted)

There is no state program for protecting instream flows

 

Perhaps, if a diversion is involved

There is no state program for protecting instream flows

 

Perhaps, if a diversion is involved

There is no state program for protecting instream flows

—Minimum perennial streamflows

—Restricted to Dept. of Fish and Wildlife, Dept. of Environmental Quality, and State Parks and Recreation Dept.

No

There is no state program for protecting instream flows

 

Yes, but only if a diversion of water is involved

There is no state program for protecting instream flows

—Limited to transfer of existing rights only

—Restricted to Dept. of Wildlife Resources and State Parks and Recreation Dept.

Yes, but only if a diversion of water is involved

 

—Restricted to Dept. of Ecology, but Dept. of Fisheries and Dept. of Wildlife may request consideration

Perhaps, if a diversion is involved

 

—Minimum flow necessary

—Need identified by Game and Fish Commission, application made by Water Development Commission

Yes, but only if a diversion of water is involved

In Clarks Fork River via special congressional legislation

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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rights in Arizona for streams running through its Hassayampa River Preserve and Muleshoe Ranch properties. These rights protect a significant portion of the hydrograph on a year-round basis. BLM has filed an application for an instream right on the San Pedro River in Arizona, claiming a flow of 18,200 cubic feet per second for 24 hours. The claim is based on an analysis indicating that this is the flow rate needed to inundate the banks and benches adjacent to the channel and to support riparian vegetation. The application states:

The natural morphological processes that have shaped the San Pedro and other river systems are largely driven by periodic high flows that flush and redistribute sediment and rock. These high flows inundate the floodplain spreading sediment and seed, scour, and shape vegetation on banks and floodplain. The long-term improvement and maintenance of the San Pedro River environment is [sic] absolutely dependent on the recurrence of sufficiently high peak flows. The concept of a riparian conservation area is meaningless if artificial structures eliminate the natural variability that once created and now maintains the fluvial biome. (BLM, 1991b)

Since Colorado began appropriating water for instream uses in 1973, such appropriations have been established on more than 8,000 miles of Colorado streams and on 486 lakes. In 1996, the Colorado Water Conservation Board appropriated all of the unappropriated water in Hanging Lake and Dead Horse Creek—a heavily visited watershed within the White River National Forest containing scenic waterfalls and unusual flora and fauna. The Hanging Lake appropriation is the first to appropriate all the remaining water.

Related to the protection of instream flows are laws that restrict groundwater pumping. Although riparian vegetation is as dependent on access to underlying groundwater as it is to surface water flow, state laws do not generally provide a means of protecting this water supply from the adverse effects of groundwater pumping. Legal rights to pump groundwater are associated with ownership of the overlying land in most states. Public supervision, if any, generally concerns only conflicts between different groundwater users or, in a few states, groundwater and surface water users. Currently, there are no limitations placed on groundwater development with the intent to protect riparian areas.

One approach that has been used to lessen the impact of groundwater pumping on the San Pedro is the purchase of lands being pumped and the retiring of wells. A more comprehensive legal approach would be for states to limit groundwater pumping in and adjacent to riparian areas as necessary, something that is being considered by the state of Arizona. The Arizona Groundwater Management Act in its present form provides little direct protection of riparian areas, although its goal of aquifer stability could indirectly be protective. To date, no legal changes have been made to the law that would expressly recognize riparian groundwater needs.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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Public Trust Doctrine

The concept of public trust has been applied beyond protection of submerged lands to include protection of navigation, fishing, public recreational uses of water, and water-dependent environmental functions. One prominent example of the public trust doctrine being used to protect water resources and, indirectly, riparian areas involved California’s Mono Lake. Los Angeles has held state-granted rights to divert virtually the entire flow of water from several tributaries to Mono Lake. By the 1970s, exercise of these rights had dramatically lowered the water level of the lake. In National Audubon Society v. Superior Court (1983), the California Supreme Court found that the public trust doctrine imposes a duty on the state to “protect the people’s common heritage of streams, lakes, marshlands and tidelands.” The ruling allowed the state to reconsider past allocations of water if necessary to protect the public trust. In subsequent proceedings, the State Water Resources Control Board developed a plan to restore Mono Lake and the flow regimes of several tributaries to the lake—thus reducing the city’s diversion rights.

No other state has invoked the public trust to alter existing water rights, but several have applied the doctrine in considering decisions regarding new uses of water. For example, the Idaho Supreme Court found that public trust concerns such as assuring minimum stream flows, encouraging conservation, and protecting aesthetic or environmental qualities of particular areas should be taken into consideration when evaluating applications for water rights (Shokal v. Dunn, 1985). The North Dakota Supreme Court held that the public trust doctrine must be a consideration in state planning regarding allocation of water (United Plainsmen v. North Dakota Water Conservation Commission, 1976).

With the exception perhaps of several tributaries to the Mono Basin, the public trust doctrine has not yet been extended to riparian water needs, which may reflect a limited understanding of the essential role of water in supporting and maintaining riparian functions. As a common law concept, the doctrine could conceivably evolve to include this public value of water. Alternatively, states might choose to statutorily recognize the need to consider this important function of water in their water planning and allocation procedures.

Federal Reserved Water Rights

The reserved rights doctrine emerged in the context of water needs of Indian tribes on their reservations. The U.S. Supreme Court held that when the United States reserved land for a tribe, it also implicitly reserved an amount of water necessary to meet the purposes for which the land had been set aside. The legal basis of the right was determined to be independent of, and superior to, subsequent state authority to allocate water resources (Winters v. United States, 207 U.S. 564, 1908). This doctrine, which was extended in 1963 to other federal

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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reservations of land such as national parks and forests, could be used to protect both water resources and their associated riparian areas on all federal reservations.

Several national parks have been accorded reserved water rights that essentially preclude any out-of-stream development. For example, streams within Glacier and Yellowstone National Parks are dedicated to instream flow uses (Amman et al., 1995). In 1993, a Colorado water court awarded the United States all unappropriated flows on the east side of Rocky Mountain National Park; another water court decreed the same result for the west side of the park in 2000 (Silk et al., 2000). In a 1996 negotiated settlement for Zion National Park, Utah agreed to a federal reserved right to all stream flows except for a designated amount committed to future depletion by users upstream of the park (USA et al., 1996). Similarly, negotiated agreements in Montana for several national park units and for wild and scenic river areas established fixed levels of upstream consumptive use, with the remainder of the water being dedicated to instream flow.

To date, no reserved right specifically for protection of the riparian functions of a federal reservation has been legally recognized. The United States has asserted reserved right claims to water for environmental purposes with limited success—primarily because the U.S. Supreme Court has determined that the water claimed must be necessary to achieve the primary purpose(s) for which the reservation was expressly created. Thus, the Supreme Court upheld the need for water to protect the desert pupfish in a national monument specifically set aside for this purpose (Cappaert v. United States, 1976). But it denied an instream flow right for the Rio Mimbres in the Gila National Forest on the basis that the primary purpose for which national forests were established was not environmental protection (United States v. New Mexico, 1978). This latter decision is odd given that the two primary purposes in the 1897 Organic Act are “securing favorable conditions of water flows and furnishing a continuous supply of timber.” In the future, it may be possible for the USFS to convince a court that “favorable conditions of water flows,” and hence downstream yields of water, depend on streams and riparian areas that are in good functioning condition. This could enable the successful assertion of federal reserved rights for protection of riparian areas.

CRITICAL EVALUATION OF THE POTENTIALLY MOST INFLUENTIAL PROGRAMS

Although a diverse array of programs may be used to promote, protect, or implement riparian management, two relatively new programs may have substantial and unique impacts nationwide because of their scope and scale. The first is the Conservation Reserve Enhancement Program (CREP), which is a voluntary, incentive-based program authorized by the 1996 Farm Bill. CREP is essentially a variation on the Conservation Reserve Program (CRP), but with a state partner-

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

ship component that allows for a variety of additional options, including more flexible width requirements, permanent easements, and additional cost sharing. The second is the Total Maximum Daily Load (TMDL) program originating in Section 303 of the Clean Water Act. A TMDL defines the maximum amount of pollution that a waterbody can receive from various sources and still meet water-quality standards. As of 1998, over 20,000 waters (including over 300,000 miles of rivers and 5 million acres of lakes) are in violation of water-quality standards and require a TMDL calculation. The CREP and TMDL programs impact riparian systems through different administrative mechanisms and funding sources.

Conservation Reserve Enhancement Program

The Conservation Reserve Program (CRP), established by the 1985 Food Security Act, is a voluntary program that offers annual rental payments, incentive payments for certain activities, and cost-share assistance to establish approved cover on eligible cropland. The program allows lands meeting certain characteristics, such as highly erodible or cropped wetlands, to be removed from agricultural production for 10–15 years. Continuous CRP is a form of the program that allows highly vulnerable lands, such as riparian areas, to be enrolled without the same administrative requirements as CRP.

The potential for CRP to restore and protect riparian areas has been greatly enhanced by the development of the Conservation Reserve Enhancement Program (CREP), which is an extension of CRP. Once landowners are enrolled in CRP (a federal program), they can take advantage of additional services offered by state CREP programs. A primary goal of CREP is to create an opportunity where the resources of a state government and the federal Commodity Credit Corporation can be targeted in a coordinated manner to address specific conservation and environmental objectives of that state and the nation, providing greater flexibility to address regional problems. For example, a state and the NRCS might decide that a certain percentage of state CREP money must be used to restore riparian areas in a specific watershed. CREP is meant to improve water quality, erosion control, and wildlife habitat in specific geographic areas that have been adversely impacted by agricultural activities, with emphasis on nonpoint source pollution control. Conservation of species listed as threatened or endangered or identified as candidates for listing are included under these objectives. The federal–state partnership is a unique aspect of CREP.

CREP broadens the federal payment options for landowners enrolled in CRP programs (annual rental payment, maintenance payment, and a cost share of 50 percent for the installation of conservation practices). For example, many of the states that currently have an established CREP will supplement the cost-share payments and pay for extensions on the easement contract beyond the regular 10–15 years. There is no cap on expenditures in CREP from the federal side, although

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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acreage limitations have been imposed (e.g., Illinois is limited to 132,000 acres). Nonetheless, funding can pose a barrier because of the cost-share requirement of 20 percent, which can be difficult for states to meet.

Eligible Lands

Because each state CREP agreement is unique, the definition of eligible lands varies considerably. In general, lands eligible for CREP must meet some of the same criteria that CRP land must meet. That is, the land must have been owned or operated by the applicant for the previous 12 months, must have been planted in crops two of the last five years, and must be physically and legally capable of being planted in a normal manner. There are numerous exceptions granted to individual states to meet specific needs. For example, the New York City CREP is directed towards protection of the city’s water supply watersheds. Each state agreement designates specific watersheds, counties, or other areas that are targeted. Some also include specific definitions of eligible land such as 100-year floodplains (Illinois CREP), highly erodible lands (many states), and sinkholes (Kentucky CREP). In addition to the floodplain demarcation requirement, Illinois also allows lands anywhere within the watershed that are farmed wetlands, prior converted wetlands, or wetlands farmed under natural conditions. Finally, additional acres have been designated for permanent easements in Illinois. These lands are defined as non-cropped acres or land in another CRP signup that meet criteria based on riparian definitions, erodibility, or adjacency to the primary land enrolled in CREP. A significant advantage of CREP programs is that conservation practices can go beyond CRP guidelines regarding buffer width and structure. For example, if a CREP program defines eligible lands as those within the 100-year floodplain boundary, such a designation may, depending on the region, include lands well beyond the 234-ft maximum buffer width allowed under CRP. As a consequence, CREP can encompass and potentially protect larger riparian areas than CRP.

Current Status

As shown in Table 4-5, CREP is currently established in 21 states, and nine more are in the process of preparing applications. Continuous CRP and CREP account for 418,000 miles of riparian land, while general CRP has enrolled over 333,000 miles. There is a tremendous variety in the types of management practices utilized by the state CREP programs, with the most common being filter strips, riparian buffers, wetland restoration, and restoration of prairie and tallgrass prairie/oak savanna ecosystems for rare and declining wildlife habitat. However, a variety of other practices such as tree planting and providing shallow water areas for wildlife are frequently utilized in riparian areas.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

The goals of the existing CREP programs include sediment, nutrient (nitrogen and phosphorus), pesticide, and pathogen loading reductions, fish and wildlife habitat enhancement, streambank stabilization, and hydrologic restoration. For example, in North Dakota the program goal is to develop 20-acre blocks of habitat (cover-locks) for upland game. The New York CREP is designed to protect the water supply of New York City through riparian buffers and dairy cattle management. The Maryland CREP has established the goals of reducing annual agricultural-based pollution by 5,750 tons of nitrogen, 550 tons of phosphorus, and 200,000 tons of sediment while increasing wildlife and habitat. A fundamental concept of CREP is to allow states to identify their most pressing resource issues and to develop unique strategies to address these issues.

All current CREP programs offer incentive payments, but they vary considerably. Typical payments include supplemental cost sharing (such as the incentive payment of 130 percent of the county rental rate in Delaware), payments for the remainder of the costs for establishing the conservation practice (e.g., New York, North Carolina), and additional lump-sum payments for certain practices such as installing filter strips (Ohio) or planting trees (North Carolina). The first CREP program was initiated in Maryland in 1997; there are now 21 CREP states with 16,492 contracts for over 265,511 acres and a projected lifetime federal cost of over $540 million (for current information, see http://www.fsa.usda.gov/dafp/cepd/crep.htm). Additional state payments for cost sharing and extensions of easements will add to the total cost. In addition, many existing programs (e.g., Minnesota and Illinois) are expanding beyond their initial eligible land areas. Thus, final program cost and enrolled acreage will substantially increase as the program matures.

Program Evaluation

Although related programs such as CRP have been evaluated in numerous studies (e.g., Allen, 1996), the effectiveness of CREP has not been given much attention. There are several reasons for this. First, each state’s program is unique, making documentation difficult. Other than the number of miles or the acreage enrolled, there is no single program-wide characteristic that permits CREP to be evaluated for environmental impact on a consistent national basis. Second, CREP rules state that each program should include a comprehensive monitoring program (with an identified funding source) that will include specific objectives, measurement descriptions, and a process for program refinement based on monitoring results. Unfortunately, most states support very little monitoring specific to their program, making it difficult to judge the effectiveness of the program. (See NRC, 2000, for a description of the monitoring necessary for determining agricultural program performance.) Most states do have some baseline monitoring in place that will allow superficial assessment of the program, but such monitoring is often not designed to track specific program inputs. It is probable

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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TABLE 4-5 Current Listing of Conservation Reserve Enhancement Programs and Their Intended Goals and General Eligibility Designations

State

Major Goals

Arkansas

Reduce sediment loading up to 10,000 tons/year; increase wildlife populations; establish 200 miles of riparian forest buffers

California

Enhance wildlife habitat (possible increase of 27,000 ducklings and 20,000 pheasants); reduce soil erosion; improve surface and groundwater quality; improve air quality

Delaware

Reduce nutrient and sediment loading, improve temperature and dissolved oxygen; increase wildlife habitat and create wildlife corridors

Illinois

Reduce input of sediment, nitrogen, phosphorus; enhance wildlife, fish, mussels, threatened and endangered species

Iowa

Reduce nitrogen loading to streams by 300–600 tons/year; reduce sediment delivery to Lake Panorama by 80,000 tons/year; reduce or maintain soil erosion at or below 2–5 tons/acre; enhance wildlife habitat; increase recreation

Kentucky

Reduce by 10 percent the sediment, pesticide, and nutrient loads entering the Green River and Mammoth Cave system; protect wildlife habitat, restore riparian habitat, and restore subterranean ecosystem by targeting 1,000 high priority sinkholes

Maryland

Reduce nutrient loadings into the tributary streams of the Chesapeake Bay

Michigan

Reduce sediment inflow by 784,000 metric tons over 20 years, nitrogen by 1.6 million pounds, and phosphorus by 0.8 million pounds; protect water supplies; protect 5,000 linear miles of streams from sedimentation; improve wildlife habitat

Minnesota

Reduce sediment and nutrient loading into the Minnesota River

Missouri

Reduce by 50 percent the pesticides in 58 drinking water supplies; reduce sediment inflow by 50 percent; reduce soil erosion rate to less than 5 tons/acre; help ag. Producer meet nutrient goals; improve wildlife habitat

New York City

Reduce soil erosion by 36,000 tons/year; reduce levels of nutrients and pathogens; enhance wildlife habitat

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Eligible Areas and Initial Acres

Eligible Practices and Riparian Specific Conditionsa

State Contract Extensions

4,700 acres in the Bayou Meto of central Arkansas

CP22

Unknown

12,000 acres in the North Central Valley

CP1, CP2, CP4D, CP9, CP10, CP12, CP21, CP22, CP23

Yes, but not defined

6,000 acres in the watersheds of Chesapeake Bay, Delaware Bay, and the Inland Bays basin area (goal is approximately 1,200 miles of buffers)

CP3A, CP4D, CP21, CP22, CP23

None

132,000 acres in 100-year floodplain and adjacent highly erodible lands of the Illinois River Basin

CP2, CP3, CP3A, CP4D, CP12, CP21, CP22, CP23, CP25

15- and 35-yr extensions or permanent

9000 acres in 37 counties in north-central Iowa

CP7, CP21, CP22, CP23

Yes

100,000 acres in the Green River watershed

CP1, CP2, CP3A, CP4D, CP8, CP10, CP11, CP21, CP22, CP23

Extensions and permanent easements

70,000 acres of riparian buffers, 10,000 acres of wetlands, and 20,000 acres of highly erodible lands in Chesapeake Bay watershed

CP4, CP5, CP8, CP16, CP17, CP18, CP21, CP22, and wellhead protection areas

Permanent easements

80,000 acres in the Macatawa, River Raisin, and Saginaw Bay watersheds

CP1, CP2, CP5, CP21, CP22, CP23

Voluntary easement

100,000 initial acres (190,000 final) in Minnesota River floodplain, tributaries, cropland filter strips, and wetlands.

CP9, CP21, CP22, CP23, CP25

20 years or permanent

50,000 acres along streams in the watersheds of 83 water supply reservoirs

CP1, CP2, CP3A, CP4D, CP15A, CP21, CP22, CP23

Not specified

5,000 acres of riparian areas or highly erodible croplands

CP1, CP2, CP3, CP4, CP21, CP22, CP23

None

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

State

Major Goals

North Carolina

Reduce the excessive nutrient and sediment loading from agricultural runoff (15 percent nitrogen reduction); improve anadromous fish habitat; enhance wildlife habitat

North Dakota

Create wildlife habitat; improve water quality; and reduce soil erosion

Ohio

Reduce sediment entering Lake Erie by 2,325,000 metric tons over 20 years; reduce nutrients and pesticides entering Lake Erie and tributaries; protect 5,000 miles of streams from sedimentation; improve wildlife habitat

Oregon

Restore salmon habitat through restoration of riparian forests; reduce sediment and nutrient input; stabilize streambanks; restore water temp. to natural ambient conditions; restore natural hydraulic and geomorphic conditions

Pennsylvania

Reduce nutrients and sediment delivery to the Potomac and Susquehanna Rivers and the Chesapeake Bay

Vermont

Reduce phosphorus loading into Lake Champlain by 48.3 tons/year; enhance wildlife and aquatic habitat

Virginia

Reduce nutrient input into the Chesapeake Bay and non-Bay watersheds; modify hydrology through wetland restoration; enhance wildlife habitat

Wisconsin

Reduce sediment loading by 335,000 tons/year, phosphorus loading by 610,000 pounds, and nitrogen by 305,000 pounds; establish 3,700 miles of riparian buffers and 15,000 acres of grassland habitat.

aCP 1 Planting of introduced grasses

CP 2 Planting of native grasses

CP 3 Tree planting (3A is hardwood trees)

CP 4 Restoration of wildlife habitat via prairie ecosystem restoration and tallgrass prairie/oak savanna ecosystem restoration

CP 4D Restoration of permanent wildlife habitat

CP 5 Field windbreaks

CP 8 Grassed waterways

CP 9 Shallow water areas for wildlife

CP 10 Established grass

CP 11 Established trees

CP 12 Wildlife food plots

CP 15A Contour grass strips

CP 16 Shelter belts

CP 17 Snow fences

CP 18 Salt tolerant vegetation

CP 21 Filter strips

CP 22 Riparian buffers

CP 23 Wetland restoration

CP 25 Restoration of rare and declining wildlife habitat

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Eligible Areas and Initial Acres

Eligible Practices and Riparian Specific Conditionsa

State Contract Extensions

100,000 acres in the Albermarle-Pamlico Estuarine system (85,000 acres riparian; 15,000 acres wetland)

CP3A, CP21, CP22, CP23, CP25

15-year and permanent

1,000 20-acre “cover locks” in six watersheds.

Cover locks consist of 5 acres of trees, 10 acres of herbaceous cover, and 5 acres of winter food. Each cover lock will have 140 acres of associated conservation easements

CP4D, CP12, CP16

Easement length not specified

Western Lake Erie Watershed

CP3A, CP4, CP5, CP21, CP22, CP23

None

100,000 acres along designated salmonid streams and 5,000 acres of wetlands

CP21, CP22, CP23

None

100,000 acres

CP1, CP2, CP3A, CP4D, CP8, CP9, CP12, CP15A, CP21, CP22, CP23

None

Lake Champlain watershed of Vermont

CP8, CP21, CP22, CP23

 

30,500 acres of riparian lands and 4,500 acres of wetlands

CP21, CP22, CP23

10- and 15-yr contracts; up to 8,000 ac of permanent easements

100,000 acres in 51 counties

CP1, CP2, CP8, CP21, CP22, CP23, CP25

Permanent

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

that CREP, like other conservation programs, will have to be evaluated indirectly. One current exception is the Illinois CREP, which has established a paired watershed design that will allow some degree of differentiation between areas with intense practice implementation and areas with a lesser degree of land-use change (see Box 4-5).

The length of easement contracts among state CREP programs varies greatly. The basis of the program is a federal contract for 10 to 15 years. As part of the state agreement most states add on voluntary easement extensions ranging from 15 years to permanent, and generally landowners are compensated at rates linked to the length of easement extension. Maryland, for example, has established a target of obtaining permanent easements on 25 percent of its contracts. In Illinois, three easement extensions are offered—15-year, 35-year, and permanent. Thus, the opportunity for long-term modification of the landscape are certainly available through CREP, but landowners do not always take advantage of these options even though they may include payments that can equal or exceed the fair market value of the land.

The program is limited by its reliance on voluntary landowner participation. Thus, although states target lands whose restoration will provide the greatest impact (e.g., riparian or highly erodible lands in specific watersheds), owners of severely degraded land may choose to not participate because of personal preference, insufficient financial incentives, lack of information, or various other reasons. (Where there have been concerted efforts to contact individual landowners to inform them of the available funding, participation increases sharply, as experienced in the Maquoketa River watershed in Iowa.)

Within the eligible areas defined for each CREP, there is generally no prioritization of areas such that critical parcels of land are targeted for enrollment. This is particularly troublesome when the chosen watershed is large, such that certain sections are experiencing greater degradation than others. In addition, the effectiveness of some restoration practices is dependent on stream size. For example, Chapter 2 discusses the disproportionate pollutant removal abilities of first- and second-order streams compared to larger-order streams. In none of the CREP programs reviewed was prioritization by stream size apparent, although there appear to be no restrictions to doing so. Fortunately, in some CREP programs where nongovernmental organizations such as The Nature Conservancy are involved, staff has been directed to identify priority areas to help attain their conservation objectives.

Finally, the federal cap on acreage enrolled in CRP is 36.4 million acres. Current contracts account for nearly 33.7 million acres, and state CREP programs are authorized for a substantial amount of the remaining acreage. Each state CREP program was initially limited to no more than 100,000 acres. Though most state CREP programs have not reached their limits, at least one has (IL) and it is expected that others will attain this limit as their marketing programs and landowner awareness increases. With other states in the process of developing CREP

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

agreements, there is no doubt that increasing the federal acreage cap on CRP will be an important aspect of ensuring program success.

Total Maximum Daily Load Program

Section 303(d) of the CWA requires states to identify waters that are not attaining ambient water-quality standards (i.e., waters that are impaired). States must then establish a priority ranking for such waters, taking into account the severity of the impairment and the uses to be made of such waters. For impaired waters, the states must establish total maximum daily loads (TMDLs) for pollutants necessary to meet water-quality standards and develop an implementation plan that will allow the TMDL to not be exceeded. The CWA further requires that once water-quality standards are attained, they must be maintained.

The term TMDL has essentially two meanings (EPA, 1991):

  • The TMDL process is used for implementing state water-quality standards—i.e., it is a planning process that will lead to the goal of meeting the water-quality standards.

  • The TMDL is a numerical quantity determining the present and near future maximum load of pollutants (from point and nonpoint sources as well as from background sources) to receiving waterbodies that will not violate the state water-quality standards with an adequate margin of safety. The permissible load is then allocated by the state agency among point and nonpoint sources.

In 1998, the national list of impaired waters—the 303(d) list—included 21,845 waters with 41,318 associated impairments that will require TMDLs (EPA, 2000a). Additional waters are being added annually. The distribution of these impairments is summarized in Figure 4-3 and Table 4-6. Every state has impaired waters and is affected by the TMDL program.

More than 200 distinct types of water impairments have been identified through the 303(d) reporting process. By combining similar impairments (e.g., combining fecal coliform, bacteria, and E. coli as “pathogens”), EPA has reclassified the impairments into approximately 50 categories. The top 15 pollution categories, which encompass 91 percent of the total impairments, are shown in Table 4-7, which indicates that sediment, pathogens, and nutrients are the major pollutants with regard to water-quality degradation nationwide. To help address this concern, EPA recently released protocols for developing sediment, nutrient, and pathogen TMDLs (EPA, 1999a,b,c).

The TMDL program does not explicitly require the protection of riparian areas. However, implementation of the TMDL program will have a substantial impact because most of the TMDL implementation plans that have been, are being, or will be developed call for restoration of riparian areas as one of the required management measures for achieving reductions in nonpoint source pol-

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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BOX 4-5
Conservation Reserve Enhancement Program in the Illinois River Basin

The Illinois CREP is a restoration program for the stream and river floodplains in the Illinois River Basin (see map). As of September 2001, Illinois has enrolled over 88,000 acres in CREP, making it the most successful in the country on the basis of acreage.

The Illinois River Basin covers about 44 percent of the state, resulting in a landscape that is both intensely urban (e.g., Chicago) and agricultural. The Illinois River transports about 14 million tons of sediment, much of which is deposited into the Illinois River valley and the Mississippi River. The resultant sedimentation has led to severe habitat loss and commercial navigation problems, and water quality continues to need attention. The Illinois CREP has four goals: (1) reduce silt and sediment entering the main stem of the Illinois River by 20 percent, (2) reduce the amount of phosphorus and nitrogen in the Illinois River by 10 percent, (3) increase by 15 percent the population of waterfowl, shorebirds, non-game grassland birds, and state and federally listed threatened and endangered species such as bald eagles, egrets, and herons, and (4) increase by 10 percent the native fish and mussel stocks in the lower reaches of the Illinois River.

In the Illinois CREP, the current program authority calls for enrolling up to 132,000 acres for a minimum of 15 years. To do this, landowners enter into 15-year federal CRP contracts and then may extend their enrollments through a supplemental state contract for an additional 15-year, 35-year, or permanent conservation easement. Of the 88,426 enrolled by September 2001, the state options included 58,287 acres and of this, 91.5 percent (53,319 acres) was placed in permanent easements. In addition to receiving annual payments, a federal CREP contract entitles a landowner to cost-share assistance for 50 percent of the establishment costs associated with the selected conservation practice. Landowners who enter into an additional state CREP contract receive a lump-sum incentive payment during the first year of the enrollment. They are also eligible to receive up to another 50 percent cost share for establishment costs. Thus, up to 100 percent of these costs are paid for by state and federal agencies. Enrollments in CREP have been on a continuous basis since the program’s inception in May 1998.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

Eligible Lands

Although the current program calls for enrolling 132,0000 acres, the final program goals call for 232,000 acres to be enrolled. The eligible riparian areas must be either within the 100-year floodplain of the stream or river or be a farmed wetland, prior converted wetland, or a wetland farmed under natural conditions. Also eligible are highly erodible lands, defined as those lands with a weighted erodibility index of greater than or equal to 12, and which also must be adjacent to a stream corridor, have the riparian areas in a conservation practice, or have become an uneconomic remnant (i.e., land not profitable to farm).

Landowner Payments

Like CRP, the CREP uses soil rental rates to determine payments to landowners but provides an additional incentive of 30 percent above these rates for riparian lands and a 20 percent bonus for highly erodible lands. In addition, Illinois will make lump-sum payments for extensions beyond the initial 15-year federal contract. As an example, for land with a soil rental rate of $130/acre, the federal CREP will pay annually $169/acre ($130 plus a 30 percent bonus). In addition, the landowner will receive 50 percent of the cost of establishing trees and a $5/acre maintenance fee. If the landowner chooses to utilize one of the state extensions, such as a permanent easement, the state will make a one-time lump-sum payment equal to the rental rate times 15 years times 30 percent. For example, if the soil rental rate is $130/acre, the landowner will receive a payment of ($130 × 15 × 0.30) = $585/acre. In addition, Illinois will pay the remaining 50 percent of the practice cost share. Thus, total payments to the landowner summed over the 15 years will include $2,535/acre from the federal government (15 years at $169/acre, not including practice cost share and maintenance payments and other incentives such as the current Signup Incentive Payment (SIP) and Practice Incentive Payment (PIP)) and $585/acre from the state (also not including practice cost share).

Practices Available

Conservation practices funded by Illinois CREP are designed to reduce soil erosion, improve water quality, and create or enhance wildlife habitat. Emphasis is placed on the use of native vegetation with the choice dependent upon historic vegetation, soil types, water levels, and slope. Eligible practices include wetland restoration, riparian forest buffers, filter strips, establishing permanent native grasses, tree planting, permanent wildlife habitat development, and wildlife food plots. Riparian buffers (CP22) and wetlands (CP23) are the most common practices.

Monitoring

To determine if the Illinois CREP will have the impacts projected, the state has installed or supplemented monitoring on the main river and several tributaries, and it has supported modeling that predicts both erosion reduction and the economic value of the program. Because the Illinois CREP area is so expansive, the assessment has also focused on two smaller watersheds within the eligible area where intensive stream gaging, habitat monitoring, and land-use mapping are being conducted. These assessments are based upon a paired watershed design and incorporate site-specific studies to assess certain practices.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

FIGURE 4-3 Distribution of impaired waters in the United States requiring TMDLs. SOURCE: EPA (2000b). Note: States with high rates of impairment do not necessarily have poorer water quality than states with lower impairment rates. Impaired waters are a function of water-quality standards that vary from state to state. Because of these state-by-state differences, waters that would be classified in one state as impaired might not be classified as impaired in other states. Thus, states that have the most comprehensive and strictest water-quality standards often have the most impairments.

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
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TABLE 4-6 Number of Impaired Waters in the United States

Percentage of Impaired Water Miles within Watershedsa

Number of Watershedsb

Percentage of Total U. S.Watersheds

No Waters Listed

550

24.3

<5%

670

29.7

5%–10%

360

15.9

10%–25%

480

21.3

>25%

199

8.8

Total

2,259

100.0

aThis is the percentage of total water miles within a given watershed that are impaired. “No waters listed” may imply that no waters are impaired or that the watershed has not been monitored.

b8-digit Hydrologic Unit Code (HUC) watersheds

SOURCE: EPA (2000a).

lutant loadings. For example, water-quality impairments caused by nonpoint source pollutants released in riparian areas or in adjacent uplands may be best remedied by enhancing the pollutant removal and assimilation functions of existing riparian areas or by creating new riparian areas. Indeed, riparian buffer zones have been used and promoted as management measures to address all the impair

TABLE 4-7 Top 15 Categories of Impairment Requiring TMDLs (from 1998)

Cause of Impairment

Number of Impaired Waterbodies

Sediments

6,133

Pathogens

5,281

Nutrients

4,773

Metals

3,984

Dissolved Oxygen

3,758

Other Habitat Alterations

2,106

Temperature

1,884

pH

1,798

Impaired Biologic Community

1,440

Pesticides

1,432

Flow Alterations

1,099

Mercury

1,088

Organics

1,069

Noxious Aquatic Plants

831

Ammonia

752

NOTE: “Waterbodies” refers to individual river segments, lakes, and reservoirs. A single waterbody can have multiple impairments. Because most waters are not assessed, there is no estimate of the number of unimpaired waters in the United States. SOURCE: EPA (2000a).

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

ments listed in Table 4-7, with the possible exception of mercury and other point source-dominated impairments.

The potential impact of the TMDL program on riparian area protection was demonstrated in the Pronsolino v. Marcus case (1999), in which the TMDL implementation plan in question required substantial reductions (60 percent) in sediment loading. The Garcia River TMDL identified logging operations as a significant cause of excessive sediment, and thus limits were placed on allowable sediment losses from forestry operations. When the Pronsolinos filed for a permit to harvest timber, the California Department of Forestry required (as a result of the Garcia River TMDL implementation plan) that they reduce sediment losses by reducing harvesting within 100 feet of streams, refraining from construction or using skid trails on slopes greater than 40 percent within 200 feet of streams, and not removing trees from certain unstable areas, which have the potential to deliver sediment to a watercourse. Thus, the sediment load reductions required protection of existing riparian areas.

Several dozen TMDLs for sediment, nutrient, temperature, and fecal coliform impairments have been developed since 1999, many of which require riparian area protection and restoration as part of their proposed implementation plans (e.g., EPA Region IX, 1999; Indiana Department of Environmental Management, 2000). For fecal coliform-impaired waters in Virginia, every implementation plan for watersheds where cattle grazing is significant and in which cattle have access to streams has required an 80 percent to 100 percent reduction in cattle access to streams and riparian areas (Virginia Department of Environmental Quality, 1999; EPA, 2000c; Virginia Tech, 2000a,b,c,d). Exclusion of cattle from streams was specifically mentioned in each case. Although these TMDLs do not have explicit plans for riparian area restoration, the required exclusion of cattle from streams and riparian areas will result in significant improvement in riparian area functioning. However, how much functioning will be restored is uncertain because the TMDL plans do not specify how much fencing will be required or the widths of protected riparian areas. It is possible that fences will be installed immediately adjacent to streams, which is unlikely to promote functioning riparian areas. Most cost-share programs such as CRP that help landowners with fencing and off-stream water system costs require a riparian area with a minimum average width of 35–100 ft. Consequently, much of the fencing installed for TMDL implementation will involve the restoration of riparian areas 35–100 ft wide.

TMDL implementation plans developed for other impairments such as nutrients, benthic impairment, Cryptosporidium, and pesticides are also likely to require some level of cattle exclusion from streams. In addition, some of these plans may recommend restoration of riparian areas as a means of reducing nonpoint source pollutant loadings to streams from upland areas. For example, the fecal coliform TMDL for Pleasant Run in Virginia calls for a 25 percent reduction in nonpoint source loadings from pasture and cropland (Virginia Tech,

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

2000c). If cattle are excluded from the streams by fencing, as required by the TMDL, it is possible that the nonpoint source loading reduction goal will be met as a consequence of the riparian areas becoming reestablished. This assumes that the fences are located so that the resulting protected widths are adequate to achieve desired pollutant reductions. Width and vegetative composition need to be based on site-specific topographic and hydrologic conditions and the pollutant reductions required for each site (see Chapter 5).

The TMDL program also may lead to protection and restoration of riparian areas in those parts of the country where summertime stream temperature is an important water-quality issue. Some of the earliest stream temperature research in forested stream systems was undertaken in the late 1960s in Oregon by Brown (1969), and a significant body of knowledge has been acquired (e.g., Beschta et al., 1987) and stream temperature models (e.g., Boyd, 1996) have been developed for understanding and predicting the effects of vegetation removal on stream temperature. Temperature TMDLs are required for those waters where the instream water temperatures deviate from the state temperature standard (which in Oregon is a numeric standard based on seven-day maximum temperatures). The exercise involves identifying potential sources that contribute to increased water temperatures in conjunction with modeling efforts to evaluate the extent to which temperature improvements can be attained through improved riparian management. For example, along reaches normally occupied by a riparian forest, site potential vegetation (e.g., assumed to be late seral conifers) is utilized in a stream temperature model to indicate the potential improvements in temperature that might be realized if revegetation were to occur. Results of these analyses (e.g., Boyd et al., 1998) can be used to formulate TMDLs on a basin-by-basin basis.

The TMDL program is currently the nation’s most comprehensive attempt to restore and improve water quality (NRC, 2001). Though not a primary stated goal of the program, TMDL implementation should protect many functioning riparian areas and restore thousands of miles of degraded riparian areas along the streams and shorelines of the United States. TMDL plans for the restoration of waterbodies impacted by livestock will likely involve streamside fencing and the reestablishment of riparian vegetation. For forested stream systems, the use of riparian reserves or stream buffers of unharvested trees will become increasingly common. In addition, TMDL implementation plans for waterbodies with impairments caused at least in part by nonpoint source pollutants from cropland and pasture will likely recommend the protection of existing riparian areas that are in relatively good condition and the restoration of those that have been degraded.

CONCLUSIONS AND RECOMMENDATIONS

As reflected in the foregoing materials, a variety of laws offer mechanisms to help protect some riparian areas or aspects of riparian areas. Few of these laws, however, reflect awareness of riparian areas as landscapes supporting multiple

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

important functions and warranting special management and protection as unique physical and natural systems in their own right. Rather, protection of riparian areas is an indirect consequence of other objectives, such as water-quality protection or habitat management.

Protecting riparian areas in private ownership is especially challenging. Willingness of states and local governments to regulate land use in riparian areas for general ecological benefits varies widely. Striking examples of state and local programs that provide significant protection of riparian areas are relatively few in number. Interest seems to be growing in conservation easements and other incentives to induce landowners to hold riparian areas as buffers, natural areas, or open space, as well as in the purchase of riparian lands for greenways or wildlife areas. Enactment of laws such as the Conservation and Reinvestment Act (considered by Congress in 2000) could make available several billion dollars annually for purchases of such areas.

Many states have been willing to regulate or manage timber harvesting on private lands in riparian areas. They have not, however, been nearly as willing to restrict other agricultural activities, except in some areas with demonstrated water-quality problems. Instead, the preference has been to induce change in farming practices through incentives provided by programs such as the Conservation Reserve Program.

Riparian areas on federal lands are seldom managed as natural systems, though they may receive management attention or protection when they support resources of concern (such as wildlife or fisheries) and are threatened by certain land uses (such as livestock grazing or mining). Federal statutes contain very little guidance for land managers who face conflicts between riparian area protection and permissible land uses. Only if a federal agency proposes an activity in or affecting a riparian area that would jeopardize threatened or endangered species or violate water-quality requirements is the protection of riparian values clearly required.

Although the BLM is taking an increasingly active role in developing policies regarding the management and protection of riparian areas and in coordinating efforts to assess the condition of riparian areas, it has no clear mandate to do so. BLM’s relatively new “fundamentals of rangeland health” regulations authorize the inclusion in livestock grazing permits of conditions to protect riparian areas, but these conditions are neither consistently included nor enforced. As a result of legal challenges, however, both the BLM and USFS have reduced or eliminated livestock grazing along some streams or have initiated consultation with the FWS regarding the impacts of grazing on threatened and endangered species. In the Pacific Northwest, the BLM and USFS have implemented significant riparian protections under the Northwest Forest Plan. In addition, the USFS has taken a number of forest- or stream-specific actions to protect riparian areas, but there is no clear agency policy guiding these actions. Neither the NPS nor the

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

FWS has a policy regarding protection of riparian areas, even though this would seem consistent with the predominantly protection-oriented missions of these two agencies.

State water laws have been concerned almost solely with the allocation of water for human uses and not for ecological needs. New programs directed at the protection of unutilized instream flows have the potential to address the water-related needs of at least some riparian areas.

In sum, existing legal and management protection of the ecological functions and values of riparian areas is inadequate. Even on federal lands, uses of riparian areas are not singled out for special consideration by statute or regulation. Uses of riparian areas on private lands are addressed, if at all, as a matter of local land-use regulation or through a mix of incentive programs. Several suggestions for strengthening and improving the legal framework governing protection of riparian areas are offered below. In the absence of making such legal and regulatory changes, it is unlikely that the degradation of riparian areas documented in Chapter 3 will be halted or even slowed.

Management guidelines and regulations differ drastically among forest, range, agricultural, residential, and urban lands on private lands. No state has a general land-use law or framework to coordinate management of the landscape for multiple uses (e.g., forest harvesting, grazing, agriculture, mining, urban development). Fragmentation of policy has contributed to vastly different levels of protection for, and degradation of, riparian areas across individual watersheds and regions. This phenomenon will only increase with increased population growth and continued economic development.

States should consider designating riparian buffer zones adjacent to waterbodies within which certain activities would be excluded and others would be managed. The broad importance of protecting riparian areas for water quality and fish and wildlife benefits calls for state-level programs of land-use regulation to accomplish this objective. A statewide program such as the Massachusetts Riverfront Protection Act treats all riparian landowners equally in providing these important public benefits. At the very least, states should consider establishing such buffers for sensitive areas (as has been done for the Chesapeake Bay). In the absence of a statewide program, local governments should be encouraged to develop riparian buffer zones.

Increased federal and state funding should be directed toward encouraging private riparian landowners to restore and protect riparian areas. At the federal level, this means increased funding for riparian buffers under Farm Bill programs, for wildlife habitat under Partners for Fish and Wildlife, and for watershed restoration under the Clean Water Action Plan and other federal agency

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

initiatives. Both federal and state funding should be made available to land trusts, soil and water conservation districts, watershed groups, and others working with private riparian landowners to protect and improve their riparian areas.

Few, if any, federal statutes refer expressly to riparian area values and as a consequence generally do not require or ensure protection of riparian areas. Even the National Wild and Scenic Rivers Act refers only to certain riparian values or resources; it does not consider riparian areas as natural systems, nor does it require integrated river corridor management. Moreover, statutes governing federal land management do not direct agencies to give priority to riparian area protection when conflicts among permissible land uses arise. This absence of a national riparian mandate stands in stark contrast to the existence of a federal wetlands law.

Federal land management agencies should promulgate regulations requiring that the values and functioning of riparian areas under their jurisdiction be restored and protected. This goal is consistent with the ecological benefits of riparian areas and the overarching principle that public lands are to be managed in the national interest. Such regulations should account for the full spectrum of riparian values and services—habitat-related, hydrological, water quality, aesthetic, recreational. At a minimum, agencies should assess the condition of riparian areas, develop and implement restoration plans where necessary, exclude incompatible uses, and manage all other uses to ensure their compatibility with riparian area protection. Clear, enforceable regulations are necessary because existing rules and policies are inconsistent, vague, and/or only advisory. Alternatively, agencies could protect riparian areas using existing rules for special management areas, such as BLM’s ACECs.

Ideally, Congress should enact legislation that recognizes the myriad values of riparian areas and directs federal land management and regulatory agencies to give priority to protecting those values. A mandate from Congress would establish riparian protection as a federal priority and ensure consistency both within and among agency regulatory and land management programs. Absent federal legislation, a presidential executive order could promote consistent riparian management by federal agencies.

Federal agencies should coordinate riparian management activities to improve efficiency and help ensure that protection of riparian values and functioning does not vary across jurisdictional boundaries. Many streams and other waterbodies, especially in the West, are located on private, state, and/or federal lands. Frequently, streams traverse lands managed by different federal agencies. If intact riparian areas are to be restored and maintained, management and protection of riparian values and functioning cannot be left to the vagaries of

Suggested Citation:"4 EXISTING LEGAL STRATEGIES FOR RIPARIAN." National Research Council. 2002. Riparian Areas: Functions and Strategies for Management. Washington, DC: The National Academies Press. doi: 10.17226/10327.
×

political systems, but will require coordination of management policies and prescriptions.

States should administer the public trusts in water and state-owned submerged lands to protect the public interests in properly functioning and ecologically healthy riparian areas. States are obligated to protect public interests in recreation, fisheries, water yield, and other values and services of state waters, a responsibility that cannot be carried out without regard to riparian functioning. Each state has the authority to decide how it will administer these trusts, subject to judicial review according to standards established by the respective state and by the U.S. Supreme Court.

Instream flow laws can help protect riparian areas if river and stream flows are managed to mimic the natural hydrograph. Water allocation has historically favored human claims to water over using it for environmental needs. Recently, the needs of natural systems have been addressed in some cases by preserving minimum stream flows. Because riparian functioning is dependent on the full range of variation in the hydrologic regime, the reintroduction or maintenance of such flow regimes (in addition to minimum stream flow) is essential for restoring and sustaining healthy riparian systems.

Implementation of the CREP and TMDL programs has the potential to protect existing and restore degraded riparian areas nationwide. State involvement in CREP is increasing exponentially, with the potential for taking millions of miles of riparian land out of agricultural production. Many TMDL plans developed to date call for the restoration of riparian areas to reduce nonpoint source pollutant loadings and to restore streamside shading.

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The Clean Water Act (CWA) requires that wetlands be protected from degradation because of their important ecological functions including maintenance of high water quality and provision of fish and wildlife habitat. However, this protection generally does not encompass riparian areas—the lands bordering rivers and lakes—even though they often provide the same functions as wetlands. Growing recognition of the similarities in wetland and riparian area functioning and the differences in their legal protection led the NRC in 1999 to undertake a study of riparian areas, which has culminated in Riparian Areas: Functioning and Strategies for Management. The report is intended to heighten awareness of riparian areas commensurate with their ecological and societal values. The primary conclusion is that, because riparian areas perform a disproportionate number of biological and physical functions on a unit area basis, restoration of riparian functions along America’s waterbodies should be a national goal.

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