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4. Existing Legal Strategies for Riparian Area Protection
Pages 225-298

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From page 225...
... 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.
From page 226...
... Public/nonprofit purchase of private riparian lands or interests in lands National Environmental Policy Act and State Environmental Policy Acts Northwest Forest Plan State and local stream buffer requirements Farm Bill programs Greenway programs, conservation easements
From page 227...
... 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.
From page 228...
... 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.
From page 229...
... 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 l990s (Houck, 2000; NRC, 2001)
From page 230...
... 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~.
From page 231...
... 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.
From page 233...
... 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)
From page 234...
... 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)
From page 235...
... . In general, riparian buffers on public lands are often more extensive than those on private lands.
From page 238...
... 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.
From page 239...
... 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.
From page 240...
... North Dakota BMP None Primary Not limited North Da] Nebraska BMP None Primary 50-200 Not limited Dept.
From page 241...
... of Forestry, Fish, & Wildlife None Alaska Forest Resources and Practices Act Arizona Nonpoint Source Pollution Program None Z'Berg-Nejedly Forest Practice Act of 1973 Forest Management Definitions; Statute 39-1-102 Water Quality Standards Watershed Protection Program None None Best Management Practices for Forestry Administrative Rules; Water Quality Standards Idaho Forest Practices Act Conservation and Water Resources Statutes Water Quality and Wetland Statutes Water Quality Standards None Kentucky Forest Conservation Act; Kentucky Agriculture Water Quality Act Water Quality Standards None 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 None Best Management Practices for Water Quality; Michigan Public Act of 1994; DEQ Regulations Minnesota Sustainable Forest Resources Act of 1998; Forest Management Guidelines None None Montana Forest Practices Statutes; Montana Streamside Management Zone Law Sedimentation Pollution Control Act; Forest Practices Guidelines and Best Management Practices Forest Resource Management Program None continues
From page 242...
... of ~ West Virginia BMP None Primary 50-100 ft Forestry I Wisconsin WQ Std None Primary 35-100 ft Not limited DNR, Die Wyoming BMP None Primary Not limited Office of Investor Divisio aDNR: State Department of Natural Resources; DEQ: State Department of Environmental Quality. NA: Information not available.
From page 243...
... of Natural Resources Forestry Division DNR, Division of Forestry Office of State Lands and Investments, Forestry Division Nevada Administrative Code for Forest Practices; Nevada Administrative Code for Forest Practices and Division Reforestation New Hampshire Rivers Management and Protection Program; Water Quality Standards Water Quality Standards None NA None Ohio Sustainable Forestry Initiative Extension Circulars Oregon Forest Practices Act of 1972 None None None State Endangered Species Act, Best Management Practices Guidelines Cooperative Forestry Assistance Act of 1978 Tennessee Forest Practices Guidelines Texas Water Code; State Water Plan Utah Code/Water Quality Act; State Water Plan Water Quality Issues None Forest Practices Act of 1976 NA Nonpoint Source Abatement Program, Water Quality Standards Wyoming Rules and Regulations Database ~1 Quality.
From page 244...
... 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.
From page 245...
... 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.
From page 246...
... 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.
From page 247...
... 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.
From page 248...
... 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.
From page 249...
... 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.
From page 250...
... 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~.
From page 251...
... 251 Cq ad Em ˘ ~ om~ ~ ~ R ~ ~ ca C R ~ ~ Z o R 8 u O FIR ~ R R .
From page 252...
... 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.
From page 253...
... 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.
From page 254...
... 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.
From page 255...
... 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.
From page 256...
... 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.
From page 257...
... 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.
From page 258...
... 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
From page 259...
... Riparian restoration is an implicit objective of the use of "range betterment" funds, which are collected from western national forest grazing permitters. Regulations governing the Hells Canyon National Recreation Area in Idaho, managed in part by the USES, require grazing permits to "provide for terms and conditions which protect and conserve riparian areas." Similarly, USES rules governing grazing fees in the eastern United States authorize fee credits for range improve
From page 260...
... 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.
From page 261...
... 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)
From page 262...
... 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)
From page 263...
... 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.
From page 264...
... 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)
From page 265...
... 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.
From page 266...
... 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.
From page 267...
... 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.
From page 268...
... 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.
From page 269...
... 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.
From page 270...
... §37-92-102 (1990) "Minim Restrict Board ( Must be preserve Idaho Protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values and water quality, Idaho Code §41-1501 (1990)
From page 271...
... 1993) 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.
From page 272...
... §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.
From page 273...
... of Environmental Quality, and State protecting instream Parks and Recreation Dept. flows Yes, but only if a diversion of water is involved There is no state program for protecting instream flows or Limited to transfer of existing rights only Yes, but only if a §73-3-3 Restricted to Dept.
From page 274...
... 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.
From page 275...
... 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.
From page 276...
... 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.
From page 277...
... 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.
From page 278...
... 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.
From page 279...
... 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.
From page 280...
... ; reduce soil erosion; improve surface and groundwater quality; improve air quality Delaware Reduce nutrient and sediment loading, improve temperature and dissolved 6,000 acre oxygen; increase wildlife habitat and create wildlife corridors Bay, D' basin al miles 0 Illinois Reduce input of sediment, nitrogen, phosphorus; enhance wildlife, fish, 132,000 a mussels, threatened and endangered species adjacen Illinois Iowa Reduce nitrogen loading to streams by 300-600 tons/year; reduce sediment 9000 acre delivery to Lake Panorama by 80,000 tons/year; reduce or maintain soil Iowa 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 100,000 a 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 70,000 ac of well; erodibl~ watersh Michigan Reduce sediment inflow by 784,000 metric tons over 20 years, nitrogen 80,000 ac by 1.6 million pounds, and phosphorus by 0.8 million pounds; protect and Sag water supplies; protect 5,000 linear miles of streams from sedimentation; improve wildlife habitat Minnesota Reduce sediment and nutrient loading into the Minnesota River 100,000 i] Minnes croplan 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.
From page 281...
... in CP9, CP21, CP22, 20 years or Minnesota River floodplain, tributaries, CP23, CP25 permanent cropland filter strips, and wetlands. ; reduce 50,000 acres along streams in the watersheds CP1, CP2, CP3A, Not specified hen of 83 water supply reservoirs CP4D, CP15A, llife habitat CP21, CP22, CP23 ; and 5,000 acres of riparian areas or highly CP1, CP2, CP3, CP4, None erodible croplands CP21, CP22, CP23
From page 282...
... to streams 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 100,000 a Vermont Reduce phosphorus loading into Lake Champlain by 48.3 tons/year; enhance wildlife and aquatic habitat Lake Cha Virginia Reduce nutrient input into the Chesapeake Bay and non-Bay watersheds; modify hydrology through wetland restoration; enhance wildlife habitat 30,500 ac of well. 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.
From page 283...
... to streams and 5,000 acres of wetlands ~rphic ehanna 100,000 acres CP1, CP2, CP3A, CP4D, CP8, CP9, CP12, CP15A, CP21, CP22, CP23 None r; enhance Lake Champlain watershed of Vermont CP8, CP21, CP22, CP23 Sheds; 30,500 acres of riparian lands and 4,500 acres CP21, CP22, CP23 10- and 15-yr habitat of wetlands contracts; up to 8,000 ac of permanent easements g by 100,000 acres in 51 counties CP1, CP2, CP8, Permanent ) 0 miles CP21, CP22, CP23, CP25 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
From page 284...
... 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.
From page 285...
... 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
From page 288...
... 288 o ~ Ct .~ so —4 Cal ~ ~ o ~ ~ ~ ~ · ._ ..
From page 289...
... 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 impairTAl3LL 4-7 Top 15 (categories of Impairment Requiring TMDLs (from 1998)
From page 290...
... 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,
From page 291...
... 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.
From page 292...
... 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)
From page 293...
... 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
From page 294...
... 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.
From page 295...
... Supreme Court. Instream flow laws can help protect riparian areas if river and stream flows are managed to mimic the natural hydrograph.
From page 296...
... 1995. National forest management under the Endangered Species Act.
From page 297...
... 2000. Turning instream flow water rights upside-down.
From page 298...
... 1996. Zion National Park water rights settlement agreement.


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