Good afternoon, and thanks for inviting me. It's a pleasure to be here today.

New York State is blessed with remarkably rich and varied wetland resources. We have over 25,000 acres of tidal wetlands and roughly two and a half million acres of freshwater wetlands. These range from the beautiful bogs of the Adirondacks to the critically important tidal marshes of Long Island. New York is the only state in the nation to border on both the Atlantic Ocean and the Great Lakes; in between them lie acres of floodplain wetlands, beaver ponds, and expansive marshes and swamps.

In addition to providing biological richness and diversity, wetlands provide other important benefits to the environment and the citizens of New York, such as protecting water quality and protecting us from flooding after storms and spring melts.

Probably the best known benefit of wetlands is as fish and wildlife habitat. Indeed, it was the drastic decline in our nation's waterfowl populations that originally signaled the crisis of wetlands losses decades ago. Wetlands provide important breeding, feeding and resting areas for countless species of fish, wildlife, and plants, including more than half of the state's protected plants. And more than two-thirds of the fish and shellfish harvested in New York depend on tidal wetlands for some portion of their life cycles, one indication of the tremendous economic importance of wetlands to the state.

Wetlands are also important to the quality of life that New Yorkers enjoy, providing valuable open spaces and recreational areas. More than 12 million New Yorkers annually participate in outdoor activities such as hiking, birdwatching, fishing and hunting, and many of these visits are centered around activities that are tied, in one form or another, to the health of our wetlands. These activities provide personal, social and conservation benefits, as well as economic benefits. The economic return in the state from these activities is more than $4 billion each year. Natural resources and fish and wildlife oriented tourism offers great potential for economic growth and wetlands are an important component of supporting this economic base.

Unfortunately, we have not always recognized the unique values of this resource. Since colonization, and especially after World War II, roughly half of New York's wetlands were lost to agriculture, development, landfilling and natural changes. Other wetlands have been degraded by pollution and the invasion of exotic plant species. Until relatively recently, wetlands faced many threats, and enjoyed few protections.

Fortunately, in a remarkably short time, we have succeeded in reversing that trend, so that today, New York State's wetlands are well-protected, and in many parts of the state we are now gaining new wetlands. For instance, DEC staff on Long Island recently conducted a comprehensive study of Suffolk County's south shore tidal wetlands and concluded that, since the passage of Article 25 in 1973, New York State has virtually eliminated losses of tidal wetlands from human causes. Although some natural losses continue, due to storms and erosion, we have also gained a total of 500 new acres of tidal wetlands due to changing sea levels. That is a remarkable success story, and one which most New Yorkers probably aren't aware of.

Losses of freshwater wetlands also have declined dramatically since the passage of the Freshwater Wetlands Act in 1975, and, once again, we are now actually gaining wetlands acreages in a few part of the state as agriculturally drained lands are abandoned and they revert to their original wetlands condition. Very healthy beaver populations in most of the state are also doing their natural best to add to New York's wetlands, a trend that is expected to continue.

DEC staff are close to completing a study that will quantify the changes in wetlands and identify their causes, and we expect to release a report on their findings later this summer. This quantification of trends will help us better focus our efforts where we can be most effective.

Much of the credit for the reduction in wetlands losses can be given to the increased public awareness of the importance of this resource, and I applaud the efforts of the Wetlands Forum for holding meetings such as this, which are an important opportunity to share information, generate new ideas, and maintain important professional contacts. Credit also is due to the State's Tidal and Freshwater Wetlands Acts. I'm sure I don't need to explain these programs to you, but I would like to recognize those aspects of the regulatory programs that contribute to their success.

Foremost is our effort to work with landowners and provide assistance with avoiding wetlands impacts. We have approximately 800 tidal wetlands maps and 1,500 freshwater wetlands regulatory maps that help the public identify protected wetlands, so that people buying land know that a protected wetland is present before they buy. Copies of these maps are available to the public through their local government clerks' offices so they are easily accessible. These maps are also available digitally so that local governments and interested organizations can use the information in their GIS systems to plan for wetland conservation. Some of these maps do need updating, and we are working hard to accomplish that. As part of Governor Pataki's commitment to implementing the Hudson River Estuary Management Plan, DEC is re-mapping the entire Hudson River below the Troy dam, and we are working to update other areas as well.

In addition, our Freshwater Wetlands regulatory maps only show those wetlands over 12.4 acres in size, the statutory limit of our jurisdiction. However, National Wetlands Inventory maps, produced by the US Fish and Wildlife Service, can be useful tools in protecting wetlands and in supplementing our DEC maps. About two-thirds of the state is now mapped under the NWI program, and we are working to identify the resources we need to complete the mapping and digitizing of NWI maps for the remainder of the state.

In addition to mapping wetlands, DEC staff do a great job of visiting properties and identifying freshwater wetland boundaries for landowners. Staff conduct about 1,800 of these site visits each year, which provide a great opportunity for DEC biologists to work with landowners in the field to minimize wetland impacts early in the design of their projects. In addition to these state programs, I'd like to say just a few words about the issue of federal wetlands protection in New York. Since the late 1980s, the Army Corps of Engineers has been implementing the Section 404 provisions of the Clean Water Act outside the traditional navigational waters of the U.S. This was a welcomed addition in many regards because the federal program has no size limit to its jurisdiction like Article 24 has, and provides regulatory protection for the estimated 40 percent of the state's wetlands not protected by state law. However, there were some early growing pains in this program as the regulated public and the involved agencies adjusted to the new relationship between the federal and state programs.

Legitimate concerns have been expressed about the redundancy of state, federal and in some cases, local wetlands regulatory programs. So despite the strengths of our respective programs, we also recognize that improvements can be made. Governor Pataki has made sensible, effective regulatory reform a high priority for this administration, and we have made significant improvements in the administration of wetlands programs by developing general permits for routing or emergency work, and coordinating better with other agencies.

Lenore Kuwik spoke this morning about some of those administrative efforts, which have been generally quite successful. However, work remains to be done. One of our highest priorities now is improving our regulatory relationship with federal agencies. Although we now work more closely than ever before with the Corps of Engineers and the Environmental Protection Agency, we still need to reduce some of the redundancies that exist between our programs. We have been working to establish a Programmatic General Permit, which would allow the NYSDEC to take the lead on certain minor projects where the Corps and DEC have overlapping jurisdiction. Under these circumstances, DEC permits would suffice for an application, eliminating the need for redundant federal permit reviews. Unfortunately, there are some obstacles to this effort, such as the differences in jurisdiction between state and federal programs and the limited experience we have with each others programs. We are overcoming the experience issue, and are now working on general permits for the Adirondack Park and for Article 15, the stream protection program, in western New York. Overcoming jurisdictional differences is a somewhat more complicated topic, and I will have some thoughts on that in a moment.

We are also receptive to new, innovative approaches for improving the existing state wetlands program. For example, wetlands mitigation banking has been promoted as another tool for meeting the mitigation needs of projects that have minimized impacts to wetlands, but for which some residual impacts will occur. Instead of small, isolated, and often-neglected mitigation wetlands that are built to offset individual projects, wetlands mitigation banks can be sited so they are more ecologically valuable and viable. These larger banks are easier to maintain and monitor in the long term. Two proposals for mitigation banks in the western part of the state have already been advanced, and a handful of others are at various stages of conceptual development. We are currently exploring the viability of mitigation banks in the context of the state regulatory program, and if you have questions about banking, I encourage you to speak with Patricia Riexinger, our wetlands program manager, who is also here today and tomorrow.

I have been talking about our regulatory programs to this point, in part because of their importance to wetland protection and because of their impacts on landowners local governments, and many of you. However, we cannot ensure the long-term viability of our wetlands resources through regulation alone. We need to seek ways to go beyond the protection of what we already have and seek ways to reclaim our lost wetlands. Restoration of wetlands is one of the most rapidly emerging tools we have as resource managers, and we are making great progress. With our encouragement and some assistance and cooperation, the Department of Agriculture's Natural Resources Conservation Service and the Department of Interior's Fish and Wildlife Service have already restored more than 3,000 acres of drained agricultural wetlands in the state under the Wetlands Reserve Program and the Partners for Wildlife Program. And we are making great progress with wetland restoration through the watershed management plans we've adopted in the last couple of years for the Great Lakes, Lake Champlain, the Hudson River, and Long Island Sound.

For years, these management plans were carefully developed by scientists, but sat on the shelves at agencies like DEC collecting dust because we lacked the resources to implement them. Now, at long last, the 1996 Clean Water/Clean Air Bond Act is committing more than a billion dollars to water quality protection, including funds to implement management plans for most of the state's most important watersheds. In the last 16 months more than $250 million has been committed to water quality protection projects through the Bond Act. In this fiscal year alone we funded 19 wetlands restoration projects, in places like East Hampton, Babylon, Oyster Bay, and North Hempstead. And DEC is working with the State Department of Agriculture and Markets to identify new opportunities for the restoration of riparian buffer areas in Priority Water Segments.

However, we cannot, by ourselves, fully protect the state's wetland resources. We are working in partnership with federal, state, and local agencies, the not-for-profit sector, business, and landowners to improve wetland conservation through a variety of regulatory and especially non-regulatory programs. You will hear about many of these efforts throughout the course of this meeting. This morning you heard from Jennifer Brady-Connor about efforts to engage local governments in Saratoga County in wetlands conservation by using some of their existing authorities. This afternoon, John Whitney of the NRCS in Erie County will discuss efforts in the Tonawanda Creek watershed to provide basic information to local governments and conservation organizations about the wetlands and other natural resources in their communities.

In all these initiatives you will see one common thread, one to which this Forum meeting has been dedicated, the importance of science to wetlands conservation. Science, and its technological applications, are the foundation for effective conservation efforts. Evaluating, documenting, and quantifying what we do is how we learn what works and how to improve. GIS technology has provided us with an amazingly useful new tool, and we are developing a GIS-based computerized Wetlands Tracking System to assist us in tracking changes to the wetlands resource. This system will initially focus on regulatory impacts, such as permit decisions, boundary delineations, mitigation, and compliance efforts, which will enable us to account for impacts to wetlands, identify hot-spots of activity, assess cumulative impacts, and consequently modify our program focus or implement new efforts to accommodate stresses on the resource. This will allow us to determine how many acres of wetlands have been added to the resource base without shuffling through reams of paper in the offices of biologists in various agencies and organizations. I am optimistic about this new tool and invite you to share any ideas you have about it with Judy Stevens, our cartographer in the Bureau of Habitat. Judy is here with us today, so I encourage you to speak with her if you get the chance.

I am also pleased to report that we are working to improve the science base of wetlands conservation by collaborating with the Association of Wetland Managers, the Institute for Ecosystem Studies, Cornell University, SUNY Cortland, the College of Environmental Science and Forestry, and a number of other partners to establish a system of reference wetlands for New York. For those of you new to the terminology, reference wetlands are sites where baseline data can be gathered on typical or exemplary wetlands in an area, and then used as "reference" for regulatory permit reviews, for mitigation, restoration, remediation, acquisition, education, monitoring, and many other purposes. DEC has applied for an EPA grant to help develop and implement such a system of wetlands, and we will be co-sponsoring a workshop in late May (19 and 20) in Millbrook to discuss many of these issues.

Dr. Jon Kusler, Executive Director of the Association of Wetland Managers and I invite you to participate in this workshop, and for those of you who are interested, there is information available here at he meeting. Dr. Kusler is also here today and he said he would be pleased to discuss the meeting with you.

Before I conclude, I'd like to take a moment to invite your feedback on one more important initiative. Two years ago, DEC received an EPA grant to develop water quality standards for wetlands. For the past year and a half, Tom Snow, in the DEC Bureau of Habitat, has been researching the efforts of other states in this area and evaluating our existing regulatory programs as the first step towards pursuing water quality standards for wetlands. We have formulated a concept that we will be bringing out to discuss with many of you later this summer. By late summer we expect to begin a series of informal meetings with interest groups and other stakeholders to test our ideas, get your feedback, and try to understand what this will mean for wetlands and stakeholders. This will be essential to providing information we'll need to refine our proposal. Tom will be speaking in more detail tomorrow in the regulatory update session, but I believe this initiative is important and wanted to address it with all of you at this time. I hope you'll help us in this new, important effort.

I have mentioned many of the different things we do as an agency to conserve wetlands, and I am proud of our accomplishments. But our regulatory programs are almost a quarter of a century old. There are incomplete links between the various regulatory and non-regulatory initiatives. Developing water quality standards for wetlands may help provide the links we need between our programs and provide the foundation for improvements to the regulatory programs. For example, water quality standards may help us address the problems of different State and federal permits, since we will have identified common standards as a mechanism for coordinating jurisdiction. Water quality standards are an opportunity to reduce regulatory overlap, but we'll need your help to develop these effectively. Please let Tom or Pat Riexinger know if you are interested in participating in this effort and they'll get in touch with you.

Lastly, I'd like to say it's a privilege to work with the professional staff at DEC, and other companion agencies, and with people like yourselves, who are committed to the conservation of the state's natural resources. Thanks for having me here today.

SUMMARY OF THE REGULATORY AND LEGISLATIVE UPDATE SESSION

Thomas Snow and Patricia Riexinger, New York State Department of Environmental Conservation
Revisions to the NYSDEC Water Quality Program

In the 1990s the NYSDEC attempted the first major regulatory changes in the mapping and classification of state wetlands. However, the public was becoming very aware of the proposed changes in the Section 404 program and the state legislature directed that there were to be no new changes in Article 24 until the Clean Water Act (CWA) was reauthorized in order to avoid the creation of additional redundancy. Since then there have been no changes in Article 24 or Section 404, and no one knows when the Clean Water Act will be reauthorized. The NYSDEC has undertaken a fundamental look at the State regulatory program to rethink how it operates. There is an opportunity to look at a new foundation, examining the Section 401 Water Quality Certificate methods.

The NYSDEC met with groups over the summer including agencies and non-governmental organizations, to talk and discuss the direction of the Section 401 Water Quality Certification program. There were many points of agreement. Water quality is important to the quality of life, for drinking water as well as for recreational uses. It is also important for shellfish and wildlife which needs certain standards to survive. Wetlands are different than surface waters in the biological, chemical and physical parameters. Wetlands are also different than surface waters in the functions that they provide. Therefore, it does not seem to make sense that they are treated like lakes, streams and rivers from a water quality perspective.

There is a need for new standards because the current water quality standards are not adequate. They fail to protect all wetlands best uses, or the physical or biological integrity of wetlands. The Section 401 and State Pollution Discharge Elimination System (SPDES) Program does not have issuing standards for wetlands and applies surface and groundwater standards to the wetland resource. The standards are not applied consistently from program to program or from region to region.

The standards to be developed will be narrative, and will not be based on chemical threshold standards. There is too much variation from wetland to wetland, and there needs to be leeway built in to the program to account for variations in different wetland systems. Instead, the standards will be based on the "best uses" of the wetland from a function and values perspective, and will based on established goals. Examples of Best Uses of Wetlands include flood and storm water control, erosion control, nutrient cycling and food chain support, fish, wildlife and hydrophytic plant propagation and survival, surface and groundwater exchange, recreation, open space and aesthetics, education and scientific research. This is compared to the "best uses" of surface waters which serve as a source of drinking water, primary and secondary contact recreation, and fishing. Standards are used in a variety of NYSDEC regulations, including ECL Article 15, Adjacent to navigable waters; ECL Article 17, SPDES Discharges; ECL Article 24, Freshwater Wetlands; ECL Article 25, Tidal Wetlands; EL Article 27, Adirondack Park Agency, and Section 401 Water Quality Certification Process. However, there is no consistent standard across these programs, and no standard relating to wetlands. The Section 401 Water Quality Certification will provide such consistency.

Examples of proposed narrative Wetland Water Quality Standards include:

Flood and Stormwater Control: No change to a wetland's capacity to retain, detain, convey, attenuate, and desynchronize water flows that would impair its best use.

Erosion Control: No change to a wetland's capacity to dissipate wave energy, reduce water flow velocity, and stabilize stream beds, banks and shorelines that would impair its best use.

Fish, wildlife and plant propagation and survival: No change in the wetland's community composition and structure, and the survival and propagation of hydrophytic vegetation, fish and resident transient wildlife organisms that would impair its best use.

There are numerous benefits expected. These include compliance with the Clean Water Act, protection of all wetlands best uses, ensuring resource integrity, and providing staff with appropriate standards.

Discussion Q: Will this apply to both the state and federal regulatory program? A: It will apply to the federal program as is currently incorporated into the Corps review. We do not know yet how it will be incorporated into the State regulatory program. It is possible that the existing state wetland compatibility tests and weighing standards will either be eliminated or merged into the water quality standards. Q: Has NYSDEC looked at other state Section 401 Water Quality Certificate (WQC) programs? A: Yes, quite a few other states have completed the Section 401 WQC standards including MN, WI, NC. Many incorporated the Section 404(b)(1) guidelines into the state regulations. Q: Why didn't the NYSDEC follow suit and incorporate the Section 404(b)(1) Guidelines into the regulations? A: Article 17 predates the Clean Water Act, and was established initially consistent with other standards to protect best uses. This Section 401 WQC program follows suit by developing standards for particular best uses. Another benefit is that it creates a connection between the wetlands programs and the water quality programs as well as the NYSDEC personnel administering those two programs. The two programs are now looking at being more integrated, and wetlands are being looked at both in a "water" context as well as a "habitat" context. Q: What sort of guidance will be provided to regions for implementation? A: Hand in hand with the standards will be TOGs document that staff can use to determine if a best use will be impaired. The guidance will recognize the temporal changes inherent in wetlands, and will be designed to maintain existing background conditions defined on a site by site basis. This means that there will be no impairment of the wetlands "best use" Definition of impaired is currently being reviewed by the legal office of NYSDEC. The state would like to exempt wetlands constructed for wastewater treatment out of the regulatory program.

James Woods, Esq., United States Attorney
Recent Case Law under Section 404 of the Clean Water Act

American Mining. January 1997. This ruling invalidated Tulloch excavation rule. Prior to 1993, individuals could drain and excavate in wetlands without incurring Corps jurisdiction using state of the art techniques to excavate marshes with de minimus or only incidental discharges into the wetlands. The incidental fall-back was not considered a discharge. In NCWF vs Tulloch, the Corps was sued and in a settlement the Corps issued the Tulloch regulations in 1993. This redefined "discharge of dredged material" to include the incidental fall-back of material during dredging. As a result, various individuals counter-sued in the DC District Court, challenging the promulgation methods of this new ruling, and asserting that the regulations exceeded the Corps authority because incidental fallback is not a discharge under the Clean Water Act. In a decision issued this past year, the DC District Court agreed that incidental fallback is outside of the Corps' authority, and that incidental dropping of marsh mud during excavation is not a discharge. The United States appealed the decision, and a stay was issued on the ruling. The decision on the appeal is anticipated any day now. If the District Court's decision is affirmed by the Appeals Court, then the status of discharges reverts to pre-1993 conditions, and individuals will be allowed to excavate in marshes and wetlands using specialized techniques. It is not anticipated that there will be any agreement in Congress to issue new legislation to prevent excavation without sidecasting in wetlands.

US vs Wilson: This is a decision in the Maryland 4th circuit. The Wilson Development Corporation was developing a planned community of 80,000 homes and 4 wetlands. Despite the guidance of their council, environmental consultants and others, during the construction, they dredged the wetlands and side cast material, etc. Wilson was convicted under criminal prosecution, and sentenced to 21 months in prison. The 4th Circuit Court of Appeals reversed the convictions on three grounds:

1. Jury instructions regarding the jurisdiction of adjacent isolated wetlands were invalid because these types of wetlands are beyond the scope of the CWA statute.

2. Isolated wetlands have no nexus with interstate or intrastate commerce.

3. Jury instructions that the sidecasting of material was illegal were invalid. Using American Mining logic, the judges found that Corps regulations outlawing sidecasting are invalid since sidecasting is not a discharge.

The Corps believes that this decision has very little precedential affect and is not binding. Two judges did not concur with the findings above, and one judge upheld the Corps concept of adjacent wetlands and sidecasting of material as well as the Supreme Court precedent set under Bayview Homes. The Department of Justice also has indicated that the decision is not binding, and that the United States will not appeal. Mr. Wilson will be retried on the same charges.

US vs Mango. This is the Iroquois pipeline case which was a natural gas pipeline from Canada to Long Island, approximately 370 miles long crossing hundreds of streams and wetlands. It was an engineering feat, being constructed in under 6 months. The permit which was negotiated for 6 years was violated, including the general permit conditions attached to the Section 404 permit. This included issues of erosion, the use of clay plugs on hillside trenches, etc. In 1996, Iroquois agreed to $22 million settlement, and 4 to 5 corporate defendants pleaded guilty. There were three defendants left with a 31 count indictment. They sued to throw the indictment out. In this suit, the court ruled that the Section 404 General Permit Conditions were invalid because only the Chief of the Engineers can issue Section 404 permits. (Since there is nothing in the regulations or statute that says that there can not be delegation, one would argue that delegation can occur, and as a matter of fact, over 80,000 permits have been issued by District Engineers.) However, the court ruled that without specific delegation of authority to the District Engineer, the permit is invalid. Even if the permit were valid, the court ruled that any of the permit conditions which were not specific to the authority of the Corps to regulate dredging and filling operations fall outside of the scope of the Corps. For example, the court ruled that it is outside the Corps authority to address the ecosystem as a whole or to regulate erosion control devices in uplands. Mr. Seebode of the NY Corps District has indicated that the Nationwide Permit (NWP) program will continue to be implemented as is currently done and that by appealing the decision, there is no impact on the NWP permit program. The settlement with Iroquois is not changed, and items specific to the criminal action are still pending.

Discussion Q: Was the National Environmental Policy Act (NEPA) used as an argument in Iroquois that the Corps has the authority under the public interest review to look at other issues? A: Corps tried in briefs to raise this issue but the judges rejected the public interest argument. Q: Please explain how the Wilson decision has anything to do with interstate commerce? A: Jury instructions dealt with isolated wetlands. Wetlands which are isolated can only come under the area of Corps regulatory and statutory authority if there is a connection with interstate commerce. This court ruled that there was no such connection. Q: Will the Iroquois decision have any impact on the mitigation provision of the case? Is the mitigation done? A: The mitigation is complete which is a major positive outcome of the Iroquois case. Over 30 wetlands have been remediated. They have been inspected by the state and federal regulatory team, and the wetlands are coming back. There was also substantial money ($2 million) provided to the US Fish and Wildlife Foundation, which encourages matching grants to restore and enhance, and create wetlands in the counties where the pipeline passed. Q: What about the new pipeline being proposed? A: There is a 400 mile pipeline proposed from the southern tier to Mt. Vernon and the Bronx. The knowledge gained from Iroquois will help in the review of this project. First of all, what happened to Iroquois has gotten the attention of lawyers and others involved in this proposed project, and they have already come forward to meet with the Corps and other regulatory agencies to discuss expectations. The Federal Energy Regulatory Commission has indicated that this project will probably require a federal environmental impact statement. Q: What impact will the Iroquois ruling have on other general permits? A: The Corps intends on continuing to enforce the existing program. This decision involved one district only, and so the Corps believes it is business as usual. The Corps has significant disagreements with the decision. The inclusion of general permit conditions, especially dealing with erosion control devices, construction on steep slopes, and drainages, trench plugs, is very important to the protection of water resources . The Corps believes it was wrong for the court to throw out the ability to require the use of these devices through general conditions since they relate directly to protecting the integrity of the nations wetlands and waters.

Daniel Montella, US EPA
The Clean Water Action Plan: Restoring And Protecting America's Waters

Currently the water quality goals of the Clean Water Act are not met in 40% of streams, and surveys indicate that the public supports environmental protection since it affects the quality of health. There are three major goals of the Clean Water Action Plan (CWAP): 1) Enhanced protection from public health threats posed by water pollution; 2) More effective control of polluted runoff; and 3) Promotion of water quality protection on a watershed basis.

The vision of the CWAP, and the subsequent key actions developed to implement it are based upon three principals: 1) Federal agencies are to develop cooperative approaches that promote coordination and reduce duplication among federal, state and local agencies. 2) Agencies are to maximize the participation of community groups and the public, placing particular emphasis on ensuring public access to information about water quality issues. and 3) Agencies are to emphasize innovative approaches to pollution control, including incentives, market-based mechanisms, and cooperative partnership with landowners and other private parties.

In the public's review of this proposal, the themes of comments received revolved around the idea that watersheds provide an appropriate focus for future efforts to restore and protect water quality, that the CWAP should rely on existing frameworks, programs, and mechanisms. Increased funding was recommended by many, and the federal government should continue its emphasis on achieving polluted runoff prevention goals.

Ten principals for restoring and protecting America's Waters have been developed. They involve:

1) Strong Clean Water Standards 2) Clean Water : Healthy People 3) Watershed Management: The Key to the Future 4) Restore Watersheds Not Meeting Clean Water Goals 5) Build Bridges Between Water Quality and Natural Resource Programs 6) Respond to Growth Pressures on Sensitive Coastal Waters 7) Prevent Polluted Runoff 8) Stewardship of Federal Lands and Resources 9) Improve Water Information and Citizens' Right to Know and 10) Ensure Compliance and Protect All citizens Fairly.

With regard to wetlands, the CWAP will move to reverse the historic pattern of wetland losses in the US and achieve a net increase of 100,000 acres of wetlands each year, beginning in 2005. To offset the current net loss of wetlands of 100,000 acres/year, achieving the above goal will require an increase in gross wetland gains of 200,000 acres annually. To meet these goals, it is estimated that the USDA will be encouraged to obtain a 125,000 to 150,000 acre gain through programs such as the Wetland Reserve and the Conservation Reserve programs. Other federal programs including the Corps Environmental Restoration Program and the Department of Interior's Partners for Wildlife and North American Wetlands Conservation Act will be encouraged to develop 40 to 60,000 acres. Non-federal programs are encouraged to develop 35,000 acres per year.

Under the CWAP, key actions to increase wetlands include tightening the Section 404 program with better mitigaiton accountability and improving the reliability of restoration. The USDA will expand the Wetlands Reserve Program to 250,000 acres/year. The Corps will increase its restoration and enhancement programs. The Corps/EPA/NOAA/FWS/USDA (the "federal resource agencies") will conduct a major review of the effectiveness of mitigation banking. The EPA will cooperate on wetlands projects in 500 watersheds with Wetlands and River Corridor Restoration Partners. NOAA will encourage restoration in coastal areas. Section 404 Enforcement will emphasize restoration and mitigation as remedies, and monitoring will be improved. The Federal Highways Administration will increase net acreage gains due to construction projects, will mitigate for prior project impacts.

The CWAP has set the following goals and deadline dates. By May 1998, the White House Wetlands Working Group will finalize a plan to use existing inventory and data collection systems to support a single status and trends report by the year 2000. By October of 1999, the federal resource agencies will issue technical guidance on the restoration, creation and enhancement of wetland functions. Interagency tracking system will be in place by October 1999. Geographic-based planning will be enhanced through the improvement of access to information on programs for wetlands and other habitats by the federal resource agencies. The Watershed Assistance Grants will be established. The federal resource agencies will provide technical and/or financial assistance to states and tribes to integrate habitat considerations into geographic-based planning programs.

To obtain a hard copy of the Clean Water Action Plan, call 1-800-490-9198 or to view or download, see www.epa.gov/cleanwater.

Discussion: Q: How do you feel about the CWAP? A: It is important to look at the function and quality of the acreage as well as the area of land protected. Looking at wetland acreage without function is a little like counting the number of stocks in a portfolio without adding up their value. The proposed plan could be improved by examining the value of the acreage retained with an emphasis on function. The assessment process is in flux right now, and there is significant difference of opinion on how to assess wetland values. It is easier to quantify gains and losses than it is to assess the quality of wetlands especially those which have been enhanced or created.

Joseph Seebode, Chief, Regulatory Branch, New York District Army Corps of Engineers
Regulations and Nationwide Permits

Discussed seven topics related to policy and legislative actions for 1998: Nationwide permits (NWPs) State Programmatic General Permits (SPGPs), Regional General Permits (RGPs), Administrative Appeals, Wetland Delineator Certification Program (WDCP), Wetland Mitigation Banking, and Watershed Management.

Nationwide Permits: Friday, December 13, 1996, there were 39 new nationwide permits issued, with significant changes and reductions in NWP 26, 12, 14, as well as authorizing fills for single family homes, changing Preconstruction Notice (PCN) requirements, and other special condition changes. On December 12, 1998, Nationwide Permit 26 will expire. New nationwide permits are anticipated to be published this month or next in the Federal Register. If you wish to be on the mailing list for the Corps public notice, contact Mr. Seebode. There will be a public hearing on the nationwide permit program in Albany in May or June. In May of 1997, the Corps undertook a information gathering process to look at the impact of nationwide permit use. It was determined that 85% of nationwide use could be identified in 9 categories. 26% was for residential, 20% was for transportation projects, 8% was for retail and industrial uses, 8% was for stormwater, and 5% was for agricultural activities. This data provided the basis for the new NWP regulatory program. NWP 26 was placed into a series of 16 categories, such as residential, commercial development, master plan development, linear projects, stormwater management, mining, agriculture, stream restoration. Each category has its own specific details and size allowances and notification requirements. The Public Notice will be out in the federal register within the next 3 to 4 weeks. The goal is to have the new NWP program in place before the sunset date of December 13, 1998.

SPGP and Regional General Permits: There are 5 ongoing initiatives. Marina districts, utilizing Article 15 review for docks, piers, and bulkheads to minimize impacts to navigational issues and the environment. It is anticipated this SPGP will be issued later this year or early next year. The APA SPGP is still under discussion, with a notice anticipated in late summer or fall for public comment. The Sacandaga Lake SPGP is looking to authorize small activities in the lake for dredging, beach and shoreline restoration. A NYC/NYS SPGP is being proposed for fish enhancement and stream bank protection where timely authorizations are beneficial and there are limited impacts. A regional PGP is out on public notice for allowing activities to protect properties or streams which were impacted from the damage from the ice storm and flooding. The Regional General Permit will be issued this month or next month.

Administrative Appeals Process: This would provide the opportunity for the development community to appeal wetland delineations not property responsive or adverse permit decision. There is funding for this program in the 1998 budget but the Corps can not execute the program now since they are waiting for OMB approval. The Corps will publish a final rule in the federal register in the fall, with implementation in the winter. This process would establish an independent person in the division or district office to review appeals brought forward to the District.

WDCP: There is no funding in the FY 1998 budget for the program. It is scheduled to be included in the 1999 budget, and the program may be implemented as early as October 1, 1998. This also needs final rule making in the federal register.

Wetland Mitigation Banking: This is an up and coming feature in the wetland regulatory program. It allows for the development of large scale wetland enhancement and restoration projects to credit small development projects with difficult mitigation issues. Many entrepreneurs have approached the Corps and the state, and as a result the Corps has reopened discussions with the NYSDEC and others at the state level to pursue this issue. There are many concerns with mitigation banking that need to be resolved, these include: goals, site selection criteria, operation, credit policies, establishment and use process, preferred development options, (tidal/freshwater forested or open marsh), along with long term management and strategies and construction management practices.

Watershed Management: Regarding the Clean Water Action Plan, regulations, money, and policy perspectives can all be used to increase wetland resources. The Corps is looking at methods to reduce impacts, increase protections, and thereby increase the amount of wetlands. For example, Special Area Management Plans (SAMPs) can be used in areas under significant development pressures to establish comprehensive land use plans, and identify appropriate protection plans. In New York District, this process was used to help develop the Hackensack Meadowlands SAMP. Other states such as Maryland, Florida, Texas, Oregon, Michigan and Minnesota have state plans coming together to use land use tools to protect wetlands through preservation, protection, mitigation banking, transfer of development rights, and also streamline review process for minor projects through RGPs in other areas. The New York Corps District intends to use this process more often, such as the RGP for Sacandaga Lake.

Discussion: Q: Are there really any benefits to the WDCP? A: While there will be short term costs over 2 to 3 years to get the system in place, over the long term, you will have individual consultants who are certified in wetland delineations and are also liable for inaccurate delineations. They will have a lot to lose. It puts the Corps in the position of being able, in the majority of cases (NWPs), of relying on the submission of the consultant that the delineation was done correctly. Down the road this will be a great benefit by reducing the need for on-site inspections. Q: Will Corps staff need to be certified? A: No, the Corps staff have their own standards they must meet for training in wetland delineation techniques through the national training program, and they must pass the Regulatory 4 class. Q: Will Nationwide Permit 26 only apply to isolated/headwater wetlands or will its jurisdiction be increased? A: It is believed that NWP 26 will continue to apply only to isolated and headwater wetlands. Q: Will the RGP for NYC Watershed eliminate public participation in the process? A: There will be full public notice and hearings, meetings, discussions, with the state and NYC to develop a series of activities to be placed under the RGP jurisdiction. This could include streambank restoration from floods, natural events, as well as fish enhancement activities. The RGP is for five years, and will expire or be reissued if it is in the public interest. Q: Is the final rule on the Administrative Appeals going to be different? A: It is anticipated that the final rule will not be substantially different, and should be quite similar to the prior rule, although the review process through OMB may cause changes. Q: Will the NWP 26 categories be based on land uses? A: Yes, the subtopics (16 categories) proposed does break out into specific uses with different thresholds, generally in the one acre to 1/3 of an acre area. In addition, it is possible there will be changes to NWP 7 and 12 as well. It should be noted that NWP are permits not regulations. Q: Can the New York City Watershed RGP be revised to include restoration, and National Estuary Management Plans? A: This can be discussed during the comment period. The Corps would not be opposed to such inclusions if the other participants in the development of the RGPs were amenable to the changes. The actions authorized should be those activities which would be easily approved and get a permit.