Ch. 9— Capabilities of the States in Managing the Use of Wetlands • 191 



lands unless the project is water-dependent, there 

 is no practical alternative on a nonwetland site, or 

 the project involves only minimum alteration of 

 natural tidal circulation, naturcil contour, or wet- 

 land vegetation. This law applies to all activities, 

 not just the disposal of dredged and fill material 

 as does section 404. CAFRA also prohibits develop- 

 ment that adversely affects white cedar stands; the 

 404 program doesn't have such specific prohibi- 

 tions. However, projects less than a certain size in 

 nontidal marsh wetlands are not regulated under 

 CAFRA, although the Corps might regulate some 

 of these activities (7). 



Some State programs have provisions to regulate 

 activities that occur outside of the wedands but still 

 have some impact on them. The New Jersey Pine- 

 lands Preservation Commission program prohibits 

 residential, commercial, and industrial develop- 

 ment on wetlands, or within 300 ft of wetlands, 

 unless extraordinary hardship and a demonstrated 

 public need can be shown (7). 



State definitions of wetlands and procedures for 

 identifying wetland boundaries may be more re- 

 strictive, leaving many wetlands to be regulated 

 only by the Corps. For example, the wetland veg- 

 etation list used in Florida is less comprehensive 

 than that of the Corps. Also, the Florida procedure 

 for identifying contiguous wetlands is more restric- 

 tive than the Corps'. Any break in the continuity 

 of contiguous, dominant species, even an illegal fill, 

 limits the extent of State jurisdiction (1). 



Wetland values protected under some State laws 

 are less comprehensive than those of the Corps. For 

 example, Florida restricts its consideration to water- 

 quality impacts under its dredge and fill law (ch. 

 403), while the Corps considers the broader public 

 interest, including fish and wildlife values (1). 

 Massachusetts wetland permit programs do not 

 consider wildlife values (12). 



A few States have more stringent standards for 

 mitigation than does the Corps, requiring devel- 

 opers to provide some sort of compensation or mit- 

 igation for all wetlands lost due to development in 

 certain areas — e.g., California and Oregon both 

 have a no-net-wedand-loss standard. California also 

 is committed to increasing wetland acreage by 50 

 percent by the year 2000 (4). 



Broad language in many State laws can be used 

 to provide either strong or weak protection for 

 wedands. For example, the Nebraska Environmen- 

 tal Protection Act has a pollution prohibition. 

 Water pollution, as defined in the act, could include 

 any human activity affecting wetlands, including 

 wetland drainage due to lowering the water table. 

 The definition of wastes could include fill material 

 disposed of in wetlands. However, these author- 

 ities have not yet been used by the State to protect 

 wetlands (6). 



In some States, courts have supported broader 

 State authority over development activities that may 

 have implications for wetland protection. For ex- 

 ample, the California Supreme Court in 1981 ex- 

 panded the boundary of the public trust to include 

 the area between the seasonal high and low water- 

 mark of adl nontidal waters (4). However, in other 

 States, protection for wetlands may be limited by 

 judicial interpretations of past State actions. For 

 example, Florida cannot deny permits to fill sub- 

 merged lands that were originally sold by the State 

 with the expectation that the area would be devel- 

 oped (11). Other States may lack authority to reg- 

 ulate tidelands that were granted to private land- 

 holders prior to statehood (4,10). In Nebraska, agri- 

 cultural water use is given constitutional preference 

 over all other nondomestic uses. Attempts to reserve 

 water for wetiands may result in constitutional chal- 

 lenges (6). 



Some State programs may encourage the pro- 

 tection of wedands but lack the authority to require 

 protection or mitigation of potential impacts. For 

 example, the California Department of Fish and 

 Game reviews proposals for projects that may alter 

 streambeds and impact fish and wildlife. The de- 

 partment proposes modifications and encourages 

 the applicant to incorporate them into the project. 

 The State does not have the authority to stop any 

 projects (4). The California 1977 Policy for Pres- 

 ervation of Wedands in Perpetuity also has no direct 

 mechanism for implementation. The policy limits 

 the actions of State agencies in approving projects 

 that will harm wedands and exempts some wedands 

 from the policy. However, acre-for-acre compen- 

 sation still is required (4). In another case, the South 

 Florida Water Management District is authorized 

 to protect water resources and to ensure that con- 



