82 • Wetlands: Their Use and Regulation 



ship with the Minnesota Water Bank Program. Per- 

 mits for drainage are required but automatically 

 are denied for wetlands identified as protected 

 waters (i.e., wetland types 3,4, and 5, greater than 

 10 acres and 2.5 acres in unincorporated and in- 

 corporated areas, respectively). The landowner will 

 be able to drain legally if within 60 days the State 

 fails to offer some type of compensation. Without 

 this offer, Minnesota case law would declare the 

 rejection an illegal taking because the owner was 

 not justly compensated. Acceptable offers, accord- 

 ing to the statute, include State Water Bank pay- 

 ments, purchase, or indemnification by other 

 means such as conservation restrictions, easements, 

 leases, or any applicable Federal program. As dis- 

 cussed in more detail in chapter 9, State regula- 

 tion of coastal wetlands is far more common than 

 that of inland wetlands. 



Acquisition 



Seveial States have programs that give priority 

 to the acquisition of wetlands. 



Incentives to Landowners 



Some States authorize tax relief for landowners 

 to preserve wedand and other open-space areas. At 

 least one State has a program resembling the Fed- 

 eral Water Bank Program. Under the Minnesota 

 Water Bank Program, requirements for participa- 

 tion are more stringent than those for the Federal 

 program (i.e., wetlands must be of such a nature 

 that drainage would be lawful, feasible, and prac- 

 tical, that drainage would provide high-quality 

 cropland, and that cropland is its projected use). 

 Payment rates also are much higher under this State 

 program than under the Federal program. In 1981, 

 annual payments ranged from $85 to $125/acre. 



Other Programs 



Many States control wetlands use through pro- 

 grams whose primary purpose is not wetlands pro- 

 tection. Types of programs include: 



• coastal zone management, 



• flood plain management, 



• shoreline zoning, 



• scenic and wild rivers protection. 



• critical or natural areas protection, 



• dredge and fill acts, 



• wildlife and waterfowl protection, 



• public lands management, 



• public education, 



• stream alteration requirements, and 



• site location of developments. 



State Influence on Federal Activities 



The Corps seeks good relations with State gov- 

 ernments and usually will defer to strongly ex- 

 pressed State wishes concerning particular projects. 

 In several Corps districts, the Corps will not act 

 on a permit prior to a State decision about a proj- 

 ect. In addition to these informal mechanisms, sev- 

 eral legal requirements establish State influence in 

 Federal wetland-permitting decisions. 



The Clean Water Act and Corps Regulations 



Section 404(t) of CWA requires that each Fed- 

 eral agency comply with State requirements to con- 

 trol the discharge of dredged or fill material as long 

 as such requirements do not affect or impair the 

 authority of the Secretary of the Army (i.e., the 

 Corps) to maintain navigation. 



Section 320.4(j)(l) of the Corps regulations im- 

 plementing section 404 states that the processing 

 of applications for Corps permits normally will pro- 

 ceed concurrently with the processing of other re- 

 quired Federal, State, or local authorizations or cer- 

 tifications. If any of these other authorizations are 

 denied, the permit application to the Corps also will 

 be denied. * Even if such certification or authoriza- 

 tion is not required by the governmental units con- 

 cerned, the Corps will give due consideration to the 

 comments and views of the State, regional, or local 

 agency having jurisdiction or interest over the par- 

 ticular activity in question.'" Similarly, the officially 

 adopted State, regional, or local land use classifica- 

 tions, determinations, or policies that are applicable 

 to the areas under consideration shall be considered 

 by the Corps as part of the public interest review." 



*Prior to the July 1982 changes, this was stated directly at a dif- 

 ferent point: "Pennits will not be issued where certification or author- 

 ization of the proposed work is required by Federal, State, and/or local 

 law and that certification or authorization has been denied." 

 (§320.4[j](5]). This section was eliminated by the 1982 revisions. 



'"Clean Water Act, sec. 320.4(j)(l). 



"Clean Water Act, sec. 325(j)(2). 



