protection of critical habitat of endangered or threatened species (16 U.S.C. §1536). Critical 

 habitat is an area or areas either within or outside the geographic range of an endangered or 

 threatened species that possesses the qualities essential for the conservation of the species (16 

 U.S.C. §1532(5)(A)). Through the consultation process mandated by the ESA (16 U.S.C. § 1536), 

 a Federal agency can be prohibited from carrying out its project or licensing or permitting an 

 activity if critical habitat would be destroyed or adversely affected. The USFWS and NMFS have 

 been delegated the responsibility of enforcing the provisions of the ESA which provides another 

 avenue of commenting authority to all Federal agencies. The ESA and the regulations promulgated 

 pursuant to it also contain prohibitions against any one, including private citizens, harassing, 

 harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting an 

 endangered or threatened species (16 U.S.C. §1538). The presence of an endangered or 

 threatened species or its critical habitat within or in close proximity to a proposed marsh 

 management area could give rise to challenges to certain activities under the ESA by USFWS, 

 NMFS, or other parties. There are several endangered or threatened species of animals and plants 

 that inhabit Louisiana for at least part of the year. The recent controversy over turtle excluder 

 devices underscores the power of this law (Wilkins 1987). 



State Laws Affecting Marsh Management 



The primary State laws that affect marsh management are the CRMA (La. R.S. 49:213.1-213.22) 

 and various Louisiana Constitutional provisions and statutes that deal with the division between 

 private and State ownership of land. Other State laws that could be implicated in marsh 

 management activities are those that protect water quality, protect historic and archaeological sites, 

 provide for maricultural activities, and deal with marsh burning. 



The Louisiana Coastal Resource Program established by the CRMA is administered by CMD. 

 The declared public policy under which the CMD operates is "to protect, develop, and, where 

 feasible, restore or enhance the resources of the State's coastal zone" (La. R.S. 49:213.2). The 

 coastal zone is geographically delineated in the CRMA (La. R.S. 49:213.2, 213.4). Also provided 

 for in the Act are some of the uses and activities in the coastal zone subject to the coastal use 

 permitting requirements and the authority to develop guidelines to further delineate such uses (La. 

 R.S. 49:213.5). Marsh management activities, as defined above, are some of the activities requiring 

 a coastal use permit and guidelines have been developed for use in the initial permitting process 

 as well as establishing conditions for the permit. Among other things these guidelines require that 

 marsh management plans "result in an overall benefit to the productivity of the area," that water 

 control structures result in minimum obstruction of the migration of aquatic organisms and permit 

 tidal exchange in tidal areas, and that impoundments which do hinder normal tidal exchange and 

 aquatic organism migration, to the maximum extent practicable shall not be constructed in brackish 

 or saline areas (U.S. Department of Commerce et al. 1980). 



Under the guidelines marsh management plans are required to contain marsh management 

 goals; area history; type of habitat; location, construction, and operation of water control structures; 

 a monitoring plan; and non-marsh management activities to be carried on in the plan area. The 

 monitoring plan requires data on water quality, vegetation, land and water ratio, and wildlife so that 

 the effectiveness of the plan may be evaluated. A marsh management CUP is limited to a 5-year 

 term and the monitoring data is used as a factor in deciding whether or not to renew the permit. 



At' present CMD is formulating a new set of guidelines to be used in marsh management 

 permitting. These will become department-wide guidelines to be used by all agencies in the 

 Department of Natural Resources (DNR). 



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