Chapter 2
Management of Wetlands in Door County

Introduction

Wetlands are managed in Door County by local, county, state and federal authorities. Appreciating when and how wetland regulations apply to a piece of property requires an understanding of the various levels of government, as well as the different kinds of activities that they regulate. The following sections describe the key regulatory wetland provisions by governmental level.

National wetland programs  (Back to TOC)

      Background

        Federal laws that affect wetlands have changed dramatically in the last 50 years as the public and government officials have begun to recognize the value of wetlands. In the first 60 years of this century laws such as selected provisions in the federal tax code, public works legislation, and farm programs encouraged destruction of wetland areas. This encouragement worked. Half of America's wetlands were lost due to filling, damming and diking between 1900 and 1960. Massachusetts became the first state to pass a wetland protection law in 1963 (Kusler and Opheim, 1996). Congress passed the Federal Water Pollution Control Act (referred to as the Clean Water Act) and the Coastal Zone Management Act in 1972, but to date has never passed a law specifically protecting wetlands.

        The Clean Water Act and the Coastal Zone Management Act, even with combined with other federal wetland programs, do not represent a fully consistent or comprehensive national approach to protecting wetland resources. For example, the central federal regulatory program for wetlands, Section 404 of the Clean Water Act, requires permits for the discharge of dredged or fill materials into many but not all wetland areas. Normal farming activities are generally exempt from Section 404 permit requirements, and the draining of a wetland is not regulated at all under the Clean Water Act. An agricultural program, Swampbuster, is a disincentive program that indirectly protects wetlands by making farmers who drain wetlands ineligible for federal farm program benefits. It is not a regulatory program. Acquisition and/or incentive programs, such as the Wetland Reserve Program, fill out the wetland protection effort at the national level.

        Presidents have championed wetland protection through administrative and political decrees. President Carter's Executive Order #11990 established wetland protection as the official policy of all federal agencies for the first time in 1977. That order continues to form the basis for a national policy that federal agencies should act to minimize the loss of wetlands. President Bush in 1988 and President Clinton in 1993 have endorsed a national goal of "no net loss" of wetlands.

        In short, while congressional representatives and presidents recognize the importance of protecting wetlands, they are also aware of the political fall-out that is associated with restricting private property rights.

        Regulatory taking of property

        Under the 5^th amendment to the U.S. Constitution, the government is prohibited from an unconstitutional taking of private property without compensation. So, the issue of government taking of property is as old as the Bill of Rights. However, courts have long recognized the right of government to protect the public trust. The leading case enjoining a property owner from using property in a way that disturbs the natural environment came from Wisconsin: Just v. Marinette County (1972). The Wisconsin Supreme Court held that the zoning ordinance that prohibited property owners from changing the natural character of the land within 1,000 feet of the shore was constitutional. The court stated, "An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others."(McElfish et al., 1996:25).

        More recently, however, courts have been willing to examine regulatory takings in environmental law, such as taking of property under the Endangered Species Act or wetland protection efforts. The courts have held that decisions about takings must be made on a case-by-case basis. Recent decisions about coastal wetland property help establish the guidelines the court uses to define an unconstitutional regulatory taking (United States v. Riverside Bayview Homes, Inc., 1985). Two decision rules arising from that case determine if a takings has occurred. First, the regulations must substantially advance a legitimate state (governmental) interest. Second, an owner may not be denied all economically valuable use of his land. After the Bayview Homes case, Congress introduced a number of bills to reduce the court's requirement that all economic value be lost before a compensable takings had occurred. To date, no bill has passed. Moreover, the presence of transferable development rights is not a bar to bringing a takings case to court (Curtin, 1999).

        Wetland protection efforts by the Clinton Administration

        Also controversial has been the approach of the Clinton Administration toward wetland protection. After hearing from states, developers, farmers, environmental interests, members of Congress, and scientists, the Administration completed a 40-point plan in 1993 identifying actions to enhance wetlands protection while making wetlands regulation more fair and flexible. On the one hand, these efforts increased the amount of federal funding for wetland protection available to states and for the first time made this funding available to local governments. It also iterated a "no net loss" policy and extended the Wetland Reserve Program to all 50 states. On the other hand, the plan included the following actions that have been less palatable to people seeking a fuller effort to protect wetlands:

        In sum, the courts, the Congress, and recent presidential administrations have been of two minds regarding wetland protection. The tension is between a value that Americans hold dear (the right to private property) and the ability of government to control the use of private land, in this case, by prohibiting development in a wetland. Since over three-fourths of the wetlands in this country are on private property, this tension is likely to increase in the future as more land is sought for development.

The Army Corps of Engineers   (Back to TOC)

        Section 404 Program

        The principal federal program that provides regulatory protection for wetlands is found in Section 404 of the Federal Water Pollution Control Act of 1972 (commonly known as the Clean Water Act). Its intent is to protect water and adjacent wetland areas from adverse environmental effects due to discharges of dredged or fill material. Section 404 requires landowners or developers to obtain permits from the Corps to carry out activities involving disposal of dredged or fill materials into waters of the United States, including wetlands. (In Natural Resources Defense Council v. Callaway (1975) the court held that Section 404 applied to all waters, including wetlands.)

        The Corps has long had regulatory jurisdiction over dredging and filling, starting with the River and Harbor Act of 1890 (superseded) and 1899 (33 U.S.C. 401, et seq.). Various sections establish permit requirements to prevent unauthorized obstruction or alteration of any navigable water of the United States. The most frequently exercised authority is contained in Section 10 (33 U.S.C. 403) which covers construction, excavation, or deposition of materials in, over, or under such waters, or any work which would affect the course, location, condition, or capacity of those waters. The authority is granted to the Secretary of the Army, an authority which remains to this day.

        The Corps and EPA share responsibility for the Section 404 program, though the Corps administers the permitting program. The Natural Resources Conservation Service (NRCS), the U.S. Fish and Wildlife Service (FWS), and National Marine Fisheries Service (NMFS), also have roles in this process. The NMFS and the FWS are authorized to review and comment on permit applications and to provide technical assistance in mitigating the adverse impacts of the project on fish and wildlife resources.

        Defining jurisdiction

        However, in the United States v. Wilson (1997), regulations by the EPA and Corps asserting jurisdiction over isolated wetlands that could potentially affect interstate commerce were ruled invalid. Still, the Section 404 permitting program extends to all wetlands that are adjacent to navigable waters, as well as isolated wetlands where interstate commerce (often recognized by the use of the wetland by migrating birds) is apparent.

        Another jurisdictional issue emerged after the Corps and the EPA attempted to include the incidental fallback of dredged soil as a discharge subject to the permitting requirements of Section 404. Activities requiring Section 404 permits are limited to discharges of dredged or fill materials into the waters of the United States. Discharges include return water from dredged material disposed of in a wetland and generally any fill material, such as rock, sand or dirt, used to construct solid land for site development.

        Because the Clean Water Act only provided the Corps with authority to regulate the discharge of dredge and fill materials into the waters of the U.S., land clearing or excavation were unregulated. The Corps sought to regulate these activities by declaring that the incidental fallback or redeposit of materials during dredging was a discharge. (This was referred to as the Tulloch Rule.) In 1998, the U.S. Court of Appeals for the District of Columbia affirmed a federal district court ruling that the Tulloch Rule went beyond the statutory authority given to the Corps under the Clean Water Act. In July, 1999, the EPA and the Corps subsequently published a rule in the Federal Register excluding "incidental fallback" from their jurisdiction under the Section 404 program.

        Authority delegated to the district level

        Section 404 activities in Door County, Wisconsin are monitored by the Corps of Engineers Field Office in Green Bay. The District Office in St. Paul, Minnesota oversees the activities of the field offices in Wisconsin. Division and district engineers are authorized to issue conditioned permits and to modify, suspend, or revoke them. They also have authority to issue alternate types of permits such as letters of permission and regional general permits. Regulatory program management and administration is focused at the district office level, with policy oversight at higher levels.

        If a district engineer has the authority under Corps regulations to make a final decision on a permit application and he or she makes that decision in accordance with the procedures and authorities contained in the regulations, there is no formal administrative appeal of that decision. This means that informal negotiations or legal avenues are the only avenues available to change a permitting decision made by a district engineer. Citizens may challenge in court a Corps decision to issue or deny a permit. Generally, such a challenge alleges failure to comply with procedural requirements, such as those in the National Environmental Policy Act, the 404(b)(1) Guidelines, or other procedures in the Corps permit regulations.

        The permitting process

        The Corps' regulatory process involves issuance of general permits that cover activities causing only minimal individual and cumulative environmental impacts. The Corps also issues individual permits for more significant actions. According to data compiled by the Corps, more than 64,000 permits were requested in 1996. More than 85 percent were authorized under a general permit, and the average length of time for action was 14 days. The average time to complete review of these applications was 104 days; 219 applications for individual permits (0.3 percent) were denied (Corps, 1999).

        Nationwide and general permits

        General permits cover activities the Corps has identified as being substantially similar in nature and that cause only minimal individual and cumulative environmental impacts. A general permit may cover activities in a limited geographic area (such as a county or a state), or a region of the country (such as a group of states), or the nation (such as the nationwide permits described below). These permits are essentially permits by rule in that the review process is limited. Less than 10 percent were required to go through the more detailed evaluation for an individual permit, which may involve complex proposals or sensitive environmental issues.

        Nationwide permits are a special type of general permit. They are a key means by which the Corps operates its regulatory program and simplifies its administrative activities. The Corps issues nationwide permits for those uses that have been determined to have relatively minor impact upon wetlands. Activities covered under nationwide permits can go forward without further Corps approval as long as the conditions set forth in the nationwide permit are met. Corps regulatory requirements for its 37 Nationwide Wetland Permits (NWP) are found at 33 CFR Part 330, Appendix A. Some commonly used nationwide permits include:

        Nationwide #29: permits discharges of dredged or fill material into non-tidal wetlands for the construction or expansion of a single-family home and features such as a garage, driveway, or storage shed, provided the activity does not cause the loss of more than one-fourth an acre of wetland. Under NWP #29, the homeowner notifies the District Engineer in accordance with the notification provisions and certifies that the discharge will not cause the loss of more than one-fourth of an acre and that this home is a personal residence.

        Nationwide #26: permits discharges in headwaters or isolated waters, including wetlands, provided that the activity meets the following criteria: 1) the discharge will not cause the loss of more than 3 acres of waters of the United States or the loss of waters of the United States for a distance greater than 500 linear feet of a stream bed; 2) for discharges causing the loss of one-third acre of wetlands, the permittee notifies the District Engineer; 3) for discharges causing a loss of less than one-third of an acre, the permittee must submit a report within 30 days containing a delineation of affected wetlands and special acquatic sites and that the discharge is part of a single project (33 CFR Part 330, Appendix A).

        Nationwide #18: permits discharges of less than 25 cubic yards of fill, which cause the loss of less than one-tenth of an acre of wetland.

        Nationwide permits allow the Corps to focus its reviewing efforts on large-scale development projects. Nationwide permits are issued for 5-year periods and must be renewed by the Corps. In December 1996, the Corps reissued the 37 existing nationwide permits (including modification of some) and 2 new permits for additional activities believed to have minimal environmental effects.

        In its 1996 revisions, the Corps made changes to strengthen the environmental restrictions of Nationwide Wetland Permit #26 (NWP 26), which has been particularly controversial because of concern that it results in significant unmonitored wetlands losses. Changes to NWP 26 pleased wetland protection advocates but displeased development and commercial interests who contend that permitting will now be more burdensome. At the same time, the Corps announced it would replace NWP 26 in 2 years with activity-based permits that will be more specific than the previous permit. This proposal was issued by the Corps July 1, 1998; final permits are expected after October, 1999 (depending upon the outcome of the rider attached to the appropriations bill). It proposes nationwide permits for several activities, including passive recreational facilities such as biking and hiking; and residential, commercial, and institutional activities affecting one-third to 3 acres.

        Representatives of environmental groups and the regulated community expressed dissatisfaction with the proposed replacement permits. The National Association of Home Builders filed a lawsuit challenging the 1996 reissued permits on several grounds, including a failure to fully consider impacts on small business and failure to obtain adequate public comment and review prior to issuing the significant changes, particularly to NWP 26. Complying with a court order in that case, in November 1997, the Corps agreed to reopen the comment period on phasing out NWP 26.

        Individual permits

        Individual permits involve an evaluation of the project in much greater detail. The Corps process includes three steps: pre-application consultation (for major projects), formal project review, and decision making (Corps, 1999). Pre-application consulting with the Corps provides the applicant with an assessment of the more obvious alternatives available to accomplish the project purpose and an opportunity to discuss measures for reducing the impacts of the project. During the formal review process, the Corps project manager evaluates the impacts of the project, negotiates necessary modifications of the project if required, and prepares documentation to support a recommended permit decision. The public has 30 days to comment on the application.

        In determining whether the activity is necessary, the District Engineer must consider whether the activity is dependent on being located in the wetland, or if alternative sites are available. If the applicant demonstrates that no practicable alternatives exist, then the filling activities must be performed so that the adverse impacts to the wetlands are minimal. The applicant must also provide compensation for any unavoidable impacts. The Corps evaluates public benefits and detriments of each case. Relevant factors may include conservation, economics, aesthetics, wetlands, cultural values, navigation, fish and wildlife values, water supply, water quality, and any other factors judged important to the needs and welfare of the people. The following general criteria are considered in evaluating all applications:

        Regulatory procedures on individual permits allow for interagency review and comment. EPA is the only federal agency having veto power over a proposed Corps permit, although the EPA has only used its veto authority 11 times since the program began (Zinn and Copeland, 1999). EPA may prohibit or withdraw the specifications of any disposal site if the EPA Administrator determines that discharges into the site will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. This authority also carries with it the requirement for notice and opportunity for public hearing. EPA may invoke this authority at any time.

        Federal interagency agreements allow EPA and the Departments of Commerce and the Interior to request higher level review within the Department of the Army when they disagree with a permit decision to be issued by the District Engineer. However, higher level review can only be requested when certain criteria are met and must be conducted within specified time limits. These criteria are insufficient coordination at the district level, development of significant new information, or the need for policy level review of nationally important issues (Corps, 1999). Critics of the Corps' regulatory process have charged that implied threats of delay by the FWS and others are effective tools at persuading the Corps to rethink a permit decision. In 1998, the FWS reviewed 93 individual permits in the state of Wisconsin, but did not elevate a permit for higher review within the agency (FWS, 1999).

        Individual state permitting and water quality certification requirements provide an additional form of objective safeguard to the Corps regulatory program. Section 401 of the Clean Water Act requires state certification or waiver of certification prior to issuance of a Section 404 permit. (See the section on Wisconsin Department of Natural Resources.)

        Delegation of authority to state governments

        Section 404 authorizes states to assume many of the permitting responsibilities. Two states, Michigan (in 1984) and New Jersey (in 1992), have successfully done this. Others, including Wisconsin, have cited the complex process of assumption, the anticipated cost of running a program, and the continued involvement of federal agencies as reasons for not joining these two states (DNR, 1993).

        Programmatic General Permits may be used in states that want more control over the general permitting process. The Corps essentially delegates this portion of the permitting process to state or local government, provided that government has regulations at least as stringent as the Corps. Thirteen states had programmatic general permits in 1996 (Kusler and Opheim, 1996). These programmatic general permits are founded on an existing state, local or other Federal agency program and designed to avoid duplication with that program.

        Letters of Permission between the state and the Corps may be used where, in the opinion of the district engineer, the proposed work would be minor, not have significant individual or cumulative impact on environmental values, and should encounter no appreciable opposition. In such situations, the proposal is coordinated with all concerned fish and wildlife agencies, and generally adjacent property owners who might be affected by the proposal, but the public at large is not notified. The public interest balancing process is again central to the decision making process on letters of permission.

        New GP/LOP-98 proposal

        The St. Paul District Office of the Corps of Engineers has proposed to replace all Section 404 NWPs in Minnesota and Wisconsin with a combination of regional/ programmatic general permits (GPs) and Section 404 letter-of-permission (LOP) procedures. The public notice for the final proposal for Wisconsin (GP/LOP-98-WI) was issued on August 9, 1999, and the public comment period closes on September 8,1999. (The public notice is available on-line at www.mvp.usace.army.mil/regulatory/proposals/permits/ 2ndPNfull.txt.) A future Corps public notice will announce the final decision.

        According to the rationale presented in the notice, GP/LOP-98-WI is intended to be an environmentally and administratively preferable alternative to the Section 404 nationwide permits in Wisconsin. GP/LOP-98-WI is also intended to be simpler and easier for the public to understand and comply with than the nationwide permits. The NWPs in Wisconsin have been complicated with complex, conditioned state Section 401 certifications, state Section 401 denials and detailed regional conditions. GP/LOP-98-WI is designed to reduce regulatory duplication between Federal and state regulatory programs because GP/LOP-98-WI would eliminate the need to obtain both a Section 404 authorization from the Corps and a project-specific State Section 401 water quality certification from the DNR. Presently, no Section 404 NWP authorization from the Corps is valid in Wisconsin until the project proponent also obtains a project-specific Section 401 certification or waiver from the DNR. (See discussion below.) GP/LOP-98-WI would eliminate the need for many permit applicants to obtain individual Section 401 water quality certifications from the DNR for minor activities that would be authorized under the non-reporting GP. This would represent a significant simplification of the Section 404 program in Wisconsin. See the Appendix for a matrix of the specific proposal.

        However, GP/LOP-98-WI would replace only the Section 404 nationwide permits in Wisconsin. It would not affect the Corps existing regional general permits or the Corps Section 10 nationwide permits, which would remain in use. GP/LOP-98-WI would include a GP authorization for specified, minor discharge activities that would not require reporting or submitting an application to the Corps. It would also include abbreviated GP and LOP review procedures for some other activities that would require applicants to apply for and receive a project-specific authorization from the Corps. Some GP/LOP-98-WI authorizations would not be valid until the applicant obtained both a GP-LOP-98 authorization from the Corps and confirmation from the DNR that state Section 401 certification for the project had been granted or waived. Except for some specifically defined activities, projects that would affect more than 10,000 square feet of water/wetland area would be subject to public/interagency coordination procedures and require appropriate compensatory mitigation. No objection to discontinuing the use of Corps Section 404 nationwide permits in Wisconsin was received.

        Enforcement

        When the Corps staff are alerted to violations of permit conditions, the agency may issue a cease and desist order pending an investigation. If the Corps staff determine that significant adverse impacts are occurring, remedial measures can be administratively ordered and a decision can be made on whether legal action is necessary. In certain cases, district engineers, following the issuance of a cease and desist order, coordinate with state and federal resource agencies in deciding what action is appropriate. Further evaluation of the violation takes into consideration voluntary compliance with a request for remedial action. A permit is not required for restoration or other remedial action. The Corps will accept applications for after-the-fact permits. While the Corps is solely responsible for enforcement relating to its Section 10 authority, responsibility for enforcing Section 404 is shared with the EPA. Under a memorandum currently in place, the Corps generally assumes responsibility for enforcement actions. About 6,000 alleged violations are processed in Corps district offices each year (Corps, 1999).

      Issues surrounding the Section 404 permitting program

        Several issues surround the implementation of the Section 404 program. First, the law regulates only the discharge of dredged or fill material, while not regulating other acts that drain, flood, or otherwise reduce functional values. Thus, purely dredging activities are not covered. Second, major categories of activities are not required to obtain permits. These include normal, ongoing farming, ranching, and silviculture (forestry) activities. Further, permits generally are not required for activities which drain wetlands (only for those that fill wetlands), which excludes a large number of actions with potential to alter wetlands. Fourth, approximately 20 percent of wetlands nationally are excluded from the Corps regulatory program because of small size or not being linked to a tributary water system. Finally, controversy has surrounded the permitting process itself, especially the nationwide permits.

        Additional Corps authorities

        The Corps has a number of authorities for assisting states, local and tribal governments in the protection and restoration of shorelines and stream banks. Most of these programs provide cost-shared support and are authorized under the Flood Control Act, the River and Harbor Acts and the Water Resources Development Act. Cost sharing under some Corps authorities begin after the first $100,000 has been borne by the Corps. Most notably, the Expedited Reconnaissance Study authorized under Section 905(b) of the Water Resources Development Act, provides $100,000 for the Corps to conduct a study of water resources, including wetlands.

Natural Resources Conservation Service  (Back to TOC)

        The Natural Resources Conservation Service (NRCS), formerly the Soil Conservation Service, is located within the U.S. Department of Agriculture. The NRCS is responsible for wetland incentive programs on agricultural land, including the Swampbuster, Conservation Reserve and Wetland Reserve Programs. Each of these programs is described in turn.

        Swampbuster

        Swampbuster legislation was enacted in the 1985 farm bill and amended in the 1990 and 1996 farm bills. Swampbuster provisions are the only places where wetlands are defined in federal law (see the box earlier in this chapter). Swampbuster applies to all agricultural places that meet the definition of a wetland. Under Swampbuster, an agricultural producer who converts a wetland so that agricultural production is possible loses access to many farm program benefits, including price support payments, crop insurance, and agricultural disaster payments. Thus, Swampbuster is not a regulatory program, but a disincentive program.

        If a NRCS field official determines that swampbusting has occurred after examining modifications made by the producer that may alter soils, vegetation or hydrology, he/she will refer the landowner to agencies (such as the Farm Service Agency) that administer the farm benefit programs. Unlike the Corps Section 404 regulatory program that generally permits dredge and fill activities in small wetlands, Swampbuster provisions apply to wetlands of any size (USDA, 1997a). A landowner may lose benefits for the year in which the alteration occurred, as well as in subsequent years until the wetland values are restored. However, under new provisions in the 1996 farm bill, landowners who want to alter wetlands may offset wetland losses by restoring other wetlands, enhancing existing wetlands or other activities upon consultation with the NRCS (USDA, 1997b).

        Four basic types of wetlands are identified in agricultural land: wetlands, converted wetlands, farmed wetlands and prior converted cropland. Wetlands are those areas meeting the definition in which no additional drainage is allowed. Converted wetlands were wetlands that were drained or altered after December 23, 1985 (the date Swampbuster was enacted). No additional drainage or drainage maintenance are allowed. Farmed wetlands were partially drained or altered to produce a crop before December 23, 1985, but still exhibit wetland values. No additional drainage is allowed, but existing drainage may be maintained. Prior converted cropland was converted to cropland use before December 23, 1985 and no longer meets wetland criteria. Prior converted croplands may be drained and maintained without restriction. The last category is significant, for it accounts for about 45 million acres of land that once was wetland (Zinn and Copeland, 1996).

        NRCS conducts wetland delineations on agricultural property for the Swampbuster program as well as for the Section 404 program.

        Conservation Reserve Program

        The Conservation Reserve Program (CRP), like Swampbuster, was also part of the 1985 farm bill. Administered by the Farm Service Agency, it is the federal government's single largest environmental improvement program. CRP encourages farmers to voluntarily plant permanent areas of grass and trees on land that needs protection from erosion or where vegetation can improve water quality. Land that is capable of being cropped and that has been planted with an agricultural commodity for any two of the last five years is eligible. Landowners who have owned land for at least one year, and operators who have leased the land for at least one year are eligible to participate. The NRCS provides an evaluation of the acreage for its ecological value, including as filter strips, riparian buffers, shallow water areas for wildlife or wellhead protection (USDA, 1997c).

        Farmers who are eligible enter into 10 or 15 year contracts with the Commodity Credit Corporation through the Farm Service Agency. In return, they receive annual rental payments and are also able to receive cost-share assistance to establish protective vegetation. However, the landowner has no further obligation to keep the area in conservation after the contract expires.

        Budget limitations mean that not all landowners who wish to participate will be able to enter into CRP contracts. Only the most environmentally-sensitive land, yielding the greatest environmental benefits, will be accepted into the program. The 36.4-million-acre congressionally mandated cap on enrollments is carried over from the previous program, meaning that the CRP has authority to enroll only about 15 percent of the eligible cropland. To make the most of the program's potential, a new Environmental Benefits Index (EBI) was developed by the NRCS. Erosion control remains a top priority, but now water quality and wildlife habitat improvement are also emphasized. According to the NRCS, a vital part of the CRP is its increased emphasis on the enrollment and restoration of cropped wetlands.

        For certain high-priority conservation practices yielding highly desirable environmental benefits, producers may sign up at any time, without waiting for an announced sign-up period. Continuous sign-up allows farmers and ranchers management flexibility in implementing certain conservation practices on their cropland.

        In Wisconsin, 592,809 acres have been enrolled in CRP as of 1999. 8,892 acres are enrolled in CRP in Door County, with 378 acres expiring in 1999. Table 2-1 shows the number of CRP acres by township. As the table indicates, acreage varies greatly by town and the majority of the acreage is located in southern Door County. In fact, 83.2 percent of all CRP acreage in the county is located in the southern towns. This finding is not surprising since the majority of agricultural activities are located in the southern part of the county.

        The town with the greatest amount of CRP acreage is Brussels with over 30 percent of Door County's CRP acreage located there. Additionally, CRP acreage accounts for 11.3 percent of the town's total land area, the highest percentage of any of the towns. The Towns of Forestville and Gardner each account for an additional 15 percent of all CRP acreage in Door County, while the Town of Washington has no CRP acreage. The Towns of Liberty Grove, Baileys Harbor, and Gibraltar also have minimal CRP acreage.

Table 2-1:   CRP Acreage in Door County by Town

        Wetland Reserve Program

        Like the Conservation Reserve Program, Congress authorized the Wetland Reserve Program (WRP) under the Food Security Act of 1985, as amended by the 1990 and 1996 Farm Bills. The NRCS administers the program in consultation with the Farm Service Agency (FSA) and other Federal agencies. Funding for WRP comes from the Commodity Credit Corporation.

        Landowners who choose to participate in WRP may sell a conservation easement or enter into a cost-share restoration agreement with USDA to restore and protect wetlands. The landowner voluntarily limits future use of the land, yet retains private ownership. A landowner controls access to the land, and does not have to open the land to the public. The landowner and NRCS develop a plan for the restoration and maintenance of the wetland. WRP offers landowners three options: permanent easements, 30-year easements, and restoration cost-share agreements of a minimum 10-year duration.

        Permanent Easement. This is a conservation easement in perpetuity. Easement payment will be the lesser of: the agricultural value of the land, an established payment cap, or an amount offered by the landowner. In addition to paying for the easement, USDA pays 100 percent of the costs of restoring the wetland.

        30-Year Easement. This is a conservation easement lasting 30 years. Easement payments are 75 percent of what would be paid for a permanent easement. USDA also pays 75 percent of restoration costs.

        Restoration Cost-Share Agreement. This is an agreement (generally for a minimum of 10 years in duration) to re-establish degraded or lost wetland habitat. USDA pays 75 percent of the cost of the restoration activity. This does not place an easement on the property. The landowner provides the restoration site without reimbursement. Other agencies and private conservation organizations may provide additional assistance for easement payment and wetland restoration costs as a way to reduce the landowner's share of the costs. Such special partnership efforts are encouraged.

        To offer a conservation easement, the landowner must have owned the land for at least 1 year prior to enrolling the land in the program unless the land was inherited or the landowner can prove the land was not obtained for the purpose of enrolling it in the program. To participate in a restoration cost-share agreement, the landowner must show evidence of ownership.

        As of May 12, 1999, Wisconsin had 308 WRP contracts enrolled out of 4,267 total in the United States. Wisconsin had 20,259 acres enrolled under contract out of 774,076 acres nationwide. According to the NRCS, over 4,000 acres and 47 parcels are on backlog and awaiting funding in the state. Nearly 11,000 acres of wetlands have been restored in the Great Lakes watershed within Wisconsin (USDA, 1999). The best example of a WRP project in Wisconsin is Duffy's Marsh, a 1,700 acre wetland restoration at the headwaters of the Grand River, which feeds into Lake Michigan.   

        Door County has only one WRP contract. One farm in the Town of Brussels has enrolled 21 acres in the program. Landowner interest in Wisconsin is high, with new proposals arriving everyday. However, conversations with NRCS field personnel suggest that interest in the WRP in Door County is not as high as in other parts of the state. When contacted, the NRCS program specialist stated that no Door County farms are currently on the waiting list.

        Another conservation program is the Environmental Quality Incentives Program (EQUIP). Under EQUIP, farmers in priority areas can receive cost-share assistance. Examples of EQUIP priority areas include the Shawano Lake nutrient management program, the Lower Little Wolf program to reduce sediment deposition, and the Oneida-Duck-Ashwaubenon watershed program designed to improve farming practices (USDA, 1999). However, no priority areas are currently located in Door County.

State wetland programs  (Back to TOC)

Wisconsin Department of Natural Resources  (Back to TOC)

        As mentioned previously, only New Jersey and Michigan have been delegated the authority to implement the Section 404 permitting program. The remaining states regulate wetlands primarily through their review authority over federal and local permits and through setting water quality standards for wetlands. In Wisconsin, wetlands are protected by the Department of Natural Resources (DNR) through NR 103 (Water Quality Standards for Wetlands), NR 115 (Minimum Standards for Zoning Shoreland Wetlands), and NR 299 (Water Quality Certification of Section 404 Permits). The DNR policy on wetlands is set forth in NR 1.95, which states that "wetlands shall be preserved, protected and managed to maintain, enhance or restore their values in the human environment." (Kent, 1994:131)

      Water quality standards for wetlands

      Wisconsin was the first state in the country to adopt water quality standards for wetlands. NR 103 of the Wisconsin Administrative Code, promulgated by the DNR in 1991, establishes these standards. NR 103 applies to all DNR regulatory, planning management, liaison and financial aid determinations that affect wetlands. This authority extends to permits under Wisconsin Statutes chs. 30, 31,144, and147, as well under the Section 404 program (Kent, 1994: 132). The NR 103 process requires a four-step evaluation to assess whether or not a proposed activity will violate the water quality standards for wetlands (DNR, 1992).

        Water quality certification of Section 404 permits

      Section 401 of the Clean Water Act requires that an applicant for a Section 404 wetland dredge or fill permit granted by the Corps to also obtain a water quality certification from the state. The DNR has promulgated the certification procedure under NR 299. The DNR has 120 days to may grant, conditionally grant, deny or waive water quality certification.

        This requirement applies to nationwide and individual permits. In other words, every applicant that applies for a Section 404 permit from the Corps must also undergo water quality certification review. Water quality certification requires that the project meet the water quality standards in NR 103.

        The process typically begins after a landowner applies for a Section 404 permit from the Corps. If the project is small (under three acres for a Nationwide #26), the Corps will grant the permit under one of its nationwide general permits. The letter sent to the landowner conditions the granting of the permit upon the review of the DNR for water quality certification. In cases where the DNR denies water quality certification, DNR staff has no direct enforcement authority. Instead, DNR staff contact the Corps (and the landowner) and depend upon the Corps to subsequently reject the permit. Any person affected by the decision may request a contested case hearing.

Table 2-2:  DNR 401 Water Quality Certifications in Door County, 1993-1998

        As shown on Table 2-2, the DNR granted 32 water quality certifications from 1993 and 1998. These certifications affected 7.6 acres of wetlands. The average acreage of wetlands granted water quality certifications was 0.23 acres. The largest amount of acreage granted certification affected 1.0 acres of wetlands, while the smallest acreage was 0.001 acres.

        During that same period, the DNR denied 8 certifications, or about 25 percent. This rate of denial is considerably higher than the permit denial rate of the Corps for Section 404 permits. As discussed in earlier sections of this chapter and in Chapter 1, the Corps approves 99 percent of all permit applications. Those certifications denied by the DNR in Door County would have affected an additional 2.5 acres. Data received from the DNR indicate that these denials were based on the presence of available alternatives.

        DNR water quality certification activities in Door County can be compared to three other Northeastern Wisconsin counties: Brown, Kewaunee and Oconto. According to DNR data supplied for this study, the greatest number of 401 water quality certifications were granted to projects in Brown County, followed by Door County and Oconto County (Table 2-3). Kewaunee County had the fewest certifications issued. DNR data indicates that Kewaunee County had the greatest loss of wetland acreage (approximately 8 acres) and Oconto County had the smallest loss (approximately 4 acres).

Table 2-3:  Comparison of DNR 401 Water Quality Certifications in Brown,
Door, Kewaunee and Oconto Counties, 1993-1998

        Shoreland-Wetland zoning

        Wisconsin was one of the first states to adopt a shoreland zoning program as part of the Water Resources Act of 1966 (DNR, 1997b). The act required the Department of Resource Development (the predecessor to the DNR) to develop minimum standards for shoreland regulations. These requirements were promulgated for counties in NR 115.

        Shorelands are defined as lands within 1,000 feet of the ordinary high-water mark of a navigable lake, pond or flowage and 300 feet from the ordinary high water mark of a navigable creek, stream or river or to the landward side of the floodplain. A waterway is considered navigable by the DNR if it has a bed and banks and it is possible to float a canoe or other small craft on it regularly at some time of the year (DNR, 1997b). The ordinary high water mark is "the point of a stream bank or lakeshore where the presence or action of water occurs often enough that the lake or stream bed can be distinguished from the upland" (DNR, 1997b: 10). Navigability and the ordinary high water mark are determined on a case-by-case basis.

        In 1980, NR 115 was amended to create minimum standards for zoning shoreland-wetlands. Wetlands identified on the Wisconsin Wetland Inventory maps that are larger than 5 acres must be regulated (the maps now include wetlands of 2 acres in size). Counties are required to enact regulations for shorelands in unincorporated areas under s.59.692 and NR 115. Cities and villages must also adopt shoreland-wetland zoning standards, and are regulated under NR 117. Towns may adopt and administer shoreland zoning ordinances, provided they are at least as restrictive as the county ordinances.

        By 1986, all counties in the state had amended their shoreland ordinances to incorporate the shoreland-wetland provisions (DNR, 1997b).

        Generally, the shoreland-wetland districts created by the Wisconsin Wetland Inventory Maps are overlaid onto existing zoning classifications. Permitted uses in areas zoned as shoreland-wetlands are limited to hiking, fishing, hunting, swimming, boating, silviculture, pasturing of livestork and cultivation of agricultural crops, construction of gas, electric or other utility lines, and a few other uses. All other uses, such as the building of structures, are prohibited under NR 115.

        Shoreland-wetland areas can be rezoned to allow otherwise prohibited uses by amendment of the shoreland-wetland map. Rezoning is prohibited if it results in significant adverse impact to wetland functional values, including storm and flood storage capacity, discharge of groundwater to wetlands, filtering or storage of sediments, nutrients or contaminants, fish spawning and wildlife habitat, or shoreline protection against soil erosion. Amendments must go through a zoning ordinance amendment procedure and also be reviewed by the DNR. The DNR also has authority to review decisions by the county that grant conditional use permits or variances in shoreland areas (DNR, 1997b).

        Coastal management  (Back to TOC)

        The Wisconsin Coastal Zone Management Program is administered by the Department of Administration, but enforced by the DNR. The staff of the Wisconsin Coastal Zone Management Program are responsible for creating and overseeing a comprehensive strategy for protecting Wisconsin's coastal wetlands. It does this primarily through the distribution of resources to state and local agencies. Resources are available through the provisions of the Coastal Zone Management Act of 1972. This law provides financial resources to encourage states to adopt federally approved coastal management plans. In 1990, amendments to the law required states with approved plans to adopt measures that would control nonpoint source pollution.

        Section 307 of the Coastal Zone Management Act requires that all federal activities and all federally permitted activities (such as under the Section 404 program) affecting land or water in the coastal zone conform to the state's plan. The applicant must certify that the project is in compliance with an approved State Coastal Zone Management Program and the State must concur with the applicant's certification prior to the issuance of a Corps permit. The Corps' standard permit form contains a statement notifying the permit applicant that the permit does not remove any requirement for state or local permits. This has the effect of making the Corps' permit unusable without these additional authorizations.

        The Coastal Zone Management Program provides funding to state and local efforts to protect coastal resources and works cooperatively with local, state and federal agencies to protect wetlands.

County wetland management programs  (Back to TOC)

       Door County zoning ordinance  (Back to TOC)

        Door County protects its wetlands primarily through its zoning ordinance adopted in 1995 and last amended in 1998. The zoning ordinance sets wetlands that are identified on the Wisconsin Wetland Inventory Map into separate wetland zoning districts. Wetland zoning district boundaries coincide with the Wetland Inventory Maps unless they are altered by zoning district amendment. These wetland zoning districts appear on the Door County Zoning Maps with 19 other zoning districts. According to the zoning ordinance, the wetland zoning district was created to "prevent the destruction and depletion of Door County's wetlands; to protect water courses and navigable waters; to maintain the purity of water in lakes and streams..."(Door County Zoning Ordinance, 1998:7).

        Permissible uses of the land within a wetland zoning district that do not require the issuance of a zoning permit include activities such as hiking, fishing, swimming, the pasturing of livestock, the cultivation of agricultural crops, and the harvesting of wild crops such as wild rice, berries or fruit trees. These activities must be carried out without filling, draining or dredging of the wetland. Uses which may include limited filling, flooding, draining or dredging activities and still not require a zoning permit are temporary water and stabilization measures to alleviate environmental conditions that would have an adverse impact on silvicultural activities, the cultivation of cranberries, the construction of fencing for livestock and the maintenance of existing agricultural drainage systems (Door County Zoning Ordinance, 1998:20).

        Other uses which may include limited alteration of a wetland are permissible, but require the issuance of a zoning permit. These include constructing a road when the road cannot as a practical matter be located outside of the wetland, constructing habitat for waterfowl or other wildlife, establishing public or private parks, recreation or natural areas, and constructing or maintaining utility lines.

        With these exceptions, the Door County Zoning Ordinance prohibits building in the wetland zoning districts. In other words, a property owner whose land is zoned as a wetland may not build on that land unless the wetland has been rezoned by amendment. Since the Wisconsin Wetland Inventory Maps are created from aerial photos on a scale of two acres, mapping errors are possible. The landowner may uncover such a mapping error or may believe that no wetlands exist on the property. In this instance, the landowner may petition to have the area within the wetland zoning district rezoned to another district.

        The rezoning process contains several steps, as indicated in Figure 2-1. Rezoning petitions require that the applicant for a building permit have the property delineated by a professional delineator to assert that the land is not a wetland, but upland. Once a delineation demonstrates that the land is not a wetland, a rezoning petition is granted a public hearing before the Resource Planning Committee (RPC). The petition includes concurrence on the delineation by both the DNR and the Corps.

        The recommendation of the RPC is then forwarded to the Door County Board for final action. According to one member of the RPC, in recent years the RPC has seldomed approved a rezoning petition unless the applicant can demonstrate that the property is upland.

      The importance of the wetland setback is that wetlands are determined by the zoning administrator during a site inspection of the property, and not by the wetland zoning districts. This allows county staff to protect small wetlands by requiring that buildings be set back from the wetland area.

        The presence of wetlands affects planned residential developments in that land located in the wetland zoning district may not be included in calculating the residential density. Wetlands may be included in meeting the minimum site area and minimum open space requirements.

        The zoning ordinance is in effect in shoreland areas in all unincorporated areas of the county. Additionally, the Towns of Baileys Harbor, Clay Banks, Gibraltar, Jacksonport, Liberty Grove, Sevastopol, Sturgeon Bay and Washington have adopted the county zoning ordinance. In these towns, the wetland zoning districts within the shoreland area and outside the shoreland area are regulated by the county. The Towns of Brussels, Egg Harbor, Forestville, Gardner, Nasewaupee, and Union have not adopted the county zoning ordinance. Therefore, the county only regulates the shoreland-wetlands.

        Incorporated communities (the Villages of Egg Harbor, Ephraim, Forestville, and Sister Bay as well as the City of Sturgeon Bay), have adopted their own zoning codes. See the Door County Land Guide for more information.

        Petitions for rezoning wetland districts in Door County

        Petitions for wetlands rezoning are common. From 1986-1998, 157 wetlands rezoning petitions were approved by the County Board. Table 2-4 details petitions on a town-by-town basis. As the table indicates, the number of wetlands rezoning petitions varies greatly from town to town.

        The zoned towns only under the county shoreland jurisdiction had the fewest number of wetlands rezoning petitions. These towns averaged about 1 or2 wetlands rezoning petitions per year from 1986-1998. On the other hand, towns that adopted the zoning ordinance had an average of 10 wetlands rezoning petitions per year from 1986-1998. The Towns of Baileys Harbor and Liberty Grove had the greatest number of wetlands rezoning petitions among all towns, accounting for 58 percent of all wetlands rezoning petitions in the county. From a population perspective, the Town of Liberty Grove is the third most populous town in the county according to the 1990 U.S. Census, following the Towns of Sevastopol and Nasewaupee. Even with Sevastopol having a greater population and more wetland acreage than Baileys Harbor, it only had ten wetland rezonings from 1986-1998. This may indicate that the wetland areas in Baileys Harbor were more difficult to map, resulting in increased mapping errors.

        If the number of wetlands rezoning petitions is used as a guide for improving wetland maps, the Towns of Baileys Harbor and Liberty Grove should be given priority.

Table 2-4:   Wetlands Rezoning Petitions by Town, 1986-1998

        On a county-wide basis, the number of wetlands rezonings per year from 1986-1998 averaged 12 rezonings per year. Excluding the years 1986-1987, the average decreases to 7-8 per year. The years 1986-1987 appear to be anomalies that may be related to the adoption of wetland zoning maps in 1986. From 1986-1987, there were 72 wetlands rezonings, accounting for 45.9 percent of all wetlands rezonings from 1986-1998.

        Not all wetland rezoning petitions are granted. From 1986-1998, 18 requests were denied. Denials occur when data indicates that the area to be rezoned truly is a wetland. Information on how these determinations are made by the Resource Planning Committee (RPC) was not available, although RPC meeting minutes indicate instances where DNR and/or Corps reports were utilized.

Table 2-5:  Time to Complete a Wetlands Rezoning Petition

        Table 2-5 shows the time needed to complete a petition for rezoning. Most petitions are decided within 31-60 days. The vast majority are decided within three months. The longest petition took approximately two and a half years. Further investigation revealed that the delay was the result of the property owner's failure to submit a legal description of a specific portion of the properties to be rezoned as requested by the Resource Planning Committee. Upon submittal of the survey, the process was completed within a month and a half.

        The data also revealed several instances where rezoning petitions were granted within two weeks. For example, the data indicated the shortest time frame for a rezoning petition was 7 days. Further investigation revealed that the data indicating the date the petition was applied for was actually just the date the applicant paid the fee. The rezoning petition took 49 days to complete from the initial application. In another instance, data indicated the petition took only 13 days to complete. Reviewing the files indicated that petition actually took 34 days. Again the date listed as the application date was actually the date the fee was paid.

Local wetland management programs  (Back to TOC)

        As previously mentioned, six towns have not adopted county zoning. These towns are collectively known as the unzoned towns and include the Towns of Brussels, Egg Harbor, Forestville, Gardner, Nasewaupee, and Union. With the exception of Egg Harbor, all of the towns are located in southern Door County. Since these towns have not adopted county zoning, town clerks regulate construction activities through the issuance of building permits. Any activities affecting wetlands would be regulated by the Corps and DNR.

        Egg Harbor does have wetland setback requirements in place, but no other wetland protection activities by towns was discovered.

        Telephone interviews were conducted with three town clerks. The town clerks were asked what process they follow when issuing a building permit. The process varies slightly depending on the type of activity involved. These activities can be divided into two general categories: 1) new residences and 2) all other types of building, including remodeling. The types of remodeling projects that require a building permit vary by town and are usually associated with a specific dollar value.

        The first step in the process involves a verbal description of the project to determine if a town building permit is required. If the activity involves the construction of a new residence, the clerks stated they would not issue a town building permit until the property owner had obtained a county sanitary permit. If the activity did not include the construction of a new residence, the clerks would issue the building permit. In addition, if the activity occurred within 1,000 feet of the shoreline, the clerks would not issue a town building permit until the property owner had obtained a county zoning permit. The town clerks were knowledgeable about the shoreland zoning ordinance, although they did not seem to be aware that the shoreland protection ordinance also applied to navigable creeks and streams.

        Apart from a general project description and verifying the receipt of necessary permits (i.e., county zoning and sanitary), the clerks asked few questions about the projects. They did not question if a project impacted wetlands. They did not refer to a generalized map of the county to see if the area was wetland (even though these towns are not zoned, county wetland maps are available).

        Since the clerks do not question if wetlands are present or refer to maps to determine if wetlands may be present on the site, the responsibility of obtaining the necessary approvals from the Corps and DNR for activities impacting wetlands falls to the property owner. Even though this is also true for residents in zoned towns, the County Planning Department can act as a check on the system to verify the approvals are obtained or that at the very minimum, the DNR and/or Corps are notified of the activity. This check does not occur within unzoned towns.

        However, there is one subtle governmental check on property owners in unzoned towns. This check is performed by the county sanitarian. A sanitary permit is required for:

• all new residences,
• remodeling projects that include an additional bedroom, and/or
• remodeling projects that add 25 or more percent to the current square footage of the residence.

        Private sanitary systems are regulated by the Department of Commerce under Wisconsin Statute 145 and Comm 83. Department regulations require sanitary systems to meet specific soil suitability requirements which tend to preclude the installation of the system in wetland areas in nearly all situations. In addition, regulations prohibit the installation of sanitary systems in the floodway portion of the flood plain. The county sanitarian noted that even in situations where the actual sanitary system is located on upland but system piping would need to be installed in a wetland, a county sanitary permit would not be issued.

        Whenever a sanitary permit is required, the sanitarian conducts a site visit. If the site visit reveals a question regarding the presence of wetlands, the sanitarian has three tools available to determine if wetlands are present. First, the sanitarian can refer to the DNR wetland inventory maps. Secondly, the sanitarian can conduct a soils test. Finally, the sanitarian can request the County Planning Department make a wetlands determination.

        The sanitarian is a small check on the system. The office is limited in its authority and can only regulate activities related to the sanitary system. If wetlands are present on the site, but the sanitary system is not within the wetlands, the sanitarian has no power to stop any other activities. If there is a question regarding an activity falling within the definition of shoreland, the sanitarian does notify the County Planning Department.

        The sanitarian's power is also limited in that the sanitarian requires notification by a property owner to visit a site. This notification may be in the form of an application for a permit or a complaint. The sanitarian noted that while the majority of town clerks will not issue a building permit for a new residence unless a sanitary permit has been issued, town clerks typically do not check for a sanitary permit when issuing a building permit for remodeling activities even though the remodeling activity may require notification of the sanitarian.

        In sum, there is little wetlands oversight in the unzoned towns. Town clerks question the location of a construction activity only to determine if the activity falls within the shoreland protection ordinance. However, even in these instances, the clerks did not seem aware that there were situations when the shoreland protection ordinance would apply to activities outside of the actual shoreline. The sanitarian office also acts as a small check, but is limited in its authority and to those projects requiring a sanitary permit. Wetlands protection in unzoned towns requires the initiative of property owners and the regulatory authority of the Corps.

Conclusions  (Back to TOC)

        As the preceding discussion suggests, there is a maze of regulations governing wetlands protection. To varying degrees, federal, state and local governments are currently involved in wetlands protection. It is easy to see how confusion can quickly occur when dealing with issues regarding wetlands. A person may be required to obtain a permit from the Corps, receive approval from the DNR, and still require another permit from the county. This regulatory maze and the resulting confusion are discussed in more detail in Chapter 3.

        This exploration of federal, state and local governmental efforts to protect wetlands also points to the gaps in regulatory authority. For example, small wetlands (under a few acres) are not protected by the Section 404 permitting program under the Clean Water Act. The Corps has used its rule making authority to permit development of small wetlands without a review, in order to focus on projects affecting large wetlands. Jurisdiction over incidental fall back has been limited by the court, an action that has greatly limited the ability of the Corps to stop projects that do not actually discharge dredge or fill materials into the wetland.

        State and federal roles in wetland protection also reveal gaps. Wisconsin has no general wetlands protection law, relying instead on its authority under the Clean Water Act to certify that development of a wetland will not impair water quality. In situations where water quality certification is denied, the state relies on the Corps to rescind the permit. The state has also moved to protect its shoreland wetlands by requiring cities, villages and counties to use the Wetland Inventory Maps to protect wetland zoning districts.

        Another regulatory gap occurs between inland wetlands (wetlands outside of the shoreland zone) and shoreland wetlands in towns that have not adopted the Door County Zoning Ordinance. Shoreland wetlands are protected by NR 115 while inland wetlands enjoy no such protection. Only in towns that have adopted the zoning ordinance are both shoreland and inland wetlands protected from building.

        Wetlands on farmland are treated differently from wetlands on other property. Farmers have some ability to establish crops on wetlands, depending upon how long they have used the land for agriculture. However, economic sanctions may be imposed on farmers who unlawfully convert any wetland into cropland.

        The next chapter examines how people in Door County feel about wetland protection efforts.

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