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Jon A. Kusler, Chairman
Association of State Wetland Managers
Chester, Vermont
INTRODUCTION
This draft riparian habitat protection statute draws heavily upon regulatory and nonregulatory approaches tested in state wetland regulation, floodplain regulation, and shoreland zoning programs throughout the Nation. See Kusler, Regulating Sensitive Lands, Ballanger Publishing Company, 1981. These include the coastal wetland regulation programs adopted by 18 coastal states, the freshwater wetland regulation statutes adopted by 11 states, the floodplain zoning statutes adopted by 31 states, and the shoreland corridor zoning statutes adopted by 7 states.
The draft will be revised over the next year.
Comments and suggestions are welcome.
The draft approach establishes a procedure for state standard-setting for local regulation of riparian uses with direct state regulation of inflow uses (as is already the case in most states) and certffin other uses (as determined by the regulatory agency). The state regulates all uses until local units of government adopt and administer regulations consistent with state standards.
The statute draws heavily upon a similar wetland protection statute prepared by the author for the
U.S. Fish and Wildlife Service. See Kusler,
Strengthening State Wetland Regulations, U.S. Fish and Wildlife Service, 1978.
This statute is designed primarily for the arid and semi-arid states of the West. With the exception of Washington and Oregon, none of these states have adopted regulatory programs for shoreland corridors or freshwater wetlands. Only eight states have adopted state level floodplain zoning laws--Washington, Oregon (as part of State planning), Arizona, Oklahoma, Iowa, Kansas and
Colorado. Therefore, this statute would overlap very little with existing programs.
The cooperative state /local approach proposed in the draft has been widely applied in programs of other states. An alternative approach--exclusive state regulation rather than a cooperative state /local regulation insures greater expertise in processing permits and less susceptibility to development pressures. But it poses administrative and enforcement problems for a state agency located hundreds of miles from proposed development sites. A cooperative state /local approach has political advantages where local home rule traditions are strong. It facilitates administration and enforcement and encourages the integration on riparian habitat protection efforts with local zoning, subdivision control and building code programs.
This cooperative state /local approach builds upon the strengths of both state and local regulation while minimizing some of the weaknesses of each.
The statute establishes the following framework:
1. A designated state agency is authorized to
, study and map riparian habitat in cooperation with federal agencies and local units of government.
Mapping is to be carried out on a priority basis based on special values and hazards, threats of development, and the willingness of local governments to make use of data.
2. The state agency is authorized to promulgate regulations for riparian habitat areas. Local governments are given the option to adopt their own regulations meeting minimum state standards.
The agency directly regulates habitat areas until local governments adopt satisfactory regulations and such regulations are approved by the agency.
Once approved, the local governments issue permits for most types of activities.
3. The state agency is directed to provide technical and educational assistance to local governments and to encourage and undertake riparian habitat enhancement and rehabilitation (in appropriate circumstances).
4. Tax incentives are provided to encourage landowner protection and enhancement of riparian habitat.
TEXT
Section 1: Title
This act may be cited as the Riparian Habitat
Protection Act of (State Name).
Section 2: Statement of Legislative Finding, Policy and Purposes
The riparian habitat (and watercourses) of the state of (State N arne) are indispensable but fragile natural resources subject to flood, erosion, soil bearing capacity limitations and other hazards.
In their natural state they serve multiple functions for wildlife, pollution control, storage and passage of flood water, aquifer recharge, erosion control, education, scientific study, open space and recreation.
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Considerable acreage of these important natural resources has been lost, despoiled or impaired by draining, dredging, filling, excavating, building, pollution and other acts. Other riparian habitat is in jeopardy of being lost, despoiled or impaired by such acts. This threatens the public welfare.
It is the policy of this state to establish a coordinated and cooperative program to protect, enhance, and restore riparian habitat. More specific goals include:
1. Establishment of a riparian habitat protection policy for all public and private lands and waters throughout the state;
2. Formation of management guidelines for activities within the riparian habitat area;
3. Implementation of such a policy through regulations and coordinated actions by all state and federal agencies and local governments;
4. The encouragement of local government and private riparian habitat protection and restoration efforts.
It is the policy of this State to require that activities not requiring a riparian habitat location be located at upland sites and that practicable alternatives to water-dependent activities be applied. It is the policy to insure that activities which require a riparian habitat location: l. Do not block flood flows or destroy flood storage, increase erosion, or destroy natural erosion controls;
2. Do not cause or exacerbate water pollution through direct discharge of pollutants; location of domestic waste disposal systems on unsuitable soils; dredging, unauthorized application of pesticides, herbicides, and algacides; disposal of solid wastes at inappropriate sites; creation of l.mstabilized fills, or the destruction of riparian habitat vegetation important to erosion control;
3. Do not cause nuisances or threaten safety due to location of structures in flood or erosion areas or on soils with inadequate structural bearing capacity.
4. Do not violate other local, State, and
Federal statutes, rules, and regulations.
In addition, it is the policy to control activities in riparian habitat areas to protect and preserve their functions as: l. Wildlife habitat for breeding, nesting, and feeding grounds and cover for many forms of mammals, reptiles, waterfowl, and shorebirds, including migratory birds and rare species;
2. Nutrient sources for aquatic food cycles;
3. Fish and shellfish spawning and feeding areas;
4. Recharge areas for ground water;
5. Flood conveyance and storage areas;
6. Sites for education and scientific research including outdoor biophysical laboratories, living classrooms and training areas;
7. Recreation areas for hunting, fishing, boating, hiking, bird watching, photography, camping and other uses; and
8. Open space areas that aesthetically enhance the community and benefit local property values.
It is the policy of this State that activities reqmrmg hydrologic or habitat modification provide for mitigation or degradation of environmental quality and habitat losses. Such mitigation must include, but not be limited to, minimizing impacts and restoration or replacement of damaged resources.
Section 3. Definitions
The following definitions shall apply through this statute:
"Local government" means any city, village, town, or county.
"Person" means any individual, group of individuals, association, firm, partnership, corporation, trust, estate, organization or legal entity of any kind, including municipal corporations, government agencies, or subdivisions thereof.
11 Regulated activity" means any activity with an adverse impact on the riparian habitat area as herein defined including dredging, draining, filling, bulkheading, mining, drilling, or excavating or engaging in activities that directly or indirectly kill or materially damage riparian habitat flora or fauna or construction of any kind including but not limited to construction of piers, jetties, breakwaters and boat ramps.
"Riparian Habitat" is defined for the purpose of this statute to include a transitional zone between aquatic and terrestrial (upland) ecosystems which is usually capable of supporting or does support riparian vegetation. Such a zone includes lands (select one of the following) : a. Within 250 feet? 300 feet? 500 feet? of rivers and streams as mapped on the b. Vegetated or susceptible to vegetation by the following species:
(l)
( 2)
( 3) etc.
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c. Within the 100-year floodplain as defined by maps of the federal Emergency Management
Agency of the stated of and
Department
Section 4: Agency Powers
The (State Agency) is authorized to undertake the following activities to implement the purposes of this act: a. Prepare more specific riparian habitat protection goals, guidelines, and plans for implementation to state agencies and local governments; b. Prepare and distribute maps of riparian habitat; c. Adopt regulations for regulated activities within the riparian habitat area; d. Provide technical assistance to local governments, landowners, other agencies; e. Cooperate with other federal, state, and local agencies, land trusts, universities, private landowners, and others to implement riparian protection policies; f. Monitor loss and changes in riparian habitat; g. Undertake and promote the enhancement and restoration of degraded riparian habitat; h. Develop and disseminate educational materials; i. Acquire partial or fee interest in riparian habitat by donation, devise, fee or easement acquisition; j. Advise, consult and cooperate with other agencies of the State, the Federal government, other states and with persons and municipalities in the furtherance of this act; k. For all activities that will impact fish and wildlife and their habitat, consult with the State
Fish and Game Agency, and the U.S. Fish and
Wildlife Service;
1. Encourage, participate in or conduct studies, investigations, research and demonstrations and collect and disseminate information relating to the purposes of this act.
Section 5: Mapping l. The (State Agency) or its authorized representative shall, as soon as practical, make and periodically revise an inventory and maps of the riparian habitat of the state in cooperation with other State agencies, Federal agencies, and local units of government. Maps shall set forth boundaries of riparian habitat using photographic and cartographic standards and techniques as the
(State Agency) may deem appropriate. Boundaries shall be capable of location on the ground either by reference to the maps alone or in combination with field investigations to apply definition criteria.
The (State Agency) may adopt interim maps for areas of special value or hazard or areas threatened by development until more detailed mapping is possible or practical.
2. The (State Agency) shall prepare a list of riparian habitat areas to be mapped and shall recommend the priorities in which studies shall be undertaken. The list shall be reviewed at least annually by the (State Agency). In establishing and revising the list, the (State Agency) shall consider: (a) degree of danger to lives ,and property from flooding, erosion, water pollution and other hazards; (b) the value of the habitats in serving the functions set ouf in section 2 of this act; (c) the rate and type of development taking place; (d) the ability and willingness of political subdivision ( s) having jurisdiction over the area to make use of the data; and (e) other considerations pertinent to the situation.
3. Maps may be prepared separately for various regions of the State as the (State Agency) may determine.
Section 6: Local Government Roles
It is the intent of this legislation that local governments have a primary role in the protection and enhancement of riparian habitat and that standards for habitat protection enhancement. and restoration be incorporated in local plans and regulations. Local governments are therefore authorized to adopt zoning, subdivision control, and other regulations necessary to carry out the purposes of this act pursuant to procedures established by (reference to zoning, subdivision control, other statutes).
Local wetland protection zoning, subdivision control and ordinances in effect prior to this statute shall be unaffected by the adoption of regulations by the (State Agency) to the extent that the local regulations equal or exceed in restrictiveness those of the (State Agency). Local governments are encouraged to adopt and enforce regulations equalling or exceeding those of the
(State Agency) in restrictiveness and to assist the
(State Agency) in administering and enfbrcing its regulations by cooperating in mapping, the adopttion of rules and guidelines, the conduct of hearings on permits, the monitoring of riparian activities, and the enforcement of regulations.
2. If the (State Agency) finds that proposed or adopted local regulations meet or exceed minimum (State Agency) standards, the (State Agency) shall approve the proposed regulations within thirty days of their receipt. A local government may issue riparian habitat permits as specified in
(State Agency) guidelines (See Section 7) after regulations have been approved.
3. The (State Agency) shall provide technical assistance to local governments in adopting and administering riparian habitat regulations. This
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assistance may include draft ordinances, guidebooks, pamphlets, workshops, assistance in evaluating individual permits, and other measures considered appropriate.
Local governments shall, within one year of adoption of minimum guidelines for local regulated activities by the (State Agency), adopt local zoning, subdivision, or other ordinances to implement such guidelines. Such regulation shall be submitted to the (State Agency) for approval as complying with (State Agency) guidelines. Once certified, permits for specified activities shall be issued by the local governments. In the event local governments fail to adopt and submit for approval such local regulations within one year, the (State Agency) shall charge the local government for such administration of regulations within the riparian areas of that local government until such local government adopts and administers regulations meeting minimum state standards.
Section 7: Permit Requirements
After the effective date of adoption of regulatory guidelines by (State Agency), all persons desiring to undertake a regulated activity within the riparian habitat area shall first obtain a permit from (State Agency) or a local government with an approved program.
Such permits shall be issued only if the activity is in compliance with other applicable state, federal, and local regulations, and with guidelines adopted by (State Agency) or an approved local government. The Agency or approved local government may charge reasonable fees for such permits.
Such permits shall be valid for a period of time specified by the (State Agency) or local government and may be revoked for failure to comply with regulatory guidelines, including conditions attached to the permit.
Section 8: Standards for Regulated Activities
The (State Agency) shall, within six months of the adoption of this act, promulgate minimum standards for regulated activities within riparian habitat areas, and for local regulatory programs.
Such standards may include (but are not limited to): l. Minimum setbacks and buffers;
2. Density restrictions and minimum lot sizes.
3. Restrictions on tree-cutting and other vegetation removal;
4. Guidelines for flood loss reduction and storm water management;
5. Special restrictions for habitat of rare and endangered species;
6. Performance standards for regulated activities;
7. Guidelines and procedures for assessing the cumulative impact of uses and minimizing such impact;
8. Conditions which may be attached to permits for mitigation of impacts including restoration and enhancement.
In promulgating such standards, the (State
Agency) may classify riparian habitat and activities by type, size, or other factors relevant to advancement of the goals of this act.
Section 9: Enhancement and Restoration
The (State Agency) shall prepare plans and policies for rehabitation and restoration of degraded riparian habitat. Such plans and policies shall consider the existing and potential value of various sites and shall establish priorities for restoration and restoration. Such plans may be prepared in cooperation with landowners, local governments, and other agencies.
The (State Agency) may initiate restoration and enhancement activities pursuant to such plans including but not limited to revegetation, restocking, fencing, irrigation and other measures. Such restoration and enhancement activities may be undertaken in cooperation with private landowners, corporations, land trusts, other state and federal agencies, local governments and other interested individuals or entities.
The (State Agency) or any local government may enter into a cooperative agreement with an owner of riparian habitat for the purpose of restoring or rehabitating such habitat in accordance with the policies of this statute. Such a cooperative agreement shall provide that the habitat be enhanced and/or restored. Such agreement shall be effective in perpetuity or for a length of time specified in the agreement. Payments may be made by the (State Agency) local government for such agreements. In addition, ad valorem taxes shall reflect the cooperative agreement as provided in Section 11.
The (State Agency) may disperse funds appropriated for restoration and enhancement by section to any local government entering into a cooperative agreement with a landowner or directly to such landowner pursuant to an agreement.
Section 10: Tax
Any owner of riparian habitat who may be denied a permit for a regulated activity shall, upon written application to the assessor, or board of assessors of the (Local Government) be entitled to reevaluation of such property to reflect the fair market value thereof in light of the restriction placed on the land by the demand of such permit, provided no such revaluation shall be effective retroactively.
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Such reevaluation shall also be available to any owner for land under a conservation restriction or, cooperative agreement (Section 9) effective the date of the restriction or cooperative agreement.
Section 11: Judicial Appeal
Any person aggrieved by any regulation, decision or action made pursuant to this act may appeal to (Court) within thirty days of that decision or action.
Section 12: Penalties and Enforcement
Any person who commits, takes part in, or assists in any violation of any provision of this act including regulations promulgated by the
(State Agency) is guilty of a (Felony, Misdemeanor) and may be fined up to dollars for each offense and subject to impriSOii'Iiient not exceeding three months or both. Each violation of this act shall be a separate offense, and, in the case of continuing violations, each day's continuance thereof shall be deemed to be a separate and distinct offense.
Permits may be terminated for cause including violation of permit conditions, obtaining a permit by misrepresentation, or failing to disclose relevant fact, or change in conditions.
The (State Agency) shall have jurisdiction to issue orders directing that any violation of this act be corrected or removed. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator. It shall also have the power to seek court injunctions to enforce these orders.
In the event of a violation, the (State Agency) shall have the power to order complete restoration of the riparian habitat area involved by the person or agent responsible for the violation or other compensation where restoration is not feasible and seek court injunctions to require compliance with their orders. If such responsible person or agent does not complete such restoration within a reasonable time following the order, the (State Agency) shall have the authority to restore the affected riparian habitat to its prior condition wherever possible and the person or agent responsible for the original violation shall be held liable to the
(State Agency) for the cost of restoration.
Any penalty assessed pursuant to this statute including costs of wetland restoration and any restoration requirements shall be recorded in the clerk of courts as a lien against the land and shall not be removed until the penalty is paid or restoration is completed.
All State, county, and local law enforcement officers and citizens are directed to be watchful for violations of the provisions of this chapter and to report all suspected violations to the (State
Agency). - -
The attorney general of the State, a district attorney having jurisdiction, or a public attorney
519 of a local unit having jurisdiction may initiate enforcement actions as described herein against any person or persons believed to be in violation of this statute.
Section 13: Appropriations
The legislature of the State of appropriates the sum of for the administration of this statute including the sum of
---=------..,..---for restoration and enhancement and a cooperative agreement pursuant to Section 9 of this statute.
COMMENTARY ON DRAFT STATUTE
Section 2: Statement of Legislative Finding, Policy, and Purposes
The statement of legislative finding, policy, and purposes is self-explanatory in most respects.
1. The section emphasizes riparian habitat flood, erosion, and other hazards as well as habitat values. This strengthens the legal basis for regulations and links habitat protection with broader flood plain regulation efforts.
2. Mitigation of impact is required where activities require a riparian habitat location.
3. Riparian habitat restoration as well as protection is emphasized.
Section 3: Definitions
This section contains a mm1mum list of definitions. A State may wish to expand the list.
The term 11 authorized local unit of government 11 is defined to include villages, towns, cities, and counties. States may wish to modify this definition.
There are important advantages to regulations by counties or other local units with large geographical size since greater control can be gained over the wetland watershed and the task of coordinating
State and local activities is simplified.
The term 11 riparian habitat 11 is first defined in the draft statute with three options (selection is left to the state)
Fixed corridors. The 11 shoreland 11 zoning statutes of Wisconsin, Minnesota and Michigan define, by statute, a 1000 foot corridor around lakes and ponds and a 300 foot corridor along each side of a stream or the landward side of the floodplain if this distance is greater. Such a fixed corridor has been easy to define on the ground but does not necessarily reflect vegetation, soils, flooding or other characteristics at particular sites.
The second approach--vegetation lists-- has been extensively applied in freshwater and coastal wetland protection statutes in the eastern states and has proved quite satisfactory except where vegetation has been destroyed. Maps are needed with this approach.

The third approach--flooding-- has been extensively used in the state floodplain zoning efforts in 31 /hates. Flo6d mq.ps indicating the limits of a 100 year flood are available for much of the N atibn, including the arid and semi-arid west and form the basis for floodplain zoning by more than 17,000 communities across the Nation.
Flooding does not, of course, necessarily coincide with vegetation.
Some combination of approaches might also be applied. For example, the riparian habitat zone might be defined to include a 300 foot strip or to the landward side of the 100 year floodplain--an approach taken in the Wisconsin and Minnesota shoreland zoning statutes.
The term 11 regulated activity" is broadly defined here to include virtually all types of activities which may threaten riparian habitat. A more restrictive definition could exclude or
11 grandfather" certain ongoing activities.
Section 4: Agency Powers
This section authorizes an Agency to develop a program for protection and management of the
State's riparian habitat. A State may best designate an existing resource agency such as a department of natural ;resources, fish and wildlife agency or water resources agency as the riparian habitat management and regulatory agency. It can then tap existing manpower, data, and, in some instances, budgets. However, a creation of a new agency or board may also have advantages, including a clear independent mission.
Many of the agency functions set forth in this section, including habitat inventory, adoption of rules for habitat and evaluation of permit applications, are developed in greater detail in later sections of the statute. It should be noted that acquisition as well as regulatory powers are provided. A State may wish to cross-reference these provisions with statutes now in existence that authorize a department of natural resources or another conservation agency to condemn or otherwise acquire lands.
Section 5: Mapping
This section directs the agency to inventory and map habitat. Mapping on an interim or more permanent basis is important to the operation of the act since landowners are often uncertain as to whether or not they require a permit until areas have been mapped. Experience indicates that it is often difficult to administer and enforce regulations until maps are available.
One map scale may be appropriate for an urban area and another for a rural area. It should be noted that boundaries shall be "capable of location on the ground either with reference to the maps or in combination with field investigations to apply definition." This permits refinement of boundary lines on a case-by-case basis.
The Agency is directed to map areas on a priority basis. Such an approach has been
520 followed in states with existing wetland statutes.
States may receive technical assistance and maps from the U.S. Fish and Wildlife Service's National
Wetland Inventory project to aid them in their efforts.
Section 6: Local Government Roles
. This section authorizes and requires local units to adopt riparian habitat regulations. The legislature must, of course, decide which local units are to be responsible. Most local units are delegated sufficient power to adopt habitat regulations under zoning, subdivision control, or special critical area enabling acts. The section resolves doubts concerning enabling authority.
Sections 7 and 8: Permit Requirements; Standards for Regulated Activities
These sections contemplate several types of permitted activities: those regulated exclusively at
State level, those regulated cooperatively by the
State and localities where localities adopt regulations meeting minimum State standards and submit permit applications to the State for review, and those regulated exclusively at the local level. It is anticipated that only a small number of activities with significant wetland impact would be regulated exclusively at the State level. The majority of activities would be regulated cooperatively by the
State and local governments or at the local level.
The present draft statute authorized the State regulatory board or agency to determine activities which would be subject to State, cooperative
State/local or local permits.
The larger or most important activities requiring exclusive State approval might include power generation plans, dams, and major fills where local units lack the expertise or geographical perspective for effective regulation or where State or Federal law prempts local regulation.
To permit such a hierarchy, the State regulatory board or agency is directed to establish minimum guidelines for local regulation of activities.
Direct State regulation continues if local units fail to adopt and enforce adequate regulations. Such an approach has been used in the wetland programs of Connecticut and New York and is used very widely in floodplain, shoreland, and coastal area efforts. Minimum standards for local regulations are incorporated in agency administrative regulations. The agency is also to specify activities which will require agency review prior to issuance of a local permit. Activities requiring only local approval might include activities such as minor drainage projects.
Section 9: Enhancement and Restoration
The State Agency is authorized to establish policies and plans for the enhancement and restoration of riparian habitat in cooperation with landowners, land trusts, local governments and other parties. It is also authorized to carry out such restoration directly or through cooperative

agreements. Such restoration and enhancement could take place for existing degraded habitat, in conjunction with a permit violation, or in conjunction with a permit issuance.
Tax
A number of states including New York and
Massachusetts have included tax incentive provisions resembling the one here in their wetland regulation statutes. A second approach--a state income tax credit-- has been adopted in the
Minnesota wetland protection statute and in a riparian habitat protection statute adopted in
Oregon.
Section 10: Judicial Appeal
Appeal is provided for from any action of a local unit or the regulatory body to a court spedfied by the legislature. This may include a local court with jurisdiction at the site of a proposed permit or action or, alternatively, a court located at the site of headquarters of the agency or board. A State may wish to reference an existing administrative appeal statute or establish more specific standards and criteria for appeal.
Section 11: Penalties and Enforcement
This section provides penalties for violation of regulation, including fines and jail sentences.
The regulatory agency may also order restoration of the wetland by the violator and seek court enforcement of such an order. It may undertake restoration and charge the violator in the event of non-compliance with the restoration order.
Penalties are to be recorded as a lien against the land and shall not be removed until the penalty is, or the restoration completed.
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