Local ordinances that aren’t all wet

Wetlands helped David Flaisher, who had never held elective office, beat Jeddy Hood, West Bloomfield, Mich., township supervisor since 1992. “There was a perception that she was too pro-development, and that she wouldn’t enforce the town’s wetlands ordinance,” says Jennifer Brooks, the Detroit News reporter who covers the township. During the campaign, Flaisher promised that he would enforce the township’s ordinance. A Democrat in an overwhelmingly Republican town, he rode that promise to victory last November.

Across the country, local wetlands ordinances are gaining attention – and not just as bullet points in political candidates’ platforms. Wetlands, which act as filters for degraded water, as drainage conduits and as significant wildlife habitat, traditionally have been protected at the state and federal level. However, more and more local governments, concerned with greenspace and quality-of-life issues, are beginning to look into drafting their own protection ordinances.

As with most local regulatory schemes, opposition to wetlands ordinances can be fierce. Consequently, to promote success, local governments must ensure that their wetlands measures are strong enough to provide the necessary protection and well-drafted enough to withstand the inevitable challenges.

The USEPA, as well as most states, provides model wetlands protection ordinances that local governments can use as templates. Those model ordinances, however, are merely guides and are not intended for wholesale adoption. “I don’t think there is any cookbook out there or model ordinance that any community can just grab and apply,” says Neil Bjorkland, senior natural resource planner for Eugene, Ore. “I think that you have to tailor things to the local situation.”

Local governments should look at ordinances in other similar communities before designing their own, says David George, assistant director of information services with the International City/County Managers Association. “Track down other ordinances to see what is out there, particularly based on principles that your local government has on environmental protection,” he suggests.

Putting it all together

Dade County, Fla., home to Miami and 25 other municipalities, as well as Everglades and Biscayne national parks, has had a wetlands protection plan for years. (As is the case in many cities and counties, Dade County’s wetlands protection plan was an outgrowth of the state’s comprehensive growth management act.) Putting the plan together meant dealing with groups with radically different agendas and interests: local developers, rock miners and sugar farmers – all wary of protection measures – and South Florida’s ardent environmental community.

Before drafting their wetlands protection ordinances, county officials held countless meetings with affected groups. Drafts of the ordinances were sent to all interested residents, and their comments and suggestions, when reasonable, were incorporated into subsequent drafts. The commission then held a series of public meetings, which resulted in additional drafts. Two years and six drafts after planning began, the county commission had a document it felt everyone could live with.

As do many communities, Dade County looked to state law to guide its wetlands protection measures. Florida has on its books the Henderson Wetlands Act, which provided a framework for the county’s ordinances.

Under the Henderson Act, a permit for development should not be issued if the project will adversely affect:

– the public health, safety, welfare or property of others;

– the conservation of fish and wildlife and their habitats;

– navigation or the flow of water;

– recreation or marine productivity; or

– significant historical and archaeological resources.

According to “Guidance on Developing Local Wetlands Projects,” published by the EPA Office of Wetlands Protection in 1991, Dade County’s ordinances are both comprehensive and comprehensible. In the paper, EPA lauds the county for its Freshwater Wetlands Permit Application Package and the companion Freshwater Wetlands Permit Guidelines Manual and for its in-field oversight and enforcement.

Dade County’s wetlands protection ordinances now are accepted as a fact of life. “People are used to things like an urban-protected boundary or environmentally protected wetlands,” says Jean Evoy, chief of DERM’s wetlands and forest resources division, which regulates freshwater wetlands. “Those are standard accepted things here.”

Although the ordinances have undergone several changes and DERM is contemplating more, Evoy says that they are successful. “We have complaints from the environmental groups that we aren’t doing enough, and we have complaints from the developers that we are doing too much,” she says. “It maybe means that we are hitting a happy medium.”

Many communities find it difficult to balance the interests of environmental protection and economic development. Doing so successfully often means incorporating wetlands protection measures into a larger growth management plan.

As in Dade County, the wetlands in Eugene, Ore., are located in an urban area. Consequently, the city’s comprehensive development plan includes wetlands protection measures. “It was only in the late 1980s that we discovered that there were 1,300 to 1,500 acres of wetlands in the industrial areas,” says Steve Gordon, natural resource manager for Eugene. “There were very few left, and a few of them contained endangered plants and insects.”

Because wetlands were located on one-third of the land that had been set aside for development, the wetlands program had to balance conservation with economic development. The plan includes a land acquisition program, stormwater management, partnerships between agencies and protective ordinances. The regulations that the city developed are separated into provisions for wetland buffers, waterside protection and natural resources protection. Each of the provisions includes specific ordinances and enforcement codes that are intended to protect wetlands, wildlife habitats, and surface water and groundwater quality.

Implementation

Drafting and adopting an ordinance is one thing. Making sure it can be implemented is another entirely. “You can adopt an ordinance, but if you don’t have the resources to actually implement it, then it’s going to generate a lot of conflict in the community,” says David Hirschman, water resource manager for Albemarle County, Va.

Albemarle County’s water protection ordinance regulates runoff from watersheds and controls erosion and sedimentation. Additionally, stream buffers are designated to protect the area around streams. To implement the ordinances, the board of supervisors has increased the staff of the Department of Engineering and Public Works from one to three people, Hirschman says. “The staff resources are obviously critical,” he says. “There is no way to do it without them. We need people to review plans and people who can go out into the field and address violations and do inspections on stormwater practices as they are installed.” (The program requires a water resource manager, a watershed manager and a water resource plan reviewer and inspector.)

The county also published a design manual to help developers follow the ordinance during planning and construction. The manual contains guidelines on building near stream buffers and information about the review process.

Dade County (with more resources than 72,000-resident Albemarle County) also has published a manual, and the county provides staff members to guide developers through the permit process. Dade’s ordinances provide for the staffing of two divisions of wetlands protection – coastal and freshwater.

“There are basically two categories of violations that would result in formal enforcement action,” says Craig Grossenbacher, chief of the coastal resources section of the Metro-Dade County Department of Environmental Resources (DERM). “You have violations in which people have filled freshwater wetlands without permits and coastal wetlands violations, which mostly involve cutting down or trimming mangrove trees.”(Staffing is not a problem. According to the EPA wetlands protection guidance paper, Dade County has more employees in its wetlands protection offices than do the local offices of the Army Corps of Engineers, EPA or the state Department of Environmental Regulation.)

Additionally, Dade County pays for continuing education for its staff and encourages formal and informal agreements between its employees and the staffs of various federal, state and regional agencies, and local universities. A hotline also is available for complaints about possible wetlands ordinance violations.

Enforcement

Once drafted and implemented, wetlands protection ordinances must be enforced. Albemarle County’s ordinance provides for both civil and criminal penalties, but the violation must be egregious for the serious penalities to kick in. “We’ll send a notice to comply and ask the violator to take certain actions by a certain date,” Hirschman says. “We give them a couple of chances. If they don’t comply, we’ll go through the criminal sanctions.”

It is rare that such action becomes necessary, Hirschman says. “Most people do what they’re asked,” he says. “I’ve only seen three or four cases in eight years where we had to resort to criminal [sanctions].”

Probably because of its unique geography, Dade County is serious about enforcing its wetlands ordinances. “We’re probably the only county in the nation that is sandwiched between two national parks, both of which contain very significant wetlands,” Grossenbacher says.

Most of the county’s high-profile enforcement actions, including some that have resulted in fines in the millions of dollars, involve illegal filling, according to Grossenbacher. Penalties from $5,000 to $20,000 are not uncommon in the case of mangrove cutting.

In Eugene, if a development plan encroaches on the stream buffers established by the city’s wetlands protection ordinance, developers must apply to the planning and development board for approval. “If they either try to do it without that approval, or if they get the approval and don’t do what was approved, we have a progressive approach,” Bjorkland says. “We will start by writing a letter and point out that they didn’t conform with the approval. It gets stepped up and can result in federal action if we have to go that far.”

Eugene’s ordinances also prohibit practices – including the storage of herbicides or pesticides, dumping of refuse or construction of septic drainfields – that would adversely affect water quality or damage wildlife habitat. So far, enforcement has not been a problem. “We greatly overestimated how much it was going to cost us to administer and enforce this,” Bjorkland says. “We thought there would be a lot more applications to alter the buffers, and we’ve had very few. People are staying outside of the buffer areas, and that doesn’t require us to do any review or any extra enforcement.”

It is not always that simple. West Bloomfield, where wetlands helped get David Flaisher elected, is a wealthy community that is home to many of Detroit’s auto barons. It has one of the state’s most stringent wetlands protection ordinances, but that has not stopped its wetlands from disappearing at an alarming clip. (Because of a population boom, undeveloped land constitutes only about 5 percent of West Bloomfield, and much of that is wetlands. In fact, West Bloomfield is home to all or part of 26 lakes and the headwaters of the Huron, Rouge and Clinton rivers.)

“Our ordinance serves as a model for communities all over the state,” says Lorna McEwen, a West Bloomfield resident who has tangled with developers over wetlands violations. Under West Bloomfield’s ordinance, if an area meets any three of 10 standard wetlands criteria (wildlife habitat, hydric soils, water retention, etc.), it is considered a wetland eligible for protection. The township’s ordinance provides for issuance of stop-work orders upon violation. Developers who refuse to comply with the stop-work order can be ticketed and, in the most serious cases, prosecuted.

But, McEwen points out, lax enforcement had stripped the ordinance of its effectiveness. “Under the old regime, there was not much attention paid to enforcement,” she says. “If they don’t enforce it, it doesn’t mean much.” Flaisher, she hopes, will improve things.

The problems in West Bloomfield point to one key aspect of wetlands ordinance enforcement: If the political will to enforce it is not there, it makes no difference how tough the ordinance is. Shaughnessy attributes the lack of enforcement to administrative duplicity and a trusting citizenry. “We have fairly educated residents,” she says. “For the most part, they trusted and felt secure that the ordinances we have in place would protect us.” Once they realized that was not the case, Shaughnessy says, residents took action at the ballot box.

Because of the growing perception of the importance of the nation’s remaining wetlands, that kind of extreme action usually is not necessary. However, those charged with protecting wetlands say it is becoming more and more necessary for local governments to take control. “In general, federal and state governments don’t have the resources to protect local wetlands,” Grossenbacher says. “And land-use decisions that affect wetlands are not made at the state and federal levels. They are made at the local level. That’s why it’s critical that local governments take an interest in their wetlands.”