Freshwater & Oceans
ELI's Wetlands Research and Policy Analysis
The Environmental Law Institute's groundbreaking research on wetlands law and policy continues to examine federal and state protections for aquatic resources, including developments in federal Clean Water Act jurisdiction and tools for local wetlands protection.
Priority Areas of Expertise and Resources:
- Wetland Prioritization Mapping: Thanks to the support of the U.S. Environmental Protection Agency, the Environmental Law Institute has released a new resource - A Handbook for Prioritizing Wetland and Stream Restoration and Protection Using Landscape Analysis Tools. This handbook was designed to provide states, tribes, and local governments with valuable information to guide the development, establishment, and refinement of geospatial tools for identifying restoration and protection prioritization priorities. This handbook is accompanied by an interactive website, that includes information on how research was carried out, the project's findings, and factsheets on the programs studied.
- Compensatory Mitigation Research: ELI conducts detailed research to evaluate compensatory mitigation required to offset adverse impacts to wetlands. ELI studies all compensatory mitigation mechanisms, including mitigation banking, in-lieu fee mitigation, and permittee-responsible mitigation.
- Protecting Wetland and Aquatic Resource Buffers: ELI has researched state and local laws, regulations, and ordinances that control development and other activities in areas adjacent to wetlands and aquatic resources to compare approaches and identify models. The Planner's Guide to Wetland Buffers for Local Governments (2008) identifies both the state of the art and the range of current practice in protection of the lands adjacent to wetlands by local government ordinances, providing information on buffer sizes, land use restrictions, enforcement, and other factors that cities and towns need to know to manage land use and development in these important areas.
- Avoidance and Minimization of Impacts to Wetlands: ELI has conducted research to identify the range of current federal and state regulatory practices and procedures used to require projects to avoid and minimize impacts to wetlands when seeking regulatory approvals. ELI has released separate reports on federal and state level avoidance and minimization regulations: The Federal Wetland Permitting Program: Avoidance and Minimization Requirements (2008) and State Wetland Permitting Programs: Avoidance and Minimization Requirements (2008).
- State Wetland Program Evaluation: ELI has completed a fifty-state study that describes and analyzes seven "core" components of state wetland programs: state laws, regulations, and programs; monitoring and assessment; restoration programs and activities; water quality standards; public-private partnerships; coordination among state and federal agencies; and education and outreach activities. The ELI Study of State Wetland Programs Webpage includes summaries on individual states and ELI's final report describing status and trends, model programs, and summary data for all fifty states.
- Clean Water Act Jurisdiction: ELI works to support protection for wetlands and waters no longer protected by the federal Clean Water Act in the wake of two pivotal Supreme Court decisions. ELI's Clean Water Act Jurisdictional Handbook, Second Edition (2012) is the comprehensive resource for applying science and law to this tangled jurisdictional problem, and Anchoring the Clean Water Act: Congress's Constitutional Sources of Power to Protect the Nation's Waters (2007) identifies which constitutional powers Congress can rely on to protect water, and explains what the Supreme Court has said about these powers. America’s Vulnerable Waters: Assessing the Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos v. United States (2011) provides an assessment of wetland, stream, and other aquatic resource types that have not been protected under the Clean Water Act following a 2006 Supreme Court decision. ELI has released a 50-state study identifying laws that can limit the ability of state agencies to protect wetlands, streams, and other water resources more broadly than federal law. The study, State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act (May 2013), finds that over two-thirds of all U.S. states have versions of these “stringency” and property rights laws.