If it's wet, is it land?

June 17, 2009

By Julie Kay Smithson, property rights researcher propertyrights@earthlink.net

For all the talk about "wetlands," it's surprising that no one has asked the above question.

Land is defined by the Government Printing Office (GPO) thusly: "Real property or any interest therein." http://www.access.gpo.gov/nara/cfr/waisidx_01/25cfr151_01.html

One of the eleven definitions I've researched for "wetland" sounds very different: "Lands where at least periodic inundation or saturation with water (either from the surface or subsurface) is the dominant factor determining the nature of soil development and the types of plant and animal communities living there. These include the entire zones associated with streams, lakes, ponds, springs, canals, seeps, wet meadows, and some aspen stands. Wetlands support all fish. They also support more species of wildlife (in higher densities) than any other habitat type in the planning area. They comprise less than one percent of the public land acreage." – Draft Environmental Impact Statement, Pit 14 Coal Lease-by-Application, DOI/BLM http://www.wy.blm.gov/nepa/rsfodocs/pit14/DEIS/09chap5-ref-glos.pdf (pages 15-18 of 18)

How does one define the "boundary" between "wetland" and "land?"

Wetland boundary - The point on the ground at which a shift from wetlands to nonwetlands or aquatic habitats occurs. These boundaries usually follow contours. - U.S. Army Corps of Engineers Waterways Experiment Station, Wetlands Research Program Technical Report Y-87-1 (on-line edition) 1987 Wetlands Delineation Manual by Environmental Laboratory, January 1987, Final Report, Approved For Public Release; Distribution Is Unlimited. http://el.erdc.usace.army.mil/elpubs/pdf/wlman87.pdf (Page A14/118 of 143)

The Corps of Engineers has an entire "Wetlands Delineation Manual," so there must be a difference between "wetland" and "land."

The other ten definitions for "wetland" -- 2. Areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, wet meadows, and similar areas. - (DOI/NPS) Long-Term Monitoring Plan - National Capital Region Network, September 30, 2005. Submitted by: Inventory and Monitoring Program, National Capital Region Network, Center for Urban Ecology, 4598 MacArthur Boulevard NW, Washington, D.C. 20007. http://science.nature.nps.gov/im/monitor/plans/NCRN_MonitoringPlan.pdf (Pages G-1 through G-8 - Glossary - or pages 150 through 156 of 156 pages) 3. Wetlands are defined by the U.S. Army Corps of Engineers (Code of Federal Regulations, Section 328.3[b], 1986) as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. http://www.nps.gov/yose/planning/sfbridge/ch4.htm 4. Areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. - U.S. Department of Energy (DOI) Remediation of the Moab Uranium Mill Tailings, Grand and San J uan Counties, Utah Draft Environmental Impact Statement http://www.eh.doe.gov/nepa/docs/deis/eis0355d/vol_1/chap10.pdf 5. An ecosystem in which groundwater saturates the surface layer of soil during a portion of the growing season, often in the absence of surface water. This water remains at or near the surface of the soil layer long enough to induce the development of characteristic vegetative, physical, and chemical conditions. Lands where saturation with water is the major factor in determining soil development and the types of plants that grow there. - U.S. Army Corps of Engineers, Lower Snake River Juvenile Salmon Migration Feasibility Report and Environmental Impact Statement, Chapter 10, Glossary http://www.nww.usace.army.mil/lsr/final_fseis/study_kit/Main_Report/chap10.htm 6. An area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and whose soils are indicative of wet conditions. http://www.epa.gov/glnpo/solec/96/landbylakes/glossary.html and http://iaspub.epa.gov/trs/search$.startup 7. A general term applied to land areas, which are seasonally or permanently waterlogged, including lakes, rivers, estuaries, and freshwater marshes; an area of low-lying land submerged or inundated periodically by fresh or saline water. http://biology.usgs.gov/s+t/SNT/noframe/zy198.htm 8. A zone periodically or continuously submerged or having high soil moisture, and which has aquatic and/or riparian vegetation components, and is maintained by water supplies significantly in excess of those otherwise available through local precipitation. - CALFED (Joint Federal and State program to address water-related issues in the Delta of the Sacramento-San Joaquin rivers), Upper San Joaquin River Basin Storage Investigation, Phase 1 Investigation Report (Page 126 of 128, Glossary covering Pages 116-127; 4.5 MB) http://calwater.ca.gov/Tribal/CALFED_Water_Storage_Projects/San_Joaquin/Phase_I_Investigation_Report.pdf 9. Land that: Has a predominance of hydric soils. Is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions. Does support a prevalence of such vegetation under normal circumstances. - Part 502 - Terms and Abbreviations Common to All Programs, Subpart A - Common Terms - M.440.502.A.00 - 502.00 - M.440.502.A.00 Amendment 30 - August 2005. Definitions, NRCS (Natural Resources Conservation Service) eDirectives (electronic directives system), United States Department of Agriculture (USDA) http://directives.sc.egov.usda.gov/viewDirective.aspx?id=1638 (50 unnumbered pages) 10. Areas that are inundated by surface or groundwater with a frequency sufficient to support, under normal circumstances, vegetation or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. - National Park Service, Yosemite Valley Plan SEIS (Supplemental Environmental Impact Statement), Volume IB Part 2, Glossary http://www.nps.gov/yose/planning/yvp/seis/vol_Ib_p2/gloss_1.html 11. A general term for lowlands covered with shallow and sometimes temporary or intermittent waters. Synonym: marsh, swamp, bog, wet meadow, sloughs, fen, river-overflow land http://www.nps.gov/plants/restore/library/glossary.htm -- only se rve to illustrate that "wetland" is actually more water-covered (or saturated, or inundated) than regular "land."

If "land" can be "wetland," can "water" be "dryland"? Perhaps the better question, considering the first definition of wetland, would be, "Can it support fish?" Maybe, if it cannot support fish, it's actually "land" and not "wetland."

The federal agency employees charged with defining such things must be keeping awfully busy!

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