PROTECTION AND PRESERVATION OF COASTAL . SALTMARSH ON THE NORTHEAST ATLANTIC COAST Dissertation for ma Degree of Ph. D. MTCHIGAN STATEUWERsm-e JOHN saws CARROLL ’ ' " ‘ 2974 WWWWWL 3 1293 01002 8896 This is to certify that the i? :9 thesis entitled Protection and Preservation of Coastal Saltmarsh on the Nofitfleast Atlantic Coast presented by John Edward Carroll has been accepted towards fulfillment of the requirements for Doctor of .EhilQSQDhSLdegree in EQSQUIQLQeVelOpment 1444/65; A SW Major professor Date February 224 1974 0-7 639 V v.» _...r...cv.. l ' o , ,. ‘—.v. - a, ""9585 I".‘?' (I) (ll . \ i ‘0. v If' ABSTRACT PROTECTION AND PRESERVATION OF COASTAL SALTMARSH ON THE NORTHEAST ATLANTIC COAST BY John Edward Carroll ‘7 Coastal wetlands are unique environments at the -?l$§nd:sea interface. They are protected coastal areas where ' ' LA‘LL £;gfififire is a mixing of salt and fresh water, generally tree- I ‘ ; .. g . _ . :_1§§i, and are covered Wlth grass or sedge vegetation and .1 I ‘ 45-7 g ‘ine algae; They are high in biological productivity, 1fish, and a large proportion of commercially valuable ‘giSh, marine sportsfish, waterfowl, shorebirds, and '7 diets of the United States. They also play a valuable factive role as natural buffers to storm tides, and help ;yiate air and water contamination. ‘ Coastal wetlands have been lost in northeastern ‘r?t rates varying from 4% to 28% during the past I T It is the :years, entirely due to man's activities. Ag this dissertation to document the value of A1 -r. h.— v ‘ca (II John Edward Carroll protect the values of these areas, and recommend approaches for obtaining more desirable patterns of use of these areas. The method of analysis was to structure information obtained from the sources in terms of the questions posed by these three purposes. Most of this information was non-quantitative; some was subjective. In situations when preciseness was required, exact quotations from relevant sources were provided. In other instances, the judgment of the writer concerning relevance was the basis for the analytical interpretation. Major difficulties were noted in attempts to define, biologically, geologically, and legally, the nature and boundaries of a coastal wetland. Problems were also encountered in attempts to evaluate the true economic worth of wetlands and their resources. There is yet no broad consensus on either of these matters. A number of wetlands protective statutes from Maine to Mississippi were analyzed, as were legal challenges to these statutes. The only substantial questions raised in these cases are: 1. What constitutes an illegal taking of private property and violation of individual rights on the part of the state? 2. What share of the social burden of wetlands protection should be borne by the individual wetlands owner who must sacrifice potential profits from the use of Ono >0: . -~~r he... (I. a . ‘oo . ‘V--~ n) (D .1» .A .A‘.. u,_ . ‘u l -V- n“.. a- i l l ‘U I I l I I (I) I u; John Edward Carroll the land for the sake of protecting the public values accruing from it? It was found that, because of the variability of state constitutions and statutes, practices of jurispru- dence from one place to another, differences in regional attitudes, and differences in the technical details of the cases themselves, broad use of the state police powers and reliance on the courts to uphold those powers cannot be depended upon to save coastal wetlands from destruction. Use of regulatory authority may only be considered a temporary measure. The alternatives were found to be more effective. These include acquisition in fee simple, acquisition of easements, preferential tax assessment, zoning, regional planning, and philanthropy. Of these techniques, philanthropy can be encouraged but not con- trolled; zoning is subject to legal challenges similar to thOSe involved in other uses of the police power; regional planning is necessary, but is more a supplemental tool than a solution itself; preferential taxassessment is only at an experimental stage, and is a weak technique where it is practiced; and easements are not well understood and can be just as expensive as acquisition in fee simple. Acquisition in fee simple, though expensive, is the only effective reliable tool to preserve wetlands. Without acquisition of this resource, or at least its ecological value, many of the coastal wetland ecosystems of the United States will be permanently lost. PROTECTION AND PRESERVATION OF COASTAL SALTMARSH ON THE NORTHEAST ATLANTIC COAST BY John Edward Carroll A DISSERTATION Submitted to Michigan State University artial fulfillment of the requirements ,. for the degree of DOCTOR OF PHILOSOPHY fitment of Resource Development 1974 co..- ACKNOWLEDGMENTS The writer would like to acknowledge the assistance ‘ouragement of his advisor and committee chairman, of'flilton H. Steinmueller, Department of Resource lcww*nt, Michigan State University. He would also acknowledge the assistance and encouragement of his '11 1‘1" “v\ e‘. V.‘ e“. . l I. ’1. 'fi 7-, fiesta: - 'I: .II 3.Approaches to Pricing the Resource grab Innovative Approach . . . . j‘SALTMARSH AND TIDELANDS STATUTES . . . TABLE OF CONTENTS J;‘/A:,C 1.? OF TABLES - I c o I o o I I I I o ..o§gzsg or FIGURES . . . . . . . . . . . . Organization . . INTRODUCTION . . . . . . . . . . Purpose . . . . . . . . . . . Importance .~ . . . . . . . . . Nature of the Problem . . . . . . Scope . . . . . . . . Method of Analysis . . . . . . . Hypotheses . . . . . . . . . ' THE SALTMARSH IN PERSPECTIVE . . . '. . The Nature of the Tidal Saltmarsh . . Legal Definition .~ . . . . . . . Natural Definition . ‘ Productivity and Natural Characteristics of Tidal Saltmarshes . . . . . . Natural Values of Saltmarsh . . . . SOME ECONOMIC DIMENSIONS OF WETLANDS AND WETLANDS PROTECTION . . . . . . . .- {4 The Problem Setting and the Negative Result .~ . . . . . Rationale of the Loss . . . The Problem of Hazard . . . The Schema of Decision-Making . The Real Problem . . Page vi ommmbww H |-' 99 100 Chapter The Role of the Public Trust Doctrine . . The Decision-Makers and Their Authority . Some Selected Examples of State Action . . V. CHALLENGES TO WETLANDS PROTECTIVE LEGIS- LATION: THE JUDICIAL PERSPECTIVE . . . . Maine v. Johnson . . . . . . . . New Hampshire: A Problem of Definition . Charles H. W. Foster, Commissioner of Natural Resources v. S. Volpe & Company: A Landmark Case in Wetlands Law . . . . . . . . Perry and Perry v.Wi1bour . . . A Test of the Connecticut Wetlands Act . . The Geiler Decision in New York . . . . The Court and Water Quality . . . . A Federal Denial of a Dredging Permit . A Case of Conflict Between Town and State Jurisdiction in New York . . . The Element of Time in a Tidal Wetland Suit . . . . The Role of a Public Interest Group in a Tidal Wetland Case . . . . A Case of Ownership of Riparian Land in New Jersey . . . Police Power vs. Interstate Commerce . . A Virginia Grants Corollary . . . A Change of Position at Boca Ciega Bay, Florida . . . Zabel v. Tabb: A Landmark Decision in Florida . . . A Case of Restoration of Navigability . . A Case of Mineral Dredging and Estuarine Values . . . . . . . . . . VI. SOME POSSIBLE ALTERNATIVES . . . . . . Methods to Preserve the Value of Saltmarsh and Wetlands . . . . . . . . . The Nature of Easements . . . . Wetlands Acquisition and the Nature Conservancy . . . . . . . . . . VII. SUMMARY AND CONCLUSIONS . . . . . . . Summary . . . . . . . . . . . . Conclusions . . . . . . . . . . . BIBLIOGRAPHY . . . . . . . . . . . . . . iv Page 102 106 109 160 162 168 170 174 177 180 189 195 197 201 203 209 211 214 216 219 222 224 230 230 237 242 246 247 253 256 LIST OF TABLES Page }fiéng Island, New York, Saltmarsh Vegetative ‘2 Coverage and Net Annual Production . . . ‘. 28 'L085 of Important Fish and Wildlife ' Estuarine Habitat, by State, 1967 (in acres) . . . . . . . . . . . . 36 _ng Island, New York, Wetland Acreage 1954— —1964, and Percent Loss . . . . . . 57 Extent of Coastal Wetlands in Middle Atlantic ‘ and Adjacent States and Losses Since 1954 . 57 _' auses of Wetland Acreage Loss in Nassau and 'Suffolk Counties, New York, 1954-1964 . . . 60 vHSnmmary of Case Results . . . . . . . . 228 ~°§ giantegorical Budget of the Nature Conservancy, ‘7’”...J“ Ir . 1967-197 0 o O O O I I o o I I 248 Page Li£§§itflarine resource management sequence . . . 73 ‘45 fifintgrrelationship and interaction of ;'.1~d6posited material and use value of ,‘f. n ”estuary o a o e n I I a I a a o 74 'iisults of wetland destruction . . . . . . 75 #figsitive and negative effects of dredging . . 76 it: 'l - ~ ‘ ll‘ 6:- be. 54 CHAPTER I INTRODUCTION Coastal wetlands are especially unique environments between sea and land, and occur on the interface between the two. It has been said that such interface zones, in that they exhibit characteristics from and exist on the margins of totally separate and very different environments, are themselves the most dynamic environments in the short run, the most quickly changing environments in the long run, in the world. Because such interface zones (and especially the intertidal zone) receive nutrients from at least two different environments instead of one, they are, therefore, nutrient-rich, and thus able to maintain exceptionally high rates of biomass productivity. Coastal saltmarshes are extremely productive, and exhibit a greater biomass productivity than any other environment in the world, with the exception of the coral reef of tropical seas.l These environments directly support virtually the entire shellfish (hard clam, scallop, oyster, mussel) production of the United States, are responsible lConnecticut Conservation Association, "Connecticut Coastal Wetlands Crises," Connecticut Conservation Reporter, 2:4 (1968), p. l. .. 6.-.:— \ In ; .«IA:.- a...fi_ ‘ -~ . -...,- . "'~v- . N --.a '-.1 r. ‘1 ~_‘ ’r'.. u‘ L . "- ~-_\ a _ '\ ‘. v. n C. ‘ L‘ .‘§., ‘1 a ‘> ‘-‘ 'c . .‘\ -‘n- p v.” s T . ‘s .__ ,- - ‘v. 'u A s 4. '— ‘~ 0-_ ’ \ ‘v « h ." w. ‘. ~. a. h a _ 1 ".4 \ u ~\ . , 4 _ a . . '. ' - \ _\_ < __ - , a . ‘\‘. v‘ ' ~. for most of the commercial production of crustaceans (blue crab, shrimp, crawfish), and serve as a necessary spawning ground for over two—thirds of the commercially valuable fin fisheries of this country.2 Coastal saltmarsh also serves as primary habitat for most waterfowl of sport hunting and recreational importance, and of many shorebird species of major aesthetic importance. Such wetlands, with their great water absorption capacities, serve as important natural buffers to storm tides, and thus physically protect the shoreline by curbing erosion. Finally, coastal wetlands play a major role in alleviating air and water contamination problems, in that they effectively filter the water which passes through them, relieving it of most contaminants, and absorb excess nitrogen oxide and other gases and pollutants from the atmosphere.3 Coastal wetlands are in danger of permanent altera— tion and destruction, and wetland acreage has declined rapidly in recent years. Tangible threat exists from the draining and filling of these lands for the purpose of building waterfront residential housing and other construc— tion. Threat also exists from the dredging of channels for navigation or to obtain landfill material, and from the 2Eugene P. Odum, "The Role of Tidal Marshes in Estaurine Production," New York State Conservationist, 15:16 (June—July, 1961), p. 12. 3Personal correspondence, Norton Nickerson, Associ— ate Professor of Biology, Tufts University, Boston Massachusetts, December 22, 1970. ‘ . Q \ q. .a-.u4 uAIO .- u-”- in .Hb ~\v . L. 5. u. :e ‘4‘ . n v. :n -..’~ ‘k s.~'v, -~ ‘ ~— . :‘Vs. 4‘-‘ ‘- ~- u“. ~.. ‘-f M § " ‘ \. —."‘ s . v .‘- . ‘ V- “ \ Is" 5‘.‘- '~ »-“\. .5 . "fl r . sy‘ e .. \~ , u. ‘t - “V 7' s ‘ _ basis for the analytical interpretation. Interviews were conducted in an early stage of the research, but were random and did not follow a formal research style. Hypotheses This dissertation will utilize the following hypotheses as guides to the explorations in the areas discussed above. Hypothesis One: Coastal wetlands are sufficiently valuable to justify preservation. In this context, valuable refers to both economic and non—economic values. Preser- vation, in this context, is interpreted to mean protection from deliberate human alteration. Hypothesis Two: Coastal wetlands may be tempo- rarily protected by a variety of legal tools. By temporarily protected in this context is meant a "holding action"lnfifiJ.more permanent action leading to a more perma- nent solution is accomplished. By legal tools is meant the techniques, such as easements, zoning and permit . requirements, which may be used to prevent the wetland from being altered or destroyed. Hypothesis Three: Coastal wetlands will only be effectively preserved through public or private acquisition 1 for this purpose. By "effectively preserved" in this con- } text is meant legally protected from any man—induced alteration or destruction. ~ ‘Vd-y .a. 10 Organization The approach of this disseration is to: 1. define and delimit tidal saltmarsh, and describe its botanical, zoological, geological, and eco- logical characteristics, and illustrate the difficulty of clearly defining the study area; 2. present some of the economic problems associ- ated with wetlands protection, including the various man-caused threats to its natural integrity and the methods of economically evaluating the worth of wetlands and their associated resources; 3. describe the legal foundation for federal, state, and local jurisprudence in the protection of wet- lands, problems of jurisdiction and OWnership, and rights to usage, and analyze a selected number of state wetlands statutes; 4. discuss and analyze selected examples of liti- gation and judicial decisions in the wetlands area, and provide insight into the basis of decisions rendered; and ' 5. denote methods of accomplishing the toal of wetlands preservation and protection, through the use of zoning, easements, philanthropy, regional planning, regu- latory authority, preferential tax assessment, and eSPecially through acquisition in fee simple. L. .._.. a a N,\ $}|-v-—o CHAPTER II THE SALTMARSH IN PERSPECTIVE The late Professor Paul Errington, a man whose whole philosophy of life and career was formed in, on, and of the fresh marshes of South Dakota and Iowa, once remarked . . . while exploitative forms of marsh use such as hunting and trapping are justifiable as long as they are decently done and limited to reasonable use of renewable natural resources, they should not be overemphasized. Non exploitative enjoyments of the marsh itself are those deserving of being called the 'higher use.‘ They are among those best adapted to year-round use and even to mas use, if it comes to that, in settled communities. He goes on to say how exploitative uses often have a way of leading to public pressure for the clearing, filling, channeling, or other destruction of the marsh. Errington of the Midwest was to the fresh marsh what Teal of New England is to the saltmarsh——both men good scientists and ecologists as well as potent philosophical and romantic writers who have done much to promote their mutual though separate and distinct cause of marsh preser- vation. It is from these two men that much of the attitude and philosophy toward the world of the saltmarsh 1Paul L. Errington, Of Men and Marshes (New York: Macmillan, 1957), p. 135. 11 ‘ ‘1'“ d .4.“ :2: nuts v»- ‘1 -.. ~~q w \a “‘8‘“; a . u a- ‘ >-""" .- fi s L 'A 10‘ c u (I) ‘ ~o 12 and its protection, as evidenced in this dissertation, has been nurtured and advanced. The Nature of the Tidal Saltmarsh The nature of, and the natural, economic, and social values of tidal saltmarsh present an interesting paradox. The former, the exact nature of the environment, though well documented, is a subject of great disputation and disagreement, being at the root of many of the problems con- cerning preservation and protection of this environment. The values of the environment, on the other hand, are so obvious, so well known, so well documented, as to make this section of the work indeed the easiest to both present and defend. Hence, it can be shown to almost anyone that the saltmarsh ecosystem is well worth the effort to preserve and is even of national significance, thus justifying federal interest and efforts. However, it is a much more difficult task to adequately (and especially legally) define what it is that constitutes the saltmarsh, and just what is to be included in its boundaries. There is Obvious danger in too narrow a definition, for such would leave much valuable saltmarsh unprotected, while the courts have already shown the danger of too broad a definition, continually declaring that such overly broad definitions 13 lead to an unjustified taking, and thus are unconstitu— tional.2 In this dissertation, the intention is to treat only tidal saltmarsh, also known as coastal saltmarsh, saltgrass, coastal wetlands, estuarine marsh, etc., and avoid inland freshwater marshes and wetlands, the nation's most notable being the prairie wetlands of the pothole region in Minnesota, Iowa, and the Dakotas. (Based on personal knowledge and visits to the area, the St. Clair Flats and Harsen's Islands in the estuary at the mouth of the St. Clair River, St. Clair County, Michigan, can be in this coastal wetland category. It is Michigan's only true coastal embayed estuary, though not saltmarsh in the most technical sense.) It is a further purpose to deal essentially with the coastal saltmarsh estuaries of the Atlantic and Gulf coasts, placing emphasis on the southern New England shoreline from Cape Cod, Massachusetts, to New Jersey. This immediate area was chosen for special emphasis because: —-it had quite extensive natural saltmarsh prior to settlement; --much of this natural saltmarsh has been lost to settlement and, as these wetlands have dimin- ished, their value, and the challenge, have 2This point is obvious in Maine v. Johnson, 265 A.2d 711 (1968), and in other cases cited in this dissertation. -\~ .-4 l4 become greater both to those who would preserve them and to those who would alter or destroy them (vulnerability is thus related to value, although the values to different interests are often not comparable since wetlands are not suitable for many human uses and efforts to make them suitable frequently represent losses rather than gains of human and natural resources); and —-finally, because the author is more familiar with this geographical subdivision of the nation's coastline than any other, having spent the better part of his life in the area. Legal Definition Definitions of coastal wetlands or tidal saltmarsh are about as variable as there are different kinds of wet- lands and saltmarsh, and legal definitions are as variable as men's philosophy of government, ranging from the society- favored laws of the Commonwealth of Massachusetts to the ‘ more private landowner-oriented statutes of Georgia. Some common legal definitions might be expressed as follows:3 Maryland: . . . areas on which standing water, seasonal or permanent, has a depth of six feet or less, and where the soil retains sufficient moisture to sup- port aquatic or semi-aquatic plant life. - 3Marvin L. Wass and Thomas D. Wright, Coastal Wet- lands of Virginia (Gloucester Point: Virginia Institute 015 Marine Science, 1969) , P. 4. : I. ‘ 15 Massachusetts: . . . the term 'coastal wetlands' shall mean any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flowage and the such contiguous land as the Commissioner of Natural Resources reasonably deems necessary to affect by any such order in carrying out the pur— poses of this section. Rhode Island: A coastal wetland shall mean any saltmarsh border- ing on the tidal waters of this state whether or not the tidewaters reach the littoral areas through natural or artificial watercourses, and such uplands contiguous thereto, but extending no more than fifty yards inland therefrom, as the Director of Natural Resources shall deem reasonable neces- sary to protect such saltmarshes . . . Saltmarshes shall include those areas upon which grow some, but not necessarily all, of the follow— ing: [with nineteen species named]. Connecticut: . . . those areas which border on or lie beneath tidal waters, such as, but not limited to, banks, bogs, saltmarsh, swamps, meadows, flats, or other lowlands subject to tidal actions, including those areas now or formerly connected to tidal waters and whose surface is at or below an elevation of one foot above local extreme high water and upon which may grow or be capable of growing specific species of plants: [with nineteen species named]. The Maryland definition is a very unsatisfactory definition which fails to recognize all-important vegetative parameters, and also fails to differentiate between fresh and saline wetlands, a most necessary legal division. The Massachusetts definition is also weak in that it lacks Vegetative parameters, but it shows strength in recognizing the value of contiguous upland and submerged lands to maintaining the marsh ecosystem. In fact, it has served 16 as a model for Connecticut, New Jersey, and other states. In the Rhode Island definition, vegetation is recognized as a parameter, but there is a specific deterrent to coverage greater than fifty yards from the wetland margin, regardless of value. This is illogical, since the salt— marsh vegetation may extend beyond fifty yards. The choice of fifty yards is arbitrary and without scientific validity. The Connecticut definition is patterned after those of her neighbors to the east and north, and includes their best points, while deleting their faulty ones, such as arbitrary measurements and lack of vegetative paramters. Many ecologists have advised lawmakers to draw up a definition which includes all the area between mean higher high water and mean lower low water so as to include the mudflats and beaches as well as the typical saltmarsh. Such a law would be more inclusive in the South Atlantic coastal marshes such as those of Georgia where mudflats prevail, and does have the advantage of being a legally easy way to deal with numerical tideline definitions. However, while not totally discounting the value of such a precise definition, the writer feels very strongly that enmmasis must be placed on species identification as the most important single aspect of the law, since there is sufficient consistency in Species occurrence to accent this definition. La Is ea. w-vy‘ vw.“ 17 Wass and Wright4 maintain that precise marsh border limits would require surveying to determine the extreme tidal range but that the upper limit (assuming it is undis— turbed, which it often is not) can be determined on the basis of vegetation, denoting the presence of acceptable marsh genera and species (which does change over broad areas and regions, though not so drastically as to make such a law unworkable). They also recommend that contiguous areas are ". . . necessary to the stability of the wetlands and the security of their biota," a point with which the author agrees. Otherwise, wooded "islands" or hummocks in the midst of marshes could not be protected, and the development or encroachment on these often leads to the destruction of the whole marsh. Thus, a more complete definition would be: all the area within the extreme tidal range and those contiguous areas, both highland and subaqueous, which are deemed necessary to the stability of the wetland or saltmarsh community. Such contiguous areas would have to, of course, be determined on the basis of vegetation. The states of Maine, New Hampshire, Massachusetts, Delaware, Maryland, Virginia, and Georgia claim title to submerged lands only up to the mean low tide line. Other eastern coastal states claim full title to such lands up to the mean high tide line. 41bid., p. 5. 18 The writer would like to return in a later chapter to a much more complete discussicn1 of this question of ownership and rights in the tidelands, but has delved lightly into the subject at this point to show the reader the necessarily close theoretical relationship between the nature of the environment and the nature of the laws needed to protect it. There are at present numerous defi- nitions of coastal saltmarsh wetlands, most of them quite vague and general, many of them totally useless and often unenforceable, sometimes unacceptable to the courts. The recent bill in the Mississippi Legislature, though good in theory, is a prime example of these weak bills and laws. It defines coastal wetlands or tidal wetlands as . . . those state—owned areas under tidewater, including spaces between ordinary high and low water marks, such as but not limited to banks, bogs, saltmarsh, swamps, meadows, flats, or other lowlands subject to tidal action. On the surface this is not a bad definition even though it does not include vegetative parameters, for it is all- encompassing in the intertidal zone. However, what it does not tell the reader is that most such areas have been transferred by the state to recognized private ownership down through the years, and that the state today lays claim to little tidal wetlands, while the bill protects only such public tidal wetland. 5Mississippi, House of Representatives, Committee Substitute for House Bill No. 467--Wetlands Bill (Jackson: Mississippi Legislature, 1972), p. 2. K 19 On the other hand, one of the most comprehensive legal wetlands definitions is that of New Jersey, which begins: The estuarine zone is composed of bays, harbors, lagoons, channels, inlets, barrier beachers, sounds, estuaries, wetlands, tidal marsh, submerged lands, riparian, tidal portions of many freshwater streams and tributaries, and coastal and intertidal areas. . . .6 These phrases are followed by a very clearly presented total biological, physical, and geological description of the zone covered in the act, encompassing not less than 5,900 words of text on definition alone. This is easily the most complete and enforceable (from a legal viewpoint) wetlands law in the United States, and it is being followed by highly detailed maps of the state's estuaries and wet- lands which fit within the broad yet quite specific definition put forth in this law. Natural Definition Coastal wetlands might be thought of as "treacherous bogs infested with mosquitos," an "evil-smelling eyesore,"7 or perhaps a piece of real estate of great potential value if developed, or as a haven for waterfowl and other 6New Jersey, Department of Environmental Protec- tion, New Jersey Wetlands Order: Basis and Background (Trenton: Department of Environmental Protection, 1972), pp. 1-6. 7George C. Matthiessen, Tidemarshes: A Vanishing Resource (Mystic: Connecticut Conservation Association, 1969), p. 2. v" ’1‘ 'y PF' ‘ A -V‘x ‘.,' C‘~ v' \ V~ c.‘ \ 3‘" g V.‘ l a -. ~.~ v.“ \ ‘.-. - .u‘a . ‘. ._‘ u.. "Iv... a ‘uq‘ \-‘ v... ‘ “r: .“ .. N a” R ‘ 11 ~ -\‘ R w h v ‘ N ‘ . .- .\ ‘v(‘ P ‘4 s 7. v‘D‘ ‘ —\ .‘ ~~< ‘4 ’u ". \. ’ P.” rm‘p‘ ‘~- g 20 wildlife, or perhaps as an obstacle to boating and access to the sea. Perhaps one of the better broad definitions, however, is . . . any of the protected coastal areas where there is a mixing of salt and fresh waters, includ- ing all of the tidal rivers, marshes, tideflats, lagoons, bays and shallow sounds . . . as expressed by the Connecticut Conservation Association.8 To this should be added: generally treeless, and covered with grass or grass-like and sedge—like vegetation and/or marine algae; areas of very high biological productivity, and great diversity of life. Estuaries are interface zones between fresh and saline waters, and thus act as an effective nutrient trap, receiving nutrient input from both terrestrial run—off and from the highly productive shallow ocean waters. A unique feature of the tidemarsh ecosystem is that most nutrient material is not lost, but is retained within the system, and is continually distribu- ted by tidal ebb and flow (or tidal flush). Like most environmental interfaces or transition zones, wetlands are thus in themselves highly productive. Diverse, productive, dynamic are perhaps the best three words used to describe this environment: all three may be used in the superlative, and all three contribute to the problem of both developing and preserving the environment. Shaw and Fredine in their now outdated but still useful work classify wetlands as 8Connecticut Conservation Association, "Connecticut Coastal Wetlands Crises," Connecticut Conservation Reporter, Vol. 2, No. 4 (1968), p. 1. 21 "ecologically the most densely populated biotic community on the face of this planet,"9 and Allee and Schmidt claim they are so biologically rich because ". . . in topographic succession they represent a transitional stage between open water and dry land."10 Unfortunately for the cause of wetlands preserva- tion, many people believe these environments to be at the least foul-smelling undesirable places with a negative value and, much worse, a source of physical harm to man by supporting populations of malaria—carrying mosquitos and growths of poisonous fungi and bacteria. However, since saltmarsh is by definition covered with intermittent and free—flowing water and since such waters cannot sup— port these menaces, such saltmarsh more than likely presents no harm to man in any real form. Thomas L. Linton in his article describing South Atlantic and Gulf Coast marshes and estuaries characterizes the salt marsh and barrier island complex of this coastline by the following natural parameters:ll 9Samuel P. Shaw and C. Gordon Fredine, Wetlands of the United States (Washington: U.S. Government Printing Office, 1956), p. 3. 10W. C. Allee and Karl C. Schmidt, Ecological Animal Geography (New York: John Wiley and Sons, Inc., 1937), P. 570. 11T. L. Linton, "A Description of the South Atlantic and Gulf Coast Marshes and Estuaries," in Proceedings of the Marsh and Estuary Management Symposium (Baton Rouge: Louisiana State University, 1967), p. 3. 22 'Baltmarshes: --wide expanses of shallow open water -—large sounds --fairly straight channels in marshes --low tidal amplitude (approximately three feet) .-£:;I- . --low turbidity 3.2%?1 — --aquatic vegetation present are. -—marsh cord grass (Spartina species) V dominant. w.y4barrier islands: --1ong narrow barrier islands .g;p --washing over can occur, with subsequent breaks through the barrier island ‘--long straight ocean-fronted islands --high coastal energy - p; --very little indentation on the ocean side ; --coarse-grained beach sand. ,' 'OV' m” 23 Pritchard defines an estuary as . . . a semi-enclosed coastal body of water which has a free connection with the open ocean and within which sea water is measurably diluted with fresh- water derived from land drainage. Butman of the Massachusetts Institute of Technology further refines this to . . . mixing zones where fresh water containing one part per thousand or less of dissolved salts gradu- ally mixes with sea water containing 35 parts per thousand dissolved salts 13 and recognizes three characteristic parameters of an estuary: the shape of the estuary, the water of the estuary, and the circulation in the estuary. Geologically, marsh is a transitory feature, and will eventually transform into upland; it is kind of an intertidal plateau of silt and sand, covered with vegeta- tion and regularly flooded by the tides. Its landscape appearance is that of a meadow. Two species of Spartina grasses predominate: Spartina alterniflora (cordgrass) and Spartina patens (marsh hay). Zonation between these two species is caused by dryness, and hence elevation above sea level. Tall cordgrass grows in the wetter low 12D. W. Pritchard, "What Is an Estuary: Physical Viewpoint," in Estuaries, ed. by George Lauff, American Association for the Advancement of Science, Publication No. 83 (Baltimore: Horn-Schafer Co., 1967), p. 3. 13Bradford Butman, "Land Use--Estuarine Interac— tions: Some Considerations," in Papers on National Land Use Policy Issues (Washington: U.S. Senate, 1971), p. 163. '6 ‘Tfiuz‘: . -~V~.O — 24 marsh, while the shorter marsh hay grows in the upper part of the marsh that is less often innundated by the sea. Productivity and Natural Characteristics of Tidal Saltmarshes Primary production of a marsh is mainly accomplished by the marsh grasses, with secondary importance given to algae and phytoplankton. Salt marsh production is utilized in two ways:14 1. direct consumption of fresh plant material by herbivores and plant parasites-—5% of total crop; 2. detritus feeders (crabs, snails, mollusks, worms) who utilize the material after it has been broken down by bacteria and fungi ——95% of total crop. In terms of overall environmental productivity in grams of organic material produced per square meter per year,15 marshes produce 2,000, while other production rates are considerably lower: ocean over continental shelf 300 open ocean 100 wheat (world average) 340 wheat (maximum yield) 1,400 14 B. W. Tripp, "The Ecological Importance of a Saltmarsh," in Papers on National Land Use Policy Issues (Washington: U.S. Senate, 1971), p. 170. 15Ibid., p. 171. .u- v.- 25 Regarding detritus, Tripp says it is . . . critical to the estuarine ecosystem because it is the main pathway by which energy flows from plant producers to animal consumers. It serves to store the energy for later use, to transport it to less rich areas of the system and as a buffer mechanism against lean periods. The marsh exports 45% of its net production, and most of this is transported in the form of detritus. Tripp summarizes the causes of this high marsh productivity as: the ebb and flow of tidal action which serves to transport nutrients; an abundant supply of nutrients; rapid regeneration and conservation of nutrients due to the activities of micro— organisms and filter feeders; three types of primary producers (marsh grass, mud algae, phytoplankton) that insure maximum utilization of sunlight in all seasons; constant year-round production of plant material (with mud algae and phytoplankton producing all year, and grass producing in the growing season). Tripp contends that virtually all human use and influence of and over the saltmarsh, except deliberate protection in the natural state, reduces energy production in the marsh in one or more ways: 1. 2. 3. 17 modification of river influx, resulting in salinity changes; organic enrichment; addition of heated waters from power plants; 16 17 Ibid., p. 172. Ibid., p. 173. . a’o—.~o 26 4. alteration of the drainage system; and 5. addition of noxious compounds (industrial wastes, pesticides, oil). In the Long Island, New York, natural saltmarsh, Spartina alterniflora or saltmarsh grass constitutes a largely pure stand below mean high tide, while the area immediately above this line is generally dominated by Spartina patens (saltmeadow grass), Distichlis spicata (spike grass), or a mixture of the two. Other species, such as Salicornia species (saltwort), Phragmites species (reed), Typpg species (cattails), and Eyg species (marsh elder) are secondary and appear at higher topographic levels. The common reed, Phragmites communis, dominates artificial spoil banks above mean high tide, and areas having a limited influx of salt water.18 The terrestrial animal scene is dominated by a number of common invertebrates, notably fiddler crabs (Egg pugilator and gg§_pugnax), mud snails (Nassarius obsoletus), salt grass snails (Melampus bidentatus), and ribbed mussels (Modiolus modiolus and Modiolus demissus).19 Since Spartina alterniflora is restricted to areas below mean high tide, its areal cover is a good measure of which marsh areas are submerged in an average high 18Joel S. O'Connor and Orville Terry, The Marine wetlands of Nassau and Suffolk Counties, New York (Stony Brook, N.Y.: Marine Sciences Research Center, 1972), p. 4. 19Ibid., p. 4. 27 tide, and O'Connor and Terry corroborate the writer's experience that Coverage by Phragmites communis is presumptive evidence that the area has either been built up above mean high tide level with dredged bottom sediments or the area has very limited sources of salt water. O'Connor and Terry credit tide levels, water table, drainage, degree of soil aeration, and salinity of the soil water as being the main determinative factors of saltmarsh vegetation type, and bring together the rela- tionship between ecology and jurisprudence in citing the recent case of Dolphin Lane Associates, Ltd. v. Town of Southampton, Trustees of the Freeholders and Commonalty of the Town of Southampton (before the Suffolk County Supreme Court, December 29, 1971), in which . . . the boundary between Spartina alterniflora and S artina patens has recently been accepted as a legal def1nition of the mean high tide line for purposes of demarcating wetland gynership bounda- ries in the Town of Southampton. Hence, a knowledge of Spartina alterniflora presence and areal coverage of particular marshes may be of great value in managing and protecting saltmarsh. This case has resulted in a probable landmark decision, and will thus be treated in some detail in later chapters. O'Connor and Terry have developed an important table depicting coverage by dominant vegetative types in 2°Ibid., p. 7. 21Ibid., p. 18. 28 the marshes, and their associated estimates of net annual production as indicated in Table l. A discussion of the nature of the saltmarsh would not be complete without reference to the very recent and popular work by John and Mildred Teal entitled Life and Death of a Saltmarsh and, while much is to be found in this work which further supports and adds to many aspects of this dissertation, one of the most important is Teal's chapter on "The Dominant Spartinas." These two marsh grasses, Spartina alterniflora or cord grass in the lower wetter marsh, and frequently wind—swirled Spartina patens or salt hay in the upper drier marsh are not only the domi- nant vegetation form in the marsh ecosystem and a key to TABLE l.--Long Island, New York, Saltmarsh Vegetative Coverage and Net Annual Production. Tons/Acre Est. Net Annual S ec' % Ar A r . p 1es ea C es (Dry Matter) Production (Tons) Spartina alterniflora (tall form) 14 3,100 3.7 11,000 Spartina alterniflora 45 10,000 2.3 23,000 (short form) Spartina patens 1 3,600 2.2 7,900 Distichlis spicata 1,600 2.9 4,600 Phragpites communis 2,100 5.1 11,000 Salicornia species 3 74 -- —- gypha species .3 57 -— —— l 6 7 9 Baccharis halmifolia 2 360 -— -— 0 O Juncus gerardii 0 23 -— -- Source: J. S. O'Connor and Orville Terry, The Marine Wetlands of Nassau and Suffolk Counties, New York (Stony Brook, N.Y.: Marine Sciences Research Center, 1972), p. 15. 29 the understanding of the biological nature of this habi— tat but are becoming more and more a part of the legal definition of what is or is not a saltmarsh, and what is or is not worth ecologically and/or legally setting aside. On Long Island, for example, the courts are now readily accepting the presence of either one of these species as justification for preservation as valuable wetland, whereas the presence of the common reed (Phragmites communis), being indicative in some places of an already altered or ecologically destroyed marsh community, almost insures that no preservation effort will stand in court, all other things being equal.22 Indeed, the terms "Spartina" and "Phragmites" are coming into such common parlance among lawyers, planners, newspaper writers, and laymen as well as biologists on Long Island and in southern New England and New Jersey that they are rapidly becoming the common as well as Latin or scientific names of the species. Teal comments: Out of the thousands of species of land plants in North America, only two species of grass, Spartina alterniflora and Spartina patens, thrive on this rigorous salty regime and dominate the marshes of the East Coast. They rule the marsh through sheer tonnage produced and space occupied. The rest of 22The decision rendered by Judge Geiler in the case of Dolphin Lane Associates, Ltd., v. Town of Southampton (Suffolk County Supreme Ct. No. 73873/68, 1972) illustrates this acceptance. 30 marsh plants are like so many relatives attached to a strong household, of some importance in the social setup but of none in the chain of command.23 Cronin provided a definition of salt marshlands from a biological perspective when he characterized them as . . . organic factories, traps for sediments, reservoirs for nutrients and other chemicals, and the productive and essential habitat for a large number of inyirtebrates, fish, reptiles, birds and mammals. In summary, tidal marshes are landforms resulting from the invasion of shallow water by land vegetation, and there is a change in the kind, abundance, and size of vegetation, depending on a combination of a few critical environmental factors, such as air and water temperatures, salinity of the water, duration of inundation (exceedingly important), salinity of the ground water, level of the water table, and the tidal range. It is possible to differentiate between "low marsh" and "high marsh" in terms of elevation. Low marsh may be characterized by: -—cordgrass, saltmeadow hay, spikegrass, black rush 23John Teal and Mildred Teal, Life and Death of the Salt Marsh (New York: Audubon-Ballantine Books, 1969),p. 84. 24L. Eugene Cronin and A. J. Mansueti, "The Biology of the Estuary," in A Symposium on the Biological Signifi- cance of Estuaries (Washington: Sport Fishing Institute, 1971), p. 105. 25Carl N. Schuster, "The Nature of a Tidal Marsh," New York State Conservationist, 21(1): 22—29, 36, 1966, p. 24. 31 --Spartina alterniflora (cordgrass) borders all salt watercourses and covers the low marsh --depressions or saltpans are devoid of vegetation, except for glasswort (Salicornia europaea). High marsh may be characterized by: --Spartina pgtens (saltmeadow hay) dominant —-spikegrass, sea lavender, black rush --upland fringe of sea myrtle, seaside goldenrod, bulrushes, marsh elder --freshwater margin of cattails and, in disturbed areas, tall reeds (Phragmites communis). Phytoplankton and red and green algae are found in both low and high marsh. The marsh ecosystem has all the physical and geological cycles which most other environments have, plus the tidal cycle four times daily. The tides redistribute nutrients and sediments throughout the tidal marsh complex, and affect primary productivity by decreasing or increasing exposure of the mud algae and marsh plants. Another envi- ronmental aspect to be considered is that the large ratio of surface area to water area not only favors primary (vegetative) productivity, but it also provides a large, greatly divided, sheltered, food-rich habitat which is a nursery area for many species of crustaceans and fish. Noting this nursery factor as one value among many, the following sections will treat some of the many values 32 associated with naturally-occurring marine saltmarsh, values which make this kind of environment worth the effort of expense and preservation. Natural Values of Saltmarsh The values of temperate zone coastal wetlands are great and varied, and also well documented. They may be considered to have major biological, physical, and direct human values. Biological Values The inherently great biological productivity of these wetlands has already been alluded to. It is an accepted fact that, while terrestrial deserts and ocean depths (both low productivity zones) produce hundreds of pounds of organic matter (dry equivalent) per acre per year, and while grasslands, forests, and typical farmlands (medium productivity zones) produce thousands of pounds per acre per year, estuaries and deltas (high productivity £2233) produce tens of thousands of pounds per acre per year, with the richest coastal marshes producing many tons more per acre per year.26 Estuarine lands provide both the food and the total habitat of practically all of our com- mercially valuable shellfish species (hard and soft clams, bay scallops, oysters, blue crabs, mussels, etc.), and fully support the spawning and immature populations of 6 . . . . . Connecticut Conservation Assoc1ation, loc. c1t. 33 probably three-fourths of our commercially valuable oceanic finfish species (which, in the Northeast, totals about 75 species).27 Perhaps a little over half of all fish eggs hatch at sea, with the young quickly swimming into the estuaries for shelter and protection during growth, while the remainder hatch in the estuaries themselves. Without the protection of estuaries, these species would be rapidly devoured by predatory species at sea (including predatory pelagic birds). It is estimated by the Sport Fishing Institute that Atlantic Coast commercial fleets net over one billion pounds of estuarine dependent fish worth over $75 million annually. Annual shellfish harvests are sometimes worth as much as $26,850/acre on the market.28 (It should be borne in mind, however, that even the profes- sional biologist cannot state exactly how valuable a specific marsh area is in terms of its contribution to the fisheries in adjacent waters, due to the newness of tide- lands ecology as a science, and due to the number of variables involved. We seem to learn of the losses more from hindsight after a given marsh is destroyed.) It is likely that the future contribution of tidal marshes to world food production will be substantial and likely to increase steadily in coming years. 27Eugene P. Odum, "The Role of Tidal Marshes in Estuarine Production," New York State Conservationist, 15 (6) (June-July, 1961), p. 12. 28 Connecticut Conservation Association, loc. cit. 34 The late Rachel Carson once wrote that the total value of the oyster, clam, scallOp, and other mollusk resources is so great it has not yet been estimated and when the value of the shrimp, crab, and crawfish industries, even of the Gulf Coast of the United States alone, is added, an enormous figure is arrived at. The shrimp industry of Louisiana and Florida, and the crawfish indus— try of Louisiana, alone supply the world population, "29 All she reports, with a "tremendous amount of food. of these species are directly dependent on the maintenance of coastal wetlands in good ecological condition for their survival. In testimony before the House Subcommittee on Fisheries and Wildlife Conservation in 1966, Dr. Stanley Cain, former Dean of the School of Natural Resources at the University of Michigan, and at that time Assistant Secretary of the Interior for Fish and Wildlife and Parks, remarked at length on the values of estuaries, and mentioned in particular the Sapelo marshes of Georgia which . . . produce nearly seven times as much organic mat- ter per acre as the water of the Continental Shelf, twenty times as much as that of the deep sea, six times as much as that of the average wheat-producing lands. . . . 0 29Rachel L. Carson, Fishery Resources of Our . Atlantic and Gulf Coasts (Washington: U.S. Government Printing Office, 1950), p. 2. 30U.S., Congress, House, CommitteecniMerchant Marine and Fisheries, EstuarineanuiWetlands Legislation, Hearings, beforetflmaSubcommittee(HIFisheries and Wildlife Conservation of the Committee (3) Comparison (4) / <5) Estaurine resource Estuarine resource & problems '/ environmental information (6) Estuarine resource planning & management procedure (7) Information for estuarine l Establish Change . or reVise resource related decisions \L (8) Public decision J, (9) Implementation of decision Figure l.--Estuarine resource management sequence. (Modified from material prepared by the Travelers Research Corporation, Hartford, Connecticut.) Source: Travelers Research Corporation, The Development of a Procedure and Knowledge Requirements for Marine Resource Planning (Hartford, Connecticut: The Travelers Research Corporation, 1969), pp. 25-63. 74 4 Domestic solid Water contact \ sports Industrial solid Chemical /Recreational and wastes deposits commercial shell and finfishing Dredging spoils ‘ ‘ (Physical Natural deposition 'depositsh““‘~:§Destruction of natural areas Figure 2.--Interrelationship and interaction of deposited material and use value of an estuary. (Modified from material prepared by the Travelers Research Corpora- tion, Hartford, Connecticut.) Sourwze: Travelers Research Corporation, The Development of a Procedure and Knowledge Requirements for Marine Resource Planning (Hartford, Connecticut: The Travelers Research Corporation, 1969), pp. 25-63. 75 DevelOpment of shorefront property ’Navigational improvements Destruction of wetlands Removal of ecological habitats vfi Property damage by storms Figure 3.-—Results of wetland destruction. (From material prepared by the Travelers Research Corporation, Hartford, Connecticut.) Sourcxe: Travelers Research Corporation, The DevelOpment of a Procedure and Knowledge Requirements for Marine Resource Planning (Hartford, Connecticut: The Travelers Research Corporation, 1969), pp. 25-63. 76 Shoaling Filling of (’) wetlands Eel grass. Improved - . . + 91:0th / naVlgatlon ( ) Dredging~_.____% I a d Siltationr “ere 59 (+) circulation DevelOpment of Sand and gravel (+) new harbors for use & waterways Destruction of (_) shellfish beds Figure 4.-—Positive and negative effects of dredging. (From material prepared by the Travelers Research Corporation, Hartford, Connecticut.) Source: Travelers Research Corporation, The Development of a Procedure and Knowledge Requirements for Marine Resource Planning (Hartford, Connecticut: The Travelers Research Corporation, 1969), pp. 25-63. 77 physical deposits and their use values in estuaries, some results of wetland destruction and selected positive and negative effects of dredging. In studying these diagrams, it is well to realize that it is the unrestricted competi- tive market which largely renders decisions as scarce resources are allocated in a sub-optimal manner, and The only solution to the problem seems to be some form of public intervention which will result in a net gain from wetland alteration through a con— sideration of the uniqueness of the resource, its future possibilities, and alternate means of solution. Wass and Wright contend "Until such a mechanism is Opera- tive, wetland alteration must be viewed with trepidation and prevented when possible."16 At this point, it is appropriate to take a closer look at the nature of the economic problem. The thinking which prevails in the economic scheme must also be con- sidered. The Real Problem If wetlands have such well established values, then why does the rapid decline in wetlands acreage take place? Many writers believe that the problem lies within the nature and mechanics of our economic system. It has been found that with respect to certain environmental matters, including that of wetlands protec- tion, former reliance on the price-market mechanism no l6Wass and Wright, op. cit., p. 96. 78 longer serves as a vehicle for guiding the behavior of producers and consumers in our economic system. Prices, set largely by supply and demand, have served a double purpose of rationing available resources and signaling options among production and consumption alternatives. But unfortunately, this mechanism and thus the system has failed when relied on to determine the optimum choice between a given production-consumption pattern and the impact of tin“: pattern on environmental quality. Indeed, if one considers the example of filling wetlands for resi- dential housing construction, it can be seen that not only has the market demanded a greater supply of such waterfront and waterview prOperty to be available for housing, but also has indeed paid rapidly increasing prices for such property as the supply decreases. Thus, increasing price and inflation have not yet signaled an end to this demand. It will now be necessary, then, to put an extra environmental price tag on this resource commensurate with the environmental loss incurred. Per- haps this technique will diminish demand for the resource, and even signal the beginning of new and, from an environmental standpoint at least, superior uses of the .resource. The basic reason why negative and undesirable enrternalities exist in association with estuarine resource usauge is simply that conventional cost accounting on the 79 part of the users ignores the damage to environmental quality.17 This enables both the producer and the con- sumer to avoid paying for the full cost of production. Thus, the cost must be absorbed by society, as a monetary cost in itself, or in the form of suffering with the problem. And, indeed, there is no incentive for this cost accounting to do otherwise. The resulting calculations have weakened or eliminated important incentives for encouraging the use of environmentally beneficial production methods and/or consumption patterns. To the extent this is true, market prices are too low and give a misleading cost of production 'signal' in the marketplace; there is no computation for operating externalities. Of course, the problem is not solely limited to the guiding force of incentives, for we are still faced with the problem of developing consistent and reliable social cost estimates of these undesirable externalities. The task of developing such estimates is truly an imposing one. Care is necessary so that overly strict and unneces- sary standards are avoided, too, for as DeForest warns, l7An externality or external cost or benefit of an activity is defined as one which is borne by parties out— side the economic unit engaged in that activity. If it is a cost, it is a negative externality. If it is a benefit, it is a positive externality. 18 J. D. DeForest, "Economic Implications of Envi- ronmental Policy: An Overview," working draft of a paper presented at the University of Wisconsin Conference on Environmental Studies, Green Bay, Wisconsin, December 1, 1972, p. 2. 80 "The costs a society must bear for setting unrealistic standards will be substantial in terms of wasted resources."19 The economic problem as witnessed in the coastal zone, and particularly on wetlands, differs from that in many inland sites, in that the threat of certain kinds of new development (housing, highways, power plant siting, etc.) is more often the issue than is the forced closure of an already established operation such as a paper mill pollutingtflmaair or a river. The latter situation does on occasion arise, but is less common than the ever- constant threat of new development. Hence, in the coastal zone situation, serious economic dislocation and signifi- cant unemployment resulting from environmental decisions is, fortunately, rather infrequent. This is one major area of environmental economics, then, to which a great deal of attention need not be paid. In the few instances where major economic dislocation does arise as a result of protecting an estuary, temporary government assistance is called for and is justifiable.20 A number of writers seem convinced that coastal zone problems do not stem from lack of morality or an environmental ethic, nor from a lack of planning or poor lgIbid., p. 4. 0Interview, J. D. DeForest, Environmental Economist, Office of International Resource DevelOpment, U.S. Depart- ment of Commerce, Green Bay, Wisconsin, November 30, 1972. Rl planning, but from the failure of the incentives of our economic system to guide man to make the best use of his resources. "The pricing system provides a perverse incen- tive structure that most directly results in the real plight of environmental degradation that now exists."21 Knetsch believes that, for prices to serve as an accept- able basis for social choice, the opportunities foregone in the use of resources for any purpose must be reflected in the price figures. However, in the coastal zone, the conditions for using prices as guides for resource use simply don't prevail. The true values per acre of marsh— land are rarely reflected in the sale price. Hence, dredging, pollution, and landfill are only the result of one real problem: the people who are making the decisions concerning the disposition of these wetlands and marine littoral resources are not accountable or held responsible for their actions, and have no incentive to be so. Knetsch questions the value of public acquisition, for though it may be an answer to preserve a given marsh, it cannot solve the total national problem. He also ques- tions reliance on planning and land use controls such as zoning to accomplish the task. One problem here is that zoning benefits some and hurts others to far too great an 21Jack L. Knetsch, "Economics and Management of Coastal Zone Resources," in James C. Hite and James M. Stepp, Ckxuflxfl. Zone Resource Management (New York: Praeger, 1971), p. 85. 82 extent, while in fact society should be required to share both the benefit and the burden. This point was raised by several judges in recent wetlands decisions. Knetsch questions the use of subsidies to communities to solve problems (again except in very local instances), since it rewards those who permit or who do the most serious dam- ages, while not challenging the incentives which caused the problem to begin with. To remedy this weakness in the economic system, Knetsch proposes the alternative approach of market simu- lation, an approach which would make the prices reflect the true costs incurred in wetlands alteration. This approach basically assigns an environmental value to each and every wetlands parcel and other coastal zone habitat, and the charge system would account for varying produc— tivity of different habitats, ". . . that is, a higher charge would be levied for disturbing a more productive marsh than a less productive one."22 This approach would admittedly place an enormous burden on those ecologists studying productivity of estuarine environments, but has the advantage of providing an additional incentive of varying the nature of resource change toward the preser— vation of more natural values. 22Ibid., p. 89. CD (A) In this way, those parcels of land that are in greatest demand for, say, home-site development would be developed for that purpose much more in areas where the environmental values were smaller in comparison to the development values; that is, where it is less costly.23 Presumably, those parcels with the smallest environmental values would be less costly, and thus, theoretically at least, developers would be most attracted to them. "Fur- ther," says Knetsch, "as development proceeded, the remaining undeveloped areas could have still higher fees imposed to reflect an increasing scarcity value."24 Knetsch further offers the possibility of turning the situation completely around and assessing the charge to those who most benefit from the current resource use. In other words, Una value does not automatically accrue to the party who benefits from the status quo--it could accrue to the party who is denied the right to change the status quo for giving up that right. This simply repre- sents a bribe to forego a right. In fact, in terms of resource use, it simply doesn't matter, according to Knetsch, "whether the polluter pays a charge for the costs incurred to others as a result of his polluting or if the downstream water users pay him a bribe not to pollute."25 It does seem, however, to be very much in the American tradition to assess or charge the party who brings about 23Ibid. 24Ibid., p. 90. ZSIbid. 84 change rather than to the party protecting the status quo, especially when the change to be brought about is likely to destroy tangible values. Therefore, assessing the one who brings about change would probably gain wider acceptance, though the writer submits that failure to reach consensus on this issue could very much be the greatest weakness of Knetsch's proposal. Perhaps most importantly, though, the Knetsch approach is desirable because it ". . . builds on the inherent nature of the cause of the concern,"26 and provides incentive for more efficiency and equitable allocation in resource use. In debating the Knetsch proposal, William Ward, a fellow resource economist, sharply questions the difficulty of defining property rights and ascertaining the value of the resource, and notes that market imperfections have not been corrected. He questions the equity of the proposal, especially in light of the fact that the land developer or speculator would not necessarily bear the Opportunity cost, but the cost would be borne only by he who had the misfor- tune of owning the land at the time of the property rights redefinition. But, as Ward says, If the developer is anyone besides the initial owner, the tax will not be borne by the real cul- prit. Thus, there is some question as to the equitability of the incidence of the tax. 26Ibid., p. 93. 27William A. Ward, "Analysis," in James C. Hite and .James M. Stepp, Coastal Zone Resource Management (New York: Praeger, 1971), p. 97. 85 Ward's point leads this writer to believe that the Knetsch plan might work in those areas where most of the land is now owned by speculators and subdividers, if not elsewhere. And this leads to the thought that, in the Northeast lit- toral zone, at least, most owners of unspoiled acreage are themselves subdividers or at least speculators, whether they are conscious of this or not. Thus, contrary to Ward, the burden would be falling on the real culprit, which is. not necessarily the individual owner but just as often the temptation to make the money which can be made through deleterious but legal alteration of the environment. Ward also notes that the market and pricing imper- fections remain under the Knetsch plan. In essence, the people who suffer do not get the money to justify putting up with the suffering. All society receives the value while only one or a few suffer, which is a very imperfect market situation, and one which has been noted particu- larly in the court case of Maine v. Johnson (see Chapter V.) Ward further suggests that there is a real dis- parity of interregional distribution of wealth attendant on Knetsch's prOposal, since most of the really environ- mentally productive estuaries are located in the same region (the South). He not only sees this as discrimina- tory against this one region, but speaks of a kind of negative multiplier effect built into this system which would multiply differences and make for an increasing 86 divergence of regional income between this region and other parts of the country. The disparities get built into the system and grow as national income grows. Ward's approach on this matter seems to indicate he has little faith in the ability of unaltered wetlands and estuaries to generate much income even within one region, a point with which this writer strongly disagrees. In the long run, presumed regional diversity and the multiplier effect should not be at issue in this matter of wetlands preservation. Property rights are very much at issue here and the assessment of fair market value, taking into con- sideration ecological parameters, certainly will be a most difficult though not necessarily impossible task. Because a difficult task is presaged, however, does not justify its rejection or avoidance. There are some flaws but indeed much merit in what Professor Knetsch prOposes, and it certainly merits further practical testing before judgment is passed. Some other related considerations in the economics of saltmarsh will be treated and possibilities discussed. Approaches to Pricing the Resource Contrary to the View of many that wetlands and Sallumarsh in their natural form have largely intangible valiuas which cannot be measured or priced, there at at 87 at least two ways (and perhaps more) of arriving at a value for a "saltmarsh experience": 1. Alternative values foregone-—namely, what is the best estimate available for the monetary value of the saltgrass and other plants if harvested (if any), of known economically obtainable mineral resources, or developed forms of recreation projects, Of space foregone for housing, marinas, etc., if landfill were to be placed and channels constructed, and so on. The sum total of this figure is a possible monetary value which can be assigned to the saltmarsh in question, since this sum total figure is a cost in the sense that it has been foregone by society in favor of preservation (an Opportunity cost); 2. Cost to society to administer, protect, and maintain the wetland area——this could be considered sepa- rately, or even combined with the opportunity cost figure above to arrive at a net total figure. Important in this cost is the in-lieu tax payments which will have to be paid to local governments because of the removal of land from the tax rolls. Another possibility here is to assess the profit- making of commercial and sport fin and shell fisheries, establishments catering to waterfowl and other hunting, trapping, etc., and resort industry which develop in or around the periphery Of the wetland once the area has been set aside for preservation. In addition, there is no 88 reason why benefit-cost analysis cannot be applied to such preservation decisions, using the figures derived from the above formulae, just as such benefit—cost analysis is applied to certain water resource and other "develOpment" projects. With reference to these criteria, John McKee has develOped several cost-benefit models applicable to certain aspects Of coastal development, specifically housing sub- division on a seasonal basis in Maine. He believes that seasonal development, as long as it stays seasonal, bene— fits both the townspeOple and the municipal budget, but there is risk if there is a chance that seasonal develOp— ment might turn into year-round housing, thus requiring more in services than contributing in property taxes. In this situation, a park or some type Of Open space would be more desirable than housing. McKee presents a number Of alternative plans for the development of coastal sites (including saltmarsh, headland, clam flats, etc.) along the Maine coast, plans which cost the least in municipal services, preserve the most of the ecosystem, and still provide taxable revenue for the municipality. Most such plans involve reservation Of the immediate shorefront and all wetlands as public property, and the clustering of dwellings as much as possible in one or a few places, with a minimum amount Of road and transmission line footage. 89 It is now becoming more widely realized that residential housing can be a very poor tax ratable, since very often the cost Of services demanded (especially school services) are greater than the income generated by property taxes. Putting it simply, . . . if it costs the town $500 to educate each child in its schools, and if new houses will each have two children, then the town must realize $1000 in taxes from that home to break even, ignoring the service costs for sewerage, trash pickup, police, fire, road maintenance, and so on. Thus it can be seen that an argument in favor Of filling in and developing wetlands for residential housing in order to increase local tax revenue is often an invalid one, and the wetland is actually, then, a positive rather than negative value in its natural state. Although industrial develop- ment brings in more tax revenue, the cost of a deteriorated environment and the cost of cleaning up that environment are at issue. Indeed, the current administration in Washington has made vague references to requiring local governments to deliberately assess development on wetland and certain other sites at higher rates so as to deter or discourage develOpment in such critical zones, though whether such a policy will come into reality remains to be seen. 28John McKee, Coastal Development: Cost-Benefit Models (Brunswick, Maine: Bowdoin College Public Affairs Research Center, 1969), p. l. 90 On April 27, 1972, Representative Byrnes of Wisconsin introduced a bill into the Congress to . . . amend the Internal Revenue Code of 1954 to encourage the preservation of coastal wetlands, Open space . . .,"29 if passed to be known as the Environmental Protection Tax Act of 1972. The bill defines coastal wetlands as per the physical and biological definition officially accepted by the U.S. Fish and Wildlife Service (and largely detailed in an earlier chapter), and provides for tax depreciation for those people who make developments or improvements on their income-producing coastal wetlands property which is in keeping with the preservation of ecological values of these wetlands. Acceptable coastal wetlands improvement is any change or alteration approved by the Secretary of the Interior as . . . not being in conflict with applicable regu- lations of Federal and State agencies relating to the protection of the coastal wetlands, and as not requiring an environmentally undesirable degree of draining, dredging, or filling in the coastal wet- lands affected. The bill also provides for income tax deductions for the transfer of partial interests (i.e., easements) in prOperty for conservation purposes, whether the property be wetland or dry upland. 29U.S., Congress, House, A Bill to Amend the Internal Revenue Code Of 1954 to Encourage the Preservationcnyoastal Wetlands, Open Space and Historic Buildings, and for Other Purposes, H.R. 14669, 92nd Congress, 2nd sess., 1972, p. l. 30 Ibid., p. 3. 91 Before too much reliance is placed on the use of the taxing power, however, Barlowe asks recognition of three facts: 1. . . . taxes Often have a beneficial effect upon property ownership in the sense that they pro- vide services which have a value to the property owner in excess of the cost of the tax . . .; 2. many taxes have a relatively neutral impact upon property owners and their Operator decisions . . ., 3. some taxes have adverse effects upon property owners. These adverse impacts may come as the accidental, incidental or deliberate results of tax policy. If Roland Clement of the National Audubon Society recently said that the biologist who wishes to see wetlands preserved has three Options: 1. with the help of economists, he can learn to quantify his values so as to make them comparative in the economic calculus; 2. he can educate the public to accept his values, as stated in non-economic terms; or 3. he can reduce the political acceptability of present economic judgments by showing them to be invalid. Clement says we must combine all three of these options, learn to quantify and tabulate and assign dollar values, and, perhaps most difficult Of all, the ecologist must learn to . . . identify his factors so well that he 31Raleigh Barlowe, "The Effects of Taxes on Land Use" (paper delivered at the Seminar on Taxation Of Agri— cultural and Other Open Land, Michigan State University, East Lansing, 1971), p. 2. 92 can state how much of an estuarine zone can be sacrificed to other uses without destroying the ecosystem."32 A way of changing the economic value of wetlands to benefit ultimate preservation is deliberate planning to destroy marginal shellfish resources in heavily polluted areas while utilizing sand and gravel from the bottom of such areas, thus lessening the pressure for sand and gravel mining in ecologically healthy wetlands. As an example of direct economic calculation, Robert August determined that one acre of saltmarsh in a particular area of Maryland had a monetary value Of $2,400, in contrast to the $100 per acre value previously assigned by the state. The higher figure was arrived at in the following manner: 1. the fair market commercial value of marsh in the area (the "going" sales price) was $100-$125 per acre (with nearby upland going for $8,000 per acre, undeveloped); 2. looking at combined sport fishing, waterfowl hunting, recreational clamming, and commercial fish har- vest, totally $120 per acre, based on annual yield; 3. considering that the state was selling dredged sand and gravel from ten cents to fifteen cents per cubic yard, dry weight, that the nutrient and basic food-producing capacity of a marsh is about $80 per acre, and that the 32George P. Spinner (ed.), Proceedings of the Con- ference on Evaluation of Atlantic Coast Estuarine Zone (Baltimore: Atlantic Waterfowl Council, 1968), p. 8. 93 state has a bulkhead line established by law within which values must be computed, the capitalized per acre value comes out to $4,000 at 5 percent. Then, under this formula, . . the capitalized value per acre ($4000), multi- plied by the number Of acres owned by the state outside the bulkhead line, plus seventeen cents per cubic yard of fill taken would give the basic value of the land.3 Thus, $2,400/acre replaces $100/acre as the fair value for which the state should sell or permit the destruction of wetlands. If this figure were held to, precious little wetland would be dredged or spoiled. Further, a wetland having a capital value Of $4,000/acre should be regulated so that the acreage could not be altered for purposes which would not increase the capital value. Others suggest that one should not ask what a given estuary is worthy, but ask what the total Objectives for the estuary are, in terms of economic, recreational, trans- portation, and ecological components, and then try to determine the Objects that might appear to be appropriate for the people living in the area. In addition to dollar values just mentioned, any (estuary, as natural Open space, has other values which (nannot be calculated. These include the dilution of water arui air pollutants (especially sulfur dioxide around liarge cities), dilution of noise pollution, and the many 33Ibid., p. 29. 94 psychological values inherent in open space. So, no matter how high a figure we arrive at for capitalized value per acre, we will always know that the true value of that acre to man is somewhat higher, and rarely if ever less than the capitalized figure. An Innovative Approach Henry Lyman states that commercial fishing people want a maximum sustained yield of any fishery product, meaning the fisherman goes out and catches fish, in the two or three year age class, and brings in protein in the amount of X number of tons per year. On the other hand, the sport fisherman wants a maximum economic yield, mean- ing that he wants to obtain a large size fish regardless of its abundance, and therefore must expend a great deal of money, making his economic input far greater per fish. "A major game fish in the water is worth approximately $4.50 per pound to the local coastal community from the sport fishing point of view,"34 says Lyman, and the same fish on 'the commercial market does not come close to that price. 'Thus, we have some justification for dividing and sepa- :rately considering the sport and commercial fin fisheries uflien dealing with marsh productivity, and for considering nuarshes which produce sports species to be of perhaps greater economic value . 34Ibid., p. 50. 95 Lyman feels strongly that we must develop a system of monetary criteria if we are to save the marshes, even if only a crude effort, and puts forth a most interesting pro- posal to solve the economic valuation problem and save marshes in the process: One of the great arguments for industrial and real estate development of an estuarine marsh is that it will broaden the tax base of local commu- nities. Many marshland owners pay relatively low taxes on undeveloped wetlands, and they get abso- lutely nothing in return except their own pleasure if they use the wetlands. Isn't there some way of rewarding the owner of this marsh so he won't be tempted by the quick dollar? . . . This is the establishment Of a marine estuary authority. . . . Such an authority would control and manage an estuarine area for maximum economic yield. . . . . . . Say the authority takes over X number of acres of marshland owned by twenty different peo- ple. At the end of any given calendar year, these peOple who pay taxes on this marshland will be rewarded by the profits from this managed fishery on a pro rata basis according to the acreage they own. . . . . . . Some may argue that one fellow owns all the oyster beds. However, the other acreage of the marsh is contributing nutrients to that bed. I submit that this same concept could be carried on at the local level. A coastal community could take half a dozen owners of marshland and say to them: we will get a trained biologist, a trained economist, and a trained salesman to manage this chunk of marsh. At the end of the year you will get some of your investment bait back. . . .35 In other words, Lyman's ideal is to manage the vfluole system as a single unit, and then share the collective jprwafits. The big problem here, even beyond the difficult txask_of educating people to accept this somewhat socialistic aahrangement, is to win the cooperation of local government 3SIbid., p. 52. 96 so that the zoning is not changed to industrial use or some other expensive category which would sharply raise taxes and force the owners to sell out. Education, then, is needed on both sides, and is an exceedingly difficult task. With this economics foundation in mind, some of the more important state statutes which have been enacted in the Atlantic Coast states over the past several years will be treated in some detail. CHAPTER IV SALTMARSH AND TIDELANDS STATUTES The body of law pertaining to saltmarsh, tidelands, and the intertidal zone which has developed over the years derives largely from English common law, as handed down over the centuries since the Middle Ages, and is based on the premise that the sovereign has an interest in all tide- lands. On accepting this premise, then, one is faced with two problems: to define the tidelands and to locate the boundary separating the private and sovereign interests. In most instances, the rule of law is clear, but its appli- cation is clouded, a situation which leads to widespread lack of enforcement of the law. It seems to be well established in common law that the line of designation between the private and public interests is ". . . a line of ordinary high water, as modified from time to time by accretion, erosion, or reliction."l According to English common law, the title to all lands submerged to washed by the even flow of the tide, loelow mean high tide rests with the sovereign, the purpose 1Alfred A. Porro, Jr., "Invisible Boundary—- Ixrivate and Marshland Interests," Natural Resources Lawyer, 3(3):514 (July, 1970). 97 98 being to provide the king with the right to all water- courses, navigable streams and waterways. It did not vest ownership but rather a "heriditament," a kind of use ease- ment providing for the right of fishery and navigation, for . . . Under the old English law a navigable tidal watercourse constituted a public easement highway or right-of—way set aside for the free public use which was said to be sovereignly held as trustee or guardian.2 This was not so much a title of ownership as it was a title of governance over use. In American usage, however, actual ownership title became accepted. Alfred Porro, a New Jersey attorney with great interest in tidelands cases, submits that . . . although the crown could convey its cor- poreal hereditmement it could never transfer or convey [emphasis added] to any subject the public rights either of navigation or fishery. . . .3 for these incorporeal hereditaments are held in the public trust for all. Porro contends this fact will become better known when the public interest to save marshlands demands an end to former conveyances of sovereign rights by states to private enterprise. Legally, "tideland" is the term that must be used when speaking of English common law, and it refers ‘to the intertidal zones. Saltmarsh, wetlands, etc., are ruat legally acceptable terms. The mean tide line (usually (Expressed specifically as mean high tide line) referred 21bid., p. 515. 3Ibid. 99 to is the only legal line of demarcation, and the National Oceanic Survey measurement, scientifically based on an eighteen-year average, is the accepted source. Mean high tide and low tide are derived from local mean sea level. Origin of Federal Powers in the Coastal Zone The United States Government Officially derives its power to control and regulate activities in and affect- ing estuaries from five constitutionally granted powers: 1. the power to regulate commerce among the several states, among the broadest of all powers, To the extent that estuaries are used as ports for such commerce and otherwise in connection with navigation, federal law and the implementing administration of it can be made directly applica- ble.5 2. the power to tax. Since the tax laws are often shaped with an eye to their effect in influencing conduct as well as to the raising of revenue, federal taxation can be used to shape certain6types of estuarine develop- ment or preservation. 3. the "war powers," which involve the U.S. Army Corps of Engineers in navigation improvements and per- Init granting for alteration of navigable bodies of water; 4U.S., Constitution, Art. I, sec. 8. 5U.S., Department of the Interior, Fish and Wildlife £3ervice, National Estuary Study, Vol. 6, Appendix I, "Fed- eeral, State and Local Laws and Tax Policies Affecting the IJse of Estuarine Resources" (Washington: U.S. Government IPrinting Office, 1970), p. 2. 61bid., p. 3. 100 4. the proprietary power, in that the federal government has authority to manage federal property under both jus publicum and jus privatum; 5. the treaty power, here pertaining mostly to matters affecting the migratory bird and fish species regarding the preservation and management of which we have signed treaties with other nations. From under these very broad powers have come federal statutes of a regulatory, public works, and tax nature, and those providing for grants, technical assist- ance, and other kinds of incentives to improved management of estuarine land and water resources. Additionally, vehicles of administrative law in the form of executive orders, guidelines for administering particular statutes, and regulations implementing Congressional acts play an important role in the federal legal setting. Origins of State and Local Powers The state level of government has a much freer hand in its ability to shape the development of estuaries, its only real constraint being its own constitution. The stxites are the repositories Of the very broad police Exnver, and under this power may act to regulate in the nanma of health, safety, morals, and general welfare. Stxrtes are only circumscribed by ". . . the extent of autluarity which the peOple of a particular state have chosen to atllow their executive, legislative and judicial branches 101 of government to exercise."7 It is true that ". . . state constitutions have Often been used consciously to restrict governmental action in favor Of protecting private property. . .,"8 so they are a force to be dealt with by any agency seeking to protect or influence actions over estuaries, though it is true that, since state constitu- tional restrictions are self—imposed, they can be lifted. However, too Often this is politically a most difficult job. Local governments, of course, only exercise those powers delegated to them by their states. In some areas this delegated power is inconsequential, but in the sub- ject area under study, the Northeast coast, this power is already highly significant and becoming more so. The visible increase in county and town planning, zoning, and subdivision regulation power, not to mention increasingly wider powers granted to town conservation commissions and boards, county boards of environmental quality, and other such Officially designated quasi-governmental citizen bodies, is progressing so rapidly that it is now difficult to keep abreast Of all of the changes, even in one state or area. As will be seen in a later chapter, Town Conser- ‘vation Commissions in New England, New York, and New .Jersey are now beginning to have a major impact on govern- Inent acquisitioncfifsaltmarsh, and on the changing public 7Ibid., p. 3. 81bid., p. 5. 102 attitude regarding the value and disposition of these environments. The Role of the Public Trust Doctrine Before prceeding further on the subject of specific government powers and laws pertaining to the saltmarsh, it would be well to investigate further this most basic concept of the public trust doctrine lying behind every saltmarsh legal enactment. Professor Joseph Sax cited in a recent article a Maryland case where the State Board of Public Works deeded to a private real estate developer 176 acres of state- owned submerged land for only $100 per acre, plus ten cents per ton for state-owned sand dredged from the bottom 9 On this land and with this fill, and used for fill. lots of a fraction of an acre each were established and sold for $5,000 to $7,300 each. A suit was filed objecting to the state's action. Why, Sax asks, should a state agency supposedly invested with the public trust, grant away tidelands in exchange for a tiny sum of money repre- senting only a fraction of market value? Or why, for that matter, should a resource Of significant value to the public be reallocated to the benefit of private citizens? In defending the grant, the state says the development will 9Joseph L. Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," Michigan Law Review, 68(3):471-566 (1970). 103 produce a multimillion dollar increase in the taxable property base of the local area. There is a clear disre- gard for the public interest here, and Sax contends that the courts could easily intervene on the grounds that the state statutes contain nothing authorizing "give away" grants Of this type. Professor Sax also discussed a Virginia case involving a specific bill being rapidly approved by the two houses of the legislature, with no debate, on days when fifty to one hundred other bills were passed. The bill in question was then signed into law granting desir- able tideland to a developer for only $1,600 per acre when fair market value dictated a figure closer to $140,000 per acre. In partial defense of this action, Sax asserts that Army Corps permits were necessary before building could take place on this land and that "If permits are necessary . . . uncertainty about obtaining such permits must be reflected in the price Of the land."10 However, Sax does not fully subscribe to this and argues That a property is or may be, ill—suited to private develOpment should enhance the government's doubts about removing the land from public trust uses and should not encourage diSposal by the state at a very low price. Sax suggests there is a great deal of ingenuity which courts can use in very factual cases of this sort, and that lOIbid., p. 636. llIbid. 104 public trust law is not so much a substantive set of standards for dealing with the public doman as it is a technique by which courts may mend per— ceived imperfections in She legislative and administrative process.1 Sax considers the public trust concept to be more than anything else a medium for democratization. In speaking of a need to restrain localism in decision-making, Professor Sax asserts that there should be specific state-wide rather than merely local authori- zation, and thus decisions likely to inhibit public uses must be made in a public forum and they must be part of a public program which provides for a permit system applic- able to the private use of public lands. He speaks of . . how very reluctant courts are to overturn an explicit legislative authorization even if that authoriza- tion seems to go to the outer edge Of legitimacy. . . ."13 With respect to the judicial role in decision-making, he comments, There is another useful role that the courts are willing to play. . . . That role is one in which the courts attempt to affect future cases; it is illustrated by their use of language which sug- gests to legislatures and to administrative agencies that there are limits which courts may impose and that those limits were nearly, but not quite reached in the particular case at bar. In this manner, the court suggests to other branches of government that they should be relucant to adopt a more permissive View of the public trust.14 12Ibid., p. 638. l3Ibid., p. 674. l4Ibid., p. 675. 105 Public trust cases are often dismissed in court, according to Sax, on one or more of the following grounds: 1. the lawsuit was an impermissible action against the state's sovereignty; 2. an order granting authorization for a given act within the administrative agency's unreviewable discretion; or 3. the plaintiff had no vested property rights at stake and thus no litigable interest in the controversy. All Of these grounds have been used in saltmarsh cases, as will be seen in the next chapter. Finally, Professor Sax urges that judicial inter- vention must and should be used ". . . as a technique to thrust a problem Of significance upon a busy legislature's attention."15 In a recent article in The Yale Law Journal, it was noted that public trust theory traditionally held the public to have certain important rights in the foreshore, " . which rights superseded any conflicting private "16 rights, including those claimed by the King. The King was admittedly a trustee for these rights, but he could not appropriate them for his own private use. Drayton claims the current law Of tidal areas is confusing and difficult to work with for it lSIbid., p. 689. 16William Drayton, Jr., "The Public Trust in Tidal 4Areas: A Sometime Submerged Traditional Doctrine," The ”Yale Law Journal, 79(4): 762-789 (March, 1970), p. 769. And, lem 106 . . . straddles different and sometimes inconsis- tent goals; it has ill-defined boundaries; it encompasses more or fewer interests at different times and places; the degree of enforcement varies depending upon the balance of interests asserted, when, for whom, and where; and . . . there is con- siderable ambiguity regarding the state's role as trustee and regulator. 7 finally, Drayton gets to the crux of much of the prob- when he speaks of the all too frequent attitude on the part of state government to want to dispose Of the public's rights in the tidelands. He says, . . . many governments have confused their roles as private Owner and sovereign trustee of public interests and have attempted to give or sell por— tions Of their trusteeship powers along with alienable interests. Although some such distri- butions have since been sanctified by judicial myth-making and/or by prescriptions, they are theoretically invalid. 8 The Decision—Makers and Their Authority Attention should now be devoted to the various decision-makers who have jurisdiction over coastal wetlands and saltmarsh, ownership and jurisdictional problems, and some of the statutes, ordinances, and regulations that have been passed to (or introduced) specifically pertaining the saltmarsh environment. In addition to the federal government and its five llroad previously enumerated powers, there are a number Of Lfl31ir: tinast: doctrine, and proper enforcement Of the police 242 Lxmer,aretme answer to protection and preservation of these valued environments. Wetlands Acquisition and the Nature Conservancy Itis worthwhile to consider how the private 4 sectorsmmmessfully accomplishes and finances preservation a private Washington- 1 of salUmush. The Nature Conservancy, basedcxnmervation organization which concentrates on acquiring in fee simple or by easements properties Of high ecological value, including many kinds Of saltmarsh and is a prime example. estuarine lands, the usual The Nature Conservancy has, of course, General Fund for operating expenses, a fund common to all It is derived from various organizations Of this sort. classes of membership dues, general tax deductible contri- and butions from individuals, groups and foundations, totalling some $729,954 in the fiscal interest on assets, But, more important to the year ending June 30, 1971. outstanding success of the Conservancy in preserving untouched saltmarsh and other environments in their there are three other fiscal tools: natural state, project revolving fund (formerly the matching 1. and loan fund)--presently in excess Of $2.4 million-- The provides funds for the purchase Of natural areas. Zonservancy reports, The functioning idea behind the fund is to pro- vide money temporarily but quickly where it is Upon purchase Of a given area, it most needed. 243 bemxmm the responsibility of the chapter or pro- jectcmmmittee to raise funds to repay the Project NO IEvohnng Fund, usually within three years. interest is charged during the first ninety days; thenxdter, to encourage prompt repayment so that the finds may be used again, interest is set at onegxmcent below the current prime rate. hirecognition of the Conservancy's work, the Ford Foundatnxlrecently Offered a challenge grant Of $600,000 to the anh meaning that for every four dollars the Conservancy can raise, the Foundation will give one dollar. This grant will be in effect for three years, and raises the likelihood that the Project Revolving Fund will be worth over four million dollars by late 1973. Thus, with a comparatively small amount of capital (at any one time), a large number Of significant areas can be "12 preserved. taken from the 1970 Annual Report of the Table 7, Conservancy, indicates how rapidly the net worth and budgets of the organizations have increased in recent ‘years, ennmn prior to the Ford Foundation grant and other recent innovations. More recent fiscal innovations have included the establishment of llTTue Nature Conservancy, "Land Acquisition," The (Spring, 1972), p. 3. lzTTua Nature Conservancy, "Ford Foundation Chal- The Nature Conservancy News Na ture Conservancy News lenges the Conservancy, (Winter, 1971), p.10. 244 TABLE 7.--Categorial Budget of the Nature Conservancy, 1967-1970. Category 1967 1968 1969 1970 Assets $8,232,061 $15,928,139 $19,010,185 $33,166,944 GODeral fund 334,502 450,427 624,701 632,123 income Expenditures 351,385 407,488 421,171 528,962 Natmnfl.areas 635,485 1,899,879 2,299,998 5,002,177 funds E d “ owment 516,383 847,113 1,126,202 1,734,674 funds V l f . a He 0 lands 5,785,456 13,195,465 13,491,957 24,061,602 (cost) V f alue O lands __ -- 5,715,000 7,575,202 (conveyed) Source: The Nature Cbnservancy, Annual Report, 1970 (Washington: The Nature Conservancy, 1970), p. 5. 2. lines of credit at several banks (including Manufacturers Hanover Trust Company in New York), which are provided at the prime interest rate, currently repre- sent the loan Of "instant money" on demand up to five million dollars, providing much financial flexibility; and 3. a guarantee and income fund, now worth over one million dollars, which provides an endowment, and can be used to guarantee bank loans when the project revolving fund and credit lines are fully utilized. In summary, it can be said that techniques Of acquisition in fee simple and less than fee simple, and the use of the taxing power as incentive, are valuable 245 tools to accomplish the task of saltmarsh preservation. With the supportive use Of the police power, as witness the growing body of law and judicial decisions in this field, there would seem no reason why protection and preservation Of saltmarsh wetlands cannot be accomplished. fmrr CHAPTER VII SUMMARY AND CONCLUSIONS Thus far, this dissertation has: --delineated and delimited the physical, biological, 3H and legal boundaries of coastal wetlands and saltmarsh, and described the problems in acceptably defining these boundaries; -—discussed the nature Of the coastal wetland and saltmarsh environment, its inherent ecology and biological productivity, as well as its place and setting within the greater ecological whole Of the terrestrial and oceanic ecosystems; --investigated the essential conflict, economic, social, and political, between man and this environment, noting man's past lack Of ability to relate positively to the saltmarsh ecosystem; --seen what man has done by way Of statute to pnnatect these environments, and analyzed some Of the posiijAne and negative aspects, strengths and weaknesses, of these efforts; --and, finally, Observed how these statutes have tmxni challenged in court and in some cases overturned; and, furffluar, the various judicial decisions resulting in 246 247 Iiltirmately strengthening or weakening the overall effort 'to Ixreserve and protect the natural integrity of the estuarine ecologic processes . Summary Coastal wetlands or saltmarsh of the Northeast .Atlantic Coast are most difficult tO define by any known jparameter, whether it be geological, botanical, or geophysical. A clear and acceptable definition Of the high ‘7 tide and low tide lines is not easily arrived at, even by application of the finest legal and scientific minds to the problem. However, a number Of apparently locally acceptable definitions for several states have been expounded upon to give the reader an idea of the possible kinds Of parameters and measuring tools used in the task, and to illustrate the conclusions thus far arrived at. The natural history Of the coastal wetland or saltmarsh environment has been described in some detail. Two grasses, Spartina alterniflora, or tall marsh cord- grass, and Spartina patens, or short marsh hay, are crucial to the very nature and definition of a saltmarsh, espe— cially in the northeastern coastal zone under study. They are the key indicator botanical species, for they account for the largest part Of saltmarsh biomass and eammgy productivity and they most Often illustrate the mmmadifferentiating the high and low tides. Spartina alanmiflora can only survive in the low tide zone which 248 irs.innundated twice a day by saltwater, whereas Spartina patens survives on higher, slightly less saturated ground shoreward of the Spartina alterniflora which is inundated take on special legal importance, as the zone between tfluan is becoming increasingly recognized as a dividing line between high and low tides. Other species of biological and perhaps legal importance include Distichlis spicata, Salicornia spp. (saltwort), Iva frutescens (marsh elder), Juncus gerardii (black rush), and Phragmites communis (common reed). The latter species (the common reed) holds a special importance as an indicator species of both fresh water in the environment, and as a sign Of recent human disturbance, since it is invariably the dominant species to come in on filled land and a dredged substrate. Animal species most commonly associated with the saltmarsh include Uca pugilator (fiddler crab), Modiolus spp. (mussels), and Melampus spp. (snails). All of these organisms combined, in conjunction with their geologic substrate and ecological setting, form the most biologically productive terrestrial environment known to man. The data reflecting loss Of saltmarsh acreage in thelkmtheast to uses more suited to man's apparent immediate needs indicates to the reader that there is a shampconflict between the existence of saltmarsh in its 249 natural state and man's desires for it. Major saltmarsh acreage has been lost to garbage dumps, parking lots, airports, landfill projects for residential housing, and dredging and bulkheading projects for navigation and recreation. Much less saltmarsh acreage has been protected in natural preserves or by use Of the police power and other governmental powers designed to prevent or deter their destruction. Documentation in support Of the great biological and geological values Of coastal marshes now exist and are largely unchallenged. Yet, public disposal and destruction of these same marshes continues. It is now commonly believed that 65% to 75% of all commercially valuable marine finfish depend on the natural vitality of these marshes in some stage of their lives. Likewise, all shellfish of value to man depend on the marshes, many totally. Furthermore, the geologic-hydrologic value Of marshes as absorptive buffers to storm tides and other uses has been demonstrated, while their values in allevi- ating air and water contamination are just coming to be realized. And yet, marshes are granted away or left unclaimed by public agencies, and little serious effort has been exerted to save those which are privately owned. If the trends in marsh destruction evident in the past twenty years continue, there will soon be no marsh left. Many states along the Atlantic and Gulf Coasts have now passed statutes, most of them quite recent, to .- - 155W“? 250 give some measure of protection tO saltmarshes. However, each statute is inherently weak, due to its inability to develop a legally acceptable definition of saltmarsh, and also due to legislative desire to avoid charges Of uncon- stitutionality against these laws. The laws vary greatly in the strengths and weaknesses. Some have been challenged in court, and have withstood the test Of constitutionality. Others remain to be tested. The more recent trend in these 3 statutes is to present a definition Of saltmarsh based largely on vegetative parameters (Often on the presence Of any one Of nineteen selected plant species), and some- times complemented by geophysical tide-line parameters; order a state-conducted inventory of all saltmarsh, with mapping and set boundaries required; and design a permit system whereby an owner wishing to alter wetlands must present his case to a state agency, pay a fee, and follow specific requirements set down in his permit should it be granted. If the permit is denied, the applicant has recourse to appeal in the courts. If the permit applica- tion is considered sufficiently important, a public hearing must be advertised and held. The complexity Of the procedure varies from place to place, as does the atti- tude toward wetlands protection and level of permissiveness of the permit-granting authority and the courts. Generally, the state Department of Natural Resources or Department of Public Works is given the task Of granting or withholding 251 pmnnnits. State statutes also vary on the subject of public .acquisition Of wetlands or easements to them as, Of course, does the level of apprOpriated money set aside for this task. Although some wetland acreage has been lost as a result of decisions rendered in litigation against these statutes, no statutes themselves have been overturned. The central judicial issue seems to revolve around the twin problems of what constitutes an unconstitutional taking Of private property without compensation or due process Of law, and what represents a fair share Of the social burden which is to be placed on the back of the individual property owner? In Maine v. Johnson, the court found that too much sacrifice was being asked of one property owner in order to benefit all Of the peOple of Maine. Hence, the judge recommended public acquisition Of wetlands with the public tax money Of all the peOple to accomplish pro- tection, and permitted the private prOperty owner to fill his wetlands for his own profit. However, in this case, the judge was careful to uphold the validity Of the law and dismiss charges against its constitutionality. From a reading Of judicial decisions in other cases, one can see that these two matters are problem focal points, as is the issue Of saltmarsh ownership and extent Of bounda- ries. It does appear from study Of the recent volumes of literature written on the subject that the question of E" 252 ownership is more central to the issue in the South .Atlantic states, while the questions of unconstitutional takings and appropriate responsibility for the social burden Of protection is more at issue in the Northeast states. Many methods are available to accomplish the ends of saltmarsh protection and preservation, from use of zoning and other police powers, preferential use-value tax assessment, and philanthropy, to regional planning, public purchase of easements and public acquisition in fee simple. Due to the unreliability of judicial deci- sions and lack of predictability Of future zoning trends, the use of police power regulation cannot be depended upon to ensure marsh protection, and should only be looked upon as a holding action or delaying tactic until more permanent protection can be afforded. The preferential or use- value tax assessment method is best adapted to agricultural areas rather than marsh, as the laws are written, and, in any event, the technique has been ineffective to date where it has been applied. It does, however, have some limited potential in wetlands protection. Philanthropy is hap- hazard and, for Obvious reasons, cannot be controlled or relied upon. Regional planning is a tOOl which tells us what we have and where we ought to be going, but is only a tool, not an end in itself. Public purchase of ease— ments to accomplish the task of natural marsh preservation 253 can be a viable tOOl, especially in areas more remote from population centers where land values and pressure for land are lower. However, in more developed areas of the North- east, the cost of easements or development rights is just as great as the cost in fee simple. Public acquisition in fee simple, then, is the one remaining tool, and the only vehicle Of preservation which is fully effective. It, too, however, has the major disadvantage of excessive cost in many areas. On the other hand, current use of police power to require permits before carrying out wetlands alteration may reduce the acquisition cost to the point where it does, indeed, become feasible for the public sector to acquire the great bulk of wetlands acreage which supplies so much in social public value. Conclusions The writer concludes that these coastal saltmarsh environments described in this dissertation are sufficiently valuable to justify preservation, even at some acquisition cost, as well as the costs of alternatives foregone. There is no question that temporary protection may be given to wetlands by careful and persistent use of the police power via the requiring Of state permits and public hearings before approval Of alteration. Further, it is conceivable that public acquisition costs could be con- siderably reduced with such persistent use and strict enforcement Of the police power. It will be increasingly 254 less worthwhile for private owners to convert their wet- lands tO more privately profitable uses. In the long run, then, wetlands will only be effectively protected and preserved by such public acquisition in fee simple. There are some who argue that the social costs Of saltmarsh preservation (that is, the loss Of tax revenue and use for other purposes) are, in many or most cases, greater than the social values of preservation. While this may be true in a few instances at the present time (especially if one only considers monetary returns), the argument assumes that the property tax will continue in the future to be the basis Of support for public educa- tion. The trend in the United States at the present time is clearly in the Opposite direction, and thus a signifi- cant decrease in demand for revenue raised by property taxation is foreseen. This would inevitably bring social costs more in line with social revenue in those cases where a discrepancy exists, and thus weaken this argument against removing wetlands from the property tax rolls through public acquisition. Unfortunately for the interests of wetlands preservation, as population growth and industrial develop- ment accelerate, the division of interests between the value to society and the value to the owner becomes an increasingly serious problem, and the answer is of course education and its known potential for influencing publicly 255 held social values. Unfortunately for wetland ecosystems, public recognition of their true social value is coming about only at the same time as demand for coastal land and water sites for housing subdivision and other uses are rising, as are the market values for these site uses as the supply dwindles. There is, then, an apparent threat that the race will be won by those who seek to alter and destroy rather than by those who seek tO preserve these ecosystems. Ultimately, without acquisition of this resource or at least its ecological value, coupled with eternal vigilance, the coastal saltmarsh wetland ecosys- tems of the United States will be permanently lost. If the loss occurs, perhaps more important than the loss of the great variety Of values cited in this dissertation will be the loss Of the opportunity forevermore to study the ecologic process occuring in this complex environment. As Ian McHarg has said, . . . nature is the arena of life and . . . a modicum of knowledge of her processes is indis- pensable for survival and rather morf for existence, health and delight. . . . Ian L. McHarg, Design With Nature (Garden City, New York: Natural History Press, 1969), p. 7. BIBLIOGRAPHY 256 BIBLIOGRAPHY Books ALMe,W.CL, and Schmidt, Karl C. Ecological Animal (hography. 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