Resource Document

Case Studies for the Guidelines for developing and implementing National Wetland Policies

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Wetland conservation in the United States of America is achieved through a combination of public and private strategies: government regulation, purchase by government and private non-governmental organizations (NGOs), voluntary gifts of wetlands by private owners to NGOs, gifts or sale of development rights by private owners, and modification of government subsidies. Land use is regarded as the responsibility of state and local governments. National and state constitutions prevent governments from imposing restrictions, without financial payments, on use of land in private ownership. While the federal and some state governments have adopted “no net loss” goals for wetlands, the constitutional restrictions on the ability of government to prescribe particular land uses has been a disincentive to adopt a National Wetland Policy such as developed by other nations.

The wetland protection strategy of longest standing in the United States has been purchase of the land title. Landowners have been encouraged to deed the development rights of wetlands to government agencies or private land conservation trusts. In this approach, the wetland remains in private ownership and generating property taxes to local governments. But the landowner, by sale or gift, transfers forever all rights to develop the wetland to the public or NGO. In many cases, the deed of transfer carries permanent legal obligations to protect against future changes in agency policy. Purchases and gifts of wetlands have been highly significant strategies for wetland protection in the United States since the 1930s but this alone will be insufficient to preserve the values of our wetlands. Ownership of wetlands by NGOs is one of the most important strategies for ensuring protection for wetlands in the United States. Where Government is unable to act quickly enough to respond to opportunities to purchase wetlands from private owners, NGOs often can act more quickly and acquire these sites. The NGO may place in the land deed permanent conservation conditions on a subsequent purchaser or the NGO may reserve rights of perpetual oversight. Sale or gifts of development rights has taken hold in many areas and could have a major role in wetland conservation.

Wetland regulation has developed as a major tool to meet national wetland conservation objectives. In addition to the regulatory programme, all coastal states have adopted state tidal wetland regulation. About 14 states have freshwater wetland regulations. At the local level, wetland regulation is highly variable in application and effectiveness. States in the same region often have different regulatory programmes, making it difficult to establish consistent programmes involving interstate watersheds. The national wetland regulatory programme has a history of inconsistent application between different regions. However, because of the restrictions on the ability of government to apply land use controls, regulatory programmes will remain an important tool in the United States, but this may have little application in other nations.

Wetland regulation requires any private individual, firm or public agency to obtain permission from a government agency before altering a wetland, usually by drainage or filling. The first wetland restriction programme in the United States started at the local level in the state of Massachusetts when, at the request of local coastal communities, the state enacted regulations that have stopped destruction of tidal salt marshes in that state. Citizens in the communities recognized that the marshes were key nurseries and food sources for locally harvested shellfish and commercial marine food fish that are important to the local economy. The courts upheld this regulation, without compensation to the marsh owners, on the grounds of protecting public welfare.

Over time, protection of important fish and wildlife habitats has begun to receive more legal acceptance as a public objective of wetland regulation in the United States. Modifications of flood control, flood insurance and disaster relief policies are also beginning to gain acceptance. These hold promise for floodplain wetlands in large river systems and embody principles that have wide application wherever human uses of floodplains are at odds with regular major flood events. Because agriculture has been a major historical cause of wetland loss in the United States, government subsidies to farmers to support cultivation of certain crops and to adopt land treatment practices have been critical issues in United States wetland protection efforts. More attention is being given to modification of crop subsidy policies, and promotion of revised land use practices in order to reduce the adverse impacts of agriculture on wetland conservation.

The preparation of National Wetland Policy in Trinidad and Tobago, although seen as a major obligation for implementation of the Ramsar Convention at a national level, became a matter of urgency as a result of the extremely topical debate on the destruction of the Nariva Swamp, the nation’s only Ramsar site. This issue assumed national and even international importance and was championed and sustained by several organizations including: (a) the Wildlife Section, Forestry Division (the Ramsar Convention’s National Administrative Authority), (b) the Pointe à Pierre Wildfowl Trust (an NGO focused on wetland issues), (c) concerned individuals from other environmental NGOs, (d) user groups from the Nariva area and (e) sensitized members of the general public. Effective use of, and support by, the media, both print and electronic complemented this cadre of stakeholders.

This process led to a natural elaboration of stakeholders by an overall lead agency, the National Wetland Committee (NWC). Some of the agencies and individuals involved in the Nariva Swamp “issue” were members of the NWC and thus brought to bear their experiences and expertise in the compilation of a first draft of the National Wetland Policy for stakeholders’ inputs. Certain key stakeholders were directly involved in the writing of this draft. An important point to emphasize is that in seeking stakeholders’ inputs, some form of a consolidated document is necessary to focus discussions and facilitate meaningful contributions.

Taking into account the broadest definition of a stakeholder as “anyone with an interest in the issue”, and in rationalizing the implementation of the stakeholder process, two strategies were employed. The first was a national consultation to capture interested members of the public, relevant agencies and ministries, NGOs, academic institutions and key user groups. The draft Policy was presented to this audience by members of the NWC followed by a structured discussion period (with copies having been provided to everyone in advance of the meeting). Ministerial support through the delivery of a keynote address signalled the commitment of the Government to this undertaking.

It was obvious following this national consultation that inputs from communities living in close proximity to wetland areas, most of whom were dependent to a large degree on the resources of the areas, had been insufficient. A number of factors, including social and economic, had caused them to shy away from this formal environment. Hence, the decision was taken by the NWC to assign members familiar to the communities to hold more consultations within these areas. This series of local consultations was undertaken with vigour and advertised through the posting of flyers at strategic locations within the communities. The meetings took on an informal nature and after simple presentations, participants were invited to make their comments, including those of a seemingly peripheral nature. It was interesting to note that the concerns expressed served to assure the relevancy of the policy objectives.

The important lesson learned from this experience is that stakeholders must be involved at all levels, that the nature of involvement must adapt to the particular environment, and that all effort must be taken to capture the most relevant stakeholders within the net.

 Case Study 3: CONSULTATIONS FOR WETLAND POLICY DEVELOPMENT

The Government of Canada initiated development of The Federal Policy on Wetland Conservation in early 1987. An immediate step was to consider the scope and complexity for consultations with stakeholders across Canada. The first such step was to consult with non-governmental organizations through a National Advisory Workshop in February 1987. This meeting brought together 25 representatives of national environmental organizations and wetland resource user groups such as trapping, farming and recreational fisheries. The report of this meeting was published and delivered directly to selected Ministers in both the federal and provincial governments. It laid out a course of action which the federal Government used to guide its implementation of consultations. Subsequently, a meeting of the Canada Committee on Land Use, involving senior representatives of federal, territorial and provincial governments, also developed a paper, charting the course to proposed creation of jurisdictional wetland policies, thus recognizing that a suite of policies versus one national document was needed.

Staff of the Federal Government, in late 1987, wrote a First Draft of the Federal Policy and undertook an initial round of information meetings. These involved headquarters and regional office staff of Environment Canada and selected federal agencies. These meetings helped focus and redesign the length and complexity of the Draft Policy. A Second Draft was prepared and became the basis for a detailed, nation-wide consultation process. The Federal Government recognized it could undertake three levels of consultation: (i) interministerial, (ii) intergovernmental and national environmental/stakeholder organizations; or (iii) the general public. As it was felt that the Federal Policy would not directly influence local land use decisions by any private landowner in Canada, being restricted to federal land management and areas of federal jurisdiction, the second option for limited consultations was chosen. It was noted that this was less complex and less costly in terms of travel and staff time reflecting available resources for such consultations.

Over a six-month period in 1988-1989, 18 meetings across Canada were arranged with combinations of federal and provincial agencies in all the 12 capitals and other cities. A professionally-designed audiovisual presentation summarizing the proposed Policy was prepared in English and French for these meetings. It included a standardized Question and Answer package. In most cases, two federal Consultation Team members attended each meeting, one to lead presentations, the second to record comments and questions. A few meetings were attended by only one team member, particularly for the most expensive travel destinations in northern territorial locations. Consultation meetings, written correspondence and telephone interviews were conducted with representatives of 36 non-governmental organizations and 20 resource user/industry associations. Presentations were made to federal meetings such as the Annual Conference of the Treasury Board Real Property Bureau and Federal Interdepartmental Committee on Water. In each meeting, printed bilingual consultation materials were distributed to all participants. The Consultation Team traveled by air extensively to make these presentations at the above scheduled meetings. Local arrangements were complex, requiring assistance in establishing sites, facilities and invitations to key personnel from many agencies.

Based on the comments and concerns expressed through the consultations on the Second Draft, a third draft of the Policy was ready by early 1990. A professional policy writer with Privy Council experience was contracted to rewrite the specific language of this third draft to enhance its presentation to the Federal Cabinet. The draft was then circulated again to federal agencies that would be affected by the implementation of this Policy. Discussions focused on implementation resources and strategies and the final step of drafting a complementary Treasury Board Submission. The Policy was distributed to federal departments for a final review as part of a Government Environmental Initiative and Memorandum to Cabinet called the Green Plan in late 1991. It was adopted in December 1991 and finally, through further interagency consultations on appropriate communication opportunities, was publicly announced by the Minister of State for the Environment in March 1992.

In countries with a federal system of government, the development of appropriate policy instruments designed to ensure the conservation and wise use of wetlands is especially challenging. In Australia’s case, as with most federal states, it is the provincial governments that have the day-to-day legislative responsibilities for the management of land and water resources. Thus, when Australia decided to follow the guidance of the Convention on Wetlands and develop a national approach to wetland policy, it needed to ensure that all State and Territory jurisdictions, as well as the Commonwealth (National) Government were involved.

When Australia’s national government launched its Wetlands Policy of the Commonwealth Government of Australia on World Wetlands Day in 1997, one (out of eight) provincial jurisdictions already had a similar policy in place; namely, New South Wales. The Federal Government’s wetland policy includes among its six strategies one entitled “Working in Partnership with State/Territory and Local Governments” and under this a priority is to “work co-operatively and in partnership with the State/Territory Governments to assist them with their development of wetland policies or strategies for their jurisdictions.”

From this time on, the Australian Government has encouraged and supported the state and territorial jurisdictions to prepare wetland policies complementary to that of the national government. In late 1997, the Government of Western Australia adopted a state wetland policy. The Government of Victoria has adopted a state-wide Biodiversity Strategy which incorporates a specific section on wetlands. Four other jurisdictions are at different stages in the preparation of policies also — the Northern Territory and the states of Queensland, South Australia and Tasmania. This leaves only the Australian Capital Territory to follow the lead of the national government and the other seven jurisdictions.

There are a number lessons to learn from this Australian case. It was important for the Commonwealth Government to show leadership to the provincial governments by enacting its own wetland policy. This Policy served as a model in terms of the broad coverage of issues it addressed. Equally important was that the Commonwealth Government consulted the provincial governments throughout the development of its own policy. This was recognized in the text relating to working in partnership with these jurisdictions.

Once the Commonwealth’s Wetland Policy was adopted, the process for encouraging the other jurisdictions to develop their own has been achieved partly through political and partly through financial means. Australia has a Council of Environment Ministers wherein the Commonwealth Government and those of the provincial governments meet regularly to discuss and agree on collaborative actions. The development of a complementary framework of wetland policies has gained the support of this forum. A Task Force dealing with the implementation of the Convention on Wetlands is charged with working towards an agreed national approach.

The Commonwealth Government has also established a major biodiversity conservation and natural resource management funding programme (the Natural Heritage Trust). Through this programme, it is dispersing funds for on-the-ground projects at the community level as well as for priority policy development and other activities by the provincial jurisdictions. Under this programme, the Commonwealth Government is providing financial assistance to all eight provincial governments for suitable wetland projects, including in some cases the development of their own wetland policies. This cooperative funding approach is helping to accelerate the policy development process. It is also providing the provincial jurisdictions with the much needed resources to enhance their capacity and knowledge base for managing wetlands in a better manner.

There are often several policies that affect the management of wetlands either directly or indirectly. Wetland conservation and management is a shared responsibility of many institutions and organizations. The development of a National Wetland Policy should, as a matter of necessity, take into account the successes, failures and relevance of these sectoral policies in order to avoid duplication. Similarly, National Wetland Policies should consider existing legislation that is relevant to wetlands to ensure that new policies do not conflict with the existing legislation.

This review of existing policies and legislation can be helped by the establishment of an Interministerial Committee to guide the policy formulation process and ensure that issues relevant to the various Ministries and their institutions are properly articulated and integrated into the National Wetland Policy.

In Uganda’s case, a series of studies were commissioned to specifically review existing legislation. These studies identified that there was almost no legislation in Uganda directly related to wetlands as an entity. However, there was reference to swamps (only one type of wetland) in the Public Lands Act and Public Health Act. The studies also noted that the enforcement of these laws was not sufficient to guarantee wetland conservation. The studies proved to be very crucial in the preparation of the initial draft of the Uganda National Wetland Policy.

Legislation, while in itself is not sufficient, does serve as a good backing for specific policy. The inclusion of wetland issues in sectoral legislation is only relevant in as far as it relates to those sectors and may not reflect the cross-sectoral nature of wetlands. Putting legislation ahead of, or in the place of, wetland policy could have negative connotations. This is because legislation, in Uganda’s case, was in the past often designed to restrict human activities but included little or no incentives for wetland conservation.

Legislative review is also important as it helps to identify the negative aspects of policies affecting wetlands and those actions that need to be taken to modify such legislation. This can ensure that new laws do not conflict with laws in place or make them unworkable. The review further helps to identify the mandate of institutions with responsibilities for wetland management.

Once the Policy was adopted in Uganda, it was felt that it would be imperative that legislation be put in place to support the implementation of this Policy. It was recognized that this legislation could take the form of a separate law, such as an Act of Parliament, or be a part of an umbrella of environmental legislation, regulations and bylaws. In Uganda, the Cabinet approved guidelines for the preparation of legislation to enforce the National Wetland Policy. At the same time, the Government was formulating a National Environmental Policy. As a result, provisions for wetland protection were incorporated into the National Environment Statute. This is to be followed by detailed regulations at the national level and appropriate ordinances and bylaws at the district and local levels respectively.

In the United States of America, almost half of the estimated 89 million hectares of wetlands that once covered the area of the lower 48 states has been lost since the 1700s. Although the rate of loss has been dramatically reduced in recent years, the United States continues to sustain a net loss of approximately 40 000 hectares of wetlands every year. Our approach to wetlands has evolved over the years through a patchwork of laws granting authority to various federal agencies that regulate private and governmental actions with regards to lands that include wetlands.

Over 25 federal statutes relating to wetlands have been enacted since 1899. The first was the Rivers and Harbors Act of 1899 which required permits from the Army Corps of Engineers for dredge, fill and other activities that could obstruct navigable waterways, including wetlands. In general, these laws cover (1) regulation of activities undertaken in areas designated as wetlands; (2) acquisition of wetlands through purchase or protective easements that prevent certain activities, such as draining and filling; (3) restoration of damaged wetlands or the creation of new wetlands; and (4) disincentives to altering wetlands or incentives to protect them in their natural states.

Despite, or perhaps because of, the numerous laws and involvement by 36 federal agencies, it was not until the late 1970s that efforts were made to better coordinate the federal effort on wetlands. President Carter issued two Executive Orders to direct the federal agencies to take action. The first Executive Order directs these agencies to minimize the destruction of wetlands, to preserve and enhance the benefits of wetlands in carrying out their responsibilities in acquiring and disposing of federal land, to avoid aiding new construction in wetland areas, and guides them in their conduct of programmes that affect land use, including water and related land resources planning, regulating and licensing activities. The second Executive Order focuses on floodplain management.

In 1989, President Bush established the national goal of “no net loss of wetlands”. He also established the first Inter-Agency Task Force on Wetlands under the Domestic Policy Council’s Working Group on Environment, Energy, and Natural Resources to examine ways to achieve no net loss of wetlands as a national goal. The Task Force’s mandate was to: (1) provide clear direction to federal agencies for strengthening, implementing and enforcing wetlands protection, maintenance, and restoration, (2) coordinate agencies’ involvement in achieving the no net loss goal, and (3) assess implementation of the no net loss goal by federal, state, and local governments to determine what further steps might be necessary. In 1993, the Clinton Administration issued a wetlands plan which stated the interim goal of no overall net loss of the nation’s remaining wetlands and a long-term goal of increasing the quality and quantity of the nation’s wetlands. In the Clean Water Action Plan of 1998, the Administration announced a strategy to achieve a net gain of up to 40 000 hectares of wetlands each year, beginning in the year 2005. Currently, the Interagency Working Group on Federal Wetlands Policy (White House Wetlands Working Group) focuses on concerns about federal wetlands policy. The Working Group is committed to reducing the federal government’s reliance on the regulatory programme as the primary means to protect wetlands resources and to accomplishing long-term wetland gains by emphasizing non-regulatory programmes. In June 1998, an Executive Order directed the federal agencies to utilize their programmes and activities to protect the nation’s coral reefs.

Wetland regulation and enforcement will continue to play an important role in the overall wetland strategy of the United States as improvements in programme effectiveness continue to reduce losses. Achieving a net increase in wetlands will require working cooperatively with landowners and communities to encourage and support the restoration and enhancement of wetlands, while at the same time ensuring that the regulatory programme results in no overall net losses. Federal efforts to restore wetlands as well as achieving continued progress in state, tribal, local and private efforts are important parts of the strategy. Strengthening partnerships among federal programmes and non-federal efforts also will be necessary to achieve the net gain goal.

Malaysia, a signatory to the Ramsar Convention since 1994, received a grant from the Convention’s Small Grants Fund in 1995 to help develop a National Wetland Policy. This is overseen by the Ramsar National Steering Committee chaired by the Secretary General of the Ministry of Science, Technology and the Environment (MOSTE). Its members include representatives from relevant federal and state government agencies, universities, research organisations, and Wetlands International Asia-Pacific (WIAP).

During the initial phase, many examples of wetland policy from other countries were examined and studied. A Canadian wetland policy expert was invited to Malaysia to give a presentation at the National Ramsar Steering Committee meeting on the development of the Federal Policy on Wetland Conservation based on Canadian experience. Pertinent issues were raised regarding the three types of wetlands ownership: federal, provincial and private. A policy development process and framework were proposed and the Committee agreed to it. A Review Team comprised of representatives from Ministries of Agriculture, Forestry, Irrigation and Drainage, Fisheries, Wildlife and National Parks, and Environment as well as the Forest Research Institute of Malaysia, the Economic Planning Unit, Attorney General’s Chambers, National University of Malaysia, MOSTE and WIAP. The task of the Review Team was to prepare a background paper and policy outline and assist in reviewing this paper as it evolved and took shape.

The background paper was circulated to all key and relevant state and federal agencies in Malaysia. There are 13 states in Malaysia. A National Workshop on the Development of the National Wetland Policy Framework was organised by WIAP and MOSTE in April 1996. The main aim of the workshop was to brainstorm and get feedback from the various stakeholders to improve the background paper. The paper had three sections: (a) Rationale for a Wetland Policy, (b) Goal Statements, and (c) Strategies and Action Plans for each of the proposed strategies. All recommendations arising from the Workshop were incorporated into the background paper. Consultative workshops were then held in several Malaysian States that had been sparsely represented at the National Workshop. The feedback from these discussions were incorporated into the document and it was then further revised by the Review Team.

In July 1997, a Drafting Committee was created to prepare the Policy based on the background paper. The Secretary General of MOSTE appointed the Director of the Forest Research Institute of Malaysia (FRIM) to head the Committee. Its members were representatives from FRIM, MOSTE, the Federal Economic Planning Unit, Ministry of Irrigation and Drainage, Ministry of Environment, National University of Malaysia and WIAP. The Committee met five times from July 1997 through May 1998 to formulate the Policy. Thus, the document took shape and was strengthened by members who had experience in the formulation of the National Biodiversity Policy for Malaysia launched in March 1998. In June 1998, the draft Policy was submitted to the Secretary General of MOSTE for review.

On the recommendation by the National Committee, MOSTE was asked to organise one final National Workshop to discuss the draft Policy. WIAP and MOSTE organized this workshop held in November 1998. Prior to this workshop, the draft Policy was distributed to federal government agencies, the various state economic planning units, and NGOs so that they had sufficient time to make comments before attending the workshop. At the workshop there were many comments and suggestions. These focused on the definition of “wetlands”; the rationale for the Policy; functions and benefits of wetlands; major threats to wetlands; administration of wetlands; the legislative framework; goal statements, objectives, guiding principles, strategies and the appropriate action plans; and the glossary of terms. All written comments were requested to be sent to the Secretariat by the end of December 1998.

So, what happens next? The Drafting Committee will meet in early 1999 to incorporate all the comments. The next step will be to send the final draft National Wetland Policy to all parties concerned, especially the state economic planning units. If they endorse the document, it will be submitted to MOSTE for approval and their endorsement. The Minister of Science, Technology and the Environment would then submit “The National Policy on Wetlands” to the Malaysian Cabinet for approval. Hopefully this will happen in the near future.

For further information about the Ramsar Convention on Wetlands, please contact the Ramsar Convention Bureau, Rue Mauverney 28, CH-1196 Gland, Switzerland (tel +41 22 999 0170, fax +41 22 999 0169, e-mail ). Posted 8 July 1999, Dwight Peck, Ramsar.