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Riparian Areas: Functions and Strategies for Management 4 Existing Legal Strategies for Riparian Area Protection Public recognition of the importance of wetlands resulted in the 1970s in a national-level regulatory system for their protection (NRC, 1995). Not until the 1990s, however, have riparian areas begun to receive legal recognition as places requiring special attention. During the last decade, a patchwork of federal, state, and local laws and programs has developed that, directly and indirectly, begins to acknowledge the importance of riparian areas and to require or encourage special management to restore or protect their essential functions. The degree of protection, the focus, and the spatial coverage of these laws and programs are highly variable at federal, state, and local levels. Although riparian areas perform many valuable functions, it is their importance to stream water quality and fisheries that prompted most of the laws and programs that afford them protection. A key differential in the level of protection given to riparian areas is their ownership status. There are approximately 2.3 billion acres of land in the United States, including Alaska and Hawaii. Of this total, 550 million acres are owned by the federal government—about 24 percent. The proportion of land in the public domain varies from state to state, from less than 0.2 percent in Iowa to 77 percent in Nevada. The largest federal government holdings are in the 12 western states (AK, AZ, CA, CO, ID, MT, NM, NV, OR, UT, WA, and WY) with much of this land being managed by the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM). Ownership may be shared, as where a stream forms the boundary between adjoining tracts, or along federally defined navigable waters where the state owns the bed and banks, but the adjacent lands above the mean high water are owned by another entity. An additional property interest is ownership of the water itself
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Riparian Areas: Functions and Strategies for Management or of a right to its use. Thus, legal protections for riparian areas and any recommendations for changes in their management must account for both the property interests in the relevant waters and lands and the fact that most riparian areas are linear features that cross ownership/jurisdictional boundaries. An example of this complexity is the Interior Columbia River Basin, which contains 74 separate federal land units, including 35 national forests and 17 BLM districts, as well as significant private, state, and tribal holdings—all of which must be taken into account when formulating a joint, comprehensive management plan. Protection of riparian areas has been approached in a variety of ways (Table 4-1). One approach, exemplified by the National Environmental Policy Act (NEPA)—and comparable laws in some states—is to require identification and analysis of adverse environmental effects that would be caused by federal actions, along with consideration of less environmentally damaging alternatives. Such an approach is not specific to riparian areas, nor does it require their protection, but it does ensure attention to their environmental values if they would be potentially affected by a proposed federal action. Examples in which environmental impact statements have focused on riparian values are discussed in this chapter. A second approach is to place special limitations on activities in riparian areas on publicly owned lands. For example, in the Pacific Northwest logging and other activities are restricted in riparian reserves that have been established on federal lands in order to protect salmon. Many of the benefits provided by riparian areas—wildlife habitat, water quality protection, channel stability, and maintenance of fisheries—are public in nature. A third approach is to regulate activities on private riparian areas. Such regulation must necessarily protect the legal rights of property owners while limiting those land uses deemed unacceptably harmful to public interests. Protec- TABLE 4-1 General Approaches for Riparian Area Protection Approach Example 1. Required impact identification Environmental Policy Acts National Environmental Policy Act and State 2. Special management areas on public lands Northwest Forest Plan 3. Private land development/use regulation State and local stream buffer requirements 4. Financial incentives, technical assistance, education Farm Bill programs 5. Public/nonprofit purchase of private riparian lands or interests in lands Greenway programs, conservation easements
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Riparian Areas: Functions and Strategies for Management tion of riparian habitat essential for federally protected endangered species is one example of this approach. Other examples are found in statewide programs that restrict certain types of activities on lands adjacent to waterbodies, such as the Massachusetts Rivers Protection Act and the New Hampshire Comprehensive Shoreland Protection Act. Many states restrict timber harvesting on private lands adjacent to streams. In addition, many local communities use their land-use authority to limit new construction in streamside areas. Fourth, incentives such as cost-sharing, low-cost loans, or tax reductions may be used to encourage good practices on private riparian areas, and special technical assistance and education may be used as well. At the national level, several Farm Bill programs provide incentives for moving intensive agricultural practices away from streams; several states have similar programs. Fifth, privately owned riparian lands can be purchased—either in fee or by easement—for public management. The desirability of riparian areas for recreational use has prompted urban areas to acquire riparian lands for greenways (Smith and Hellmund, 1993). The remarkable growth in the number of land trusts in recent years has provided another vehicle for protection of private lands utilizing conservation easements. Federal—and an increasing number of state—tax laws provide incentives for landowners to donate such easements. This chapter sets out the general legal and management frameworks that now apply to the protection of riparian areas. First reviewed are the federal, state, and local laws and programs directed, at least in part, to protect and restore essential functions and values of privately owned riparian lands. Both regulatory and nonregulatory approaches are discussed. Then, federal laws and policies applying to publicly owned riparian areas are presented, organized by category of federal public land. Next, laws governing the use of water resources are considered in relation to supporting riparian areas. Two federal programs that have significant potential to expand protection of riparian areas are given in-depth consideration. A final section considers the efficacy of the existing framework and evaluates the need for additions and changes. PROTECTION OF PRIVATELY OWNED RIPARIAN AREAS Most riparian lands are in private ownership, especially in the eastern portion of the United States. The value of riparian lands to a private landowner most often is measured in terms of their economic benefits rather than their ecological functions. Private owners of riparian lands typically have only limited motivation to use these areas in a manner protective of their functions. In the absence of improved education about riparian functioning, legal strategies for protecting the ecological values of privately owned riparian lands must be based either on implementing regulatory requirements or on providing special incentives. Alternatively, such areas may be purchased for public ownership and management.
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Riparian Areas: Functions and Strategies for Management Regulatory Approaches Regulatory approaches are especially well suited to situations in which private gain from the development and use of land and natural resources causes unacceptable public loss, with the negative consequences of the action falling largely or entirely on someone other than the developer or user. Typically, land and resource developers may be required through a permit process to alter or restrict the manner of development in order to reduce its negative effects. Even-handed application of the requirements imposes the same burden on all similarly situated land and resource owners and developers. Regulatory approaches must further a legitimate public purpose and cannot deprive a property owner of all economically beneficial use of the property (unless the government pays compensation). Federal Programs Except for wetlands, there is no national regulatory program that attempts to manage ecologically harmful activities within riparian areas. Although the link with water, and hence commerce, has provided a legal basis for federal control of dredge-and-fill activities in wetlands, private land-use regulation generally is within the province of states. Nevertheless, there are federal programs that apply to certain activities in riparian areas. National Environmental Policy Act. The National Environmental Policy Act (NEPA) requires federal agencies to examine the potential adverse environmental effects of proposed major actions that would significantly affect the quality of the human environment. Alternatives to the proposed action must also be considered. NEPA is not itself a regulatory law in that no particular result is required by this statute, but the environmental analysis serves to disclose both the existence of environmental problems and less environmentally damaging approaches. Although NEPA applies only to proposed federal actions, it often extends to private activities requiring some form of federal approval or receiving federal financing. Litigation under NEPA involving riparian areas has chiefly involved claims that environmental impacts were not adequately addressed or mitigated. Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989 (9th Cir. 1993), for example, considered whether likely impacts of a proposed hydroelectric power facility on a riparian area and its bald eagle habitat were adequately evaluated. The need to prepare a full environmental impact statement rather than simply an environmental assessment has been the subject of other litigation. For example, in Sierra Club v. Babbitt, 69 F. Supp. 2d 1202 (E.D. Cal. 1999), a federal district court concluded that a National Park Service environmental assessment of a proposed highway reconstruction project provided insufficient details to assess the likely project impacts on the Merced River or its riparian corridor.
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Riparian Areas: Functions and Strategies for Management Clean Water Act. The Clean Water Act (CWA) has the stated goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. It focuses jointly on human and aquatic ecosystem health by establishing a water-quality goal of “fishable and swimmable” and “zero pollution” for all bodies of water. Although many sections of the act indirectly address riparian areas, the section most relevant to their protection (other than Section 404) is Section 303(d), which requires states and the U.S. Environmental Protection Agency (EPA) to identify waters not meeting state water-quality standards and to develop Total Maximum Daily Loads (TMDLs). A TMDL is the maximum amount of a pollutant that a water-body can receive and still be in compliance with state water-quality standards. After determining TMDLs for impaired waters, states are required to identify all point and nonpoint sources of pollution in a watershed that are contributing to the impairment and allocate reductions to each source in order to meet the state standards. Although TMDLs have been required under the Clean Water Act since 1972, their development did not begin in earnest until forced by widespread litigation during the 1990s (Houck, 2000; NRC, 2001). Although it has been a matter of debate for some time, recent court rulings have confirmed that the TMDL program applies to both point and nonpoint sources of pollution (Pronsolino v. Marcus, 1999). Thus, it is likely that implementation plans to achieve water quality standards in impaired water-bodies will involve a variety of management strategies in riparian areas. The potential for such strategies, and for application of the TMDL program in general, to protect and restore riparian areas is considered in depth later in this chapter. Wetlands Regulation. Section 404 of the Clean Water Act provides authority for a national program supervising the discharge of dredged and fill materials into “waters of the United States,” defined by regulation to include at least some wetlands.1 Under this regulatory program, wetlands that meet the jurisdictional definition cannot be dredged or filled without a permit from the U.S. Army Corps of Engineers (Corps). The Corps subjects permit applications to a review that considers a wide range of factors, including whether there are reasonable alternative locations. If no reasonable alternative can be identified and the need for the activity is demonstrated, consideration is given to mitigation measures and, as a last resort, to compensation for lost wetlands. Although some wetlands occur within riparian areas, many riparian areas do not meet the jurisdictional definition of wetlands. Thus, activities occurring in 1 The Supreme Court case known as SWANCC, decided in January 2001, raises some doubts as to whether all wetlands are within the Corps’ regulatory jurisdiction. A federal judge in Virginia is currently considering whether the Corps has authority to require a 404 permit to fill a wetland that is not adjacent to a navigable stream.
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Riparian Areas: Functions and Strategies for Management such areas are not subject to the permit requirements of Section 404. Moreover, Congress and the Corps have exempted from 404 requirements normal farming, silviculture, and ranching activities as well as maintenance of structures such as dikes, levees, and dams and construction and maintenance of irrigation and drainage ditches. Floodplain Regulation. The federal government spends several billion dollars a year on flood control and related water management projects in an attempt to reduce the roughly $4 billion per year of flood losses that occur in this country (Federal Interagency Floodplain Management Task Force, 1992). Encouraged by the National Flood Insurance Act of 1968, all states now have legislation authorizing local governments to adopt regulations restricting certain types of development within floodplains. Several states have adopted statewide floodplain management regulations. To be eligible for federal flood insurance, state and local programs must delineate the “regulatory floodway”—an area capable of passing a 100-year flood without increasing the water surface elevation by more than one foot. “Encroachments” such as buildings that would increase this elevation more than one foot may not be permitted. Traditionally, floodplain management has focused on human safety and protection of investments. Riparian protection has not been a stated objective of such management. In fact, many of the structural responses to flood control, such as construction of levees and straightening of stream channels, have been harmful to riparian areas. The Interagency Floodplain Management Review Committee (the Galloway Committee) recommended more explicit recognition of the environmental values of floodplains in its 1994 report Sharing the Challenge: Floodplain Management into the 21st Century. In particular, the committee recommended a better-focused and more coordinated federal effort under the U.S. Department of the Interior to purchase either fee or conservation easement interests in frequently flooded lands with environmental values. In addition, it urged the commitment of ongoing federal funding following construction of federal flood-control projects to protect associated environmental values. It encouraged expanded use of the authority now given to the Corps to mitigate the environmental losses associated with already-constructed flood-control projects. In response, Congress expanded the 1996 Water Resources Development Act, Section 1135, program to allow for small environmental restoration projects when it is found that a Corps project has contributed to environmental degradation. Endangered Species Act. The federal Endangered Species Act (ESA) has served as authority to regulate the development and use of land in riparian areas that provide essential habitat for a listed threatened or endangered plant or animal species. Under this law, federal agencies are prohibited from taking any action likely to jeopardize the continued existence of protected species, including destroying or adversely modifying their designated critical habitat. Moreover, the
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Riparian Areas: Functions and Strategies for Management ESA makes it unlawful for any person to “take” a protected animal species, defined to include harming, harassing, or killing such species. Because riparian areas provide habitat for an abundance of plant and animal species, especially in the more arid western states, they have been the focus of the ESA is some cases. For example, federal land management agencies in the Pacific Northwest have established extensive networks of riparian reserves along streams in national forests and other federal public lands to afford protection to the Northern spotted owl and anadromous fish. These riparian reserves are expected to also provide habitat protection to a wide range of other aquatic and terrestrial wildlife species. The prohibition against “taking” a protected species is motivating habitat protection on private lands as well, sometimes in riparian areas. Authorized under Section 10 of the ESA, habitat conservation plans provide a means whereby otherwise lawful activities that might incidentally cause take of a protected species can go forward in return for implementation of conservation measures. For example, as a condition of undertaking development that would destroy the riparian habitat of a protected species, a habitat conservation plan could provide for protection of similar habitat on some other private land. Such an approach is now under development in the Front Range of Colorado to provide protection for the Preble’s meadow jumping mouse, a listed threatened species found only within riparian areas of foothills streams (see Box 4-1). Riparian areas are entitled to affirmative protection under the ESA if (1) they occur on federal lands and provide habitat to any listed species or any species proposed for listing or (2) if they are within designated critical habitat. Riparian habitat has been included in the critical habitat designations for numerous fish species or stocks (e.g., coho salmon, steelhead, winter-run chinook, desert pupfish, Sonoran chub, Railroad Valley springfish), mammals (riparian brush rabbit and riparian woodrat), birds (least Bell’s vireo and southwestern willow flycatcher), and reptiles (concho watersnake) (50 C.F.R. §§ 17.11, 17.95, 226.10, 226.12, 226.204). Surface Mining Control and Reclamation Act. The Surface Mining Control and Reclamation Act (SMCRA) sets permitting requirements, environmental protection performance standards, and reclamation requirements for surface coal mines on private and public lands. The regulatory structure can afford protection of riparian areas. For example, applicants for permits are required to submit site-specific information about fish and wildlife resources when the permit area or adjacent area is likely to include “habitats of unusually high value for fish and wildlife such as important streams, wetlands, [and] riparian areas” (30 C.F.R. § 780.16). Applications must also include a protection and enhancement plan, which includes “protective measures that will be used during the active mining phase,” such as establishing buffer zones and monitoring surface water quality and quantity. The plan must also include “enhancement measures that will be used during
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Riparian Areas: Functions and Strategies for Management BOX 4-1 Preble’s Meadow Jumping Mouse On May 12, 1998, the U.S. Fish and Wildlife Service (FWS) listed the Preble’s meadow jumping mouse as a threatened species under the Endangered Species Act. The Preble’s mouse, an 8- to 10-inch-long mouse with a tail that accounts for at least 60 percent of its length and with long hind feet adapted for jumping, lives only in well-vegetated riparian areas along the foothills and adjacent plains of the Front Range of Colorado and Wyoming. Sites with willows are particularly favored. Preble’s mice are nocturnal creatures, and they hibernate for a good portion of the year. Always considered rare, the Preble’s mouse has been declining in numbers in recent years. Fragmentation and loss of its riparian habitat from human use and development have been identified as the primary factors causing this decline. The Endangered Species Act attempts to protect listed species in two primary ways. First, it prohibits a federal agency from taking an action that might adversely affect the continued existence of the species, including modification of its designated critical habitat. Second, it prohibits any person subject to the jurisdiction of the United States from “taking” a listed species. “Taking” is defined to include harassing, harming, or killing a species, as well as destroying its habitat. Counties along the rapidly growing Colorado Front Range are attempting to develop habitat conservation plans that will provide for long-term protection of riparian habitat needed by the Preble’s mouse. Likely conservation strategies include precluding or minimizing new development within known or likely Preble’s habitat, requiring new activities within riparian areas to use best management practices to minimize impacts, and developing habitat “banks” of preserved or restored riparian areas to compensate for habitat unavoidably lost to new development.
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Riparian Areas: Functions and Strategies for Management the reclamation and postmining phase of operation to develop aquatic and terrestrial habitat,” such as stream and wetland restoration. Mine operators are directed to use the best technology available to minimize disturbances and adverse impacts on fish, wildlife, and related environmental values and to “achieve enhancement of such resources where practicable” (30 C.F.R. § 816.97a). Operators must further “avoid disturbances to, enhance where practicable, restore, or replace wetlands, and riparian vegetation along rivers and streams and bordering ponds and lakes,” as well as “habitats of unusually high value for fish and wildlife” (30 C.F.R. § 816.97f). Generally, mining is not to occur within 100 feet of a stream. Coastal Zone Management Act. Originally enacted in 1972 and significantly amended by the Coastal Zone Act Reauthorization Amendments of 1990, the Coastal Zone Management Act (CZMA) authorizes significant federal financial and technical assistance to states that establish a satisfactory Coastal Management Plan. All federal actions occurring within or affecting the coastal zone are to be “consistent” with the state Coastal Management Plan. Minimum plan requirements include identification of permissible land uses within the coastal zone; designation of areas of particular concern; identification of means for controlling land uses; and establishment of planning processes for providing public access to beaches and other high-value areas, for preventing erosion, and for siting of energy facilities. The 1990 amendments required states to develop a coastal nonpoint source pollution control program and to submit it to the National Oceanic and Atmospheric Administration (NOAA) and EPA for approval. NOAA and EPA must evaluate whether the state’s coastal zone boundary extends inland sufficiently far to control land and water uses significantly impacting coastal waters. EPA guidance for program compliance endorses many familiar best management practices for controlling nonpoint source pollution, including “streamside special management areas” to protect streams from logging and measures for controlling grazing in erosion-sensitive areas such as riparian areas and wetlands (EPA, 1993). The guidance recognizes both the pollution-abatement functions of riparian areas as well as their potential to become sources of nonpoint pollution if degraded. Because the CZMA is designed to protect water quality, and riparian areas are the last line of defense between receiving waters and upland sources of pollution, most state CZMA programs require riparian area protection as a means of meeting the goals of the CZMA. This is being done through protection of functioning riparian areas and restoration of nonfunctioning riparian areas where possible. Federal Power Act. Under the Federal Power Act, the Federal Energy Regulatory Commission (FERC) regulates essentially all nonfederal hydroelectric power facilities. In 1986, Congress amended the Federal Power Act to require FERC to give “equal consideration” to energy conservation, protection of fish
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Riparian Areas: Functions and Strategies for Management and wildlife, protection of recreational opportunities, and preservation of general environmental quality, along with the power generation potential of a river, in its licensing and relicensing process. FERC’s “Manual of Standard Special Articles” requires license applicants to submit a wetland mitigation plan and a wildlife mitigation plan that will be included in their license (FERC, 1992). In addition, for projects with a reservoir, the applicant must provide a management plan providing for a shoreline buffer zone. The relicensing process on the Deerfield River in Vermont and Massachusetts in the early 1990s provides an example of the act’s potential for protecting riparian areas. New England Power Company (NEP) operates eight dams along the river with 15 generating units, all covered by a single FERC license that expired in 1991. As part of its license-renewal process, NEP worked out a comprehensive settlement with 15 parties that included commitments to maintain flows below each of its dams at levels sufficient to protect fisheries and to make scheduled white-water releases for boaters. In addition, NEP committed to spending $200,000 to improve waterfowl and wildlife habitat and to permanently protect (with conservation easements) over 18,000 acres of riparian and watershed lands owned by NEP—primarily as shoreline buffers around its reservoirs (Kimball, 1997). State and Local Regulatory Programs States can regulate land use in the exercise of their sovereign police power. Traditionally, states have delegated this authority to local government. For matters determined to be of statewide importance, however, states may exercise this authority directly. The importance of protecting riparian areas has prompted several states to establish state-level regulatory programs beyond those authorized for floodplain regulation. The most common form of regulation is to establish buffer zones (setbacks) adjacent to waterways in which development is precluded or limited. It should be noted that state and local setback regulations on private land have been or are likely to be ruled constitutional, as discussed in Box 4-2. Statewide Shoreline or Riverfront Protection. Several states have made riparian areas a subject of special attention. A comprehensive approach has been taken by Massachusetts. The 1996 Rivers Protection Act established a state-level permit system for development activities within a “riverfront” area (Rivers Protection Act, MGL chapter 131). A riverfront area is defined as a corridor 200 feet wide (or 25 feet on each side in large municipalities and in densely populated areas) along all perennial rivers and streams. Proposed development in riverfront areas must demonstrate no significant adverse effects on water supplies, wildlife habitat, fisheries, shellfish, groundwater, and flood and pollution prevention.
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Riparian Areas: Functions and Strategies for Management Moreover, there must be no practicable economic alternatives to the development for which effects would be less adverse. New Hampshire enacted the Comprehensive Shoreland Protection Act in 1994. Under this law, shorelands within 250 feet of public waters are designated for special protection. Public waters are defined to include all fresh waterbodies, natural or impounded; coastal waters; and rivers of fourth-order size or greater. Certain types of activities, such as solid or hazardous waste facilities and automobile junkyards, are prohibited within protected shorelands. Statewide minimum standards, which relate to such things as location of septic systems, sediment controls, tree cutting, and minimum lot size, are established to govern all development within protected shorelands (North Country Resource Conservation and Development Area Inc., 1995). Wisconsin has a “shoreline” zoning program regulating property uses within 1,000 feet of a lake or 300 feet of a stream or its floodplain (Wis. Admin. Code ch. NR 115). This program establishes minimum lot sizes within a shoreline area, requires a 75-foot setback for buildings, and restricts clearcutting activities. The Montana Natural Streambed and Land Preservation Act requires any person or entity proposing to do work that would physically alter the bed or banks of a perennial stream on public or private land to obtain a permit from the Board of Supervisors of the local Conservation District. Forest Practices Acts. Forestry practices on private riparian forestlands are prescribed by the individual states. Oregon enacted the first legislation for private forest practices in 1972. Since that time, 40 states and U.S. territories have established either mandatory forest practices or best management practices (BMPs) (Figure 4-1). Oregon, Washington, California, Idaho, Montana, Alaska, and Minnesota have established regulations for forest practices on private lands that generally specify widths of riparian management zones (RMZs) and the amount of partial timber harvest allowed within the RMZs. RMZs on private lands generally apply to riparian areas within 100 feet or less of perennial streams. Additional rules address road building, road crossings, yarding systems, replanting, leave trees, and harvest unit dimensions. Thirty-three (33) states and territories have used voluntary programs based either on best management practice guidelines or on achieving water-quality standards. These programs rely on training and education programs and on voluntary compliance by forest operators. Almost a quarter of the states have no explicit guidelines or legislation for private forest practices. Table 4-2 lists the riparian management approaches required by state forest practice acts in states and territories and the agencies responsible for their enforcement (if necessary). In general, riparian buffers on public lands are often more extensive than those on private lands. On public lands, buffer widths range from less than 25 ft (7.5 m) to more than 500 ft (150 m), while widths of riparian buffers on private
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Riparian Areas: Functions and Strategies for Management FIGURE 4-3 Distribution of impaired waters in the United States requiring TMDLs. SOURCE: EPA (2000b). Note: States with high rates of impairment do not necessarily have poorer water quality than states with lower impairment rates. Impaired waters are a function of water-quality standards that vary from state to state. Because of these state-by-state differences, waters that would be classified in one state as impaired might not be classified as impaired in other states. Thus, states that have the most comprehensive and strictest water-quality standards often have the most impairments.
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Riparian Areas: Functions and Strategies for Management TABLE 4-6 Number of Impaired Waters in the United States Percentage of Impaired Water Miles within Watershedsa Number of Watershedsb Percentage of Total U. S.Watersheds No Waters Listed 550 24.3 <5% 670 29.7 5%–10% 360 15.9 10%–25% 480 21.3 >25% 199 8.8 Total 2,259 100.0 aThis is the percentage of total water miles within a given watershed that are impaired. “No waters listed” may imply that no waters are impaired or that the watershed has not been monitored. b8-digit Hydrologic Unit Code (HUC) watersheds SOURCE: EPA (2000a). lutant loadings. For example, water-quality impairments caused by nonpoint source pollutants released in riparian areas or in adjacent uplands may be best remedied by enhancing the pollutant removal and assimilation functions of existing riparian areas or by creating new riparian areas. Indeed, riparian buffer zones have been used and promoted as management measures to address all the impair TABLE 4-7 Top 15 Categories of Impairment Requiring TMDLs (from 1998) Cause of Impairment Number of Impaired Waterbodies Sediments 6,133 Pathogens 5,281 Nutrients 4,773 Metals 3,984 Dissolved Oxygen 3,758 Other Habitat Alterations 2,106 Temperature 1,884 pH 1,798 Impaired Biologic Community 1,440 Pesticides 1,432 Flow Alterations 1,099 Mercury 1,088 Organics 1,069 Noxious Aquatic Plants 831 Ammonia 752 NOTE: “Waterbodies” refers to individual river segments, lakes, and reservoirs. A single waterbody can have multiple impairments. Because most waters are not assessed, there is no estimate of the number of unimpaired waters in the United States. SOURCE: EPA (2000a).
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Riparian Areas: Functions and Strategies for Management ments listed in Table 4-7, with the possible exception of mercury and other point source-dominated impairments. The potential impact of the TMDL program on riparian area protection was demonstrated in the Pronsolino v. Marcus case (1999), in which the TMDL implementation plan in question required substantial reductions (60 percent) in sediment loading. The Garcia River TMDL identified logging operations as a significant cause of excessive sediment, and thus limits were placed on allowable sediment losses from forestry operations. When the Pronsolinos filed for a permit to harvest timber, the California Department of Forestry required (as a result of the Garcia River TMDL implementation plan) that they reduce sediment losses by reducing harvesting within 100 feet of streams, refraining from construction or using skid trails on slopes greater than 40 percent within 200 feet of streams, and not removing trees from certain unstable areas, which have the potential to deliver sediment to a watercourse. Thus, the sediment load reductions required protection of existing riparian areas. Several dozen TMDLs for sediment, nutrient, temperature, and fecal coliform impairments have been developed since 1999, many of which require riparian area protection and restoration as part of their proposed implementation plans (e.g., EPA Region IX, 1999; Indiana Department of Environmental Management, 2000). For fecal coliform-impaired waters in Virginia, every implementation plan for watersheds where cattle grazing is significant and in which cattle have access to streams has required an 80 percent to 100 percent reduction in cattle access to streams and riparian areas (Virginia Department of Environmental Quality, 1999; EPA, 2000c; Virginia Tech, 2000a,b,c,d). Exclusion of cattle from streams was specifically mentioned in each case. Although these TMDLs do not have explicit plans for riparian area restoration, the required exclusion of cattle from streams and riparian areas will result in significant improvement in riparian area functioning. However, how much functioning will be restored is uncertain because the TMDL plans do not specify how much fencing will be required or the widths of protected riparian areas. It is possible that fences will be installed immediately adjacent to streams, which is unlikely to promote functioning riparian areas. Most cost-share programs such as CRP that help landowners with fencing and off-stream water system costs require a riparian area with a minimum average width of 35–100 ft. Consequently, much of the fencing installed for TMDL implementation will involve the restoration of riparian areas 35–100 ft wide. TMDL implementation plans developed for other impairments such as nutrients, benthic impairment, Cryptosporidium, and pesticides are also likely to require some level of cattle exclusion from streams. In addition, some of these plans may recommend restoration of riparian areas as a means of reducing nonpoint source pollutant loadings to streams from upland areas. For example, the fecal coliform TMDL for Pleasant Run in Virginia calls for a 25 percent reduction in nonpoint source loadings from pasture and cropland (Virginia Tech,
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Riparian Areas: Functions and Strategies for Management 2000c). If cattle are excluded from the streams by fencing, as required by the TMDL, it is possible that the nonpoint source loading reduction goal will be met as a consequence of the riparian areas becoming reestablished. This assumes that the fences are located so that the resulting protected widths are adequate to achieve desired pollutant reductions. Width and vegetative composition need to be based on site-specific topographic and hydrologic conditions and the pollutant reductions required for each site (see Chapter 5). The TMDL program also may lead to protection and restoration of riparian areas in those parts of the country where summertime stream temperature is an important water-quality issue. Some of the earliest stream temperature research in forested stream systems was undertaken in the late 1960s in Oregon by Brown (1969), and a significant body of knowledge has been acquired (e.g., Beschta et al., 1987) and stream temperature models (e.g., Boyd, 1996) have been developed for understanding and predicting the effects of vegetation removal on stream temperature. Temperature TMDLs are required for those waters where the instream water temperatures deviate from the state temperature standard (which in Oregon is a numeric standard based on seven-day maximum temperatures). The exercise involves identifying potential sources that contribute to increased water temperatures in conjunction with modeling efforts to evaluate the extent to which temperature improvements can be attained through improved riparian management. For example, along reaches normally occupied by a riparian forest, site potential vegetation (e.g., assumed to be late seral conifers) is utilized in a stream temperature model to indicate the potential improvements in temperature that might be realized if revegetation were to occur. Results of these analyses (e.g., Boyd et al., 1998) can be used to formulate TMDLs on a basin-by-basin basis. The TMDL program is currently the nation’s most comprehensive attempt to restore and improve water quality (NRC, 2001). Though not a primary stated goal of the program, TMDL implementation should protect many functioning riparian areas and restore thousands of miles of degraded riparian areas along the streams and shorelines of the United States. TMDL plans for the restoration of waterbodies impacted by livestock will likely involve streamside fencing and the reestablishment of riparian vegetation. For forested stream systems, the use of riparian reserves or stream buffers of unharvested trees will become increasingly common. In addition, TMDL implementation plans for waterbodies with impairments caused at least in part by nonpoint source pollutants from cropland and pasture will likely recommend the protection of existing riparian areas that are in relatively good condition and the restoration of those that have been degraded. CONCLUSIONS AND RECOMMENDATIONS As reflected in the foregoing materials, a variety of laws offer mechanisms to help protect some riparian areas or aspects of riparian areas. Few of these laws, however, reflect awareness of riparian areas as landscapes supporting multiple
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Riparian Areas: Functions and Strategies for Management important functions and warranting special management and protection as unique physical and natural systems in their own right. Rather, protection of riparian areas is an indirect consequence of other objectives, such as water-quality protection or habitat management. Protecting riparian areas in private ownership is especially challenging. Willingness of states and local governments to regulate land use in riparian areas for general ecological benefits varies widely. Striking examples of state and local programs that provide significant protection of riparian areas are relatively few in number. Interest seems to be growing in conservation easements and other incentives to induce landowners to hold riparian areas as buffers, natural areas, or open space, as well as in the purchase of riparian lands for greenways or wildlife areas. Enactment of laws such as the Conservation and Reinvestment Act (considered by Congress in 2000) could make available several billion dollars annually for purchases of such areas. Many states have been willing to regulate or manage timber harvesting on private lands in riparian areas. They have not, however, been nearly as willing to restrict other agricultural activities, except in some areas with demonstrated water-quality problems. Instead, the preference has been to induce change in farming practices through incentives provided by programs such as the Conservation Reserve Program. Riparian areas on federal lands are seldom managed as natural systems, though they may receive management attention or protection when they support resources of concern (such as wildlife or fisheries) and are threatened by certain land uses (such as livestock grazing or mining). Federal statutes contain very little guidance for land managers who face conflicts between riparian area protection and permissible land uses. Only if a federal agency proposes an activity in or affecting a riparian area that would jeopardize threatened or endangered species or violate water-quality requirements is the protection of riparian values clearly required. Although the BLM is taking an increasingly active role in developing policies regarding the management and protection of riparian areas and in coordinating efforts to assess the condition of riparian areas, it has no clear mandate to do so. BLM’s relatively new “fundamentals of rangeland health” regulations authorize the inclusion in livestock grazing permits of conditions to protect riparian areas, but these conditions are neither consistently included nor enforced. As a result of legal challenges, however, both the BLM and USFS have reduced or eliminated livestock grazing along some streams or have initiated consultation with the FWS regarding the impacts of grazing on threatened and endangered species. In the Pacific Northwest, the BLM and USFS have implemented significant riparian protections under the Northwest Forest Plan. In addition, the USFS has taken a number of forest- or stream-specific actions to protect riparian areas, but there is no clear agency policy guiding these actions. Neither the NPS nor the
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Riparian Areas: Functions and Strategies for Management FWS has a policy regarding protection of riparian areas, even though this would seem consistent with the predominantly protection-oriented missions of these two agencies. State water laws have been concerned almost solely with the allocation of water for human uses and not for ecological needs. New programs directed at the protection of unutilized instream flows have the potential to address the water-related needs of at least some riparian areas. In sum, existing legal and management protection of the ecological functions and values of riparian areas is inadequate. Even on federal lands, uses of riparian areas are not singled out for special consideration by statute or regulation. Uses of riparian areas on private lands are addressed, if at all, as a matter of local land-use regulation or through a mix of incentive programs. Several suggestions for strengthening and improving the legal framework governing protection of riparian areas are offered below. In the absence of making such legal and regulatory changes, it is unlikely that the degradation of riparian areas documented in Chapter 3 will be halted or even slowed. Management guidelines and regulations differ drastically among forest, range, agricultural, residential, and urban lands on private lands. No state has a general land-use law or framework to coordinate management of the landscape for multiple uses (e.g., forest harvesting, grazing, agriculture, mining, urban development). Fragmentation of policy has contributed to vastly different levels of protection for, and degradation of, riparian areas across individual watersheds and regions. This phenomenon will only increase with increased population growth and continued economic development. States should consider designating riparian buffer zones adjacent to waterbodies within which certain activities would be excluded and others would be managed. The broad importance of protecting riparian areas for water quality and fish and wildlife benefits calls for state-level programs of land-use regulation to accomplish this objective. A statewide program such as the Massachusetts Riverfront Protection Act treats all riparian landowners equally in providing these important public benefits. At the very least, states should consider establishing such buffers for sensitive areas (as has been done for the Chesapeake Bay). In the absence of a statewide program, local governments should be encouraged to develop riparian buffer zones. Increased federal and state funding should be directed toward encouraging private riparian landowners to restore and protect riparian areas. At the federal level, this means increased funding for riparian buffers under Farm Bill programs, for wildlife habitat under Partners for Fish and Wildlife, and for watershed restoration under the Clean Water Action Plan and other federal agency
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Riparian Areas: Functions and Strategies for Management initiatives. Both federal and state funding should be made available to land trusts, soil and water conservation districts, watershed groups, and others working with private riparian landowners to protect and improve their riparian areas. Few, if any, federal statutes refer expressly to riparian area values and as a consequence generally do not require or ensure protection of riparian areas. Even the National Wild and Scenic Rivers Act refers only to certain riparian values or resources; it does not consider riparian areas as natural systems, nor does it require integrated river corridor management. Moreover, statutes governing federal land management do not direct agencies to give priority to riparian area protection when conflicts among permissible land uses arise. This absence of a national riparian mandate stands in stark contrast to the existence of a federal wetlands law. Federal land management agencies should promulgate regulations requiring that the values and functioning of riparian areas under their jurisdiction be restored and protected. This goal is consistent with the ecological benefits of riparian areas and the overarching principle that public lands are to be managed in the national interest. Such regulations should account for the full spectrum of riparian values and services—habitat-related, hydrological, water quality, aesthetic, recreational. At a minimum, agencies should assess the condition of riparian areas, develop and implement restoration plans where necessary, exclude incompatible uses, and manage all other uses to ensure their compatibility with riparian area protection. Clear, enforceable regulations are necessary because existing rules and policies are inconsistent, vague, and/or only advisory. Alternatively, agencies could protect riparian areas using existing rules for special management areas, such as BLM’s ACECs. Ideally, Congress should enact legislation that recognizes the myriad values of riparian areas and directs federal land management and regulatory agencies to give priority to protecting those values. A mandate from Congress would establish riparian protection as a federal priority and ensure consistency both within and among agency regulatory and land management programs. Absent federal legislation, a presidential executive order could promote consistent riparian management by federal agencies. Federal agencies should coordinate riparian management activities to improve efficiency and help ensure that protection of riparian values and functioning does not vary across jurisdictional boundaries. Many streams and other waterbodies, especially in the West, are located on private, state, and/or federal lands. Frequently, streams traverse lands managed by different federal agencies. If intact riparian areas are to be restored and maintained, management and protection of riparian values and functioning cannot be left to the vagaries of
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Riparian Areas: Functions and Strategies for Management political systems, but will require coordination of management policies and prescriptions. States should administer the public trusts in water and state-owned submerged lands to protect the public interests in properly functioning and ecologically healthy riparian areas. States are obligated to protect public interests in recreation, fisheries, water yield, and other values and services of state waters, a responsibility that cannot be carried out without regard to riparian functioning. Each state has the authority to decide how it will administer these trusts, subject to judicial review according to standards established by the respective state and by the U.S. Supreme Court. Instream flow laws can help protect riparian areas if river and stream flows are managed to mimic the natural hydrograph. Water allocation has historically favored human claims to water over using it for environmental needs. Recently, the needs of natural systems have been addressed in some cases by preserving minimum stream flows. Because riparian functioning is dependent on the full range of variation in the hydrologic regime, the reintroduction or maintenance of such flow regimes (in addition to minimum stream flow) is essential for restoring and sustaining healthy riparian systems. Implementation of the CREP and TMDL programs has the potential to protect existing and restore degraded riparian areas nationwide. State involvement in CREP is increasing exponentially, with the potential for taking millions of miles of riparian land out of agricultural production. Many TMDL plans developed to date call for the restoration of riparian areas to reduce nonpoint source pollutant loadings and to restore streamside shading. REFERENCES Allen, A. W. 1996. Northern Prairie Science Center conservation reserve program bibliography. Jamestown, ND: Northern Prairie Wildlife Research Center. Amman, D., B. Cosens, and J. Specking. 1995. Negotiation of the Montana–National Park Service Compact. Rivers 5(1):35–45. Beschta, R. L., R. E. Bilby, G. W. Brown, L. B. Holtby, and T. D. Hofstra. 1987. Stream temperature and aquatic fish habitat: fisheries and forestry interactions. Pp. 191–232. In: Streamside management: fisheries and forestry interactions. E. O. Salo and T. W. Cundy (eds.). Contribution No. 57. Seattle, WA: University of Washington, Institute of Forest Resources. 471 pp. Boyd, M. S. 1996. Heat source: stream, river and open channel temperature prediction. M.S. Thesis, Oregon State University, Corvallis. 148 pp. Boyd, M., B. Kasper, and A. Hamel. 1998 (draft). Tillamook basin temperature; total maximum daily load (TMDL). Portland, OR: Oregon Department of Environmental Quality. 42 pp. + appendices. Bradbury, W., W. Nehlsen, T. E. Nickelson, K. Moore, R. M. Hughes, D. Heller, J. Nicholas, D. L. Bottom, W. E. Weaver, and R. L. Beschta. 1995. Handbook for prioritizing watershed restoration to aid recovery of native salmon. Portland, OR: Pacific Rivers Council.
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Riparian Areas: Functions and Strategies for Management Brown, G. W. 1969. Predicting temperatures of small streams. Water Resources Research 5:68–75. Bureau of Land Management (BLM). 1984. Federal Register 49:162. BLM. 1986. Federal Register 51:12,747. BLM. 1991a. Riparian-Wetland Initiative for the 1990’s. BLM/WO/GI-91-001+4340. Washington, DC: BLM. BLM. 1991b. Application to Appropriate Public Water, Attachment A. BLM. 1992. Federal Register 57: 53,924. BLM. 1994. Ecosystem Management in the BLM: From Concept to Commitment. BLM/SC/ GI-94-005+1736. Washington, DC: BLM. BLM. 2000a. Public Land Statistics 1999. Volume 184, BLM/BC/ST-00/001+1165. Washington, DC: BLM. BLM. 2000b. Final Notice of Issuance and Modification of Nationwide Permits: Correction. Fed. Reg. 65:14,255. Committee of Scientists (COS). 1999. Sustaining the peoples’ lands: recommendations for stewardship of the national forests and grasslands into the next century. Washington, DC: U.S. Department of Agriculture. 193 pp. Doppelt, B., M. Scurlock, C. Frissell, and J. Karr. 1993. Entering the watershed: a new approach to save America’s river ecosystems. Washington, DC: Island Press. Durbin, K. 1997a. Restoring a refuge: cows depart, but can antelope recover? High Country News 29 (Nov. 24, 1997). Durbin, K. 1997b. Selling science to the agencies: an ecologist’s story. High Country News 29 (Nov. 24, 1997). Environmental Protection Agency (EPA). 1991. Guidance for water quality-based decisions: the TMDL process. Washington, DC: EPA Assessment and Watershed Protection Division. EPA Region IX. 1999. South Fork Eel River total maximum daily loads for sediment and temperature. San Francisco, CA: EPA Region IX Water Division. 62 pp. EPA. 1993. Guidance specifying management measures for sources of nonpoint pollution in coastal waters. 840-B-92-002. Washington, DC: EPA Office of Water. EPA. 1999a. Protocol for developing sediment TMDLs. First Edition. EPA 841-B-99-004. Washington, DC: EPA Office of Water. EPA. 1999b. Protocol for developing nutrient TMDLs. First Edition. EPA 841-B-99-007. Washington, DC: EPA Office of Water. EPA. 1999c. Protocol for developing pathogen TMDLs. First Edition. EPA 841-B-00-002. Washington, DC: EPA Office of Water. EPA. 2000a. 1998 Section 303(d) list fact sheet: national picture of impaired waters. Washington, DC: EPA Office of Water. EPA. 2000b. Atlas of America’s polluted waters. EPA 840-B-00-002. Washington, DC: EPA Office of Water. EPA. 2000c. Fecal coliform TMDL modeling report: Cottonwood Creek, Idaho County, Idaho. Washington, DC: EPA Office of Water. 139 pp. Federal Interagency Floodplain Management Task Force. 1992. Floodplain management in the United States: an assessment report—volume 2: full report. Washington, DC: Federal Emergency Management Agency. Federal Energy Regulatory Commission (FERC). 1992. Office of Hydropower Licensing, Paper No. DPR-4. Washington, DC: FERC. Feldman, M. D. 1995. National forest management under the Endangered Species Act. Natural Resources and Environment 9(Winter 1995):32–37. General Accounting Office (GAO). 1996. Land ownership: information on the acreage, management, and use of federal and other lands. GAO/RCED-96-40. Washington, DC: GAO. Gillilan, D., and T. Brown. 1997. Instream flow protection: seeking a balance in western water uses. Washington, DC: Island Press.
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Riparian Areas: Functions and Strategies for Management Harting, A., and D. Glick. 1994. Sustaining Greater Yellowstone: a blueprint for the future. Greater Yellowstone Coalition. Houck, O. A. 2000. The Clean Water Act TMDL program: law, policy, and implementation. Washington, DC: Environmental Law Institute. Indiana Department of Environmental Management. 2000. Dissolved oxygen and ammonia TMDL development for Kokomo Creek, Indiana (draft). Indianapolis: Indiana DEM. 49 pp. Interagency Floodplain Management Review Committee. 1994. Sharing the challenge: floodplain management into the 21st century. Washington, DC: Administration Floodplain Management Task Force. Isenhart, T. M., R. C. Schultz, and J. P. Colletti. 1997. Watershed restoration and agricultural practices in the Midwest: Bear Creek of Iowa. Pp. 318–334 In: Watershed restoration: principles and practices. J. E. Williams, C. A. Wood, and M. P Dombeck (eds.). Bethesda, MD: American Fisheries Society. Keystone Center. 1991. Final consensus report of the keystone policy dialogue on biological diversity on federal lands. Kimball, K. D. 1997. Using hydroelectric relicensing in watershed restoration: Deerfield River watershed of Vermont and Massachusetts. Pp. 179–97 In: Watershed restoration: principles and practices. J. E. Williams, C. A. Wood, and M. P. Dombeck (eds.). Bethesda, MD: American Fisheries Society. Kusler, J. A. 1985. A call for action: protection of riparian habitat in the arid and semi-arid west. In: Riparian ecosystems and their management: reconciling conflicting uses. G. Bingham, E. H. Clark, L. V. Haygood, and M. Leslie (eds.). April 16–18, 1985. Tucson, AZ: USFS. Land Trust Alliance. 1996. The conservation easement handbook. Washington, DC: Land Trust Alliance. MacDonnell, L. J., and T. A. Rice. 1993. The federal role in in-place water protection. In: Instream flow protection in the West, Revised Edition. Boulder, CO: Natural Resources Law Center. Mohai, P., and P. Jakes. 1996. Forest Service in the 1990s: is it headed in the right direction? Journal of Forestry 94:31–37. Moyle, P. B., and G. M. Sato. 1991. On the design of preserves to protect native fishes. Pp. 155–173 In: Battle against extinction: native fish management in the American West. W. L. Minckley and J. E. Deacon (eds.). Tucson, AZ: University of Arizona Press. National Park Service (NPS). 1993. Floodplain management guideline. Washington, DC: Department of the Interior. National Research Council (NRC). 1993. Setting priorities for land conservation. Washington, DC: National Academy Press. NRC. 1995. Wetlands: characteristics and boundaries. Washington, DC: National Academy Press. NRC. 2000. Watershed management for potable water supply: assessing the New York City strategy. Washington, DC: National Academy Press. NRC. 2001. Assessing the TMDL approach to water quality management. Washington, DC: National Academy Press. North Country Resource Conservation and Development Area Inc. 1995. A guide to developing and re-developing shoreland property in New Hampshire. Meredith, N.H. Schultz, R. C., J. P. Colletti, T. M. Isenhart, W. W. Simpkins, C. W. Mize, and M. L. Thompson. 1995. Design and placement of a multi-species riparian buffer strip system. Agroforestry Systems 29:201–226. Silk, N., J. MacDonald, and R. Wigington. 2000. Turning instream flow water rights upside-down. Rivers 7(4):298–313. Small, S. J. 1995. The federal tax law of conservation easements. Second Supplement. Washington, DC: Island Press. Smith, D. S., and P. C. Hellmund, eds. 1993. Ecology of greenways. Minneapolis, MN: University of Minnesota Press. 222 pp.
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Riparian Areas: Functions and Strategies for Management Stenzel, R. L. 2000. Policies concerning wetland vegetation. Colorado Stream Lines 14(1). Denver, CO: Colorado Division of Water Resources. United States of America, the State of Utah, the Washington County Water Conservancy District, and the Kane County Water Conservancy District. 1996. Zion National Park water rights settlement agreement. U.S. Department of Agriculture Forest Service (USFS) and Department of Interior Bureau of Land Management (BLM). 1994a. Northwest Forest Plan. Washington, DC: USFS. U.S. Department of Agriculture Forest Service (USFS) and Department of Interior Bureau of Land Management (BLM). 1994b. PACFISH. Washington, DC: USFS. U.S. Department of Agriculture Forest Service (USFS). 1995. Inland native fish strategy (INFISH). Washington, DC: USFS. U.S. Department of Agriculture Forest Service (USFS). 1998. Blue mountains biodiversity project v. Pence. Federal Register 63:63,831. Washington, DC: USFS. U.S. Department of Agriculture Natural Resources Conservation Service (NRCS). 1999. The National Conservation Buffer Initiative: a qualitative evaluation. Washington, DC: USDA NRCS. U.S. Department of the Interior Bureau of Land Management (BLM) and U.S. Department of Agriculture Forest Service (USFS). 1994. Rangeland reform ‘94: draft environmental impact statement executive summary. Washington, DC: US DOI and USDA. U.S. Fish and Wildlife Service (FWS). 1994. Federal Register 59:30,035. Virginia Department of Environmental Quality. 1999. Fecal coliform TMDL development for Muddy Creek, Virginia. Richmond. 111 pp. Virginia Tech Biological Systems Engineering and Biology Departments. 2000a. Fecal coliform TMDL for Dry River, Rockingham County, Virginia. Final Report prepared by Virginia Tech Departments of Biological Systems Engineering and Biology and submitted to Virginia Departments of Environmental Quality and Conservation and Recreation, Richmond. 122 pp. Virginia Tech Biological Systems Engineering and Biology Departments. 2000b. Fecal coliform TMDL for Mill Creek, Rockingham County, Virginia. Final Report prepared by Virginia Tech Departments of Biological Systems Engineering and Biology and submitted to Virginia Departments of Environmental Quality and Conservation and Recreation, Richmond. 113 pp. Virginia Tech Biological Systems Engineering and Biology Departments. 2000c. Fecal coliform TMDL for Pleasant Run, Rockingham County, Virginia. Final Report prepared by Virginia Tech Departments of Biological Systems Engineering and Biology and submitted to Virginia Departments of Environmental Quality and Conservation and Recreation, Richmond. 108 pp. Virginia Tech Biological Systems Engineering Department. 2000d. Fecal coliform TMDL for Sheep Creek, Elk Creek, Machine Creek, Little Otter River, and Big Otter River in Bedford and Campbell Counties, Virginia. Final Report prepared by Virginia Tech Department of Biological Systems Engineering and submitted to Virginia Departments of Environmental Quality and Conservation and Recreation, Richmond. 302 pp.
Representative terms from entire chapter: