26.0222 Wetlands.

Cite as [A.S.A.C. § 26.0222]

A. Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically and adapted for life in saturated soil conditions.

1. The phrase “under normal circumstances” which, as used in the definition of wetlands, means situations in which the vegetation, hydrology and soils have not been substantially altered by human activity.

2. Wetlands include but are not limited to pala, cultivated and non-cultivated marshes, mangroves, streams, springs, swamps, aquifer recharge areas, floodplains, streams, watersheds, and nearshore waters.

a. Watershed means a distinct area bordered by features of highest continuous elevations that is usually accepted by surface drainage leading to the ocean.

b. Stream means a natural pathway for surface water drainage or runoff, often intermittent in flow, and usually characterized by unique riparian plant and animal communities.

c. Nearshore waters means those waters within the territorial sea.

d. Mangroves means the characteristic littoral plant formation of tropical and subtropical sheltered coastlines. Generally mangroves are trees and bushes growing up to the high tide level along coastlines or into stream mouths. Mangrove root systems are regularly inundated with saline water, thought freshwater surface runoff and flooding may result in brackish conditions.

e. Aquifer recharge means a distinct area from which surface water runoff is concentrated and enters the earth where the water is then stored in a stratum of permeable rock, and or gravel, and flows freely through the intervening spaces of the rock. When the underlying rock is impermeable an aquifer acts as a groundwater reservoir which supplies water for wells and springs.

3. Adjacent wetlands are wetlands separated from other waters of the United States by artificial dikes or barriers, natural river berm, or beach dunes.

4. The following Samoan terminology applies to wetlands:

a. Pala approximately translates to mangrove swamp;

b. Taufusi approximately translates to taro freshwater march;

c. Laueleele susu approximately translates to land that is wet;

B. Delineation of Wetlands.

1. Delineation by the American Samoa Coastal Management Program shall use wetlands delineation techniques established in the 1987 Federal Manual for Identifying and Delineating Jurisdictional Wetlands, or revised standards as adopted.

2. Wetland delineation shall be determined with evidence of a minimum of three positive indicators, at least one from each of the three parameters of hydrology, soils, and vegetation.

a. Under normal circumstances all three must be found before a positive determination can be made.

b. In atypical situations, evidence may be developed form historical data, recent existing data and observations made in the field.

C. Policy on wetlands

1. Wetlands areas shall be protected from significant disruption of their physical, chemical, and biological characteristics and values. Only uses dependent upon such areas may be permitted.

2. Wetlands shall be preserved, protected, conserved, and managed in the Territory.

a. Despoliation and destruction of wetlands shall be prevented by insuring that development adjacent to wetlands areas shall be designed and sited to prevent impact that would significantly degrade such areas;

b. The present and potential value of wetlands shall be protected for food production, wildlife habitat, storm and flood control, water quality, recreation, education, and research; and

c. The use and development of wetlands areas shall be regulated in order to secure the natural benefits of wetlands, consistent with the general welfare of the Territory, including:

(1) adequate water flow, nutrients and oxygen levels shall be ensured;

(2) the natural ecological and hydrological processes and mangrove areas shall be preserved;

(3) critical habitat that is in a wetlands shall be maintained and, where possible, enhanced so as to increase the potential for survival of rare and endangered flora and fauna;

(4) public landholding in, and adjacent to, wetlands areas shall be maintained and, to the extent possible, increased, for the purpose of access and/or hazard mitigation; and

(5) wetlands resources shall be utilized for appropriate agriculture, recreation, education, public open space and other compatible uses which would not degrade productivity.

3. A policy of “no net loss” of wetlands in the Territory is established that includes no net loss of wetlands value and function, as well as, actual acreage loss. Providing wetlands conservation in order to achieve no net loss include the protection of the following values:

a. flood and storm control by the hydrological absorption and storage capacity of freshwater wetlands;

b. wildlife habitat by providing breeding, nestling, and feeding grounds and cover for the many forms of wildlife, wildfowl and shorebirds, including migratory wildfowl and rare species such as the Australian gray duck;

c. protection of subsurface water resources and provisions for valuable watersheds and recharging groundwater supplies;

d. recreation areas by providing areas for hunting, fishing, boating, hiking, bird watching, photography, swimming;

e. erosion control by serving as sedimentation areas and filtering basins, absorbing silt and organic matter thereby protecting channels, and coral reefs;

f. educational and scientific research opportunities;

g. sources of nutrients in freshwater and brackish water food cycles, nursery and feeding grounds, and sanctuaries for fish species; and

h. agricultural uses such as taro production and harvest of natural wetlands products.

D. Wetlands jurisdictional limits.

1. The jurisdictional limits of authority of the American Samoa Coastal Management Program with regard to wetlands is determined by the Submerged and Tidal Lands Act of 1974, 48 USC 1705(a).

a. The American Samoa jurisdictional limits of authority is based on the conveyance of the “waters of the United States” to American Samoa, including tidelands, submerged lands, or filled lands.

b. Subject to valid existing rights, all right, title, and interest of the United States in lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coastline of American Samoa, as heretofore or hereafter modified by accretion, erosion, and reliction, and in artificially made, filled in, or reclaimed lands which were formerly permanently or periodically covered by tidal waters, were conveyed to the government of American Samoa, to be administered in trust for the people thereof.

2. Waters of the United States means:

a. all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; and

b. all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including such waters:

(1) which are or could be used by interstate or foreign travelers for recreational or other purposes;

(2) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(3) which are used or could be used for industrial purposes by industries in interstate commerce.

c. all impoundments of waters otherwise defined as waters of the United States under the definition;

d. tributaries of waters identified in paragraphs (2)(a) thru (d) of this section.

3. Limits of jurisdiction of the waters of the United States.

a. Territorial Sea. The limit of jurisdiction in the Territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles.

(1) A baseline is a continuous line which encircles an island or atoll and

(2) A baseline is measured as follows:

(a) The baseline of an island or portion of an island lacking a barrier reef, fringing reef, or other reef system is seaward from the ordinary high water mark; or

(b) The baseline of an atoll or island or portion of an island having a barrier reef, fringing reef, or other reef system, is the seaward edge of the reef system, i.e. those outermost elevations of the reef which are above water at low tide.

b. Tidal Waters of the United States.

(1) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind or other effects.

(2) The landward limits of jurisdiction in tidal waters:

(a) extends to the high tide line which means the line of intersection of the land with the water’s surface at high tide. The high tide line may be determined in the absence of actual data by a line along the shore that consists of a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gauges, or other suitable means, or

(b) when adjacent non-tidal waters of the United States are present, the jurisdiction extends to the limits identified in paragraph (c) of this subsection.

c. Non-tidal waters of the United States. The limit of jurisdiction in non-tidal waters is:

(1) in the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark which means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, or other appropriate means that consider the characteristics of the surrounding areas.

(2) when adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands; or

(3) when the waters of the United States consist only of wetlands, the jurisdiction extends to the limit of the wetland.

E. Wetland buffer and prohibited activity.

1. Buffer zone means a set back area in which development of any kind is prohibited.

2. A buffer zone around the wetland delineated boundary, including streams, shall be established in the following manner:

a. A twenty-five (25) foot buffer zone shall be established between a wetland delineated boundary and non-commercial or non-industrial development.

b. A fifty (50) foot buffer zone shall be established between a wetland delineated boundary and commercial or industrial development.

3. Human alteration of sand dunes and mangroves stands is prohibited within VE and V zones of American Samoa Federal Insurance Rate Maps, which would increase potential flood damage.

F. Wetlands regulated activities; permitted and prohibited projects, uses or activities; and violations.

1. Regulated activities includes:

a. Village ordinances adopted by the village councils, including but not limited to:

(1) The Resolution by the Leone Village Council, a resolution to protect and preserve the Leone Pala, including mangroves and streams, ratified on March 5, 1994.

(2) The Nu’uuli Wetland Agreement, a declaration to protect and preserve the Nu’uuli Pala Lagoon, ratified on May 12, 1995; and

(3) The Ofu (Vaoto) Marsh Resolution, a resolution recognizing the valuable natural resources of the Ofu wetland and an agreement to preserve and protect the Ofu Marsh, ratified on September 23, 1996.

b. Altering wetlands, which includes, but is not limited to:

(1) The act of placing fill.

(2) The filling, dumping, or depositing of any soil, stones, sand, gravel, mud, aggregate of any kind or garbage, either directly or indirectly, on or in any coastal wetlands;

(3) The dredging, excavating or removal of soil, mud, sand, gravel, flora, fauna or aggregate of any kind form any coastal wetlands;

(4) killing or materially damaging any flora or fauna on or in any coastal wetland; and

(5) the erection on coastal wetlands of structure which materially affect the ebb and flow of the tide.

2. Permissible uses of wetlands:

a. preservation and enhancement of wetlands; and

b. preservation of wildlife, primary productivity, conservation areas and historical properties in both wetlands and unique areas.

3. Conditional use wetlands:

a. Projects for which there is demonstrated public need which cause a minimal amount of damage to the wetlands and other coastal resources.

b. Any such use shall take into consideration the no net loss policies enumerated in this section.

c. Any such use shall include “off-set” measures, which means least-damaging practicable alternatives: avoidance, minimization, and compensatory mitigation as determined by the Board.

d. All projects, uses, or activities on condition that any adverse impact to the wetland is compensated in kind, meaning that for every acre adversely impacted a specific acreage shall be rehabilitated:

(1) creating new wetlands at a minimum 1:1 ratio or restoration of former wetlands at a minimum 1:1 ratio, and

(2) rehabilitation of deteriorated wetlands at a minimum 1:2 ratio.

4. Prohibited uses of wetlands:

a. Land fill, dumping of solid waste, discharge of pollutants, and clearing, grading or removal of natural vegetation or any other activity or use not associated with a conditional use which limits or eliminates beneficial functions or values of wetlands or unique areas; and

b. Adverse impact on natural drainage patterns, the destruction of important habitat, and the discharge of toxic substances shall be prohibited.

5. Violations

a. It shall be a violation of this section for any person to fill, make deposits on, or in any fashion create or attempt to create, artificial land, or augment or add to the natural shoreline of any coastal area or wetland area or drain a wetland area without a land use permit or in violation of a permit. This section applies to principals, their agents, and contributors.

b. It shall be a violation of this section for any person to fill, make deposits on, or in any fashion attempt to create artificial land, or augment the area within the buffer area of a wetland. This includes alteration of the surface of the land, disturbance of vegetation or alteration of the hydrology.

c. Any person who violates this section is guilty of a class B misdemeanor and shall be subject to civil fines according to law.

History: Rule 8-80 (Ex. Ord. 03-80); ASCMP Reg. (Ex. Ord. 07-88); Rule 2-97, eff 4 Aug 97.