   |
|
State & Local News Vol. 23, No. 4, Summer 2000 ENVIRONMENTAL LAW UPDATENew Wetlands Requirements Likely to Impact Local Governments
Stephanie P. Brown Over strenuous objections from local governments and industry, the U.S. Army Corps of Engineers ("the Corps") has issued a final regulation that further limits development in wetlands. See 65 Fed. Reg. 12,818. The new rule reduces the scope of activities eligible for a general, rather than individual, dredge and fill permits. Consequently, the rule makes it more onerous and expensive to build and maintain roadways, schools, and other structures, or to conduct certain other activities, in regulated areas. The rule, issued March 9, 2000, will replace "Nationwide Permit 26" ("NWP 26"), viewed by many as a virtual "rubber stamp" for construction projects. NWP 26 is set to expire June 5, 2000, on which date the new rule will become effective. NWP 26 authorizes discharge of dredged or fill material into "headwaters" and "isolated waters," as long as the discharge does not result in the loss of greater than three acres of "waters of the United States" or 500 linear feet of stream bed. Basically, "headwaters" are small nontidal waters (streams, lakes, and impoundments) that are part of a surface tributary system to interstate or navigable waters of the United States; "isolated waters" are nontidal waters that are not part of or adjacent to such a system. An NWP provides a simplified permitting process available in lieu of having to obtain an individual permit to conduct activities within the NWP's purview. According to industry sources, the cost of obtaining an NWP is about 10 percent that of an individual permit and takes about half as long. Perhaps the most controversial aspect of the new rule is that the regulatory scheme will set a maximum acreage for most of the new and modified NWPs at one-half acre-versus up to three acres under NWP 26. The rule "grandfathers" certain activities by providing that the Corps will review projects for which Pre-Construction Notification (PCN) was submitted to the Corps on or before March 9, 2000, under the terms and conditions of NWP 26 rather than the new requirements. The new regulation establishes five new NWPs and modifies six existing ones. These NWPs authorize many of the same activities eligible for NWP 26 authorization, but the new and modified NWPs are activity-specific with terms and conditions to ensure that projects result in minimal adverse effects on the aquatic environment. Most of the new and modified NWPs require PCN submission for discharge of dredged or fill material resulting in the loss of greater than one-tenth acre of waters. Furthermore, Regional Corps authorities may lower notification thresholds. The new/modified NWPs apply to:
The new rule also modifies nine, and adds two new, NWP general conditions. The Corps essentially controls specific actions associated with an NWP dredge and fill project through the general conditions set in the NWP. Those conditions relate to, among other things, water quality, navigation, maintenance, soil erosion, sediment control, Coastal Zone Management, endangered species, historic properties, mitigation, spawning areas, and removal of temporary fills. Furthermore, the new conditions will limit activities in designated critical resource waters and 100-year floodplains. Local governments are not exempt from the Corps' permitting obligations. The case of one fast-growing southern California county is illustrative. The Corps and other agencies required a city and a local school district to create wetlands near the construction sites for a community center and high school, respectively, thereby adding millions to the building costs, according to published reports. Localities with dwindling nonregulated land available for development will be particularly affected. The National Association of Counties and others have denounced the anticipated annual cost of compliance to the regulated community-estimated to exceed ten times the cost projected by the Corps. Critics also have claimed that the agency's effort represents "mission creep" to fill the gap created by a decreased emphasis on major Corps construction projects such as dams and bridges. The Corps concedes that the new requirements will increase both costs to applicants "to some degree" and funding needed by the agency. Yet, the agency maintains that its rule will substantially increase protection of the aquatic environment while efficiently authorizing activities with minimal adverse effects on that environment. Furthermore, the Corps submits that although the new and modified NWPs duplicate certain existing local government programs, the regulation is necessary because comparable legal protections and willingness to enforce such protections are lacking in many areas of the country. Even so, some environmental groups believe the Corps' new rule does not go far enough in halting the continuing loss of wetlands. The actual cost of the new regulation to local governments is yet to be seen. Those costs, however, seem destined to escalate over time. As communities grow, they often need to expand into previously untouched lands, thus forcing development into areas subject to the expanded NWP rule. Furthermore, the Corps likely will continue its effort to limit wetlands loss. Since 1977, the Corps has ratcheted down the acreage of wetlands available for unregulated development. Pressure from environmental and community groups to continue this trend is unlikely to diminish. Further information is available at the Corps's homepage at www.usace.army.mil/inet/functions/cw/cecwo/reg/. Stephanie P. Brown is a Branch Chief in the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Office of Site Remediation Enforcement. She can be reached at 202/564-2695 or brown.stephanie@epa.gov. The opinions expressed by the author do not necessarily represent the view of U.S. EPA.
|