Swamped by wetland regulations.
An elderly Fairbanks couple, eager to accommodate visiting grandchildren, have a load of sand delivered to their yard for a sand box. For expediency, they decide to skip the box; it's all the same to the kids. But it isn't all the same to the U.S. Army Corps of Engineers. The agency charges the couple with illegally filling a wetland and slaps them with thousands of dollars in daily fines.
On Kodiak Island, a subdivision developer wins kudos from the corps for responsibly platting 37 home lots on land covered with wetlands and ponds and bisected by a creek. Together, in a picture of perfect harmony, the developer and the agency praise the economic and environmental integrity of the project and toast their cooperation.
These night-and-day scenarios arise from the same regulatory process now in place around the nation for protecting what was previously one of our most maligned and plentiful landscapes: wetlands. Once considered wastelands, these boggy areas are now known to have a wide variety of ecological and economic values.
Unfortunately, the term wetlands recently has come to be associated with some of the worst regulatory horror stories circulating in communities and business circles, both in Alaska and Outside. Even regulators admit it's a mess.
"It's very complex. You can't summarize it well and get all the little details that people have to comply with," says Pat Richardson, a Corps of Engineers spokesperson in Anchorage.
"It is a cumbersome process," admits Don Kohler, a regulation expert with the corps. He says the agency has been struggling to keep up with requests for wetlands use since 1987, when it was inundated with applications by placer miners in reaction to new regulations. "We've got a large backlog, about 400, and we haven't dug out of that yet," Kohler says.
The national wetlands management program is similar in many ways to the administration of regulations for dealing with hazardous waste: Rules and procedures frequently change; they are complex, often requiring the retention of consultants to ensure compliance; beyond having to hire experts, compliance can be costly. Further, wetlands management, also like hazardous waste policies, has arisen from serious and legitimate environmental problems. And though they may change, they are here to stay.
While the term wetlands means different things to different people, the definition that counts is the one applied by the agencies which regulate them. The official definition is being reviewed, again.
For the sake of general discussion, consider a wetland to be land showing evidence of periodic saturation or containing plants, such as cattails, that are usually associated with wetlands. Under the proposed changes, a parcel of land earns the wetland moniker if it is saturated with water for 21 consecutive days of the growing season.
While scientists, politicians, farmers, city planners and many others debate the outer limit of wetland definition, science has clearly established that many types of wetlands are important for maintaining a healthy, functional environment for humans as well as other creatures. Among the most important functions of wetland areas are the filtering of pollutants washed from upland areas, intercepting flood waters, recharging ground-water supplies and providing critical wildlife habitat.
While Alaska boasts 170 million acres of wetlands of various types and functions, many types are not widely represented. The National Wildlife Federation contends that the state's 345,000 acres of coastal salt-marsh, relatively scarce compared to the state's total wetlands, are particularly at risk because they are situated in areas where human activities are concentrated.
This has created difficult straits for communities seeking to encourage private development or to expand public facilities. Kenai, Juneau, the Bristol Bay Borough, the Kodiak Island Borough and a number of other municipalities either have encountered problems complying with wetlands rules or have joined the fight to limit agency controls in anticipation of difficulties.
Legal Framework. Rules governing use of wetlands haven't been around all that long. Although the Corps of Engineers has regulated activities in the nation's waters since 1890, these efforts were directed chiefly at protecting navigation.
With passage of the Clean Water Act in 1972, Congress prohibited discharging dredged or fill material into the nation's waters without a permit from the Corps of Engineers. When the act was reauthorized in 1977, lawmakers also more explicitly included wetlands in the regulatory framework the corps was hammering together.
Some would say it's all been downhill from there. Currently, up to a dozen or more federal laws may be invoked in the process of protecting or restoring a wetland. Enforced by a variety of lead agencies, those laws carry a range of penalties for non-compliance.
Frustrated by complicated, ever-changing rules, development and business interests have assailed the wetlands management program, charging that the Corps of Engineers and the U.S. Environmental Protection Agency have grossly exceeded congressional intent by building a rigid, blockhouse management program on, well, swampy legal ground. In particular, controversy has flared over determining what is wetland and how to establish the values and functions of wetlands proposed for alteration.
The mire thickened when President George Bush established a policy of "no net loss" of wetlands nationwide that called for an acre-for-acre replacement of wetlands filled for development, a practice known as mitigation. States such as Alaska and Louisiana, which have substantial wetland acreage, as well as a number of industries that would suffer reversals, blasted the president's policy as unfair and impractical. A tug-of-war ensued within the administration, resulting in August in a softened policy that some feel may make the regulatory process more fair to land users.
But with nearly a decade of chaotic rule-making and often iron-handed enforcement, a legacy of mistrust runs deep. A person who has a lot to say about his company's experience in the wetland permitting process, but is unwilling to be publicly identified for fear of recrimination, says, "Once you have the permit, you can talk about it. (But before then), someone could get offended and basically stonewall your process."
He notes that even when regulators are sympathetic to developers, they have to appear hard-nosed. That and other factors lead to a fair amount of arbitrary subjectivity in the permitting process.
Observers point out that the combination of the expense of delineating wetlands, the potential costs of mitigating wetland loss or damage, and the fear of stiff fines for even inadvertently violating the regulations are discouraging companies -- especially smaller ones -- from even trying to move forward with their projects. One option for businesses is simply to accept the maximum delineation of wetlands for the affected tract, thereby cutting the upfront costs involved in collecting data on soils, vegetation and hydrology that are key to defining a wetland area.
Unfortunately, this isn't always practical. In many parts of Alaska, whole tracts are wetlands even by the most development-friendly interpretation of the data. In such cases, the cost of designing mitigation measures and repairing or replacing damaged wetlands can profoundly affect the project's bottom line.
"Costs can multiply just immensely if they make any changes in your plan. It's real hard to deal with. It may change the entire economics of the project," says the spokesperson who requested anonymity.
Bob Tsigonis is an environmental engineer for Fairbanks Gold Inc., the firm developing the huge Fort Knox gold deposit near Fairbanks. He says going through the process has given him an appreciation for both sides of the issue.
"Oftentimes, almost 100 percent, the underlying regulations came about for good reason, but the good reason is often lost in procedure," Tsigonis explains. He notes that in many cases, brief site visits using plain common sense would give regulators ample information to issue permits well within the 90-day period the corps currently uses.
But Tsigonis adds, "That will never happen, even though it would save taxpayers and business a lot of money. And the bureaucrats are caught in a bind because they have to cover their tail."
Clamoring for Clarity. Other players in the wetlands game -- chiefly the consultants hired by businesses to shepherd them through the process and the federal regulators themselves -- agree that there are problems with the permit system. The corps' Kohler says many people do not realize how constrained the agencies are by the federal statutes and regulations. He also notes that popular awareness of wetlands functions has not kept up with scientific understanding of the role wetlands play, both in unspoiled ecosystems and in areas substantially altered by humans.
"There are a lot of misconceptions about wetlands and wetland values. People oversimplify the situation, and it's done from both sides: on the one hand, failing to recognize a true wetland and its associated values, and on the other hand, assuming that all wetlands have value, when they don't," Kohler says.
While he sympathizes with permit applicants on the issues of complexity, cost and timeliness, Kohler adds that some of the so-called horror stories are stretched in the telling for maximum political posturing. He points out that pro-development forces frequently claim that Alaska wetlands function differently than those Outside, but fail to mention that some of the most important functions of a wetland -- such as enhancing water quality by filtering polluted upland runoff and flood control -- don't become readily apparent until human development occurs in or around the wetland.
Kohler also is bothered by political rhetoric that attempts to turn coincidence into a virtue by boasting of the vast Alaskan wetlands acreage that remains untouched, as if this were a matter of enlightened and deliberate policy.
"I've seen a lot of statements by industry that just don't hold up," Kohler says. "Our denial rate up here is less than 1 percent, and sometimes the modifications actually save them money."
Kohler notes that many of the perceived problems in wetlands regulation stem from the process being very open and subject to critical citizen review. Also, citizens often hold double standards when it comes to filling in a bog, he points out. Many landowners want their own gravel pad approved, but don't want anyone else altering the lake or streamside.
Wetland Guides. Regulators such as Kohler often deal with third-party representatives such as Cheryl Moody, an environmental scientist with America North. The business is one of many consulting firms providing services aimed at ushering businesses through the wetlands-permitting process with as little cost and fuss as possible.
"The number one thing private companies are looking for is timeliness," says Moody. Armed with their technical staff -- hydrologists, soils scientists and others -- and an understanding of the technical criteria for defining wetlands, consulting firms try to achieve this timeliness by collecting as much background on the project site as possible, hoping thereby to reduce the regulatory review time.
"A large number of jurisdictional determinations are made by the corps using existing data and aerial photographs," Moody explains. "Typically, when a call is controversial enough for a consultant to be hired, a site visit is completed by the consultant to validate any existing documentation and to collect more site-specific data."
"I haven't had the corps disagree with any of my determinations. Maybe I'm just lucky, but if you use the manual (The Federal Manual for Identifying and Delineating Jurisdictional Wetlands), your head, good science and diligence in the field, anyone with an understanding of the parameters involved is going to come to the same conclusion about where to draw the line."
Moody praises the regulators charged with administering the Alaska wetlands program: "The corps people I've worked with are very professional. To their credit, they're reasonable people." She adds that she has found them helpful in trying to resolve gray areas. "I didn't expect that, based on all the things you hear."
But though Moody is reasonably comfortable working in the wetlands regulation system, she feels it needs legal shoring-up. "It's a house built on kind of a shaky foundation. That doesn't mean wetlands protection isn't necessary, but that the policy we have doesn't have the foundation to be successful both in protecting wetlands and providing land users with predictability," she says.
Moody feels there should be a comprehensive statute setting wetlands policy, which hopefully would be followed by coherent and finite rule-making to implement the law. Echoing a charge often leveled by development and industrial interests, she says the Corps of Engineers and Environmental Protection Agency may have exceeded their authorities in using their powers to regulate the dredge and fill of waterways into a system for regulating wetlands as well.
"Starting with this narrow focus, they have grasped outward to try and gain control of the situation -- the continued degradation of the nation's waters and wetlands," Moody says. She also notes that the government failed to put the 1989 delineation manual through the public review and rule-making process prior to implementation. "That's not correct; people are supposed to have that right and that was circumvented," Moody adds.
Demand for Definition. Moody and many others acknowledge both a need and a demand for wetland regulation of some kind across the nation. They hope for a process that considers the uniqueness of each situation without placing an unreasonable burden of time or cost on otherwise legitimate and viable projects.
"Wetlands are not the same everywhere; each site is going to be different. But now, following the regulations is like trying to hit a moving target; things are changing real fast. Common sense needs to come into play," Moody says.
She fears that the debate has become more political than scientific, robbing it of the level-headed objectivity needed to find workable solutions. The same fears led at least one high-ranking EPA official to publicly disassociate himself from recent discussions in the Bush administration. That review eventually led to a softening of some of the "no net loss" of wetlands that regulators had been trying to integrate into the day-to-day management process.
No less than many others involved in the wetlands issue, federal bureaucrats are eager for things to settle down. Some are satisfied that the current program is on solid legal ground, though.
John Meagher, director of EPA's Wetlands Division in Washington, D.C., says examination of the legislative intent record developed during debate over the Clean Water Act in 1972 and its subsequent reauthorization in 1977 should put to rest any doubts on the program's legality.
"I agree that the Clean Water Act does not provide a comprehensive wetlands program, but it does provide a clear regulatory mechanism for dredge-and-fill activities in wetlands. Congress vigorously debated this issue, and it's pretty clear Congress realized that it was authorizing wetlands protection when it reauthorized the Clean Water Act in 1977," Meagher asserts.
In his view, a comprehensive wetlands statute would afford even more wetlands protection than is currently afforded by the so-called 404 program outlined by the Clean Water Act.
According to Meagher, the administration has heard the chorus of complaining about permitting delays and other regulatory hardships. A presidential announcement on Aug. 9 left developers sighing with relief and environmentalists howling that Bush had finally abandoned his "no net loss" pledge.
The announcement featured a three-part plan that would:
* Strengthen wetlands acquisition programs and other efforts to protect wetlands;
* Revise the interagency manual defining wetlands to ensure it is workable;
* Improve and streamline the current wetlands regulatory program.
A number of analysts contend that EPA Administrator William Reilly took a political beating at the hands of conservatives in the Bush White House over the wetlands policy. Despite the setback, Meagher is optimistic that the president's decision has set the stage for resolving problems without sacrificing the program's intention.
"We believe these changes can be implemented in a way that maintains the same level of protection," Meagher says. He predicts "significant changes" in the way wetlands management is administered.
"I think it will have a real world effect. Timeliness of permits will be more paramount. You will see material changes that will provide streamlining of the regulatory process," Meagher adds.
He lauds the president's call for continued wetlands research and cites recent field tests of wetlands criteria published in all three versions of the wetlands delineation manual -- the 1987, 1989 and 1991 versions are preferred by different groups -- as an important step toward meeting Bush's directive for greater efficiency and reliability in the regulatory process. Results of those field tests will be analyzed along with public comment records to produce a final manual.
Meagher points out that it will take some time to overcome the mistrust and misunderstandings engendered by the wetlands controversy, but says his agency will continue striving for a workable system. "There are a lot of problems out there that are perceived problems, rather than real problems. But there are real concerns, too. There's a tremendous amount of confusion. Some people are trying to help us clear up that confusion; some are not. We're trying to do our best."
Alvin Ewing, the top administrator for the U.S. Environmental Protection Agency in Alaska, has been an active participant in many wetlands discussions and deliberations. Following are excerpts of an interview of Ewing by contributing writer Jeffrey Richardson following the Aug. 9 announcement of the Bush administration's new wetlands management plan.
How do you characterize the wetlands controversy in Alaska?
I think there are a couple of different levels. There are those genuinely not familiar with the process. They don't have the resources to spend the time or to hire someone to understand the process. For them, just lack of understanding is extremely frustrating. They want to do something, and there's a bunch of bureaucratic agencies and regulations sitting in the way.
On the other hand, there are some individuals out there who philosophically disagree with wetland regulation. They're trying to change the system. But it can also be very frustrating to try to change a federal program, one that's embodied in federal law, federal regulation.
You recognize that regulation is law, just as statute is law. There's a very rigorous process that regulations go through in development. I would argue that in terms of reaching out and forming a consensus, the regulatory process may do a better job of that than the statutory process.
Do objections come from one sector more than from another?
I think it's pretty much across the board in Alaska, including government. Maybe more strongly from government, state and local. Gov. Hickel himself has taken on this issue and he believes that our approach to regulation needs to be revised here.
How do the people in your agency keep politics and practical management issues separate?
We implement the law as it's written. We're obligated to do that. Where there is room for flexibility, where it makes sense to exercise flexibility, we do. But where there is not room for flexibility, the law applies, and the law is the law of the land.
Do you feel Alaskans' frustration with wetlands management is justified?
I wouldn't want to judge. I've indicated the law is cumbersome to implement. On the other hand, I think we've got to keep in view what it is we're trying to protect here. We've got to use a longer-term vision of what we want the state to look like 100 or 200 years down the road as we make judgments on how to proceed. Short-term economic gains, at the expense of long-term ecological problems, are not good tradeoffs to make.
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|Title Annotation:||includes related article; strict swampland laws retards business improvements|
|Publication:||Alaska Business Monthly|
|Article Type:||Industry Overview|
|Date:||Nov 1, 1991|
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