GeoInsighter Fall 2002 Newsletter

U.S. Army Corps of Engineers Refine Wetlands Regulations

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As a result of the recent drought experienced in the northeast, water bans were in effect and recreational activities were restricted in some areas. Many private well owners are now sharing the concerns that wetlands advocates have identified for many years. Water resource quantity, quality, and protection are serious issues that we all need to deal with today. Wetlands are a very important factor in the resolution of those concerns. However, wetlands have always been viewed as the environmental “ugly duckling,” resulting in approximately 70,000 to 90,000 acres of destruction annually in the United States (U.S.). Recent legislation has been adopted to protect this natural resource.

On October 31, 2001, the U.S. Army Corps of Engineers (Corps) unilaterally issued a Regulatory Guidance letter for the policy on deciding the compensation for destroying wetlands. The letter altered the “no net loss” policy the Corps had used as its guiding principle since the late 1980s. Past mitigation practices focused on the type and quality of a wetland as an “eye for an eye” practice. With the new policy in place, developers will have a much wider choice of the type and extent of mitigation. With the new guidance, wetlands mitigation can change the function of the wetlands to a recreational pond or upland buffer zone, or easements can be established to protect other existing watershed streams and marshes, or simply increase the quality of wetland value within the watershed. All these practices are now considered as compensatory for the destruction of a wetland although a net loss of wetland area may occur.

The new policy is guided by the Corps’ concept of mitigation banking. Mitigation banking is a practice where developers are providing enhancement, preservation, restoration, and creation in advance of development. Banking provides a “no interest loan” to the environment. According to the Corps, a goal of the new policy is to create large, ecologically superior wetlands in areas of high potential for success, ensuring compensatory action against future adverse activities. 

According to a January 14, 2002 Corps News Release, the Corps issued new Nationwide Permits (NWP) that are designed to provide appropriate environmental protection when the Corps authorizes discharges of small amounts of dredge and fill material into waters of the U.S. The reissued NWPs maintain the protective acreage thresholds established in 2000, which reduced permissible acreage impacts under a NWP from 3 acres to 0.5 acres to help ensure minimal impacts to the aquatic environment. The modifications piggyback the October 2001 regulatory guidance letter abandoning the exclusive “no net loss” practice to a practice of ensuring protection of the aquatic ecosystem on a watershed basis. Corps policy architects advocate that the modifications will provide increased, efficient evaluative protection of wetlands, streams, and other water resources. 

In an attempt to decrease wetlands destruction, the U.S. Environmental Protection Agency in concession with the Corps finalized a rule that clarifies the Corps authority to regulate activities in wetlands that the Tulloch rule previously prevented. The Tulloch rule, in place since 1993 as a result of a Court of Appeals decision, established a waiver for permitting development activities in a wetland when only small amounts of soil is falling back or placed into the same place of a wetland or stream. This ruling has allowed developers to build on more than 30,000 acres of wetlands. The new rule established the Corps as the authority over wetlands and empowers it to evaluate the necessity of a permit before further development of wetland areas. The rule also clarifies use of mechanical machinery in wetlands and streams as a sediment transport and deposition activity that degrades quality and value, and this use is considered “discharges of dredged or fill material,” regulated by the Clean Water Act.

Michael J. Redding
mjredding@geoinc.com

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