For years, Nationwide Permit 26 has been criticized as possibly the biggest single loophole in federal wetland regulations. Now, the Army Corps of Engineers plans to replace Nationwide 26 with a proposal that seems to have everyone fuming.
The Corps is the main federal agency for wetland regulation, and to manage its workload it has long relied on a series of “nationwide permits” that allow certain projects affecting wetlands to go forward with minimal checks.
Of the nationwide permits, 26 has been the most controversial because it could allow up to three acres of “isolated or headwater” wetlands to be destroyed.
Under its new plan, the Corps will replace Nationwide 26 with six expedited permits aimed at specific activities, but which would apply to all nontidal wetlands.
That change, according to the Corps, would remove the geographic focus of Nationwide 26 and allow it to focus its efforts on projects most threatening to “high value” wetlands wherever they are while “efficiently authorizing activities with minimal adverse effects.”
The six new permits are for residential and commercial construction, “master planned development,” stormwater management systems, mining, reconfiguration of existing drainage ditches, and the construction of “passive” recreational facilities such as those related to biking, hiking and camping.
Projects eligible for these permits would still have to meet certain requirements. If they did, they would get minimal review and speedy approval by the Corps. Still, these permits could allow individual projects to damage or destroy up to three acres of wetlands, though the Corps would still require lost wetlands to be replaced “when appropriate.”
Other activities, or those which could have a more serious impact on wetlands, would still undergo a case-by-case review by the Corps.
In addition, the Corps plans for each of its 40 districts to set up “regional conditioning,” which could trigger additional review, and protections, for wetlands of particular importance in that region.
The Corps took comments on the plan this summer, and after reviewing them, plans to implement the changes on March 28, 1999.
“We believe that the overall protection of the aquatic environment will be enhanced by these new permits through Corps districts and divisions establishing regional specific conditions,” said Chief of Engineers Lt. Gen. Joe N. Ballard. “The proposed permits will help the Corps achieve its goal of managing its workload based on impacts to the aquatic environment as a whole, not on impacts to any particular type of waters.”
Environmentalists strongly disagreed, and charged that the proposal was a step back from President Clinton’s Clean Water Action Plan goal of gaining 100,000 acres of wetlands nationwide annually by 2003.
“This plan leaves millions of acres of wetlands — and the people and wildlife that depend on them — hanging out to dry,” said National Wildlife Federation President Mark Van Putten.
Developers weren’t any happier. National Association of Home Builders Executive Vice President and Chief Executive Officer Kent Colton said the plan was a move in the “wrong direction” and would increase the regulatory burden — and costs — for developers.
“Instead of following its congressional directive to ensure a streamlined permitting process for wetlands development, the Corps sacrificed regulatory efficiency in exchange for a questionable environmental benefit,” Colton said.
Any impact from the planned changes in the Bay watershed would be felt most in Virginia which, unlike Maryland and Pennsylvania, does not have a state program to regulate nontidal wetlands, and relies on the federal government to do the job.
“It’s a bad proposal,” said Ann Jennings, a staff scientist with the Chesapeake Bay Foundation in Virginia. “It’s a real serious threat to Virginia. I think the hope is that it won’t be as dramatic in the other states.”
A review by the foundation found that Nationwide 26 allowed impacts to 378 acres of wetlands in Virginia in 1994-95 —mostly in small projects that affected three acres or less.
Environmental groups questioned whether switching from a Nationwide 26 permit, which could allow up to 10 acres of loss in headwater and isolated wetlands to new permits that would allow up to a 3-acre loss in any nontidal wetland, was an improvement. Many said it opened the door to greater wetland losses. In fact, on some large projects, up to three acres of wetlands might be affected by development if it is for “master planned development” — a term that is still being defined.
Environmental groups also contend that the proposed new permits are filled with regulatory loopholes. The new permit for passive recreational activities, for example, could also allow wetland replacement for golf courses and, in some cases, buildings.
And some remained skeptical that regional conditioning would provide many benefits, noting that Corps districts have been able to develop special protections for certain wetlands all along but have rarely done so, even when encouraged by other federal agencies.
The homebuilders association, meanwhile, said regional conditioning would only add to regulatory hurdles. “By adding another layer of regulation to the replacement permits at the local level, the Corps is essentially creating regionalized individual permits,” Colton said.
Colton, who said the nation was actually gaining wetlands as the result of mitigation banking and other restoration efforts, said he was particularly concerned about limiting wetland impacts to three acres for most residential developments and forcing others to go through the longer process of seeking a case-by-case “individual” permit from the Corps.
He said it would “force home builders and land developers to negotiate the expensive and time-consuming individual permit process. The limit will strain Corps resources, increase permitting delays significantly and contribute to increases in the cost of housing — all to avoid activities that the Corps has already acknowledged will have minimal impacts.”