State and federal regulatory programs have slowed but failed to halt the loss of wetlands in the Bay watershed, concludes a new report by the Chesapeake Bay Foundation.
And while those programs have failed to meet a “no net loss” goal for wetlands as hoped, neither have they been overly burdensome for landowners as developers have claimed, CBF found. Almost all wetland permits that are applied for are approved.
Overall, the Annapolis-based environmental group characterized its findings as a “good news and bad news” story — the good news being that wetland programs are “on the right track,” the bad news being that, for a variety of reasons, losses are continuing.
Further, CBF said, it is unlikely that any regulatory program would ever halt wetland losses, much less achieve the Bay Program’s goal of a “net resource gain.” CBF said state and federal agencies needed to emphasize new programs aimed at wetland restoration with a goal of adding 50,000 acres by the year 2000 and an additional 150,000 acres by the year 2010.
“At their best,” the report said, “ … these programs may retard the loss of wetlands acreage. In order to make real progress in restoring the Chesapeake Bay and its watershed, an additional effort to restore wetlands, separate from these permit programs, needs to be undertaken.”
Frank Dawson, head of the Maryland Department of Natural Resources tidal wetlands program and chairman of the Bay Program’s Wetlands Workgroup, said regulatory programs eventually may be able to achieve a no net loss “based upon what they receive applications for.” But he noted that losses from some activities — both natural, such as sea level rise, and human-related — fall outside the regulatory realm.
Tom Filip, who oversees wetlands regulation for the Army Corps of Engineers Baltimore District, called the report’s findings “basically on the money.”
“I have never felt that a regulatory program can get to no net loss, and certainly not a net gain,” Filip said. “There are too many things that are unregulated that affect wetlands.”
The CBF report said some wetlands are being lost to illegal activities; regulatory loopholes allow others to be destroyed; and mitigation programs — which require destroyed wetlands to be replaced with new ones — have failed to keep pace with losses.
But Dawson said improvements had been made since the study period, which ran from spring 1992 to spring 1993.
“The Bay Foundation report certainly reflects a time in which some of our new efforts toward managing wetlands were being put in place, like the Maryland Nontidal Wetlands Program, which was started in 1991,” Dawson said. “I think it’s fair to conclude that we’re doing a better job since that time.”
The study was based on a random sample of more than 800 wetland and waterway permit application files from the state and federal regulatory agencies that write permits allowing development to take place in wetlands. In addition, the group surveyed 104 Bay area wetland consultants, most of whom primarily represent developers in permit application deliberations.
No one knows exactly how many wetlands are being lost each year because most losses are undocumented. CBF’s report cited a figure of 4,500 acres a year from a recent U.S. Fish and Wildlife Service report. But that study examined wetland trends in the watershed from 1982-89, before some of the state regulatory programs existed.
“Most of the wetlands that are destroyed never appear ‘on the books’ of wetland permit programs,” said Ann Powers, CBF vice president and general counsel.
Indeed, the report cites a series of loopholes and regulatory shortfalls which point to a continuing loss of wetlands.
First of all, an unknown amount of illegal wetland destruction takes place. State and federal staffs generally are not large enough — and have not been given clear direction — to seek out violators on their own, the report said. Instead, finding illegal wetland destruction often depends on reports from citizens.
That view is shared by private consultants. Overall, 39 percent of those surveyed said that wetlands in their state “always” or “frequently” are “destroyed without anyone submitting a permit application to either federal or state authorities.” Another 36 percent said such impacts “sometimes” take place.
Besides illegal activities, some wetland losses take place because of regulatory “loopholes” which often allow activities such as farming and timbering to take place in wetlands without regulation.
In addition, roughly 90 percent of the requests to impact wetlands are routinely granted through “general permits” or other expedited procedures from federal and state regulatory agencies which allow wetlands to be destroyed with only minimal review. While the amounts involved are generally thought to be small, they can in some cases affect up to 10 acres. Often, CBF said, records did not indicate the amount of wetlands affected by these permits, and it concluded that “many additional wetlands are destroyed with little or no documentation.”
Finally, the report said, the mitigation that is frequently required to replace destroyed wetlands often fails to replace actual losses. The report stated, “ … our results show that wetlands continue to be destroyed without any wetland replacement requirement and that where compensatory mitigation is required, it may not be replacing the characteristics and functions of the wetlands destroyed.”
Nearly half the wetland consultants surveyed said that current regulatory requirements frequently “lead to compensatory mitigation that has little environmental benefit.” Most consultants also said they had difficulty in locating suitable mitigation sites. Further, more than 40 percent said federal and state regulators “seldom” or “never” visit mitigation sites to see if their requirements were being met.
That, said Jan Goldman-Carter, a consultant who worked with CBF on the study, is a sign that many wetland programs are understaffed. “If they only are writing the permit and do not have the time to follow through, then in my book, they are only doing half their job,” she said.
Despite those continuing losses, the regulatory programs are largely effective at slowing the rate of loss, CBF said. More than 90 percent of the consultants said that the mere existence of a wetlands permitting process makes their clients voluntarily seek to avoid and minimize wetland impacts to avoid the cost and delay associated with the permit programs.
Four of five consultants also agreed that clients were less likely to propose projects with large wetland impacts than they were five years ago. When a client’s action will impact a wetland, more than 90 percent of the consultants said they provided advice on how to minimize those impacts to make permit approval easier. A similar number also sought to reduce impacts so they could apply for a general permit, which has simplified permit review requirements.
In addition, impacts appear to be reduced through informal “preapplication meetings” which are often held between agency officials and consultants prior to making a permit application. Though records of such meetings often are not kept, consultants surveyed by CBF said such meetings frequently lead them to make changes in plans that reduced environmental impacts.
“Through meeting informally, the two sides develop a pretty good idea of what is going to be politically acceptable,” Goldman-Carter said. By the time a permit application is sent out for public notice and comment, she said, “the project, in many cases, has already been scaled down to the point where the public is not likely to challenge it. Usually, the regulators have called it pretty much right.”
But, she noted, the “politically acceptable’ impacts may not be “ecologically acceptable” because significant individual and cumulative adverse impacts to wetlands may still be approved. Citizens generally do not have the expertise or resources to challenge the permits, she said.
Filip agreed with the report’s conclusion about the preapplication process. “If people come in soon enough, we’ll give them a fair reading of whether their plan will fly or not,” he said, “and if not, what they can do do make it reasonable.”
So many issues are resolved through informal meetings that CBF found that the size of the wetlands impact is usually not reduced by the formal wetland permitting process. Maryland’s Nontidal Program showed the greatest number of projects reduced in size through the permit process, with 25 percent showing reductions.
While the size of impacts often were not reduced, state and federal agencies often required “special conditions” when issuing wetland permits. These conditions are designed to reduce impacts on resources, and may include such things as specific erosion and runoff control measures; limiting discharges during certain times of the year to avoid impacts on spawning fish; or restoring pre-project conditions after construction. The Pennsylvania and Maryland programs and Baltimore Corps District required special conditions in most of the permits issued, while the Norfolk Corps District and the Virginia tidal program used special conditions in fewer than a quarter of their permits.
The CBF review found a close correlation between the addition of special conditions and the amount of involvement by non-permit writing resource agencies — such as the EPA, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service and state wildlife agencies.
CBF said a permit review period of 100 to 200 days was reasonable, though programs needed adequate staff to meet that time frame. Shorter permit times are not reasonable, CBF said, because of the need to get accurate information from applicants — which often is lacking on initial applications — publish a public notice, collect meaningful and informed public comments, get input from other resource management agencies, and negotiate any design changes with the applicant.
“If you are going to insist on these 100-200 day permitting times, you’re going to have to have adequate staff,” Goldman-Carter said. “It can’t possibly be done if you have one person juggling 30-40-50 or more permits simultaneously; it just isn’t going to be possible.”
The report disputes claims that the wetland regulatory process is overly burdensome or prohibits development of land. More than 90 percent of permit applications for disturbing wetlands are approved, the study found.
And while some have argued that developers and landowners often withdraw their applications rather than follow through with the troublesome permit process, CBF’s review found that not to be the case. In fact, CBF found that fewer than 10 percent of the permit applications were withdrawn, and even fewer were withdrawn because the applicants considered the requirements too burdensome.
Copies of the report, “Wetlands Permitting Programs in the Chesapeake Bay Area,” are available from the Chesapeake Bay Foundation, (410) 268-8816.