93    WETLANDS: NAVIGATING THE NEW REGULATORY
MAZE
Katherine E. Imbrock, Regulatory Specialist
Burgess & Niple, Limited
Columbus, Ohio 43220
INTRODUCTION
Both President Bush and Environmental Protection Agency (EPA) Administrator William Reilly
recently endorsed a "no-net-loss" national policy goal for wetlands protection, elevating the issue to
top priority status among environmental issues. The endorsements crown nearly three decades of
expanding concern and regulation. What began in the 1960s as a relatively confined and logical
extension of the Army Corps of Engineers' longstanding authority to regulate the obstruction of
navigable waterways, has grown up into one of the most complicated and powerful environmental
regulatory programs on the books.
Virtually any construction or development activity in or near wetlands is at least potentially subject
to the Army Corps of Engineers' Section 404 permit program requirements. Unlike most environmental permitting programs, which establish limits on how much "pollution" will be allowed, the wetlands
permitting decision is essentially a "go/no go" decision. The bias against allowing any level of a
regulated activity which might impair a wetland is very strong, extending even into the preacquisition
phases of a project. In this respect, the current wetlands protection framework has been likened to a
national zoning law. A bewildering array of exemptions and "nationwide" permits, the highly technical nature of the Corps' guidelines for identifying wetlands, a share regulatory role with U.S. EPA and
other regulatory agencies, and the severity of penalties for unpermitted violations further complicate
the picture, and make "second guessing" on wetlands determinations a risky proposition at best.
Only the Corps and EPA can render definitive wetlands jurisdictional and permitting determinations, but an acquaintance with the intricacies of the process can help the potential permittee avoid
costly delays, and ideally, the need to seek a permit altogether. This paper will attempt to reduce the
regulatory morass surrounding wetlands to a hierarchy of "structuring questions" which can be used
by prospective buyers, developers, corporate officers, and project managers to quickly and efficiently
determine their options when faced with the possibility of having to seek a Section 404 permit.
WHY WETLANDS ALL OF A SUDDEN?
The "no-net-loss" policy goal was first coined by the National Wetlands Policy Forum in their
November 1988 report to the U.S. EPA. The Forum, a gathering of legislators, governors, regulatory
officials, members of environmental groups and members of the regulated community, was convened
in 1987, at EPA's request, by the Conservation Foundation. The Forum's charge was to develop
wetlands protection policy recommendations in the face of alarming loss rates to agricultural conversion and urban development.
Concern over wetlands losses is a relatively recent development. For most of this century, wetlands
have been perceived as unproductive, even undesirable areas best drained and brought under cultivation or built upon. Like many environmental protection programs, the current wetlands protection
framework has its roots in the environmental movement of the 1960's and 70's. As the infant science
of ecology grew and brought new understanding about natural systems and how they work, the
benefits of wetlands in their natural state came to be recognized. Wetlands provide habitat for nearly
20% of the nation's endangered and threatened species. Biologically, they are the most productive
ecosystems in the world. Many migratory bird species breed and winter in wetland areas. Most
commercially harvested fish and shellfish species begin life in coastal wetlands. Wetlands also moderate flooding along rivers and streams and appear to have an as yet untapped potential as natural
wastewater treatment systems. Wetlands trap sediments, consume excess nutrients, and appear capable of removing or transforming metals and other chemical contaminants from polluted water.
46th Purdue Industrial Waste Conference Proceedings, 1992 Lewis Publishers, Inc., Chelsea, Michigan 48118.
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