This presentation highlights some of the context behind the contentious debate between environmentalists and U.S. builder/developer interests over the issue of "wetlands". The issue has undertones that reveal the tension between pro-growth and slow- or no-growth advocates. It also reveals some of the machinations of the policy process, especially the use of agency power and the court system to bypass the legislative process. The material from which this presentation is based comes from the excellent book, "Housing in the Twenty-First Century: Achieving Common Ground", written by Kent Colton.
2. WETLANDS – A BRIEF
HISTORY
Used To Be Portrayed
As “Swamps”
Recognition of
Biological Importance
of Wetlands
Conflict Between Our
Preservation and That
of Other Creatures
3. WETLANDS DEFINED
Range from permanently frozen Arctic tundra to
deep-water Southern swamps
“Areas saturated with surface or ground water at
a long enough duration to support prevalence of
important vegetation”
More than 97% of wetlands are freshwater
Comprise 6-9% of surface area of the “lower 48”
Can include land that is dry for all but 7 days of
the year
4. CONTEXT THROUGH WHICH
“WETLANDS” DEBATE IS FORMED
Environmental
embarrassments of the
1970s
Two competing
bureaucracies involved
Expansion of the term
“wetland”
Vast array of interest
groups involved in the
debate
5. WETLANDS - IMPLICATIONS
FOR HOUSING
Landowners restricted as to what they can
do on land dominated by a wetland.
Be careful what you create! Man-made
lakes are fair game.
Confusion over the fact that “uplands” can
change to wetlands over a period of time
Different definitions per agency as to what
constitutes a “wetland”
6. SECTION 404 PERMITTING
Characterized as “lengthy, costly, and
complicated”
Average time going through the process
successfully = 127 days
Average time going through the process
unsuccessfully = sometimes over a year
A majority of 404 permit applications are
either denied or withdrawn
This puts builders in a financial hole right
from the start, particularly crippling smaller
builders
7. THE RISE OF NWP’s
Offered as a way of addressing only the most
troublesome ecological problems
Minimum acreage requirements fell from 10 to 3
to ½ acre
Environmentalists claimed that the Corps was
allowing “more than minimal impacts on the
environment”.
NAHB and Corps of Engineers were codefendants but eventually haggled bitterly
Congress reluctant to enter the fray
8. DELINEATION MANUALS
Many parties/agencies interested in creating a
manual to help determine, “What are wetlands?”
Basic agreement that there were three
components of wetlands: hydrology, soils, and
vegetation
Commonly held obstacle was the water in the
soil
Corps definition was most conservative;
NRCS/EPA somewhat liberal; FWS the most
liberal
Ultimately, still no resolution on which was the
proper standard/manual to be used for
compliance.
9. APPEALS PROCESS
Concerned builders wanted this option as
a form of recourse in the event that permit
is denied
Avoided costly judicial process
Approved by Congress in 1999
Never enjoyed by the environmentalists
In the end, considered a faulty system that
polarized all parties involved
10. ACTORS INVOLVED IN THE WETLANDS SAGA
Reagan hampered by environmentalists
George Bush (Sr.) adopted the “no net loss”
policy; expanded research on wetlands trends
Clinton changed the culture of the Corps of
Engineers
U.S. Army Corps of Engineers
Environmental Protection Agency
Fish & Wildlife Service/Nat’l. Marine Fisheries
Service
Congress
Courts
Trade Associations
Environmental Groups
11.
12. WETLANDS MITIGATION
BANKING
Builder pays organization to create
wetlands in another area
Techniques include removing debris from
an area so water can flow easily
Environmentalists and opposition to manmade wetlands
Quality of wetlands impacts the price
involved with restoring wetlands
More success in Florida than Northeast
13. THE CURIOUS “TULLOCH RULE”
CASE
Flash point of this case was in North Carolina
Deals with Section 404 of the Clean Water Act
Builders/developers contended that excavation
of wetlands did not amount to “filling” of a
wetland
Wildlife Federation sued the Corps for allowing
this activity, and ultimately won the day
Through suits brought forth by multiple
development interests, decision was reversed
Agencies involved sought to ignore the ruling
14. CHALLENGES TO WETLANDS: WHY DID
EFFORTS TO ACHIEVE COMMON
GROUND FAIL?
No clear definition for
“wetland”
Ongoing struggles
between Corps and EPA
Parties liked to use court
system
No evidence of “honest
broker” coming to
mediate
Two main parties do not
have a lot in common
15. GENERAL PRINCIPLES FOR
ACHIEVING COMMON GROUND
Use time and powers of
persuasion well
Have an honest broker at the
ready
Keep the rhetoric low
Create incentives
Understand market realities
over the long term
Understand the people
involved
Remember that you can make
a tough stand, but leave
enough wiggle room for
compromise