Administration Eases Wetlands Rules

Gale Norton, United States Interior Secretary
Developers no longer will have to restore or create new wetlands for every acre they drain or fill under new regulations issued by the Bush administration Monday.

The new Army Corps of Engineers rules, which revoke some Clinton-era requirements, also will enable developers to win speedy government approval for draining and filling permits under the Clean Water Act if the effect on streams or marshes is minimal.

Instead of requiring acre-for-acre restoration on each project, the new regulations require only that there be "no net loss" of wetlands in any of the Corps' 38 U.S. districts, which are established on the basis of watersheds rather than state boundaries.

John Studt, chief of the Corps' regulatory branch, said the new permit requirements "will do a better job of protecting aquatic ecosystems while simplifying some administrative burdens for the regulated public."

Left in place was a Clinton-era requirement that developers get a permit for any project involving more than a half-acre of wetlands. Until 2000, developers had to get government approval only if more than three acres of wetlands were affected.

The new regulations also eliminate some restrictions on development in flood plains and revoke a prohibition on filling more than 300 linear feet along any stream.

Developers now will be able to seek waivers allowing them to fill up to a half-acre of any stream that doesn't flow year-round. For example, an eight-foot-wide stream that dries up during a portion of the year could be filled for up to a half-mile.

"The inevitable result will be increased floods, more water pollution and greater loss of wildlife habitat," said Daniel Rosenberg, an attorney for Natural Resources Defense Council.

Coal mines will now have to get a written determination from a district engineer that dumping mine wastes in wetlands will have a minimal impact. Such fills will have to be replaced with new wetlands elsewhere.

Julie Sibbing, a wetlands expert for the National Wildlife Federation, said the new regulations will allow more wetland areas to be paved over. "These permits certainly signal the end of 'no net loss' as a policy of the United States," she said.

Susan Asmus, a vice president of the National Association of Home Builders, described the new permits as a positive step.

"This is the first time in the 25 years of the program that the Corps has not added further limitations or more paperwork requirements," she said.

Asmus said her group, however, will continue to press its lawsuit challenging Corps wetlands regulations. She said they still don't streamline the process enough.

The regulations were adopted without any formal comment from the Interior Department. The Fish and Wildlife Service had objected to several of the measures but the objections were never forwarded. Instead, Interior Secretary Gale Norton sent word that she supported the new plan, said Mark Pfeifle, a spokesman for the department.

The Fish ad Wildlife Service complained in an Oct. 15 memo the ecological effects of the changes had not been assessed adequately. The agency said it "does not believe the Corps has sufficient scientific basis to claim" that the new, expedited permits will "cause only minimal impact on the nation's natural resources."

Norton's staff "did not have enough time" to reconcile that memo with contrary remarks by the Office of Surface Mining, so no formal recommendation was made, Pfeifle said.

"We missed our opportunity to comment fully," he said. "What happened was the clock ran out."

In October, Norton was accused of providing only selective information to a Senate committee inquiring about the impact on caribou of drilling for oil in the Arctic National Wildlife Refuge.

She told the committee that caribou calving has been concentrated outside the area where the Bush administration wants to drill for oil in 11 of the past 18 years. The Fish and Wildlife had provided her with data saying calving had occurred within the area of proposed drilling in 11 of the past 18 years.

Norton later described it as an honest mistake.

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