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SECTION III -- DISCUSSION OF ADDITIONAL ISSUES

DISCUSSION OF ADDITIONAL ISSUES

The previous section of this document outlines the work group recommendations that were reached by consensus. However, the Regulatory Reform Work Group addressed several regulatory issues for which consensus was not reached. Some of these issues are described below, with an explanation of the different opinions expressed by work group members.

1. Lead Agency for Permit Review

One possible method for providing consistent, coordinated responses to project proponents during project review is to establish one state agency with lead responsibility for permit review. This would not involve a change in the legal authorities of each of the state agencies involved; rather, it would involve designation of a single agency as the lead contact and permit coordinator for the project. That lead agency would be responsible for coordinating the responses of all of the interested state agencies, working with the project proponent, other agencies, and other interested parties to resolve differences.

Some work group members suggested that one state agency should have lead agency responsibility for coordinating permit review. Those supporting this concept suggested that it apply to complex projects that affect resources managed by more than one state agency. Guidelines would need to be developed to clarify when a project should be handled with this approach and to determine the appropriate lead agency.

Other work group members believed that this proposal would be complicated to implement, given that it could be difficult for the designated lead agency to assume any responsibility for ensuring that the requirements of other agencies are met. Also, it was pointed out that agencies have limited resources with which to implement this proposal.

2. Section 404 Alternatives Analysis

Work group members discussed possible revisions to the alternatives analysis process under Section 404 of the Clean Water Act and involving local critical area ordinances. Two recommendations were proposed. One was agreed to by consensus (see earlier discussion on Corps' alternatives analysis guidance) while the second was not. This second proposal is explained below, with advantages and disadvantages, as discussed by the work group members.

Some work group members suggested that, for local jurisdictions that have completed comprehensive plans under the Growth Management Act, 404 alternatives analyses should be limited to a review of sites within the same comprehensive plan and zoning designations. If a permit is proposed for development within a particular land use zone, the alternatives analysis should be limited to other sites within that same zone. For example, if an applicant proposes a commercial development, the alternatives analysis should only consider other commercially zoned lands.

Supporters of this proposal asserted that local governments that have undergone the GMA comprehensive planning process have identified areas that are appropriate for commercial, industrial or residential development and have adopted critical areas ordinances which are intended to protect wetlands. They maintained that local land use designations should therefore provide the context for the 404 alternatives analysis. The applicant should not be expected to conduct an analysis of sites outside the subject zone under the assumption that he/she could get a comprehensive plan amendment and/or a rezone. All other requirements of the 404(b)(1) guidelines must be fulfilled including mitigation sequencing and adequate compensatory mitigation.

This approach to the alternatives analysis requires effective advance planning at the local level. The local government has to have an accurate inventory of existing wetland resources and a sufficient buildable lands inventory. Work group members stressed that although some local governments have progressive wetlands programs that could support this streamlined alternatives analysis, many do not.

Many work group members believed that a limited alternatives analysis would only be acceptable if local governments were required to first meet some standards acceptable to state and federal agencies. It was stated that for large, regional permit proposals, the alternatives analysis should always include a review of alternative sites in a large geographic area. Some also stated that a statewide wetlands inventory should be developed before a streamlined alternatives analysis is considered.

Some members stated that federal permits, such as General Permits and Letters of Permission, could be used to clarify when and how current alternatives analyses could be modified. Work group members also acknowledged that wetland functions should be the cornerstone of the alternatives analysis and that functional assessments would need to be conducted to distinguish certain wetlands appropriate for a streamlined alternatives analysis from those warranting more thorough evaluation. However, some people stated that there is not yet a full understanding of physical and biological functions that particular wetlands provide. Until this scientific documentation is provided, several work group members were uncomfortable with limiting the alternatives analysis. Other work group members pointed out that affected wetlands would still receive protection, given that mitigation sequencing and compensatory mitigation still apply.

3. General Permit Issued to the State

General Permits were described earlier in this document and a recommendation presented that supports issuance of General Permits to local governments, provided they meet certain conditions. The Corps of Engineers would prefer to issue one General Permit to the state, rather than issue General Permits to a number of local governments. It is obviously easier to go through the General Permit process only once, rather than many times, with each being somewhat different.

However, before the Corps can issue a General Permit to the State of Washington, the state must first develop standards and a process for regulating wetlands. Having state standards that the Corps has endorsed could also benefit local governments that wish to be issued a General Permit; it would make it easier for the Corps to allow local governments to make individual permit decisions and would reduce the conflicts among these three levels of government.

Some work group members thought that if state wetlands standards and process are developed and adopted, the state should apply for a General Permit for specific activities or areas within the state. Others were uncomfortable with the state receiving a General Permit because they believed that it might undermine Washington's policy of supporting local government planning decisions.

4. Nationwide General Permit #26

Work group members generally agreed that regulatory attention and energy should first be focused on the wetland resources of greatest functional significance. To do this, the level of wetland regulation should be based on wetland functions. This means that more functional wetlands should receive greater protection.

Proposal Suggested by Some Work Group Members

Nationwide Permit 26, authorized under the Clean Water Act, pertains to wetlands that are above the headwaters of a river or stream (less than 5 cfs average annual flow), or are isolated. Most activities in these wetlands are not subject to the rigorous 404 individual permit process. Instead, for wetlands that meet the Nationwide Permit 26 criteria, up to one acre of fill is allowed without pre-notification to the Corps and generally without mitigation.

Some Regulatory Reform work group members believe that Nationwide Permit 26 is based on assumptions about wetland functions which have not been adequately tested and which frequently appear to conflict with what we know about wetland functions in Washington. They think that, while development proposals affecting some less functional wetlands are subjected to a time-consuming and expensive permitting process, up to one acre of some highly functional wetlands can be filled with no mitigation.

In recognition of the problems described above, these work group members suggested revising Nationwide Permit 26 to eliminate the distinction between adjacent, isolated, and above-the-headwaters wetlands, and to base the level of regulation applied to individual wetlands on the functions of the wetlands. Obviously, this approach requires agreement on which wetlands are the most functional and requires that mitigation conditions be based on wetland functions.

Specific Elements of the Proposal

Apply Nationwide Permit 26 to all wetlands by eliminating the present distinctions between adjacent, isolated and above-the-headwaters. Impacts (filling, dredging, draining, etc.) up to 1/4 acre of wetlands would be allowed without mitigation. This change would not affect the requirement to comply with the state Hydraulic Code and mitigate for impacts to fish life.
Impacts of 1/4 to 2 acre(s) of wetlands would require mitigation. (High quality wetlands would require an individual permit.) Wetlands mitigation would begin with minimization, etc. except mitigation for low quality wetlands would begin with compensation.
The level of regulation should be based on wetlands functions. Impacts to certain types of highly functional wetlands and impacts over 2 acres would require an individual permit.
Significant or threatened wetland types, such as estuarine wetlands, peat bogs and wetlands contiguous to lakes and streams should be protected from any fill, no matter how small. These protected systems should be clearly defined to make identification consistent and predictable.

Advantages

This approach would hopefully provide greater protection to more functional wetlands and it would streamline the process for projects affecting less functional wetlands.
If this permitting method were adopted by a local government under a General Permit, Ecology and the Corps of Engineers would be able to reduce their involvement in the local permitting process.
In all cases, local jurisdictions would retain the ability to be more restrictive and require greater protection of the resource.

Disadvantages

Some work group members opposed this proposal, fearing that basing the level of protection on wetland functions would lead to less wetland protection and greater loss of wetland acreage.
Many wetlands adjacent to lakes and streams are important to fish life. If this proposal is adopted, 1/4 acre of these adjacent wetlands might be filled without a Corps' permit.
Funding and staffing are necessary to ensure that the Corps can maintain a computer data system to track wetland losses and accurately address cumulative wetlands impacts under Nationwide Permit 26.

Work group members who supported this proposal agreed that a detailed proposal for regionally conditioning Nationwide Permit 26 should be developed with the assistance of an integrated work group representing federal and state agencies, local governments, development interests, environmental constituents, agricultural interests and other interested parties.

In late 1994, the U.S. Army Corps of Engineers plans to revise Nationwide Permit 26. Several work group members believe that the Nationwide Permit 26 provisions for the State of Washington should be consistent with the national standards. For example, if the national standard establishes that the size limit over which a wetland would be regulated is 1/4 acre, then many work group members believe that Washington's standard should also be 1/4 acre. Likewise, if the national standard is revised to require an individual permit for projects above 3 acres (for example), then many work group members believe this limit should also be applied in Washington (rather than the current 2 acre limit).

5. Letters of Permission

Letters of Permission (LOPs), authorized under Section 404 of the Clean Water Act, are another alternative to an individual permit for authorization of wetland fills. Letters of Permission are: "... a type of permit issued through an abbreviated processing procedure which includes coordination with Federal and state fish and wildlife agencies, ... and a public interest evaluation, but without the publishing of an individual public notice." (33 CFR 325.2(e)(1))

Section 404 LOPs may be issued to tribal, state, or local governments or individuals. Once issued, they allow the Corps to authorize that certain activities can occur without having to go through the federal permitting process. Section 404 LOPs have not been widely used by the Corps, thus it is difficult to evaluate their potential utility in terms of regulatory reform.

Possible LOP Process

A few local governments in the State of Oregon are currently working with the Corps to use LOPs for projects complying with their local wetlands plans. If these are approved, the local governments would know in advance the conditions that would be required of proposed projects within the plan area. The LOP process proposed in Oregon - combining the federal requirements and the local planning process - is provided below:

The District Engineer of the Corps of Engineers, after coordinating with the Environmental Protection Agency and other agencies, develops a list of categories of activities proposed for authorization under the LOP procedures.
The Corps and EPA review the local plan to determine that the requirements of Section 404(b)(1) of the Clean Water Act have been met in the process of developing and adopting the local plan. Specifically, the Corps and EPA will review the plan to ensure that before wetlands were designated for fill, the following requirements were completed or developed:
- an alternatives analysis
- a wetlands inventory
- the avoidance test
- a plan for compensatory mitigation
The local government adopts a local permitting process that is reviewed and approved by the Corps.
The Corps develops an "abbreviated permit process" that it will apply to permit applications within the plan area. When the Corps reviews a permit under this process, staff will look at only a limited set of issues (minimization and compensatory mitigation), rather than the normal permit criteria. The alternatives analysis will be presumed satisfied once the Corps and EPA approve the plan.
A landowner applies for a permit. When this occurs:
- The city applies its process.
- If the city approves the permit, the application is sent to the Corps.
- The Corps sends notice to federal, state and local agencies, interested groups and individuals.
- There is a fifteen-day comment period.
- The Corps issues or denies the LOP for the specific project.

A primary difference between General Permits and LOPs: A General Permit is issued when the wetland plan is approved by the Corps and EPA as complying with the General Permit requirements. An LOP is not issued until later, when a specific project is approved as complying with standards established in advance.

6. Special Area Management Plans

Special Area Management Plans (SAMPS) provide another method for potentially limiting impacts on wetlands through initial identification and planning. This technique goes beyond advanced identification by focusing on the development of a specific wetland management plan for a particular geographic area. The human resources and overall expenses involved in developing a SAMP render it impractical for most jurisdictions within the state. This tool also was determined to have limited value in the context of regulatory reform.

7. Additional Enforcement Issues

Enforcement Education

Enforcement is one tool to help educate the public and possible violators about requirements of the law and to encourage compliance. The primary goal of education is to prevent violations; the primary goal of compliance enforcement is to restore damaged wetland resources and/or to impose penalties.

Some work group members believed that an effective enforcement outreach strategy would include:

speaking at workshops and conferences
using media to publicize flagrant violations
communicating with contractors and local government officials about legal requirements
explaining the economic and legal consequences of non-compliance

As part of an outreach effort, some members of the work group believed that agencies should provide training to the staff of other agencies and the regulated public on regulatory requirements, enforcement techniques, and wetland delineation and assessment methodologies. Most members, recognizing that long term public education will decrease the number of wetland violations, believed that state and federal agencies, in cooperation with local governments, should develop an enforcement outreach strategy and an enforcement manual. Work group members also stressed that non-regulatory incentives should be emphasized, given that they are voluntary and are therefore a more comfortable approach for landowners.

Enforcement Priorities

Most members of the work group agreed that all levels of government should place a high priority on enforcement and fund staff sufficient to conduct a meaningful and credible enforcement effort. Even with additional staff and funding, agencies will need to set enforcement priorities.

Most work group members agreed that protecting the most significant wetlands was the top priority. Accordingly, they believe that enforcement and education efforts should be focussed on geographic areas where high quality, significant wetlands are being lost. These significant wetlands should be identified using such factors as size, classification, and function. However, members also recognized the utility of occasionally focusing enforcement efforts in areas where numerous violations have occurred or areas where there are high visibility projects, even if the impacted wetlands are not biologically the most significant. This would discourage additional violations and help stem cumulative wetland impacts.

Many work group members also believed that agencies should actively explore the use of contractor surety bonds and federal debarment (precluding such a contractor from being awarded contracts from federal agencies), where appropriate.

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