Draining a Different Kind of Swamp

TipSheet: Draining a Different Kind of Swamp

President Donald Trump signed an executive order on Feb. 28 meant to start a rollback of the U.S. Environmental Protection Agency’s Clean Water Rule. That makes it a good bet that wetlands permits related to the rule will offer a steady stream of local, state and regional stories for years to come.

The Clean Water Rule is a complicated one. It defines what “waters of the United States” are in order to clarify who needs a permit before discharging dredged or fill material into them, under Section 404 of the Clean Water Act. In a nutshell, Section 404 is meant to protect wetlands from destruction.

But long-swirling controversy over these issues means they don’t fit in a nutshell (read our accompanying “Beat Basics” explainer).

So as the conflict continues, here are some tips for getting at the story over Section 404 wetlands permits in your locality, state or region.

Get to the Corps

It’s the Army Corps of Engineers that issues Section 404 permits. But the Corps is very decentralized, so the best hope of learning about permit conflicts is to go to your Corps local district office.

President Donald Trump signing an executive order on the Waters of the United States rule on February 28, 2017. Photo: White House

On the web page of each Corps district office, there are several tabs that lead you to listings of key 404 information. Look at “Pending Standard Permit Applications,” “Finalized Standard Permit Actions,” “Public Notices,”  “Environmental Impact Statements” or “Appeals.”

Note that not all the permits will be 404 permits. And another warning: Corps websites don’t always work smoothly; if you get a “404” error, or broken link, try again later.

The first stage of the Corps permit process is the application — a document that is public information and useful even while all the later stages of a permit fight are going on. Call the Corps district office and ask for it.

Find local projects

If you have your ear to the ground, you will probably not need a database to find the news. Quite often a construction project is controversial well before it seeks a 404 permit.

Look for big construction projects that some people don’t want — perhaps a shopping mall, a subdivision or a new road. What dominates the agenda of your local zoning board? Check in with local conservation groups to see what they are protesting. Another hint: In the bigger cases, your state environmental or wildlife management agency may get involved.

Check for other permits

Remember, chances are a 404 permit won’t be the only permit a project needs. Projects sometimes need stormwater permits, too.

And there may also be a state or local wetland permitting authority involved.  For example, Maryland has its own wetlands permit program. Also, ask whether the project needs or has an environmental impact statement.

Where are your wetlands?

It will also help if you know where the major (or minor) wetlands in your area are. Hint: They are often in low-lying areas near waterbodies. The National Wetlands Inventory may help you locate the bigger ones.

Note that in many 404 permit cases, parties reach agreement to offset unavoidable damage to one wetland with “mitigation” — creating a compensatory wetland elsewhere.

Go state- or region-wide

Sometimes the 404 controversies are state-specific or regional.

For example, you may be in a farm or ranch state, where wetlands are viewed as inconvenient or unproductive — and land-leveling, irrigation or drainage activities collide with Section 404. Or there may be a long pipeline going through your area, and it may cross wetlands.

More examples: There may be a new highway or transit project that interferes with water flow. There may be oil and gas drilling, or mining and logging. Or you may be in an estuarine region like the Chesapeake Bay, where wetlands are seen as an economic treasure. Remember, also, that a biologist’s definition of a wetland may not resemble your stereotypical swamp.

Know “nationwide” permitting

Chances are that a lot of the wetlands-related construction in your area is covered under the Corps’ “nationwide permits” (some 50 of them). The Corps revised and reissued these permits during the final days of the Obama administration.

It is unclear whether the incoming Trump administration will try to change them. But the fact that the Trump team granted the nationwide permits an exemption from its regulatory freeze suggests they will not.

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* From the weekly news magazine SEJournal Online, Vol. 2, No. 10. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.