Wetlands Classification: A Tool for Protection or Abandonment?

WETLANDSCLASSIFICATION:

A TOOLFOR PROTECTION

OR ABANDONMENT?

Jan Goldman-Carter

INTRODUCTION

Wetlands - and wetlands classificationin particular - are hot topics in thenation's capital this year. Congress isdebating these issues as it creeps towardreauthorization of the Clean Water Act in1992 ('CWA"). President Bush iswrestling with his 1988 election promiseto protect wetlands as he prepares for his1992 reelection campaign. The focus ofthe debate is section 404 of the CleanWater Act.' The CWA is intended to"restore and maintain the chemical,physical, and biological integrity of theNation's waters." 2 Section 404contributes to this goal by requiring apermit from the US Army Corps ofEngineers ("Corps") for any discharge ofdredged or fill material into waters of theUnited States, including wetlands. TheCorps must issue or deny such permitsbased upon the "Section 404(b)(1)Guidelines," the regulations promulgatedby the Environmental Protection Agency("EPA") in conjunction with the Corps.3

The section 404 permit program hasbeen controversial since its enactment in1972. Wetlands advocates have arguedfrom the outset that section 404 doesnot adequately protect wetlands andother aquatic areas because the Corpsinterprets section 404 too narrowly andadministers section 404 with littlecommitment to environmental protection.In 1988 and 1989, largely in response toPresident Bush's "No Net Loss ofWetlands" rhetoric, 4 the Corps and EPA

moved to strengthen the program. Inearly 1989 they, along with the SoilConservation Service ("SCS") and theFish and Wildlife Service ("FWS"),adopted a new joint methodology fordelineating wetlands, the 1989 FederalManual for Identifying and DelineatingJurisdictional Wetlands.5 In early 1990they adopted a joint mitigation policy, theMemorandum of Agreement Between theEnvironmental Protection Agency and theDepartment of the Army Concerning theDetermination of Mitigation Under theClean Water Act Section 404(b)(1)Guidelines, ("Mitigation MOA").0 Almostimmediately, agriculture, real estate, oiland gas, and transportation interestsrallied in opposition, claiming that section404 restricted private property rights andstymied economic development.

The regulated community's desired"fix" for section 404 is to try to removefrom section 404 regulation as manywetlands as possible, and then toweaken the regulations that apply to theremaining wetlands. One way to achievethis goal is to redefine "wetlands" toexclude many areas that meet the currentdefinition. In 1991 the BushAdministration proposed drastic changesin the Federal Wetlands Manual thatwould accomplish this end.7 Severalbills in Congress propose to legislate thesame result.'

Jan Goldman-Carter is an environmentalattorney based in Indianapolis, Indiana. Shespecializes in wetlands and water qualitymatters. From 1987 through 1991 Ms.Goldman-Carter was counsel to the Fisheriesand Wildlife Division of the National WildlifeFederation, where she was responsible forlitigation, administrative action, and legislationconcerning wetlands and endangered species.Prior to becoming an attorney, she was aresource specialist with the EnvironmentalLaw Institute, the US EnvironmentalProtection Agency, the US Army Corps ofEngineers, and the US Fish and WldlifeService.

WETLANDS CLASSIFICATION 95

Once this narrowing of wetlandsjurisdiction is accomplished, additionalwetlands could be removed fromregulation through a system of wetlands"classification." The term "classification"as used here is actually a misnomer. Theintention is not merely to classifywetlands according to their physical,chemical, and biological characteristics,but to rank wetlands according to somemeasure of value, requiring strictregulation of the "highest quality"wetlands - and no regulation of thelowest. This way, many wetlands wouldbe excluded from regulation simplybecause they are ranked too low towarrant protection. Additionally, thewetlands in the "middle class" would besubjected to broader exemptions andweaker regulatory standards than atpresent, ensuring their continued loss toother land uses. In the 1991 session theLouisiana delegation has introduced thistype of classification in both houses ofCongress, in Senate Bill 1463 and HouseBill 1330.1 It is also the type ofclassification system that the BushAdministration is at least tacitlysupporting.10

This article will describe the rankingsystem already provided in section 404and compare it to the ranking systemproposed in S 1463 and HR 1330; itconcludes that the existing section 404permit program already provides arealistic and useful ranking system basedupon known wetland functions andvalues. The key to a wetlandsclassification system that protects -rather than destroys - wetlands is notmore legislation, but gathering morescientific information and evaluating thefunctions and values of wetlands in awatershed or drainage basin context.

Wetland protection advocates have astrong aversion to ranking wetlands, andwith good reason. The FWS NationalWetlands Inventory ("NWI") estimatesthat over fifty percent of the nation'swetlands have been destroyed since the

late 1700s, and that approximately300,000 additional wetland acres are losteach year.1

These wetland losses have alreadyresulted in dramatic declines in waterfowland shorebird populations and increasesin flooding and water pollution. The viewis widespread that we must not onlyprotect what remains, but that we mustreverse the trend and restore many of thewetlands destroyed in the past."2 Sowhy, the wetlands advocates ask, are weranking wetlands for protection when theprotection of all remaining wetlands iswarranted?

Countervailing considerations includethe recognition that sometimes we canprotect wetlands only at the expense ofneeded economic development, and thatwetlands protection on private lands willsometimes unduly restrict individualprivate property rights and requiregovernment compensation. In addition,federal wetlands programs areunderstaffed and underfunded, sologically they should focus theirprotection efforts to achieve the greatestecological gain for the nation's waters.

In light of these considerations,environmentalists, governmentregulators, and the regulated communitygenerally agree in principle that someranking of wetlands for differing levels ofprotection is necessary. However,ranking wetlands is fraught with complexvalue judgments. Wetlands areextremely diverse, varying in flora andfauna, water level, water flow, soil, andecological function. Even wetlands ofthe same basic ecotype may functiondifferently depending upon their locationwithin a watershed, their location vis-a-vis particular land uses, and the extent towhich they have already been degraded.

Salt marshes, for example, are basicallycomplexes of reeds and grasses, subjectto tidal flow, that provide the transitionbetween coastal upland and estuarine

96 ENVIRONMENTAL LAW & POLICY FORUM

waters. These marshes buffer the landand prevent soil erosion. They alsoprovide the food, energy and shelter thatproduce most of the Atlantic and GulfCoast commercial and sport fisheries.1

3

Prairie potholes, playas, and vernalpools, by contrast, are typically inlanddepressions, surrounded by upland, thatdo not hold water year-round. Thewetland vegetation is usually disturbed,often by agricultural practices. Despitethese conditions, these areas areextremely important on a seasonal basis.Potholes and playas provide essentialhabitat for migratory waterfowl. Vernalpools provide critical habitat foramphibians and a variety of rareplants."'

Each of these wetland types can helpto maintain water quality in nearbysurface and groundwater systems,depending upon such variables as theirlocation with respect to other watersystems, their acreage and abundance,and their ecological health. An in-depthevaluation of a given wetland's functionsand values can consume enormousamounts of agency staff time andprogram funds. Depending upon thecomplexity and size of the wetland andthe agency resources available, wetlandsfunctional assessments can takethousands of dollars and many months tocomplete.

Even with such detailed analysis, howdoes one rank a bottomland hardwoodwetland that retains a river's floodwaters vis-a-vis an isolated vernal poolwetland that provides an essential springhabitat for an endangered salamander?How does one value a highly degradedsalt marsh? Is a wetland's valueassigned according to its existing minimalfunction, or according to its much higherpotential productivity when it is restoredto its natural condition? Even assumingthose complex valuations are possible,what happens to the wetlands once they

are ranked? Will the middle and lowclass wetlands be protected, or will theybe sacrificed in the interest of short-termeconomic gain? As these questionssuggest, advocates differ strongly as towhether wetlands can be ranked in ascientifically credible manner, whetherthey will be ranked in a scientificallycredible manner, and whether thewetlands - once ranked - should besubject to protection . . . orabandonment.

THE SECTION 404 PERMITPROGRAM ALREADY "RANKS"

WETLANDS

A. The Section 404(b)(1) Guidelines

The Section 404(b)(1) Guidelinesprovide the environmental criteria uponwhich section 404 permit decisions mustbe made. Those regulations contain fourprimary restrictions on discharges ofdredged or fill material. Three of theseallow the Corps and EPA to regulate adischarge in proportion to the wetlandfunctions and values it destroys. Thesethree are the focus of this discussion.

The first restriction is that no dischargeshall be permitted if:

(a) . . . there is a practicablealternative to the proposed dischargewhich would have less adverse impacton the aquatic ecosystem, so long asthe alternative does not have othersignificant adverse environmentalconsequences ... [(1) omitted).

(2) An alternative is practicable if it isavailable and capable of being doneafter taking into consideration cost,existing technology, and logistics inlight of overall project purposes."6

Thus defined, the term *practicable"strongly suggests a weighing of costsand benefits - economic and


environmental - in determining whetheran alternative exists to a given discharge.Logically, one factor in determining thepracticability of an alternative projectlocation or design is the benefit itprovides in terms of wetland values andfunctions preserved. An alternativelocation that adds considerable cost to aproject and is logistically difficult toimplement may not be practicable if thewetland losses avoided by the alternativeare minimal in comparison.

The Guidelines also prohibit dischargesthat "will cause or contribute tosignificant degradation of the waters ofthe United States." 18 Adverseenvironmental effects on fish, shellfish,wildlife and wetlands can result insignificant degradation. 17 For example,the loss of fish and wildlife habitat andthe loss of capacity to assimilatenutrients, purify water, and moderateflooding and storm damage are alladverse effects that can result insignificant water degradation."8 Thus,permit issuance or denial based upon thisprovision must involve an assessment ofthe wetland functions and values that willbe destroyed as a result of the permitteddischarge. The Corps would not deny apermit based on a finding of significantdegradation of a wetland without strongevidence that important wetlandfunctions would be destroyed, whichwould, in turn, result in considerabledegradation of the nation's waters, eitherindividually or cumulatively.

The final restriction requires that"appropriate and practicable steps havebeen taken which will minimize potentialadverse impacts of the discharge on theaquatic ecosystem."'9 Again, the term"practicable" suggests that the costs andlogistics of minimizing adverse wetlandImpacts must be considered in light ofthe functions and values of the wetlandbeing protected. In addition, thisprovision requires the permittee to.compensate" for unavoidable wetlandlosses by restoring, creating or enhancing

wetland habitat nearby.20 Thiscompensatory mitigation is required tooffset the wetland values and functionslost. Hence, compensation requirementsare more stringent for larger wetlandacreages and greater wetland functions,and less stringent for small acreages andreduced functions and values.

In sum, the Section 404(b)(1)Guidelines provide stricter standards forprotecting wetlands that contributedemonstrably to the chemical, physicaland biological integrity of US waters thanfor wetlands that clearly do not.

B. The 1989 EPA/Corps MitigationMemorandum of Agreement

The 1989 Environmental ProtectionAgency/Army Corps of EngineersMitigation MOA, which is based upon theSection 404(b)(1) Guidelines, confirmsthat wetlands ranking is intrinsic to thesection 404 permit review. It statesemphatically that "[tihe determination ofwhat level of mitigation constitutes'appropriate' mitigation is based solely onthe values and functions of the aquaticresource that will be impacted.""'

The Mitigation MOA requires thatpermit decisions be made in accordancewith the following mitigation sequence:first, potential adverse impacts must beavoided to the maximum extentpracticable; second, remainingunavoidable impacts must be minimizedto the extent "appropriate andpracticable"; and finally, aquatic resourcelosses must be compensated." Thissequence, particularly the avoidancerequirement, forms the core of thesection 404 review. The thrust of theprogram is to avoid development of thenation's wetlands and streams wheneverthere is a "practicable" alternative, and tominimize that intrusion when it isunavoidable.

23

This mitigation sequence is also at thecore of the regulated community's


opposition to the section 404 program.Development interests argue that the.alternatives test" gives the Corps andEPA de facto control over their projectplanning - which should be outside theagencies' authority - and that the testexcessively restricts economicdevelopment. They argue that thealternatives test treats all wetlands thesame, regardless of function and value,and insist that it should apply - if at all- only to the most valuable wetlands.2 '

The plain language of the MitigationMOA clearly contradicts these assertions.In discussing the sequencing requirement,the Mitigation MOA states:

It may be appropriate to deviate fromthe sequence when . . . EPA and theCorps agree that the proposeddischarge can reasonably be expectedto result in environmental gain orinsignificant environmental losses.

In determining "appropriate andpracticable" measures to offsetunavoidable impacts, such measuresshould be appropriate to the scope anddegree of those impacts .... 11

-This language suggests that if aproposed discharge will disturb a wetlandthat is, for example, small in acreage,highly degraded, hydrologically isolatedby intensive development, or otherwiseincapable of contributing to the ecologicalhealth of the aquatic ecosystem withinthe watershed, a strict application of thealternatives test is probably notappropriate in light of the threatenedwetland's limited ecological value. It alsosuggests that even the "appropriate andpracticable' minimization steps should beproportional to the wetland functions andvalues that are in jeopardy.

The Mitigation MOA also addresses therelative abundance of wetlands, providingthat ". . . avoidance, minimization, andcompensatory mitigation may not be

practicable where there Is a highproportion of land which is wetlands."20

This provision acknowledges thatwetlands replacement achieved bycreating or restoring wetlands may not bepracticable in areas that are alreadypredominantly wetlands. It also implicitlydevalues wetlands where they exist ingreat abundance, offering them lessprotection.

Importantly, the Mitigation MOA alsoallows for the ranking of wetlands withina targeted geographic area, such as awatershed or drainage basin, throughcomprehensive planning. The MitigationMOA states:

The [mitigation] sequence isconsidered satisfied where theproposed mitigation is in accordancewith specific provisions of a Corps andEPA approved comprehensive plan thatensures compliance with thecompensation requirements of theSection 404(b)(1) Guidelines(examples of such comprehensiveplans may include Special AreaManagement Plans, AdvancedIdentification areas (Section 230.80),and State Coastal Zone ManagementPlans) .

27

Through the comprehensive planningprocess, wetlands within a targetedgeographic area are inventoried andevaluated. The evaluation should providedetailed inventory and assessment dataand focus on the watershed. In theory,at least, wetlands within the area can beranked according to ecological functionand value based upon an in-depthanalysis of their individual and cumulativeecological contributions within the area.The importance of the wetlands asregional, national and internationalresources must also be considered.

Generally, this process should result ina strict prohibition against the destructionor degradation of wetlands identified as


high value. The lowest value wetlandswould likely be given much lessprotection through Corps general permitsor other expedited review. (See sectionD below.) However, in return for thedevelopment of these low value sites,wetlands of equal or greater value wouldbe restored or, conceivably, created fromupland sites. The medium valuewetlands would likely be regulated on acase-by-case basis in accordance withthe section 404 mitigation sequence.

The comprehensive planning processproposed by the Mitigation MOA thusenables a more complete understandingof wetlands functions and values and athorough assessment of the effects ofcumulative losses. This approach alsopromotes better definition of practicablealternatives, more knowledgeableplanning of land use trade-offs, andbetter definition of opportunities foreffective and successful wetlandrestoration. In theory, at least, thecomprehensive planning approachprovides a faster, more predictable, andmore equitable process while ensuringeffective wetlands protection.

C. Advanced Identification and SpecialArea Management Plans

As the preceding analysis explains,the Corps and EPA already have theauthority and the procedures in place torank wetlands in the context ofcomprehensive plans for targetedgeographic areas. Under the Section404(b)(1) Guidelines, the Corps and EPAalso can identify in advance disposal sitesas generally suitable or unsuitable fordredged or fill material disposal. 8 Thisprocess typically involves an inventoryand assessment of individual wetlandareas, the release of a public notice tosolicit information, and announcement ofthe results of the advanced identificationin the public record maintained by thepermitting authority. These suitabilitycategories are based primarily onassessment of relative ecological function

and value within the targeted area. Whilethese suitability designations do notconstitute section 404 permit issuancesor denials, they provide importantinformation on aquatic area functions andvalues upon which the subsequentsection 404 permit decision is made.

The Corps also conducts what it callsSpecial Area Management Plans("SAMPs"). These comprehensiveplanning processes are similar to EPA'sAdvanced Identifications, but includedefinitive regulatory products, e.g.,general permits for specified activitieswithin specified wetland areas. Toprovide an illustration, the Corps, the Cityof Anchorage, Alaska, and the AlaskaCoastal Zone Management Programinitiated a SAMP for the City ofAnchorage when that city began tooutgrow its upland development sites.One of the primary goals of the SAMPwas to link wetland functions and valuesto varying degrees of protection.29 TheSAMP identified specific wetland areaswithin the city limits as suitable forpreservation, conservation, developmentor special study. The preservation siteswere generally considered the highestvalue wetlands; the development siteswere considered the lowest. The Corpsand the City agreed not to issue permitsfor development on preservation sites.General permits were issued fordischarges on development sites.Conversion on conservation sites wasmore restricted and required mitigation.Special study sites required case-by-caseexamination."0

At another site, the Corps, EPA, andHackensack Meadowlands DevelopmentCommission ("HMDC") are conductingboth an Advanced Identification and aSAMP to address the enormousdevelopment pressure on the wetlands ofthe Hackensack Meadowlands inHackensack, New Jersey. They firstconducted an Advanced Identification toinventory and assess the functions andvalues of wetlands within the

I fIfU ~RI:I IVIP hIUI AINl I I/1. lVV X .n JL. V H

Meadowlands District. The threeagencies are now preparing a SAMP thatwill tailor the level of regulatory scrutinyand preservation to wetland function andvalue. The agencies will likely expeditepermit review of discharges in lowervalue wetlands and issue permits alongwith specific measures to minimize andcompensate for adverse aquatic impacts.Higher value wetlands could bedesignated as off-limits to developmentthrough application of EPA's section404(c) veto. Alternatively, they couldsimply be identified as unsuitable fordisposal, and therefore any proposeddevelopment would be unlikely to receivea section 404 permit.

The Corps and EPA have conductednumerous Advanced Identifications andSAMPs in targeted areas around thecountry, and they have applied theresulting wetland rankings to section 404permitting decisions within the plan area.These plans can provide detailedwetlands inventories and assessmentsforming a relatively sound basis forranking wetlands within watersheds,drainage basins, or other targetedgeographic areas. The success of theplan in protecting wetlands depends onhow these wetlands are regulated oncethey are ranked. The current section 404ranking system will result in wetlandsdestruction unless the ranked wetlandsare regulated in accordance with a firm.restore and maintain' standard. Thisstandard must strictly protect high andmedium value wetlands, and it mustrequire successful restoration in return forthe development of the lowest valuewetlands.

D. General Permits

The Corps also uses its section404(e) general permit program to rankcertain activities as "low impact"activities, and certain wetlands as lowvalue wetlands.31 The most infamousand unfortunate example of this approach

is the Corps' Nationwide Permit ("NWP")26, which authorizes - with little or noscrutiny - section 404 discharges thatsignificantly disturb or destroy up to tenacres of isolated and headwaterwetlands.2 The legal basis for thisNWP is highly questionable since thestatute authorizes the Corps to issuegeneral permits only for activities similarin nature and minimal in environmentalimpact - not for variable activities incertain categories of waters. 33

Nevertheless, the Corps has made abroad-brush determination that isolatedand headwater wetlands generally do notwarrant protection, and the Corps isallowing wide-scale development of thesewetlands by general permit.3 4

Nationwide Permit 26 is, in effect, theCorps' own means of conductingwetlands deregulation. Isolated andheadwater wetlands are presumedunimportant, and little opportunity isprovided to rebut that presumption withdetailed wetlands assessments.Moreover, these low value wetlandslosses, numerous as they are, are rarelyoffset through compensatorymitigation."6

The Corps has also used its generalpermit authority to ease section 404permit requirements for these presumedlower value wetlands on a regional andstatewide basis. For example, through astatewide general permit with the Stateof Maryland, the Corps effectivelyremoved from individual section 404permit review many non-tidal wetlandsunder five acres." Another "categoryof waters" general permit has been underconsideration by the Corps' SavannahDistrict for pine flatwood wetlands inGeorgia. While this use of generalpermits to rank wetlands is, in theauthor's view, illegal, the fact remainsthat the Corps is already "deregulating"millions of wetland acres it deems to beof lower value on a nationwide, regional,or statewide basis.

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A worthwhile refinement of thecomprehensive planning and generalpermit approaches to ranking wetlandswas recommended by the NationalWetlands Policy Forum and has beenincorporated into the current Bennett Bill,HR 251.11 This bill would explicitlyauthorize general permits for activities inwetland areas of lowest ecological value.However, these low value areas wouldhave to be identified in an EPA-approvedState Wetlands Conservation Plan. TheState Wetlands Conservation Plans wouldinclude an inventory and assessment ofwetland systems within each state.These plans would provide for fullreplacement of lost wetland functionsand values, and they would satisfy a nooverall net loss of wetlands standard.Corps "category of waters" generalpermits that met these criteria would bemuch more protective of wetlands thanthose currently in place.

E. Summary of the Section 404"Ranking" Approach

The current section 404 permitprogram already ranks wetlands forvarying levels of protection throughindividual permit review standards, theAdvanced Identification and SAMPplanning processes, and the generalpermit process. With the unfortunateexception of NWP 26 and other"category of waters" general permits,this ranking system is generallysupported by two elements which help toensure the protection of wetlands. Oneelement is that this system is predicatedupon and limited by the CWA "restoreand maintain" standard. Thus, thecongressional "value judgment"underlying the section 404 rankingsystem is that virtually all areas that meetthe Corps and EPA definition of wetlandsare worthy of some base level ofprotection - even simple replacement offunction and value through restoration orcreation. The other element is thatsection 404 wetlands ranking must bebased upon the detailed functional

assessment of individual wetlands orwetland types, ideally in the context of atargeted geographic area such as awatershed or drainage basin. The Corps'general permit program is a testament tothe destructive effects of wetlandsranking where these elements areignored.

Even with a strong wetlands protectionstandard, an emphasis on detailedinventories and assessment data, and awatershed focus, wetlands ranking is asubjective, complex and expensiveundertaking. However, where ranking iswarranted, the current section 404program offers a realistic and usefulframework.

THE BREAUX-HAYES RANKINGSYSTEM PROVIDES

MINIMAL WETLANDSPROTECTION

Senate Bill 1463 and House Bill 1330,introduced by Louisiana Democrats Sen.John B. Breaux and Rep. Jimmy Hayesrespectively, propose a drasticallydifferent ranking system with no strictwetlands protection standard and norequirement for detailed inventory andassessment data. This proposedlegislation would require the Corps torank wetlands by function and value intohigh (Type A), medium (Type B), and low(Type C) categories upon application byone seeking to alter wetlands. Thesebills require that the ranking beaccomplished within ninety days ofreceipt of the application. Generally, aType A wetland would benefit fromtighter restrictions, but the governmentwould be forced to offer fullcompensation to the landowner and toacquire the wetland area outright. TypeB wetlands would be subject tosubstantially diluted regulation, resultingin profound additional wetland losses.Type C wetlands would be exempt fromall regulation.


Type A wetlands would include onlythose wetlands that meet all of thefollowing conditions:

0 the wetlands serve "critical wetlandfunctions" including the provision of"critical" habitat for a "concentration"of avian, aquatic and terrestrial wildlifespecies;

* the wetlands consist of ten or morecontiguous acres and have an inlet oroutlet (except for prairie potholes,playa lakes, or vernal pools);

* there is a scarcity within the aquaticecosystem of identified wetlandfunctions such that the alteration ofsuch wetlands would "seriouslyjeopardize" the availability of suchfunctions;

* there is no "overriding publicinterest" in the use of the wetlandsother than conservation; and

* wetland functions and values cannotbe conserved through minimizingwetlands alteration and compensatingfor wetlands losses 8

The following Type C wetlands wouldreceive no protection whatsoever:

* wetlands that serve "limited"wetland functions;

0 wetlands that serve "marginal"wetlands functions, but exist in suchabundance that regulation of activitiesin such wetlands is not necessary toconserve "important" wetland valuesand functions;

0 wetlands that are prior convertedcropland;

0 wetlands that are "fastlands"(fastlands are wetlands that existbehind levees constructed to allowtheir use for agricultural, industrial,

residential ordevelopment); and

commercial

0 wetlands located in "intenselydeveloped areas" and, as a result, donot serve "significant wetlandsfunctions. " '

First and foremost, the Breaux-Hayesapproach makes no pretense ofmaintaining and restoring the nation'swetlands base. These bills wouldeliminate millions of wetland acres byfirst redefining the term "wetland." Thebill's ranking system would thenabsolutely abandon wetlands that do notdemonstrate, upon a ninety dayevaluation, significant wetland functions.Even those wetlands that do demonstratesignificant functions, particularly Type Bwetlands, would be exempt fromregulation pursuant to additionalexemptions, including exemptions forwetlands covered by a state or local landuse plan, exemptions based upon statewater law, and broad exemptions forfarmed wetlands, mining, and cranberrygrowing.

Type B wetlands would be those thatprovide a habitat for "a significantpopulation of avian, aquatic or wetlanddependent wildlife," or provide other"significant wetlands functions."40They would not be protected; they couldbe altered as long as there were nosignificant losses or degradation ofwetland functions and values. Thisdetermination would be based upon abroad public interest balancing test, notupon an ecological standard comparableto the Section 404(b)(1) Guidelines. Thealternatives analysis now required by theSection 404(b)(1) Guidelines would beliterally gutted for these remaining TypeB wetlands. The alternatives analysisrequirement applies only to very largeacreages, and the project proponentcould eliminate most availablealternatives by narrowly defining theproject purpose.

WFTLANDS~~~~ cOASIIATOqi

Compensatory mitigation would be, inmany cases, no longer required for TypeB wetlands. Even when it would berequired, the standards and options setforth in the bills are so broad thatmitigation would become little more thana wetlands destruction dues payment.This ranking system barely suggestsreplacement of the actual wetlandsfunctions and values lost. Fewsafeguards are present in this system toensure that compensatory mitigation willwork at all, much less on a long-termbasis.

This ranking system lacks not only aprotective standard, but also an emphasison comprehensive knowledge ofindividual wetlands and wetland systemsand a focus on targeted geographicareas. The process alone - forcing aranking within ninety days - ensureshaphazard and superficial case-by-casevaluations in lieu of in-depth individual orregional studies. While these bills providefor an advanced identification process byFWS and the SCS, they direct the Corpsto override that comprehensive rankingprocess on a case-by-case basis upon theapplication of a landowner. As a result,the time-consuming and expensivecomprehensive ranking process iscompletely undermined, amounting tolittle more than wasteful window-dressing.

Without the elements of a strong andenforceable wetlands protection standardand an emphasis on detailed scientificstudy, the Breaux-Hayes ranking systemoffers all the pitfalls and none of thebenefits of wetlands ranking. Certainwetland functions would be subjectivelyvalued over others, without the benefit ofdetailed data reviewed in a watershedcontext. Consequently, this rankingsystem would likely undervalue somecritical wetland values such as floodcontrol, groundwater recharge, andbiological diversity. With the specificexception of prairie potholes, playas, andvernal pools, isolated wetlands and

wetlands under ten acres - regardless oftheir biological diversity, scarcity, orother ecological attributes - can neverachieve the Type A level of protectionunder these bills. Hence, many bogs,fens, and wet prairies that often supporta diversity of plant and animal life andperform important hydrological functionsare ineligible for Type A classification.Moreover, even wetlands that otherwisemeet this narrow litmus test of ecologicalvalue can be eliminated from Type Aprotection because of some undefined"overriding public interest."

Without a strong protective standardand a watershed focus, this rankingsystem also promotes the piecemealdestruction of one "non-significant"wetland after another. The cumulativeeffect of altering hundreds of such "non-significant" wetlands within a watershedwill almost always have a materialadverse effect on the local ordownstream aquatic environment. Yetthese cumulative effects can beunderstood and evaluated only in thecontext of a targeted geographic area.

Similarly, the absence of a protectivestandard and a watershed focus offers noincentive or impetus to restore degradedwetland areas. Without a strictcompensation requirement, there is noincentive to restore degraded wetlands;without detailed watershed data there isno means of effectively identifying andprioritizing restoration opportunities.

Without these key ingredients - astrong "restore and maintain" standard, asolid foundation of detailed scientificdata, and a targeted geographic focusthat addresses cumulative impacts andrestoration potential - the Breaux-Hayesranking scheme establishes a frameworkfor wetlands abandonment, not wetlandsprotection.

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104 ENVIRONMENTAL LAW & POLICY FORUMW

SUMMARY

Ranking wetlands according to functionand value is a subjective, complex,expensive and risky proposition.Nevertheless, given limited resources andlimited political will to protect wetlands,wetlands must be regulated inaccordance with their perceivedecological function and social value. Thesection 404 permit program currentlyprovides a realistic and useful frameworkfor ranking wetlands where necessary.The program is consistent with the long-standing goal of the Clean Water Act: to.restore and maintain" the chemical,physical and biological integrity of thenation's waters. Wetlands ranking willonly result in further wetland losses,however, unless it is based upon a strongand enforceable "restore and maintain"standard, a solid foundation of detailedscientific data, and a targeted geographicfocus that addresses cumulative impactsand restoration potential.

1. Clean Water Act, 33 USC § 1344(1988). Reference to "section 404"throughout this article is to the Clean WaterAct as adopted.

2. 33 USC § 1251.

3. See 33 USC § 1344 (b)(1); 40 CFR §230.1-230.80 (1991).

4. Tom Schierholz, Where the CandidatesStand on the Environment, The ChristianScience Monitor 3 (Oct 20, 1988).

5. Federal Manual for Identifying andDelineating Jurisdictional Wetlands: AnInteragency Cooperative Publication (1989)(prepared by Federal Interagency Committeefor Wetland Delineation).

6. Robert W. Page & LaJuana S. Wilcher,Memorandum of Agreement Between theEnvironmental Protection Agency and theDepartment of the Army Concerning the

Determination of Mitigation Under the CleanWater Act Section 404(b)(1) Guidelines (Feb6, 1990) ("Mitigation MOA").

7. 1989 Federal Manual for Identifying andDelineating Jurisdictional Wetlands: ProposedRevisions, 56 Fed Reg 40446-80 (1991)("1989 Proposed Revisions').

8. See S 1463,102d Cong, 1stSess (July11, 1991); HR 1330, 102d Cong, 1st Sess(Mar 7, 1991); HR 404, 102d Cong, IstSess(Jan 3, 1991) (all three not reprinted in CongRec).

9. See S 1463; HR 1330 (both cited innote 8).

10. See Theresa Gorman, Memorandum forDPC Wetlands Task Force Members (Nov 12,1991) (White House Wetlands ImplementationPlan).

11. Thomas E. Dahl, Wetland Losses In theUnited States: 1780's to 1980's 6 (1990)(prepared for FWS, Dept of the Interior); RalphW. Tiner, Jr., Wetlands of the United States:Current Statutes and Recent Trends (1984)(prepared for FWS, Dept of the Interior);Kathryn M. White, ed, Wetlands: Their Useand Regulation (1984) (prepared for Ofc ofTechnology Assessment).

12. See Protecting America's Wetlands: AnAction Agenda (Conservation Foundation,1988); Wetlands: Meeting the President'sChallenge (1990) (prepared by FWS, Dept ofthe Interior); Water Resources DevelopmentAct of 1990, Pub L No 101-640, 104 Stat4604 (1990), codified at 33 USC § 220(1990); HR 251,102d Cong, 1stSess (Jan 3,1991) ("Bennett Bill") (not reprinted In CongRec); HR 404 (cited In note 8); HR 2400,102d Cong, 1st Sess (May 20, 1991) (notreprinted in Cong Rec).

13. See liner, Wetlands of the UnitedStates (cited In note 11); Protecting America'sWetlands (cited In note 12); J. ScottFeierabend & John M. Zelazny, Status Reporton Our Nation's Wetlands (1987) (preparedfor NWF); Michael Williams, ed, Wetlands: AThreatened Landscape 17-30 (Institute ofBritish Geographers, 1990).



14. See 1989 Proposed Revisions, 56 Fed § 330.5(a)(26)). See 56 Fed Reg at 59135Reg at 40450-52 (cited in note 7); Arnold Van for definitions of "Isolated and headwaterDer Valk, ed, Northern Prairie Wetlands 132- wetlands%33 (Iowa State, 1989).

33. 33 USC § 1344(e).15. 40 CFR § 230.10(a).

34. Bernard N. Goode, In Defense of16. 40 CFR § 23 0 .10(c). Nationwide Permit 26, Natl Wetlands

Newsletter 4-8 (Nov-Dec 1989).17. 40 CFR § 230.10(c)(1).

35. 33 USC 91344(e).18. 40 CFR § 230.10(c)(3).

36. Maryland General Permit: Non-Tidal19. 40 CFR § 230.10(d) & § 230.70- Wetlands (MDGP-1) (issued by Baltimore230.77. District, Corps of Engineers) (Jan 31, 1991).

20. 40 CFR §§ 230.70-230.77. 37. See HR 251 (cited in note 12).

21. Mitigation MOA at 11 I.B (cited in note 38. S 1463 at 7-8 (cited in note 8).6).

39. Id at 8-9.22. Id at § II.C.

40. Id at 8.23. See Id at § 11.3; Bersani v EPA, 674 FSupp 405 (ND NY 1987), aff'd 850 F2d 36(2d Cir 1988) (defining what Is a practicablealternative and when one is available).

24. See S 1463, HR 1330, & HR 404 (allthree cited In note 8).

25. Mitigation MOA at § IL.C (emphasisadded) (cited in note 6).

26. Id at § II.B n7.

27. Id at § II.C.

28. 40 CFR § 230.80(b).

29. Gail Bingham, et al, eds, Issues inWetland Protection: Background PapersPrepared for the National Wetlands PolicyForum at 34-36 & 70-71 (ConservationFoundation, 1990).

30. Id.

31. See 33 USC I 1344(e); Dept of theArmy, Final Rule for Nationwide PermitProgram Regulations and Issue, Reissue, andModify Nationwide Permits, 56 Fed Reg59109-47 (Nov 22, 1991) (revising 33 CFRHl 330.1-330.12).

32. 56 Fed Reg at 59143 (revising 33 CFR

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Wetlands Classification: A Tool for Protection or Abandonment?