GENERAL SECTION

Trends in Wetland Protection and
How to Navigate the Corps
Administrative Appeals Process

THE VALUE OF WETLANDS
What good is that swamp behind the building? Be careful back there, not because of mosquitoes or snakes but because draining or filling a wetland may violate Federal and State laws. Did you know that wetlands have numerous functions that are extremely valuable both to the economic community as well as the natural community? Among these functions are storm water storage and flood protection. Wetlands trap sediment and can neutralize some toxic substances, thus improving water quality. Some wetlands help to recharge groundwater supplies. Besides providing critical habitat for many endangered plants and animals, many agricultural products can be produced in wetlands (i.e., sugar cane and crayfish). In fact, wetlands are among the Earth’s most productive natural habitats; by storing carbon dioxide wetlands may reduce the rate of global warming. Wetlands offer numerous recreational opportunities and priceless aesthetic appeal. Wetlands are also property, sometimes located in traditional, water-based, commercial corridors, which are often desirable development sites. In fact, money in excess of land costs (based on the functional values listed above) has been paid by some states for the preservation of significant, privately owned wetland habitats.

REGULATORY BACKGROUND
As the scientific community, the public and the regulators better understood the value of wetlands, the regulatory community began to strengthen their control of wetland development. Early provisions in the Clean Water Act (circa 1977) allowed filling of isolated and headwater wetlands without restriction or notification to the Corps of Engineers under Nationwide Permit 26 (NWP 26). Changes to the Nationwide Permit Program in 1984 required notification of impacts greater than one acre and established a maximum wetland impact of ten acres. In 1996, the Corps reduced the maximum wetland impacts to three acres. As of June 5, 2000, NWP 26 was rescinded and replaced with five specific activity permits. Some of these new permits have a maximum impact area of one-half acre (or 200 linear feet) and notification required on impacts greater than one-tenth acre.

THE ADMINISTRATIVE APPEALS PROCESS
The Regulatory Branch of the Corps of Engineers has had an appeals process in place since August 1999. The rules governing appeals were modified in March 2000. The new rules allow for appeals of approved jurisdictional determinations, denial of a permit without prejudice, and an applicant’s decision to decline an individual permit (IP) or letter of permission with specific conditions. The affected party, generally the applicant, cannot appeal a variety of other decisions including the district’s discretionary authority to require an IP, a signed and issued IP, and the issuance of a cease and desist order. An affected party has 60 days from the date of the decision to file a request for appeal (RFA) to the Division Engineer. The Review Official has 30 days to check the RFA for completeness. An appeal conference is held within 60 days of receipt of an acceptable RFA. An appeal will be granted if the initial review is arbitrary, capricious, or contrary to law. Appeals with merit will be returned to the District Engineer for further consideration under specific instructions. However, the Division Engineer will not substitute his or her judgment for the District Engineer’s.

If you require assistance with wetland identification, wetland delineation or would like to obtain further information
on permitting under Sections 401 and 404 of the Clean Water Act, please contact Robert Repasky or Donald Fay at (513) 489-2255 or toll free at (800) 229-1443 or via e-mail at rdr@paynefirm.com and daf@paynefirm.com.