HACE 4310/6310 HACE 4310/6310 HOUSING POLICYHOUSING POLICYAchieving Common Ground Achieving Common Ground Within the Housing Industry: Within the Housing Industry:

WetlandsWetlands

WETLANDS – A BRIEF WETLANDS – A BRIEF HISTORYHISTORY

Used To Be Used To Be Portrayed As Portrayed As “Swamps”“Swamps”

Recognition of Recognition of Biological Biological Importance of Importance of WetlandsWetlands

Conflict Between Conflict Between Our Preservation Our Preservation and That of Other and That of Other CreaturesCreatures

WETLANDS DEFINEDWETLANDS DEFINED

Range from permanently frozen Arctic Range from permanently frozen Arctic tundra to deep-water Southern swampstundra to deep-water Southern swamps

““Areas saturated with surface or ground Areas saturated with surface or ground water at a long enough duration to support water at a long enough duration to support prevalence of important vegetation”prevalence of important vegetation”

More than 97% of wetlands are freshwaterMore than 97% of wetlands are freshwater Comprise 6-9% of surface area of the Comprise 6-9% of surface area of the

“lower 48”“lower 48” Can include land that is dry for all but 7 Can include land that is dry for all but 7

days of the yeardays of the year

CONTEXT THROUGH WHICH CONTEXT THROUGH WHICH “WETLANDS” DEBATE IS FORMED“WETLANDS” DEBATE IS FORMED

Environmental Environmental embarrassments of embarrassments of the 1970sthe 1970s

Two competing Two competing bureaucracies bureaucracies involvedinvolved

Expansion of the term Expansion of the term “wetland”“wetland”

Vast array of interest Vast array of interest groups involved in the groups involved in the debatedebate

WETLANDS - IMPLICATIONS WETLANDS - IMPLICATIONS FOR HOUSINGFOR HOUSING

Landowners restricted as to what they Landowners restricted as to what they can do on land dominated by a can do on land dominated by a wetland.wetland.

Be careful what you create! Man-Be careful what you create! Man-made lakes are fair game.made lakes are fair game.

Confusion over the fact that “uplands” Confusion over the fact that “uplands” can change to wetlands over a period can change to wetlands over a period of timeof time

Different definitions per agency as to Different definitions per agency as to what constitutes a “wetland”what constitutes a “wetland”

SECTION 404 PERMITTINGSECTION 404 PERMITTING Characterized as “lengthy, costly, and Characterized as “lengthy, costly, and

complicated”complicated” Average time going through the Average time going through the

process successfully = 127 daysprocess successfully = 127 days Average time going through the Average time going through the

process unsuccessfully = sometimes process unsuccessfully = sometimes over a yearover a year

A majority of 404 permit applications A majority of 404 permit applications are either denied or withdrawnare either denied or withdrawn

This puts builders in a financial hole This puts builders in a financial hole right from the start, particularly right from the start, particularly crippling smaller builderscrippling smaller builders

THE RISE OF NWP’sTHE RISE OF NWP’s

Offered as a way of addressing only the Offered as a way of addressing only the most troublesome ecological problemsmost troublesome ecological problems

Minimum acreage requirements fell from Minimum acreage requirements fell from 10 to 3 to ½ acre10 to 3 to ½ acre

Environmentalists claimed that the Corps Environmentalists claimed that the Corps was allowing “more than minimal impacts was allowing “more than minimal impacts on the environment”.on the environment”.

NAHB and Corps of Engineers were co-NAHB and Corps of Engineers were co-defendants but eventually haggled bitterlydefendants but eventually haggled bitterly

Congress reluctant to enter the frayCongress reluctant to enter the fray

DELINEATION MANUALSDELINEATION MANUALS Many parties/agencies interested in creating a Many parties/agencies interested in creating a

manual to help determine, “What are manual to help determine, “What are wetlands?”wetlands?”

Basic agreement that there were three Basic agreement that there were three components of wetlands: hydrology, soils, and components of wetlands: hydrology, soils, and vegetationvegetation

Commonly held obstacle was the water in the Commonly held obstacle was the water in the soilsoil

Corps definition was most conservative; Corps definition was most conservative; NRCS/EPA somewhat liberal; FWS the most NRCS/EPA somewhat liberal; FWS the most liberalliberal

Ultimately, still no resolution on which was the Ultimately, still no resolution on which was the proper standard/manual to be used for proper standard/manual to be used for compliance.compliance.

APPEALS PROCESSAPPEALS PROCESS Concerned builders wanted this Concerned builders wanted this

option as a form of recourse in the option as a form of recourse in the event that permit is deniedevent that permit is denied

Avoided costly judicial processAvoided costly judicial process Approved by Congress in 1999Approved by Congress in 1999 Never enjoyed by the Never enjoyed by the

environmentalistsenvironmentalists In the end, considered a faulty In the end, considered a faulty

system that polarized all parties system that polarized all parties involvedinvolved

ACTORS INVOLVED IN THE WETLANDS SAGAACTORS INVOLVED IN THE WETLANDS SAGA Reagan Reagan hampered by environmentalists hampered by environmentalists George Bush (Sr.) George Bush (Sr.) adopted the “no net loss” adopted the “no net loss”

policy; expanded research on wetlands trendspolicy; expanded research on wetlands trends Clinton Clinton changed the culture of the Corps of changed the culture of the Corps of

EngineersEngineers U.S. Army Corps of EngineersU.S. Army Corps of Engineers Environmental Protection AgencyEnvironmental Protection Agency Fish & Wildlife Service/Nat’l. Marine Fisheries ServiceFish & Wildlife Service/Nat’l. Marine Fisheries Service CongressCongress CourtsCourts Trade AssociationsTrade Associations Environmental GroupsEnvironmental Groups

WETLANDS MITIGATION WETLANDS MITIGATION BANKINGBANKING

Builder pays organization to create Builder pays organization to create wetlands in another areawetlands in another area

Techniques include removing debris Techniques include removing debris from an area so water can flow easilyfrom an area so water can flow easily

Environmentalists and opposition to Environmentalists and opposition to man-made wetlandsman-made wetlands

Quality of wetlands impacts the price Quality of wetlands impacts the price involved with restoring wetlandsinvolved with restoring wetlands

More success in Florida than NortheastMore success in Florida than Northeast

THE CURIOUS “TULLOCH RULE” THE CURIOUS “TULLOCH RULE” CASECASE

Flash point of this case was in North CarolinaFlash point of this case was in North Carolina Deals with Section 404 of the Clean Water ActDeals with Section 404 of the Clean Water Act Builders/developers contended that excavation of Builders/developers contended that excavation of

wetlands did not amount to “filling” of a wetlandwetlands did not amount to “filling” of a wetland Wildlife Federation sued the Corps for allowing Wildlife Federation sued the Corps for allowing

this activity, and ultimately won the daythis activity, and ultimately won the day Through suits brought forth by multiple Through suits brought forth by multiple

development interests, decision was reverseddevelopment interests, decision was reversed Agencies involved sought to ignore the rulingAgencies involved sought to ignore the ruling

CHALLENGES TO WETLANDS: WHY DID CHALLENGES TO WETLANDS: WHY DID EFFORTS TO ACHIEVE COMMON EFFORTS TO ACHIEVE COMMON

GROUND FAIL?GROUND FAIL?

No clear definition for No clear definition for “wetland”“wetland”

Ongoing struggles Ongoing struggles between Corps and EPAbetween Corps and EPA

Parties liked to use Parties liked to use court systemcourt system

No evidence of “honest No evidence of “honest broker” coming to broker” coming to mediatemediate

Two main parties do not Two main parties do not have a lot in commonhave a lot in common

GENERAL PRINCIPLES FOR GENERAL PRINCIPLES FOR ACHIEVING COMMON GROUNDACHIEVING COMMON GROUND

Use time and powers of Use time and powers of persuasion wellpersuasion well

Have an honest broker at Have an honest broker at the readythe ready

Keep the rhetoric lowKeep the rhetoric low Create incentivesCreate incentives Understand market Understand market

realities over the long termrealities over the long term Understand the people Understand the people

involvedinvolved Remember that you can Remember that you can

make a tough stand, but make a tough stand, but leave enough wiggle room leave enough wiggle room for compromisefor compromise