Association of State Wetland Managers - Protecting the Nation's Wetlands.

Salameander: Restoration, Regulation, and a new Interpretive Rule

Salameanderby Peg Bostwick, ASWM

I don’t have to sell readers of this blog on the concept that restoration of wetlands can provide major benefits – often at a minimal cost compared to other options – whether your goal is storm surge protection, flood control, groundwater recharge, climate change adaptation, or pollutant reduction.  In some cases – especially where habitat improvement is needed – there is no other option.

However, restoration also frequently involves alteration of existing (although often degraded or altered) wetland systems and aquatic networks.  Not all restoration designs equally benefit all needs, and some can result in unintended consequences.  For these and related reasons, permits are often required through the §404 Program and/or state regulations – and that is a source of concern to many of those responsible for on-the-ground restoration work.

In short, wetland managers share goals but have different responsibilities – some are charged with ensuring protection of wetland resources, and others with maximizing acres of restoration in a minimum amount of time with very limited funds.

A very dedicated workgroup explored ways to improve restoration permitting during 2012-2013 in cooperation with an ASWM project funded by EPA.  As one component of this project, ASWM produced Permitting of Voluntary Wetland
Permitting of Voluntary Wetland Restoration: A HandbookRestoration: A Handbook to walk restoration practitioners through the regulatory requirements and to acknowledge the special considerations associated with voluntary restoration that should be addressed by regulators.  We hope that this document will be useful to those navigating these efforts, and that you will share it with those considering a restoration project.

The restoration workgroup also identified several difficult issues that were not addressed in the Handbook because they could not be resolved within the current regulatory framework.  These concerns are outlined in a separate white paper – Voluntary Restoration of Wetlands: Complex Issues in the Regulation of Restoration Projects.

Frankly, we did not anticipate any near term changes that would address the white paper issues, although we were and are sincere in our desire to continue to work on them.  So it was a surprise when the recently announced proposed rule on jurisdiction under the Clean Water Act was accompanied by an announcement of a new Interpretive Rule on exemptions under §404(f) of the Clean Water Act. This interpretive rule effectively announced that EPA and the Corps, together with NRCS, had identified a set of 56 NRCS Conservation Practice Standards (CPSs) that were determined to be “normal farming, ranching, or silvicultural practices” identified as “upland conservation practices” – and are thus interpreted as exempt from §404 permitting requirements.  A previous blog by ASWM Executive Director Jeanne Christie further discusses this rule.

The April 21 Federal Register notice of the rule included a request for comments during a period that has recently been extended – to July 7 – in response to numerous requests.  Discussions since April about how the new rule will be implemented, what it means exactly, and how it will be used have been multiple and mostly inconclusive. Not surprising, regulatory staff are concerned about the potential for adverse resource impacts, while farmers are concerned that it does not go far enough, or alternatively that it may signal increased regulation.

Here are some of the things that we think we know now about how this rule may/will impact wetland restoration efforts.

•   Because the rule applies only to ongoing farming, ranching, or silvicultural operations, we think that it does not apply to non-profit organizations, federal or state agencies, or other private landowners.  We are not sure what this means for partnerships between farmers and others.  What it may mean is that for some types of projects, one group is exempt while another may need a permit.

•   We believe it does not expand federal regulation of activities that have not been previously regulated under §404.

•   We think that some of the CPS’s listed as being exempt from permit requirements include actions that have previously been regulated under §404, including many actions authorized under NWP 27.   Exemption of these actions may confuse coordination between §404 and other federal programs (e.g. the Endangered Species Act) and between landowners and state dredge and fill programs that remain in place.

•   We think that some of the listed CPS’s will facilitate beneficial conservation activities, and that the exemption will clarify what can be done without unnecessary regulatory review under §404.

•   We also think that some of the actions will, without technical oversight or regulatory review, lead to adverse impacts or unintended resource consequences, and also set the stage for potential misuse.

In other words, the concerns being voiced about the Interpretive Rule are much the same as those articulated during our Workgroup discussions on permitting of voluntary restoration. However, the Interpretive Rule – and the current comment period – open at least one door to resolve some of these issues, if remaining concerns are addressed.

EPA and the Corps have indicated a willingness to further clarify the scope of the CPS’s that are exempted.  An MOA among the agencies calls for annual review of the practices, and allows for revisions as needed.  Comments submitted now can clean up the rough edges of the proposed process for implementing the Interpretive Rule, and result in a beneficial product for all parties – and most of all for wetland resources.  We urge informed stakeholders – regardless of your perspective on this issue – to review the Interpretive Rule and the list of Conservation Practice Standards, and to make specific comments to EPA and the Corps before the July 7 deadline.  Comments might address the following issues:

  • Are there some Practice Standards that should not be on the list – either because they are not used in aquatic areas or would not require a §404 (dredge and fill) permit; or because they are so broadly written that some level of regulatory review is essential?
  • Should defined limits be set for some CPS’s?   EPA has indicated that the “recapture provision” (§404(f)(2)) may limit exemptions where a project would result in a change in use, or in reduction of waters of the United States.  How and where should these limits be more clearly defined?  Can the standards be more clearly worded?
  • How do you suggest that landowners obtain needed technical assistance and otherwise assure compliance with the Conservation Practice Standards?  EPA has indicated that the rule is “self-implementing” – but many practice standards require technical know-how beyond abilities of typical landowners.
  • Can you suggest processes that might facilitate coordination among federal agencies, state agencies, landowners, nonprofit organizations and others in implementing the rule?
  • Should the National or the State conservation practice standards be used?  (EPA’s initial response is that the rule exempts practices as defined in the National standards.)   Could use of State Conservation Practice Standards for the exempt practices help to provide coordination through State Technical Committees or otherwise alleviate concerns?

Links to additional information are included below.  Please share your expertise to assist EPA and the Corps in making the Interpretive Rule into a truly effective but protective means of facilitating valuable wetland restoration and natural resource conservation.

We also encourage you to use the ASWM Restoration Handbook and the associated White Paper as references regarding the concerns of both regulators and practitioners. And, although revisions may be needed regarding new interpretation of exemptions, we hope that you also find the Restoration Handbook to be a useful resource when planning new restoration activities.

More information:

For a copy of Permitting for Voluntary Wetland Restoration: A Handbook, click here.

For a copy of the white paper, Voluntary Restoration of Wetlands: Complex Issues in the Regulation of Restoration Projects, click here.

Information regarding the Interpretive Rule on Agricultural Exemptions:

  • For a discussion of the Rule in a previous blog by ASWM Executive Director Jeanne Christie, click here.
  • For a copy of the rule, click here.
  • For a list of the covered Conservation Practice Standards, click here.
  • For more information from EPA on the rule, click here.
  • For a copy of the Federal Register notice including information regarding comments, click here.

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