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

The Compleat Wetlander: State Wetland Regulatory Programs Help Businesses and the Public

I recently received an assignment to read “Leverage Points: Places to Intervene in a System.”  I was fascinated to learn that when people in an organization, a government or any complex system identify a problem, they are often correct about what needs to be fixed, but wrong about how to fix it.  This is because correct solutions are counter-intuitive, which makes it challenging for systems analysts.  It is a tough sell to inform folks that while they are right about the problem, they are solving it the wrong way.

Last January a handful of state legislatures or administrations around the country discussed or introduced legislation to weaken state wetland laws.
The goal of these changes was to become more business-friendly.  However, based on some of the analysis of state programs that the Association of State Wetland Managers has done over the past year, there is a real possibility that weakening state wetland regulatory programs would have exactly the opposite effect.

First, evidence that regulation is hurting the current economy is largely anecdotal.    The Bureau of Labor Statistics, which tracks companies’ reasons for large layoffs, found that while 1,119 layoffs were attributed to government regulations in the first half of this year, 144,746 were attributed to poor “business demand.” Also regulatory uncertainty is often a more compelling cause for concern for business than changing regulations.

Second, over the years states have taken numerous actions to improve the efficiency and effectiveness of wetland regulations.  Previous state administrations, legislatures and the regulated public have directed states program managers to complete decision-making on permits more quickly.  They have complied.  However future changes to state programs could undermine those earlier actions leading to delays and increased costs for permit applicants, communities and the public.  One reason is weakening state programs may suddenly shift workloads from the states to the U.S. Army Corps of Engineers dramatically increasing the number of permits the Corps must review and slowing decision-making.

This is not true in every state, but the point is that state administrations and legislators should gather knowledge about the current decision-making framework in their respective state before introducing changes.

For example state regulations and statutes often require completion of permit decisions within set timeframes.  If workload shifts to the Corps, these deadlines will no longer apply.  Measures undertaken by states to improve permitting include the following things:

1) Consolidating permitting;

2) Improving communication before permitting;

3) Developing online applications;

4) Utilizing science & technology;

5) Enhancing data management;

6) Improving consistency in program management.

This list might not seem very exciting, but these actions have resulted in significant improvements. Future changes to existing programs may negate the progress made through these actions, particularly any changes that undermine actions to consolidate permitting.

For example, some states have developed regional or programmatic general permits with the U.S. Army Corps of Engineers so that the state issues the majority of the dredge and fill permits – those with a small footprint – within short timeframes.  This approach allows 75% or more of the regulated dredge and fill permit applicants to get permit decisions quickly while the Corps and state take more time on the larger, more complicated permit applications.

There is enormous difference in the area impacted by a single permit.  Permits are triggered by a project that requires dredge and fill of wetlands, rivers or other waters.  A single permit may impact one or many waters.  The amount of time and information needed to issue a permit for a culvert to put in a driveway or a small dock for a personal residence is much different from the time and information required to issue a permit for a transmission line that crosses 300 streams and wetlands involving multiple towns, landowners and municipalities.

Over the years states and Corps District offices have developed formal partnerships that sort permit applications by size and complexity and identified opportunities to issue permits for minor impacts quickly.   Marrying state and federal programs is complex.  It includes not just federal Clean Water Act and the state’s water quality standards and/or the state dredge and fill permitting program (if it exists) but also other federal programs such as the Endangered Species Act, the National Historic Preservation Act, and in coastal areas the Magnuson-Stevens Fishery and Conservation Management Act and Marine Mammal Protection Act.  The good news is that a number of states have engaged in complex negotiations with federal agencies to identify the permitted activities that have minimal impact in their state and develop expedited permitting processes.  However, if state programs are weakened or changed so that these partnerships unravel, then the consequence may be that the time it takes to process the small permitted activities will increase suddenly and dramatically.   For example Florida is a state with a number of endangered species that can be affected by regulated activities. The state has developed technical tools to identify potential impacts and support self certification of small projects.  Changes to Florida’s program could eliminate the use of these tools and that would mean that the projects that can currently be self-certified within 1-30 days would take 3 to 6 months to be processed.

It is important for states to carefully evaluate existing programs before proposing to introduce changes. This will ensure that the outcome will benefit businesses, communities and the state’s citizens.  It would also be beneficial to consider whether adding better tools to implement regulatory programs and encourage integrated permitting decisions might ultimately better serve the state. Remember, while it is often clear where the problems lie, the solution may be counter-intuitive.

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