In his recent State of the Union address, President Clinton announced a new Clean Water Act initiative that could dramatically affect the future of federal wetlands regulation. In a worst-case scenario, ski area operators who do not actively participate in watershed planning efforts encouraged by the initiative may one day find that a quasi-governmental committee has limited their area’s future development by designating or categorizing wetlands within ski area boundaries, perhaps incorrectly.
According to an action plan based on Clinton’s initiative, the watershed planning approach (also known as “ecosystem management”) attempts to protect the health of an entire watershed over time rather than considering individual impacts on specific wetlands. Since ski areas are commonly located within sensitive mountain drainages, many improvements and expansions require careful consideration of federal wetlands regulations. By choosing when to initiate projects, ski area operators have traditionally been able to determine when they are forced to run the Section 404 permitting gauntlet. However, according to the action plan based on the Clinton initiative, ski areas may soon be forced to participate in multi-year wetland planning processes well before initiating specific projects.
Variants of these efforts have already affected at least five Colorado ski areas (Keystone, Breckenridge, Arapahoe Basin, Copper Mountain and Telluride) and could arrive soon in other watersheds. While the watershed planning approach adopted by Clinton’s initiative is intended to improve the health and functioning of wetlands, ski areas need to understand the costs and complexities that it may entail.
Watershed Planning
The watershed planning approach at the center of the initiative involves collaborative management of entire watershed drainages by all relevant local, state, tribal and federal agencies. The intent is for agencies to work with private interests to assess the health of resources within the watershed, identify future threats and create a plan to alleviate the threats.
One of the major focuses of the action plan is protecting wetlands vital to the health of a watershed. Scientists fear that the United States has lost over half of the wetlands that existed at the time of European settlement and continue to lose over 100,000 wetland acres each year. Through watershed planning and restoration efforts, the initiative seeks a net increase of 100,000 wetland acres per year by 2005.
Under current law, it is illegal to fill or adversely impact any wetland except under a permit issued by the Corps of Engineers pursuant to Section 404 of the Clean Water Act. Obtaining an individual 404 permit for a specific project can be a grueling process because applicants must demonstrate that there is “no practicable alternative” to impacting the wetland, that impacts have been minimized and also that impacts will be mitigated.
Recognizing the difficulties of this process for smaller-impact projects, the Corps has authorized general permits for which no application is necessary if the project and wetland impacts meet stated criteria. Certain of these criteria have become controversial, such as the nationwide general permit that only requires notice to the Corps before allowing the fill of up to three wetland acres in “isolated or headwater” areas.
The new watershed approach mandate may lead to increasing Corps insistence that its permitting decisions be consistent with and follow the formulation of Special Area Management Plans (SAMP). The Corps intends that SAMPs will be created where wetlands have been adversely impacted and face continued development pressure. Through a process that must be driven by local involvement, SAMPs analyze information about wetlands within a study area, bring stakeholders together to discuss the results and then set management guidelines for different categories of wetlands that will guide permitting decisions.
Fitting its regulatory origins, SAMPs commonly seek to conclude with the creation of a new general permit that can be partially administered by local authorities. This permit often will be made applicable to wetlands categorized during the process as low quality, while hurdles are placed upon development of high quality areas. Although few SAMPs have been prepared to date, they are the subject of renewed interest by various Corps districts.
The initiative may also lead to greater use of advance identifications (ADIDs) by the EPA. Following its mandate to review the 404 process and protect wetlands, the EPA undertakes ADIDs to collect information on the location and functioning of wetlands, point out important factors for a 404 review and assemble cumulative impacts data. Usually carried out by a third-party contractor, the goal of an ADID is to make an advisory classification of wetlands within a study area as suitable or unsuitable to be filled under Section 404.
Besides initiating their own efforts, federal agencies also may join or assist wetland planning efforts that were initiated by local parties. For example, in conjunction with a local planning initiative in Juneau, Alaska, the Corps of Engineers spent a number of years attempting to integrate local results into the implementation of a new regional permit.
Mitigation Banking
Various entities have established mitigation banks that restore or create larger blocks of new wetlands. Permit applicants can purchase “credits” from the bank to offset their own impacts by replacing lost functions and values within a larger wetlands restoration plan. Banking entities can be local governments, public groups or for-profit entrepreneurs.
An individual 404 permit applicant will often be required to mitigate a wetland fill by creating, for example, half an acre of new wetlands to replace a quarter of an acre impacted by the project. This requirement can be extremely expensive for a single landowner—not only to replace the wetland but also to cover a host of accompanying consulting and legal expenses. Additionally, creating isolated tiny wetland patches can result in the poor performance of important wetland functions and values such as floodflow attenuation, groundwater recharge and providing wildlife habitat.
The action plan does not explicitly endorse wetland mitigation banking, but the Corps, EPA, Forest Service and Fish and Wildlife Service have all recognized that the future of wetlands regulation is likely to be tied to the concept. The watershed approach lends itself to community endorsement and utilization of mitigation banks. In fact, an explicit goal of many SAMPs and ADIDs is to identify appropriate banking locations and facilitate their creation. It is likely that mitigation banks will gain increasing acceptance as a tool to achieve the goal of 100,000 acres of new wetlands each year.
A Watershed Wetlands Primer
Some terms that the savvy wetlands planner should know:
- 404 – The section of the Clean Water Act that allows the Corps of Engineers to issue permits for impacts to wetlands.
- General Permit – Different from an individual 404 permit, a general permit authorizes wetlands fills for classes of activities, such as driveway construction.
- SAMP – Special Area Management Plan. A watershed wetlands planning tool administered by the Corps to establish management strategies for different categories of wetlands within a study area.
- ADID – Advance Identification. An EPA advance classification of wetlands as “suitable or unsuitable” to be filled under the 404 program based on functions and values.
- Functions and Values – Descriptive categories used to describe the performance of wetlands, such as floodflow attenuation or groundwater recharge.
- Categorization – A ranking of wetlands within a study area based on relative performance of functions and values.
- Watershed Approach/Ecosystem Management – Natural resource planning involving stakeholders focusing on problems of an entire drainage area.
Areas of Concern
The Corps and EPA describe potential benefits of watershed wetlands planning as increased permitting speed, better analysis of cumulative effects and more predictability for permit applicants. However, ski area operators should also be aware of the potential problems of this approach.
Time and Expense—The process of reaching consensus among different wetland stakeholders can exceed the planning benefits that may result.
A major SAMP in Hackensack, N.J., has been in planning for more than a decade and has cost million of dollars. The SAMP in Mill Creek, Wash.—often described by regulators as a success—took eight years and cost a “horrendous” amount. Even a smaller effort in Superior, Wisc., required seven years, 2,000 staff hours and over $300,000 in local funds.
Ski area operators may find that delays and costs drain local resources and polarize the development climate. As scarce regulatory resources are diverted to the planning effort, the application review process may become slower and less accurate. Given the short construction window for ski area improvements, it is advisable for operators to attempt to prevent or minimize potential delays in the local process.
Categorization Problems—Wetlands are commonly categorized by the degree to which they perform various functions and values. By assigning numeric grades to these functions and values, regulators often rank the quality of the wetlands in a given study area. Some believe this process is tantamount to a federal land-use plan that could profoundly affect individual property rights.
Given the subjective and often political nature of these rankings, categorization is intensely controversial, evidenced by last term’s uproar over congressional categorization proposals. Some property owners and permittees fear that land will be designated as off-limits to development due to the presence of a high-quality wetland. Justifying this concern, SAMPs and ADIDs generally designate around three-quarters of studied wetlands as high-quality.
Additionally, these function and value assessments seem practical only for small areas. Local interests have opposed a proposal to assess a few hundred acres of the wetlands in Summit County, Colo., and then extrapolate the results over the remaining 24,000 acres of wetlands.
By participating in watershed planning efforts, ski area operators can avoid many problems before they occur, such as: maps that inaccurately locate wetlands within ski area boundaries, non-existent functions and values being assigned to ski area wetlands or categorization of poor-functioning wetlands as high-quality. Any of these classifications could impact future development.
Poor Results—SAMPs are intended to generate new regional 404 permits that can be administered in part by local entities and speed up processing times. However, local land owners and permittees may be reluctant to see wetland regulatory authority dispersed to local entities that do not have much expertise—even if federal oversight continues.
The designation of “low-quality” wetlands administered through an expedited process may, in the end, be an inappropriate goal for wetlands planning. In the few years since Eugene, Ore., completed its planning, wetlands characterized as “developable” have been filled at an alarming rate.
Other jurisdictions have rejected the classic bureaucratic planning model and modified SAMPs to actually address wetlands protection. Dade County, Fla., eschewed advance categorization in favor of simply requiring a mitigation fee for wetland restoration in the adjacent Everglades.
Although ski areas located on private land may benefit from streamlined permitting, those located on federal land will probably be unable to take advantage of new regional permits. Given the increasing national regulatory rigor, the Forest Service is likely to continue to require individual permits for even tiny wetland impacts.
Participation
Whether or not they are located on federal lands, ski area operators need to stay on top of wetland watershed planning efforts in their vicinity. (See Speak Out, p. 16.) A number of points to remember:
Watch for the Coming Wave—Especially in the west, watershed planning efforts have sprung up on dozens of different drainages and will have increasing impacts upon ski areas. Already in Colorado, an ADID has been completed in the area around Telluride, a SAMP process is underway in Summit County (which contains Keystone, Breckenridge, Arapahoe Basin and Copper Mountain) and the EPA is urging a similar effort for the Vail region.
Get Involved Early—Both the watershed approach and SAMPs are dependent upon local leadership. As major economic engines in their regions, ski areas can play a major role in representing the interests of the local community.
Explore Alternatives—Federal agencies may be very sympathetic to locally-initiated alternatives that do not follow the traditional planning paradigm. An effort in West Virginia’s Canaan Valley was deemed a success for simply bringing wetland stakeholders together to discuss valleywide problems.
In Summit County, ski areas have assisted a local effort to devote resources to actual wetlands improvements instead of commissioning more elaborate studies. The proposal involves increased funding for Corps personnel, establishment of mitigation banks and permit conditions assuring that every wetland impact will be fully offset.
Be Leaders—Given the high profile of many expansions and improvements, ski areas can demonstrate environmentally responsible development strategies. For example, through avoidance, minimization and planning, Vail’s recent 800-acre expansion proposal involved only one-tenth of one acre of wetland fill.
Ski area operators need to be aware of the continuing trend towards devolving traditionally federal authority to local entities. Participation in watershed planning efforts will allow ski area managers to protect resorts’ interests, demonstrate leadership in their communities and preserve America’s wetlands.
