Much Ado About Nothing
Much Ado About Nothing
The Federal Wetlands Program in California
Wetlands, and federal efforts to protect them, have become the source of considerable controversy in recent years. Many opponents of the current wetlands regulatory system have made exaggerated claims about the effects of the federal wetlands permitting program on private landowners. Among those claims are that the U.S. Army Corps of Engineers wetlands program (authorized under Section 404 of the Clean Water Act) simply places all wetlands off limits to development; that the wetlands program affects an enormous acreage of land throughout the country; and that small private landowners bear the brunt of the burden of wetlands permitting.
These claims should not be taken at face value. The Environmental Working Group (EWG) has undertaken a review of data publicly available from the U.S. Army Corps of Engineers to determine the actual extent to which the Clean Water Act's Section 404 program has impinged on property owners in California. EWG's analysis found the following:
The vast majority of all applications for wetlands permits are granted. Of the 3,762 permit applications in California represented in U.S. Army Corps of Engineers data from 1988 through 1994, only 215 permits (5.7 percent) were denied. See Figure 1, Figure 2. Of those 215 permits, 112 were associated with a single project by the California Department of Water Resource, denied by the Corps in 1993. This project, described in Corps data as a "trenched water crossing," would have affected at least 13 creeks and other water bodies, and by itself constituted 52 percent of all permit denials over the 7-year period studied. Outside of this project, only 103 permit applications were denied in California over the period examined, or fewer than 15 denials each year.
Most wetlands permits denied were submitted by corporations or public entities, not private individuals. Of the 215 wetlands permits denied in California between 1988 and 1994, at least 196 permits (91.1 percent) were submitted either by corporations or by public entities such as state or federal agencies, city governments and water districts (Table 1.) Similarly, of the 384 wetlands permit applications withdrawn in California over the same period, at least 320 (83.3 percent) were submitted by corporations or public entities (Table 2.) No more than 19 permit denials and 64 permit withdrawals could be attributed to private individuals over the 7-year period studied.
Most California counties had no wetlands permit denials. California has 58 counties. Of the 215 permit denials represented in the Corps data, 193 denials (89.8 percent) were located in just four of those counties: San Luis Obispo County (84 denials), Los Angeles County (49 denials), Santa Barbara County (46 denials) and Ventura County (14 denials). A total of 41 counties had no permit denials over the 7-year period studied (Table 3.) Ten other counties had just 1 or 2 permits denied over the 7 years.
- Many California counties had little or no wetlands permitting activity of any kind. In 6 counties--Alpine, Amador, Calavers, Kings, Tuolumne and Yuba--one or more general permits were issued, but no individual permits were issued, denied or withdrawn over the 7 years studied--indicating that, in all likelihood, no one in those 6 counties had ever applied for a wetlands permit. Twenty-two other counties had between 1 and 5 individual permit applications total over 7 years. The majority of permitting activity took place in just a handful of California counties.
About EWG's Wetlands Permitting Database
In September 1994, the Environmental Working Group (EWG) submitted a Freedom of Information Act (FOIA) request to the U.S. Army Corps of Engineers for a computerized database on wetlands permits issued, denied and withdrawn under Section 404 of the Clean Water Act. Data were available for 27 of the 36 Corps district and division offices administering the Section 404 program in the conterminous United States, including all three Corps district offices located in California--the San Francisco district, the Los Angeles district and the Sacramento district.
In November, pursuant to EWG's FOIA request, Corps staff downloaded selected data elements to a computer in Sacramento, and transferred these data to a digital tape that was sent to EWG for analysis. EWG received a total of 297 separate data files, occupying more than 100 megabytes of computer storage. EWG condensed these into 11 related files, and began several months of analysis to determine the geographic location and other information about each permit application.
The EWG Wetlands Permitting Database contains a record of each permit maintained in the U.S. Army Corps of Engineers regulatory database that was the subject of some final action (issuance, denial, or withdrawal) between 1988 and November 1994. For the most part, data for individual permits are accurate and complete for those years. Data for general permits, however, are incomplete for two reasons. First, most Corps district offices, including the three districts in California, do not maintain complete computerized records of general permits issued before the district's computer systems became functional. General permit data before November 1989 in the Sacramento district, before March 1994 in the Los Angeles district, and before April 1994 in the San Francisco district are therefore incomplete. A second limitation in EWG's records of general permits stems from the fact that the Corps itself is notified of only a portion of all activities authorized by general permits. For example, the Corps estimates that it confirmed 55,000 activities under general permits nationwide in FY 1994, but that 25,000 additional general permit activities were undertaken without the Corps' knowledge. In fiscal year 1993, the Corps verified that roughly 45,000 activities were authorized under general permits, and estimated that an additional 35,000 activities were undertaken without the Corps' knowledge (Personal communication, U.S. Army Corps of Engineers, April 14, 1995). EWG's permitting database does not account for activities authorized under general permits, which the Corps itself has not verified.
Because of these limitations, it is likely that EWG's data underestimate the number of activities authorized to discharge fill into wetlands. Consequently, wetlands permit denials, and individual permit issuances and withdrawals, represent a far smaller proportion of total permit activity than EWG has estimated.
How to Interpret the Environmental Working Group's U.S. Army Corps of Engineers Wetlands Permitting Summaries
EWG's wetlands permitting data allows for county-by-county analysis of the number of wetlands permits issued, withdrawn, and denied each year, from 1988 through November of 1994. EWG has divided permitting data into several categories.
General permits constitute the large majority of all wetlands permits. Typically, general permits require minimal scrutiny by the U.S. Army Corps of Engineers, and are authorized in just a few days or weeks.
Individual permits are often for larger or more complex projects than those authorized under general permits, and often require greater scrutiny by the Corps. Some individual permits may require the permit applicant to look for alternative, non-wetland sites for a project, or may place additional restrictions on a development project to minimize or compensate for any damage to the wetlands. Individual permits may be issued in a Standard format, or as Letters of Permission.
Withdrawals are permit applications submitted to the Corps which, for any number of reasons, are withdrawn from consideration. Some permits are withdrawn because the applicant fails to obtain project financing or other approval for a project, or for some reason unrelated to the wetlands permit process itself. Some permits may be withdrawn because the permit applicant believes that a permit will not be issued. Some permits are withdrawn simply to correct record-keeping errors by the Corps. The Corps is beginning to do a better job of tracking the reasons for permit withdrawals, but the reasons for most withdrawals in EWG's database are unclear.
- After-the-fact permits are for dredge or fill activities in wetlands that required a permit, but were initially undertaken without a permit. When the Corps discovers such an activity, it processes an "after-the-fact" permit to bring the project into compliance. Few activities in California required after-the-fact permits.