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HACE 4310/6310
HOUSING POLICY
Achieving Common Ground
Within the Housing Industry:
Wetlands
WETLANDS – A BRIEF
HISTORY






Used To Be Portrayed
As “Swamps”
Recognition of
Biological Importance
of Wetlands
Conflict Between Our
Preservation and That
of Other Creatures
WETLANDS DEFINED








Range from permanently frozen Arctic tundra to
deep-water Southern swamps
“Areas saturated with surface or ground water at
a long enough duration to support prevalence of
important vegetation”
More than 97% of wetlands are freshwater
Comprise 6-9% of surface area of the “lower 48”
Can include land that is dry for all but 7 days of
the year
CONTEXT THROUGH WHICH
“WETLANDS” DEBATE IS FORMED








Environmental
embarrassments of the
1970s
Two competing
bureaucracies involved
Expansion of the term
“wetland”
Vast array of interest
groups involved in the
debate
WETLANDS - IMPLICATIONS
FOR HOUSING








Landowners restricted as to what they can
do on land dominated by a wetland.
Be careful what you create! Man-made
lakes are fair game.
Confusion over the fact that “uplands” can
change to wetlands over a period of time
Different definitions per agency as to what
constitutes a “wetland”
SECTION 404 PERMITTING










Characterized as “lengthy, costly, and
complicated”
Average time going through the process
successfully = 127 days
Average time going through the process
unsuccessfully = sometimes over a year
A majority of 404 permit applications are
either denied or withdrawn
This puts builders in a financial hole right
from the start, particularly crippling smaller
builders
THE RISE OF NWP’s










Offered as a way of addressing only the most
troublesome ecological problems
Minimum acreage requirements fell from 10 to 3
to ½ acre
Environmentalists claimed that the Corps was
allowing “more than minimal impacts on the
environment”.
NAHB and Corps of Engineers were codefendants but eventually haggled bitterly
Congress reluctant to enter the fray
DELINEATION MANUALS










Many parties/agencies interested in creating a
manual to help determine, “What are wetlands?”
Basic agreement that there were three
components of wetlands: hydrology, soils, and
vegetation
Commonly held obstacle was the water in the
soil
Corps definition was most conservative;
NRCS/EPA somewhat liberal; FWS the most
liberal
Ultimately, still no resolution on which was the
proper standard/manual to be used for
compliance.
APPEALS PROCESS







Concerned builders wanted this option as
a form of recourse in the event that permit
is denied
Avoided costly judicial process
Approved by Congress in 1999
Never enjoyed by the environmentalists
In the end, considered a faulty system that
polarized all parties involved
ACTORS INVOLVED IN THE WETLANDS SAGA
 Reagan  hampered by environmentalists
 George Bush (Sr.)  adopted the “no net loss”
policy; expanded research on wetlands trends
 Clinton  changed the culture of the Corps of
Engineers
 U.S. Army Corps of Engineers
 Environmental Protection Agency
 Fish & Wildlife Service/Nat’l. Marine Fisheries
Service
 Congress
 Courts
 Trade Associations
 Environmental Groups
Wetlands and Home Builders
WETLANDS MITIGATION
BANKING










Builder pays organization to create
wetlands in another area
Techniques include removing debris from
an area so water can flow easily
Environmentalists and opposition to manmade wetlands
Quality of wetlands impacts the price
involved with restoring wetlands
More success in Florida than Northeast
THE CURIOUS “TULLOCH RULE”
CASE










Flash point of this case was in North Carolina
Deals with Section 404 of the Clean Water Act
Builders/developers contended that excavation
of wetlands did not amount to “filling” of a
wetland
Wildlife Federation sued the Corps for allowing
this activity, and ultimately won the day
Through suits brought forth by multiple
development interests, decision was reversed
Agencies involved sought to ignore the ruling
CHALLENGES TO WETLANDS: WHY DID
EFFORTS TO ACHIEVE COMMON
GROUND FAIL?










No clear definition for
“wetland”
Ongoing struggles
between Corps and EPA
Parties liked to use court
system
No evidence of “honest
broker” coming to
mediate
Two main parties do not
have a lot in common
GENERAL PRINCIPLES FOR
ACHIEVING COMMON GROUND












Use time and powers of
persuasion well
Have an honest broker at the
ready
Keep the rhetoric low
Create incentives
Understand market realities
over the long term
Understand the people
involved
Remember that you can make
a tough stand, but leave
enough wiggle room for
compromise

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Wetlands and Home Builders

  • 1. HACE 4310/6310 HOUSING POLICY Achieving Common Ground Within the Housing Industry: Wetlands
  • 2. WETLANDS – A BRIEF HISTORY    Used To Be Portrayed As “Swamps” Recognition of Biological Importance of Wetlands Conflict Between Our Preservation and That of Other Creatures
  • 3. WETLANDS DEFINED      Range from permanently frozen Arctic tundra to deep-water Southern swamps “Areas saturated with surface or ground water at a long enough duration to support prevalence of important vegetation” More than 97% of wetlands are freshwater Comprise 6-9% of surface area of the “lower 48” Can include land that is dry for all but 7 days of the year
  • 4. CONTEXT THROUGH WHICH “WETLANDS” DEBATE IS FORMED     Environmental embarrassments of the 1970s Two competing bureaucracies involved Expansion of the term “wetland” Vast array of interest groups involved in the debate
  • 5. WETLANDS - IMPLICATIONS FOR HOUSING     Landowners restricted as to what they can do on land dominated by a wetland. Be careful what you create! Man-made lakes are fair game. Confusion over the fact that “uplands” can change to wetlands over a period of time Different definitions per agency as to what constitutes a “wetland”
  • 6. SECTION 404 PERMITTING      Characterized as “lengthy, costly, and complicated” Average time going through the process successfully = 127 days Average time going through the process unsuccessfully = sometimes over a year A majority of 404 permit applications are either denied or withdrawn This puts builders in a financial hole right from the start, particularly crippling smaller builders
  • 7. THE RISE OF NWP’s      Offered as a way of addressing only the most troublesome ecological problems Minimum acreage requirements fell from 10 to 3 to ½ acre Environmentalists claimed that the Corps was allowing “more than minimal impacts on the environment”. NAHB and Corps of Engineers were codefendants but eventually haggled bitterly Congress reluctant to enter the fray
  • 8. DELINEATION MANUALS      Many parties/agencies interested in creating a manual to help determine, “What are wetlands?” Basic agreement that there were three components of wetlands: hydrology, soils, and vegetation Commonly held obstacle was the water in the soil Corps definition was most conservative; NRCS/EPA somewhat liberal; FWS the most liberal Ultimately, still no resolution on which was the proper standard/manual to be used for compliance.
  • 9. APPEALS PROCESS      Concerned builders wanted this option as a form of recourse in the event that permit is denied Avoided costly judicial process Approved by Congress in 1999 Never enjoyed by the environmentalists In the end, considered a faulty system that polarized all parties involved
  • 10. ACTORS INVOLVED IN THE WETLANDS SAGA  Reagan  hampered by environmentalists  George Bush (Sr.)  adopted the “no net loss” policy; expanded research on wetlands trends  Clinton  changed the culture of the Corps of Engineers  U.S. Army Corps of Engineers  Environmental Protection Agency  Fish & Wildlife Service/Nat’l. Marine Fisheries Service  Congress  Courts  Trade Associations  Environmental Groups
  • 12. WETLANDS MITIGATION BANKING      Builder pays organization to create wetlands in another area Techniques include removing debris from an area so water can flow easily Environmentalists and opposition to manmade wetlands Quality of wetlands impacts the price involved with restoring wetlands More success in Florida than Northeast
  • 13. THE CURIOUS “TULLOCH RULE” CASE       Flash point of this case was in North Carolina Deals with Section 404 of the Clean Water Act Builders/developers contended that excavation of wetlands did not amount to “filling” of a wetland Wildlife Federation sued the Corps for allowing this activity, and ultimately won the day Through suits brought forth by multiple development interests, decision was reversed Agencies involved sought to ignore the ruling
  • 14. CHALLENGES TO WETLANDS: WHY DID EFFORTS TO ACHIEVE COMMON GROUND FAIL?      No clear definition for “wetland” Ongoing struggles between Corps and EPA Parties liked to use court system No evidence of “honest broker” coming to mediate Two main parties do not have a lot in common
  • 15. GENERAL PRINCIPLES FOR ACHIEVING COMMON GROUND        Use time and powers of persuasion well Have an honest broker at the ready Keep the rhetoric low Create incentives Understand market realities over the long term Understand the people involved Remember that you can make a tough stand, but leave enough wiggle room for compromise