National Association of Counties (NACO)
Foundation for Environmental and Economic Progress (FEEP)
Contract Study
"Analysis of the Army Corps of Engineers'
NWP 26 Replacement Permit Proposal"
Prepared by:
Julie M. Sibbing
Senior Policy Specialist
Wetlands and Agriculture
National Audubon Society
This paper analyzes and rebuts the major findings of a NACO-FEEP contracted study published in January, 2000 by David Sunding, Ph.D. and David Zilberman, Ph.D. of the University of California at Berkely regarding the Army Corps of Engineers replacement permits for Nationwide Permit 26. While the authors rely upon several faulty assumptions in the preparation of this report, the biggest deficiency is a lack of any explanation of the methodology used for selection of the data set upon which nearly all of its conclusions are based. It appears that those chosen for interviews and those permits chosen for analysis were not randomly selected. This casts doubts upon the reliability of nearly all of the author's conclusions.
CLAIM 1: The Nation's wetland base is stabilizing. National Wetlands Inventory figures indicate that the net loss rate from 1985 to 1995 was less than 0.11 percent per year; the Natural Resources Inventory shows a loss rate at 0.07 per cent per year between 1982 and 1992. These figures represent a dramatic decline from losses that occurred in previous decades.
RESPONSE While wetland losses have decreased, losses are still quite substantial and our nation is still a long way from achieving the no-net-loss goal initially articulated by the Bush administration. Net loss continues to occur at an estimated 117,000 acres/year, or one percent per year of the nation's remaining wetland acreage. An even greater loss is experienced in terms of wetland functions and values, yet this loss has never been quantified. In addition, the so-called "Tulloch loophole" has led to the drainage of nearly 30,000 additional wetland acres just since Spring of 1998.
CLAIM 2: The NWP 26 program generates net gains in wetland acreage, and the gains it achieves are higher than those achieved through the individual permit program. Corps figures show that the NWP 26 program authorized impacts to 2,974 acres in 1998, and required 6,304 acres of mitigation.
RESPONSE: These acreage figures, although cited frequently by the regulated community, are not meaningful. They include all "mitigation," counted by Corps districts, including acreage preserved, enhanced, and even that avoided in order to comply with the NWP 26 acreage cap. None of these types of "mitigation" replaces lost wetland acreage. The figures also do not take into account the no-doubt substantial cumulative loss of wetland acreage that was not reported because it was associated with projects of less-than 1/3 acre impact.
The Corps admits that it allows for many types of mitigation that lead to net loss and to the inadequacies of its data collection in its August, 1999 Federal Register Notice on the replacement permits...
"Examples of mitigation that may be appropriate and practicable include, but are not limited to: reducing the size of the project; establishing and maintaining wetland or upland vegetated buffer zones to protect aquatic resource values; and replacing the loss of aquatic resource values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed…" (page 39367-8)
"The data collection systems for most Corps districts do not currently differentiate between the amounts of compensatory mitigation provided through restoration, enhancement, creation, or preservation. Instead, most districts track only the total amount of compensatory mitigation required for Corps permits." (p. 39272)
Further, even when wetland restoration is required, this does not automatically equate with successful wetland replacement. What was the compliance rate? The Corps admits its inability to track mitigation required as a condition of nationwide permits. What was the success rate of mitigation performed as a requirement of NWP 26 projects? There is a growing body of scientific evidence that mitigation efforts to date have been largely unsuccessful in providing full functional replacement of natural wetlands.
Due to inadequacies of the Corps data collection system and the lack of information available regarding compliance with mitigation conditions and success of mitigation projects, it is impossible to determine how much mitigation has been achieved to compensate for wetlands destroyed under NWP 26.
CLAIM 3: The proposed changes would shift approximately 60% of the activities now eligible for NWP 26 to the individual permit process. Thus, the Corps' individual permit workload would increase by at least 4,500 permits, each year.
RESPONSE: Haven't we heard this before? Back in 1996 when the Corps reduced the acreage threshold of NWP 26 from 10 acres to 3 acres (a much more drastic reduction) the regulated community and the Corps predicted a huge increase in individual permit applications. The amount of individual permit applications actually went down! Too many factors play into this calculation. So far, no one seems able to make an accurate prediction. The Sunding and Zilberman study doesn't make any attempt to factor in future building trends, interest rates, etc. They simply base their analysis on a survey of 98 individual and nationwide permits (see # 4).
CLAIM 4: The cost to permittees (and therefore their constituents and customers) would be a minimum of $300 million annually.
RESPONSE: This figure was caluculated based on an analysis of 98 permit applications (some individual, some nationwide - they never say how many of which) and surveys of the permit applicants. Nowhere is the methodology for selecting these permits described nor do they indicate who the permit applicants were. Judging from the figures they produced, they were far from "average." The lack of any explanation of methodology for the selection of this data set seems strange for a study by credentialled academics.
CLAIM 5: As the proposed changes are directed primarily at Nationwide Permit No. 26, and NWP 26 authorizes impacts to about 3,000 acres of wetlands each year, the cost per acre affected is about $100,000.
RESPONSE: This figure is based on the same "mystery data set" mentioned above. It also seems to imply that all projects that are now permitted under NWP 26 will have to apply for individual permits in the future. This is certainly false. Many projects will fit under the new 1/2 acre cap, some projects will be built in uplands instead of wetlands.
CLAIM 6: Cost to the Corps would be at least $34 million a year (approximately 30% of the Corps regulatory budget), just to maintain the current permitting pace.
RESPONSE: This figure is justified by the same "mystery data set" that they have used for the rest of their conclusions. And as mentioned above, their predictions of how much individual permit use will increase have been dead wrong in the past.
CLAIM 7: A 1999 survey of public and private permittees indicates that it takes 129 days to process a nationwide permit application from the date of application to the date of decision by the Corps, and it takes 405 days for an individual permit. In addition, pre-application work takes 184 days for an NWP, and 383 days for an individual permit. The study's projections, however, were based on the Corps' published figures for "permit evaluation" time -- 16 days for an NWP, and 127 days for an IP. If the study had been based on the 1999 survey data, the workload and cost implications would be even more significant.
RESPONSE: Again this is based on the survey of the "mystery group" of applicants. The study admits that many times permits are not complete when they are submitted to the Corps, resulting in further delays. Whose fault is this? I am not aware of any studies that have identified what type of information is usually lacking, but from personal experience, I have seen applicants refuse to do any alternatives analysis or offer any mitigation for their projects until pressed by Corps staff. Also ignored is the fact that this preparation time for submitting a permit application is running concurrently with other steps needed to plan and complete a project, ie. arranging financing, buying land, working with architects, planning for power, sewers and water, and getting local permits. Therefore, additional time required to get a permit does not necessarily equate with a delay in project construction.