The USACE and EPA are in the process of developing some reasonable, rule of thumb concept of a normal hydrologic condition, which would serve to help identify wetlands and waters that are "connected" and part of the interstate tributary system of waters, and which wetland waters are isolated.
This should not take a Rhodes Scholar to figure out — unless they have problems understanding the difference between "large, navigable waters" and "isolated ponds and bayous." Where are the Lewis and Clark Expedition when you need them? Be assured USACE and EPA will take as long as possible to interpret every single word of the ruling. Bureaucrats hate to give up their jurisdictional power.
However, to show that the USACE can move quickly, within three weeks after the Supreme Court ruling was issued, the City of Houston Airport System got its 120-plus acres of wetlands (which is quite isolated from any large, navigable waters) reduced to 12.9 acres of wetlands liability. Like magic, a Section 404(A) permit of the Clean Water Act was issued by USACE allowing IAH to go on with construction of a new runway, cargo facilities, etc., something that had been held up for over a year. Others are not so lucky. A lot of permits and related regulatory decisions remain on hold.
Case in point: The USACE – Galveston District has over 300 permit actions ongoing. All the permitees need an answer sooner rather than later, while others just want the permits they have seen revoked, to get government intrusion off their land and out of their projects. Recently the Galveston District issued policy memorandum #01-001, which included three criteria to be used for adjacency and isolated determination:
1) Physical proximity of water/wetland to navigable water or a surface tributary system.
2) Hydrological connections, such as whether or not the wetland/water is part of a "surface tributary system."
3) And, the two-barrier rule. Defined: When at least two natural or man-made upland barriers or berms separate a wetland/water from other waters of the U.S., it is isolated ... even within flood plain situations." A man-made road or levee that is culverted to allow flow between areas is not considered a barrier.
HELP ON THE WAY
So what does all this mean to airports that have had to preserve wetlands and deal with mitigations issues? It means help is on the way in several different ways:
• The ruling, if implied as intended, can remove existing isolated wetlands much more easily, and therefore it will be easier to protect the flying public.
• The ruling will allow airports a more economic way to expand and develop. It will remove the cost and process that can discourage a project.
• Best of all, the ruling can remove a major card, which is often used by opponents: That is, the opposition can no longer use this avenue to "game the system" and try to discourage a project.
The most significant impact of the ruling is that airports with isolated wetlands no longer have to maintain or leave these wetlands alone solely for migrating birds.
There is this unsolved mystery out there: If the Federal Aviation Admin-istration is encouraging safe air travel, why do other government agencies choke these efforts with almost nonsensical environmental regulations that encourage migratory birds? There is little consistency of reason.
Often a group of well-meaning people, who do not want a project in their area, will proceed to leverage the environmental regulations in some very creative ways to kill the project. While these concerns are often overblown, the administrative system requires a good many hoops to be jumped through before a project can move forward. This is called due process. Airport managers call this "project delay."
Now, due process is not all bad. It assures some safeguards that we all support. However, some agencies have forgotten the overall goal. Opponents can use a well-intentioned government program for a cynical end that has little to do with the environment.
Airport managers throughout the country should commend the U.S. Supreme Court decision. It is an all too infrequent occasion that we have some sanity restored. There is little question that the Clean Water Act was not intended to have such a broad regulatory brush. The connection between migratory fowl and isolated wetlands, many of which are man-made and not national treasures, is far-reaching.
The Court, with this ruling, is encouraging those interested in airport expansion or development to take advantage of this opportunity. Over the next few months and perhaps years, the USACE and EPA will follow the ruling, but be assured they are already in the process of thinking of ways to turn up the heat on the regulatory boiler.
About the Authors
Vesta Rea-Gaubert is the President of Vesta Rea & Associates, L.L.C.
in Houston. The firm is a national transportation/aviation public relations
and governmental affairs company. Vesta is a published journalist in over
one hundred publications writing on topics ranging from airport issues
to adventure travel. She is also publisher of an off-beat quarterly newsletter
entitled, "Vesta’s Market Edge".
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