Swamped by wetland regulations.

• Author: Richardson, Jeffrey
• Position: Strict swampland laws retards business improvements - Includes related article - Industry Overview

Stringent wetland regulations, created to save vital swamps, are bogging down business.

An elderly Fairbanks couple, eager to accommodate visiting grandchildren, have a load of sand delivered to their yard for a sand box. For expediency, they decide to skip the box; it's all the same to the kids. But it isn't all the same to the U.S. Army Corps of Engineers. The agency charges the couple with illegally filling a wetland and slaps them with thousands of dollars in daily fines.

On Kodiak Island, a subdivision developer wins kudos from the corps for responsibly platting 37 home lots on land covered with wetlands and ponds and bisected by a creek. Together, in a picture of perfect harmony, the developer and the agency praise the economic and environmental integrity of the project and toast their cooperation.

These night-and-day scenarios arise from the same regulatory process now in place around the nation for protecting what was previously one of our most maligned and plentiful landscapes: wetlands. Once considered wastelands, these boggy areas are now known to have a wide variety of ecological and economic values.

Unfortunately, the term wetlands recently has come to be associated with some of the worst regulatory horror stories circulating in communities and business circles, both in Alaska and Outside. Even regulators admit it's a mess.

"It's very complex. You can't summarize it well and get all the little details that people have to comply with," says Pat Richardson, a Corps of Engineers spokesperson in Anchorage.

"It is a cumbersome process," admits Don Kohler, a regulation expert with the corps. He says the agency has been struggling to keep up with requests for wetlands use since 1987, when it was inundated with applications by placer miners in reaction to new regulations. "We've got a large backlog, about 400, and we haven't dug out of that yet," Kohler says.

The national wetlands management program is similar in many ways to the administration of regulations for dealing with hazardous waste: Rules and procedures frequently change; they are complex, often requiring the retention of consultants to ensure compliance; beyond having to hire experts, compliance can be costly. Further, wetlands management, also like hazardous waste policies, has arisen from serious and legitimate environmental problems. And though they may change, they are here to stay.

While the term wetlands means different things to different people, the definition that counts is the one applied by the agencies which regulate them. The official definition is being reviewed, again.

For the sake of general discussion, consider a wetland to be land showing evidence of periodic saturation or containing plants, such as cattails, that are usually associated with wetlands. Under the proposed changes, a parcel of land earns the wetland moniker if it is saturated with water for 21 consecutive days of the growing season.

While scientists, politicians, farmers, city planners and many others debate the outer limit of wetland definition, science has clearly established that many types of wetlands are important for maintaining a healthy, functional environment for humans as well as other creatures. Among the most important functions of wetland areas are the filtering of pollutants washed from upland areas, intercepting flood waters, recharging ground-water supplies and providing critical wildlife habitat.

While Alaska boasts 170 million acres of wetlands of various types and functions, many types are not widely represented. The National Wildlife Federation contends that the state's 345,000 acres of coastal salt-marsh, relatively scarce compared to the state's total wetlands, are particularly at risk because they are situated in areas where human activities are concentrated.

This has created difficult straits for communities seeking to encourage private development or to expand public facilities. Kenai, Juneau, the Bristol Bay Borough, the Kodiak Island Borough and a number of other municipalities either have encountered problems complying with wetlands rules or have joined the fight to limit agency controls in anticipation of difficulties.

Legal Framework. Rules governing use of wetlands haven't been around all that long. Although the Corps of Engineers has regulated activities in the nation's waters since 1890, these efforts were directed chiefly at protecting...