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Tuesday, Sep 26, 2023

COMMENTARY — Federal Environmental Rules: Worst Still to Come

Now that the votes are counted and the heated rhetoric of the recent election is behind us, the topic of taxes still tops each businessperson’s list of priorities for the general election this fall.

The ever-increasing pressure that federal, state and local taxes places on the bottom line is a reality of doing business. It takes a virtual host of in-house and outside accountants, tax attorneys and other expert consultants to understand and stay on top of our tax burden.

However, there’s another insidious demon stalking local businesses and government agencies that often escapes public notice. This ominous barrier to reasonable, planned development is the environmental regulatory process, particularly involving certain agencies of the federal government. Major culprits often include the Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the U.S. Army Corps of Engineers.

In addition to the private sector, local government agencies and special districts are among those most likely to be affected by this often unexpected facet of government regulation and red tape. Schools, roads and water facilities are delayed, revised and even prohibited by this stringent process of review by federal environmental agencies.

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Let’s use the Army Corps of Engineers as a case in point. An important arm of our armed forces, the Corps is best known for expertly designing and building dams, flood control, and military facilities throughout the world.

It has earned a well-deserved reputation as a “can-do” agency that is terrific at building something from nothing in some of the most remote realms of the planet. But the mission of the Corps has been expanded to include responsibility for regulating and enforcing the federal Clean Water Act, particularly the issuance of development permits under Section 404 of the act, which regulates the nation’s wetlands and waterways.

Getting a 404 permit has become a real horror story, usually entailing numerous consultations, environmental studies, lengthy review and public notices through the regulatory division of the Corps. In contrast to the “bond it and build it” reputation of the Corps’ military personnel, activist biologists and other environmental bureaucrats typically staff the regulatory offices. Many of these self-anointed guardians of the status quo have a jaundiced view of the interests of the proponents of new projects.

Given their ideological agenda, these lower-level application examiners often hold permit applications hostage, turning a process that is supposed to take 60 to 90 days into a trial by ordeal that lasts a year or more.

Their wide discretion over interpreting the intent of the Clean Water Act often leads them to change the rules mid-course, raising the bar again and again during a permit application review.

Sadly, what was already bad promises to become much worse. The Corps recently announced a revised “Nationwide 26” permit program, imposing even more stringent restrictions and guidelines than ever before.

Nationwide permits have up until now been widely utilized to obtain expedited Corps approval for projects with small or otherwise insignificant impact on wetlands or the nation’s waterways. When these drastic revisions become effective in June, construction that would affect as little as one-tenth of an acre of wetlands , a mere 4,000 square feet , will require complete review and consultation with Corps regulators.

Individual 404 permits will be required for all projects impacting more than one-half of an acre of wetlands. This will not only create a huge workload increase for the regulators, but also force many business owners and local government agencies into the nightmarish application process for the first time.

An inevitable result for all project applicants, whether in the public or private sector, will be more delay, more expense, and even more frustration.

Sympathetic members of Congress, when specifically called upon, are often able to transcend the hierarchy of the federal environmental labyrinth to speed up the process of getting project permits.

At a minimum, the appropriate legislator can keep an application from literally becoming lost in the mounds of paperwork gathering dust on a bureaucrat’s desk.

Returning to those election year promises, it will be ironic if all that campaign bluster about forcing developers to alleviate traffic and build new schools turns out to be in vain because they have been stonewalled by the federal regulatory process.

Let’s hope both our elected officials, as well as those who sit behind those agency desks, will embrace a desire to work with, rather than against, those who want to provide much needed infrastructure and development.

Consistent with the interest we all have in protecting the environment, it doesn’t have to be one versus the other.

Polese, a regulatory and legislative adviser for local business and government agencies, works in the North County office of the Washington, D.C.-based government relations firm of Dawson & Associates, Inc.


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