174 • Wetlands: Their Use and Regulation 



and probably would meet all conditions. However, 

 such an effort could potentially prevent the exten- 

 sive delays and costs associated with the permit pro- 

 cess for large agribusiness operations (9). 



Cumulative Impacts 



Generally, permits are not denied unless substan- 

 tial individual impacts can be shown; the combina- 

 tion or cumulation of minor impacts of many small 

 projects is extremely difficult to evaluate in mak- 

 ing permit decisions. It is difficult to deny a proj- 

 ect for reasons of cumulative impacts alone, espe- 

 cially if it is in an area where similar projects already 

 have been approved. These cumulative impacts are 

 overlooked in many districts. 



No clear nationwide guidance exists on how, 

 where, and when to deny applications, and there 

 is no legal basis for denying permits based on cum- 

 ulative impacts of possible future projects. Most 

 Corps districts try to minimize the impacts of spe- 

 cific projects. The result appears to be an incre- 

 mental conversion of wetlands, without projections 

 of cumulative impacts based on good scientific 

 studies that entail adequate field investigations. 



Decisionmaking Criteria 



Corps regulations state that the unnecessary al- 

 teration or destruction of important wedands should 

 be discouraged as contrary to the public interest.^ 

 The regulations state that no permit will be granted 

 that involves the edteration of important wetlands 

 unless the district engineer concludes that the bene- 

 fits of the proposed alteration outweigh the damage 

 to the wetlands resource. This guidance is consid- 

 ered by some to be inadequate and leads to varia- 

 bility in the degree of protection provided to wet- 

 lands. 



Although the water dependency test (described 

 on p. 2 of ch. 3) is considered to be well imple- 

 mented in tidal wetlands, decisions based on the 

 test are controversial for projects where permits are 

 awarded for nonwater-dependent projects on the 



basis of no practicable alternatives. For example, 

 the New York District recendy granted a permit for 

 townhouses in a wetland area in the Passaic River 

 Basin (3). Under the permit, 8 wetland acres will be 

 converted, whUe 15 manmade wedand acres will be 

 required as compensation. Before this was agreed 

 to, the New York Corps of Engineers required the 

 applicant to study all possible alternative sites of 

 a similar size within 5 miles of the proposed proj- 

 ect. (Alternative sites do not need to be on property 

 owned by the applicant.) For various reasons, the 

 applicant ruled out all alternative sites. The Corps 

 agreed after conducting its own verification proc- 

 ess. The reasons cited were unfavorable zoning, in- 

 ability to market the expensive townhouses, sewer 

 bans, unavailability of the land, and large incre- 

 mental developmental costs. Another district engi- 

 neer could have used a different standard to define 

 what was practicable. Lack of guidance on applying 

 the practicable alternatives test was also noted as 

 a problem when evaluating agricultural conversions 

 of bottom land hardwoods by the New Orleans 

 District. 



In its proposed changes to the existing regula- 

 tions published on May 12, 1983,'' the Corps stated 

 its desire to include property ownership as a factor 

 in its decisionmaking process. As stated in the 

 Federal Register, 



Section 320.4(a)(1): "Considerations of property 

 ownership" would be explicitly expressed as a fac- 

 tor of the public interest. This has always been a 

 basic tenet of Corps policy and has been implicit 

 in previous regulations. The statement that "No 

 permit will be granted unless its issuance is found 

 to be in the public interest," would be changed to 

 "A permit will be granted unless its issuance is 

 found to be contrary to the public interest." The 

 intent of this change is to recognize that within the 

 context of the public interest review, an applicant's 

 proposal is presumed to be acceptable unless dem- 

 onstrated by the Government not to be. 



This provision in essence would shift the burden 

 of proof from the applicant to the Federal Govern- 

 ment. 



'Clean Water Act, sec. 320.4(b)(1). 



^Federal Register, vol. 48, No. 93, op. cit. 



