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24 PROTECTING AMERICA'S WETLANDS; 



AHministratlon Position: Because of the significant adverse environmental consequences 

 that it would allow, the 'Alaska 1% rule" will be withdrawn. The best way to address 

 Alaska-specific concerns regarding the Section 404 program is through targeting the 

 specific areas where questions about program policies or implementation have been raised. 

 Finalizing the proposed 'Alaska 1% nilc' would have far broader and avoidable adverse 

 environmental consequences. 



The EPA and the Corps will, within the next 90 days, initiate meetings with the Federal 

 resource agencies. State and local government agencies, representatives of native villages, 

 industry groups including oil and fishing interests, and enviromnental groups, to consider 

 other environmentally appropriate means to assure regulatory flexibility and the feasibility 

 of alternative permitting procedures in Alaska. 



In addition, the Administration is proposing a number of actions to improve 

 implementation of the Section 404 regulatory program nationwide (e.g., issuing guidance 

 on flexibility in the Section 404{bXl) Guidelines, mitigation banking, mitigation planning, 

 advance p lannin g programmatic general permits; establishing an administrative appeals 

 process; providing for more explicit consideration of wetland functions; and regionalizing 

 Nationwide Permit number 26. See earlier discussion for details). These actions, in 

 combination with any Alaska-specific proposals developed as a result of the process 

 outlined above, should contribute significantly to addressing Alaska's concerns with 

 implementation of the Scaion 404 regulatory program. 



L. TAKINGS 



Issue Definition: >Some critics of the Section 404 regulatory program have asserted that Federal 

 efforts to protea wetlands constitute a 'taking" of private property and require compensation 

 under the Fifth Amendment of the Constitution. Critics of the program have proposed legislation 

 that would characterize permit denial decisions, and other Section 404 regulatory actions, as 

 "takings' requiring compensation. 



Admini<:t ration Position: The Administration strongly supports private property rights. 

 The equitable administration of any Federal regulatory program involves more than stria 

 technical considerations and must include sensitivity to the rights and expectations of 

 citizens. Implementation of the Seaion 404 program often requires a balancing of 

 environmental protection, public interests, and individual interests. 



I 

 Many activities undertaken on wetlands either are not regulated at all, are explicitly 

 exempted from regulation, or are authorized by general permits. In situations where 

 individual permits are required, the Federal agencie$ can woric with permit applicants to 

 design projects that meet the requirements of the law and protea the environment and 

 public safety, while proteaing the property rights of the applicant. 

 However, in rare instances the public interest in conserving wetlands may substantially 

 interfere with the rights of landowners. In such instances, Federal aaion will be based 



