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Wetlands and Home Builders

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This presentation highlights some of the context behind the contentious debate between environmentalists and U.S. builder/developer interests over the issue of "wetlands". The issue has undertones …

This presentation highlights some of the context behind the contentious debate between environmentalists and U.S. builder/developer interests over the issue of "wetlands". The issue has undertones that reveal the tension between pro-growth and slow- or no-growth advocates. It also reveals some of the machinations of the policy process, especially the use of agency power and the court system to bypass the legislative process. The material from which this presentation is based comes from the excellent book, "Housing in the Twenty-First Century: Achieving Common Ground", written by Kent Colton.

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  • 1. HACE 4310/6310 HOUSING POLICY Achieving Common Ground Within the Housing Industry: Wetlands
  • 2. WETLANDS – A BRIEF HISTORY    Used To Be Portrayed As “Swamps” Recognition of Biological Importance of Wetlands Conflict Between Our Preservation and That of Other Creatures
  • 3. WETLANDS DEFINED      Range from permanently frozen Arctic tundra to deep-water Southern swamps “Areas saturated with surface or ground water at a long enough duration to support prevalence of important vegetation” More than 97% of wetlands are freshwater Comprise 6-9% of surface area of the “lower 48” Can include land that is dry for all but 7 days of the year
  • 4. CONTEXT THROUGH WHICH “WETLANDS” DEBATE IS FORMED     Environmental embarrassments of the 1970s Two competing bureaucracies involved Expansion of the term “wetland” Vast array of interest groups involved in the debate
  • 5. WETLANDS - IMPLICATIONS FOR HOUSING     Landowners restricted as to what they can do on land dominated by a wetland. Be careful what you create! Man-made lakes are fair game. Confusion over the fact that “uplands” can change to wetlands over a period of time Different definitions per agency as to what constitutes a “wetland”
  • 6. SECTION 404 PERMITTING      Characterized as “lengthy, costly, and complicated” Average time going through the process successfully = 127 days Average time going through the process unsuccessfully = sometimes over a year A majority of 404 permit applications are either denied or withdrawn This puts builders in a financial hole right from the start, particularly crippling smaller builders
  • 7. THE RISE OF NWP’s      Offered as a way of addressing only the most troublesome ecological problems Minimum acreage requirements fell from 10 to 3 to ½ acre Environmentalists claimed that the Corps was allowing “more than minimal impacts on the environment”. NAHB and Corps of Engineers were codefendants but eventually haggled bitterly Congress reluctant to enter the fray
  • 8. DELINEATION MANUALS      Many parties/agencies interested in creating a manual to help determine, “What are wetlands?” Basic agreement that there were three components of wetlands: hydrology, soils, and vegetation Commonly held obstacle was the water in the soil Corps definition was most conservative; NRCS/EPA somewhat liberal; FWS the most liberal Ultimately, still no resolution on which was the proper standard/manual to be used for compliance.
  • 9. APPEALS PROCESS      Concerned builders wanted this option as a form of recourse in the event that permit is denied Avoided costly judicial process Approved by Congress in 1999 Never enjoyed by the environmentalists In the end, considered a faulty system that polarized all parties involved
  • 10. ACTORS INVOLVED IN THE WETLANDS SAGA  Reagan  hampered by environmentalists  George Bush (Sr.)  adopted the “no net loss” policy; expanded research on wetlands trends  Clinton  changed the culture of the Corps of Engineers  U.S. Army Corps of Engineers  Environmental Protection Agency  Fish & Wildlife Service/Nat’l. Marine Fisheries Service  Congress  Courts  Trade Associations  Environmental Groups
  • 11. WETLANDS MITIGATION BANKING      Builder pays organization to create wetlands in another area Techniques include removing debris from an area so water can flow easily Environmentalists and opposition to manmade wetlands Quality of wetlands impacts the price involved with restoring wetlands More success in Florida than Northeast
  • 12. THE CURIOUS “TULLOCH RULE” CASE       Flash point of this case was in North Carolina Deals with Section 404 of the Clean Water Act Builders/developers contended that excavation of wetlands did not amount to “filling” of a wetland Wildlife Federation sued the Corps for allowing this activity, and ultimately won the day Through suits brought forth by multiple development interests, decision was reversed Agencies involved sought to ignore the ruling
  • 13. CHALLENGES TO WETLANDS: WHY DID EFFORTS TO ACHIEVE COMMON GROUND FAIL?      No clear definition for “wetland” Ongoing struggles between Corps and EPA Parties liked to use court system No evidence of “honest broker” coming to mediate Two main parties do not have a lot in common
  • 14. GENERAL PRINCIPLES FOR ACHIEVING COMMON GROUND        Use time and powers of persuasion well Have an honest broker at the ready Keep the rhetoric low Create incentives Understand market realities over the long term Understand the people involved Remember that you can make a tough stand, but leave enough wiggle room for compromise

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