Wetlands regulation under the Clean Water Act has never been free of controversy. But two recent actionsone widely commented on and the other virtually UMOted-will make it more difficult for any company seeking to construct pipelines or other facilities in areas that may be classified as wetlands.
The Environmental Protection Agency and the Anny Corps of Engineers have entered into a memorandum of agreement (MOA) describing the mitigation requirements that will be imposed on any wetlands development. EPA and the Corps, joined by the Fish and Wildlife Service and the Soil Conservation Sewice, have agreed to a single, consistent approach for identifying and delineating wetlands.
. . .calculated to emwe u more teguhrized andsequential evaluation ofthe best means for mitigating the effects of wetlands development.
Each of these actions is described by agency policymakers in Washington as merely a formal articulation of long-standing practice. Those out in the field, however, who administer the wetlands program and decide which projects will receive the necessary Section 404 permits' see these recent policy statements as a significant tightening of standards and an expansion of wetlands jurisdiction.
Memorandum Establishes Hierarchy
EPA and the Corps first entered into the MOA on November 15, 1989, in order to pmvide guidance on the mitigation requirements applicable when seeking a pennit to discharge dredged or fill material in any wetlands. There was an immediate outcry of protest because the MOA appeared to preclude any development in areas with a high proportion of wetlands-including the Alaskan North Slope-where the mitigation requirements arguably could not be satisfied. The MOA was promptly withdrawn for a period of additional consultation and interagency comment Mary Anne Suuimn is a putner and Brendrr Boykin K an associate at the Washington, DC,of Hogan & Hartson.