Posted by:  Randy Turner

The Section 404 and Section 401 regulatory staff in North Carolina deserve a sincere pat on the back. Having been part of the regulated community for over two decades, I can honestly say that the taxpayers are getting good value for their investment. Almost without exception, these men and women are single-minded in their application of regulations that are designed to protect the aquatic resources of the state. I admire them for their commitment and dedication.

I have gotten to know many on the staff at the NCDWQ and the USACOE on a personal level through interactions at meetings, field reviews, countless phone and e-mail exchanges, and the occasional social outings. It didn’t take me long to learn that the culture they operate in is somewhat different from my own. They do not encourage or cultivate strong personal relationships within the regulated community. They cultivate strong and meaningful professional relationships, but they draw the line at fraternizing with the applicant population. That is certainly understandable, but the discipline they exercise and the success they achieve in maintaining a social distance from the applicant is remarkable to witness, as I have over a long period of time. I applaud them for being so scrupulous in avoiding circumstances that would subject them and the regulatory processes to compromising influences. On a personal note, it has been a little frustrating, because I have been close enough to some of these regulators to recognize the kindred spirits we share(d). A number of years back, one of them allowed his guard to drop and accepted an invitation from me to go fishing. We actually used his boat and had a great time, but there was no chance it could happen again. While I was somewhat disappointed, I fully understood what forces were at work.

One other aspect of the regulatory culture is the tendency to discourage and even be disengaging when it comes to informal discussions that deal with regulation and/or guidance. Routine, maybe even spontaneous, or impromptu discussions between regulators and the regulated could be very useful to fostering a better understanding of regulatory processes and mindsets on the part of the applicant community. Regulators might even experience some enlightenment in getting to know what motivates different applicants. The sad fact is, the regulatory culture appears not only to spurn after hours social interaction and development of personal relationships with the regulated community (justifiably so, as pointed out above), but it also seems to foster a lukewarm attitude toward engaging people on my side of the table in broad discussions about regulatory matters. I would surmise that some guidance is in place that discourages such informal discussions because of the potential for misstatements by the regulator(s) that would be present. Any misstatements could result in the propagation of erroneous information throughout the regulated community. Whatever the rules of behavior by the regulatory community, we are losing an opportunity to learn from each other.

If such informal discussion opportunities were encouraged, I can think of numerous topics that could be explored. One topic would be to discuss the distinctions between regulation and guidance, and might there be compelling situations that would allow case-by-case departure from guidance? Are drained silvicultural sites with hydric soils comparable to drained agricultural sites with hydric soils from the view of wetland restoration potential? When is it reasonable to consider stream restoration of a highly unstable, eroding, highly entrenched channel if its riparian buffer zones are healthy? In other words does guidance preclude any possibility of implementing a Priority 1 or 2 restoration design? What about stream guidance that requires the candidate site to exhibit an historical riparian valley before the site is deemed appropriate for stream restoration? The list of discussion topics goes on and on.

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I have recently become excited about the possibility of making a dramatic impact on an entire local watershed via stream restoration/enhancement efforts, but am less than optimistic about its prospects of being embraced by the regulatory and environmental community because of existing predispositions regarding disturbance to the existing buffer vegetation. To the project proponent there is a powerful feeling that if a proposed project does not fit into the mold advocated by current guidance, it is not likely to be approved or advocated by those in the regulatory/environmental community even if the proposal would result in significant improvements to the long-term health of the overall watershed. In my opinion, that is throwing the baby out with the bathwater. If our collective goal is to effect ecologically meaningful mitigation projects, we need to be prepared to step outside our self-imposed boxes to accommodate projects which might not perfectly adhere to the ideal model envisioned by the regulatory and environmental review community. Case-by-case is certainly the way to go.

I cite two examples of projects that could make a significant difference in watershed improvements:

1. A highly degraded stream has been impacted by unrestrained cattle for decades in a pasture setting. Its upstream reaches are also highly degraded with almost vertical and very unstable banks and much incised channels. The upstream portions of the system are fairly well vegetated with vegetation that includes saplings and trees that range from 2” to 5” or 6” caliper trees (the latter size classes being very much in the minority). Any attempt to restore these upstream reaches would require the removal of some of the trees, although substantial numbers could easily be preserved.
2. A hydraulic conveyance, which has been heavily modified by agricultural operations for generations, qualifies as a perennial stream by every legitimate measure, collects surface runoff from nearly 2,000 acres and serves as the headwaters of a major (named) drainage system. The NCDWQ considers it to be a perennial stream for regulatory purposes and would require offsetting compensatory mitigation if impacts were proposed. Since lidar cannot confirm the presence of an historical riparian valley, the existing channel does not qualify as a candidate for stream restoration by the Wilmington District based on existing guidance. This conveyance delivers untold quantities of nutrients and pesticides to a major, named stream/swamp system immediately downstream. A proposed project would restore more than a mile of stream channel and many acres of riparian and non-riparian wetlands, as well as eliminate the agricultural presence in that watershed.

When the regulatory process curtails consideration of worthy projects in order to adhere to the literal reading of guidance, the environment loses. All that is needed is a willingness by the regulatory community to acknowledge there may be compelling circumstances where guidance can be interpreted in the interest of substantial ecological lift.