Bersani v. EPA: Toward a Plausible Interpretation of the 404(b)(1) Guidelines for Evaluating Permit Applications for Wetland Development BERSANI v. EPA (BERSANI v. ROBICHAUD), 850 F.2d 36 (2d Cir. 1988), cert. denied, 109 S. Ct. 1556 (1989). I. INTRODUCTION The rapid destruction of the wetland wealth of the United States that began with European settlement continues unabated,' despite the enactment of federal law2 to prevent it. Critics have attributed the wetland protection law's ineffectiveness variously to bad drafting,3 to the choice of the Army Corps of Engineers 1. Until the 1950's there appears to have been little awareness of the costs of draining and filling swamp and marsh areas. Such areas were seen as "wastelands, sources of mos- quitos and impediments to development and travel." SeeJ. Kusler, OUR NATIONAL WET- LAND HERITAGE 1 (1983). In a report on wetlands published in 1956, the U.S. Fish and Wildlife Service reported that nearly forty percent of the nation's wetlands had already been destroyed. U.S. FISH AND WILDLIFE SERVICE, WETLANDS OF THE UNITED STATES 39 (1956). Since that time wetlands have been disappearing at an annual rate of approxi- mately 458,000 acres in the lower 48 states. U.S. FISH AND WILDLIFE SERVICE, WETLANDS OF THE UNITED STATES: CURRENT STATUS AND RECENT TRENDS 31 (1984). By 1984, fifty- four percent of the original wetland area of the United States had been lost. See OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, WETLANDS: THEIR USE AND REGULATION 87 (1984). See also NATIONAL WILDLIFE FEDERATION, STATUS REPORT ON OUR NATION'S WET- LANDS (1987); U.S. FISH AND WILDLIFE SERVICE, AMERICA'S ENDANGERED WETLANDS (1984); COUNCIL ON ENVIRONMENTAL QUALITY, OUR NATION'S WETLANDS: AN INTERAGENCY TASK FORCE (1978). 2. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33 U.S.C.A. §§ 1251-1387 (West 1986 & Supp. 1989)) (also called the Clean Water Act); National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, 4361-4370 (1982 & Supp. V 1987). 3. See, e.g., Steinberg & Dowd, Economic Considerations in the Section 404 Wetland Permit Process, 7 VA.J. OF NAT. RESOURCES L. 277, 277, 303 (1988) (describing factors that regula- tors must take into account in evaluating permits for wetland development as "highly am- biguous" and noting that "[iut is unclear as a practical matter ... exactly how [these] factors ought to be determined, weighed and evaluated"); Ray, Section 404 of the Clean Water Act: An EPA Perspective, 2 NAT. RESOURCES & ENV'T 20, 20 (1987) (calling the wetland regu- lations "the most arcane" regulatory program in the water area). 100 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 (the "Corps") as the chief enforcer of the law, 4 and to incentives created by other federal laws that counteract those the wetland law sought to establish. 5 Numerous proposals to reform wetland law have been sug- gested. 6 Yet considering the pace at which major substantive amendments have been enacted and new regulations promul- gated in the water pollution control area, 7 the remaining wetlands might have a better chance of being protected if the current law could instead be salvaged, and simply reinterpreted in a manner that would make it effective. Thus, any application of the law that results in protection of a wetland area should be scrutinized to determine whether it involves a meaningful reinterpretation. 4. See, e.g., Nagle, Wetlands Protection and the Neglected Child of the Clean Water Act: A Proposal for Shared Custody of Section 404, 5 VA. J. OF NAT. RESOURCES L. 227, 245-46 (1985). 5. See Tripp & Herz, Wetland Preservation and Restoration: Changing Federal Priorities, 7 VA.J. OF NAT. RESOURCES L. 221, 222, 251-56 (1988); Nagle, supra note 4, at 256-57. 6. See Tripp & Herz, supra note 5, at 223 (suggesting the creation of " 'market' incen- tives to forego speculative investments in wetlands," among other reforms); Steinberg & Dowd, supra note 3, at 303-5 (suggesting revision of the wetland regulations to clarify the permit evaluation process); Parish & Morgan, History, Practice and Emerging Problems of Wet- land Regulation: Reconsidering Section 404 of the Clean Water Act, 17 LAND AND WATER L. REV. 43, 77-84 (1982); Nagle, supra note 4, at 248-57 (making a number of proposals including legislative action to remove some of the jurisdictional limitations on section 404, more active involvement of EPA, and identification and ranking of wetlands). 7. Major substantive amendment of the Federal Water Pollution Control Act (Clean Water Act) occurred as recently as 1987, with the Water Quality Act, Pub. L. No. 100-4, 101 Stat. 7 (1987) (to be codified at 33 U.S.C. §§ 1251-1387). Previous to the Water Qual- ity Act, the most recent major amendment occurred in 1977. Thus, it is conceivable that major reforms would have to wait another decade. Furthermore, the promulgation of regulations to implement the Act moves at a very slow pace. The 1972 Act included a one year deadline for issuance of effluent limitation guidelines for major polluters. In NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974), EPA was ordered to issue guidelines for twenty-seven industries. Years later there were still no final guidelines for a number of these industries, including such major ones as iron and steel, see, e.g., Bethlehem Steel Corp. v. Train, 544 F.2d 657, 658-659 (3d Cir. 1976), cert. denied, 430 U.S. 975 (1977); pulp and paper, see, e.g., State of Washington v. EPA, 673 F.2d 583, 588 (9th Cir. 1978); and placer mining, see, e.g., Trustees for Alaska v. EPA, 749 F.2d 549, 558-59 (9th Cir. 1984). Comprehensive guidelines under section 208(a) governing state waste treatment management activities, which lie at the very core of the legislation, had not been issued by 1977. See NRDC v. Train, 564 F.2d 573 (D.C. Cir. 1977). In 1987 there were approximately 95 million acres of wetlands left in the continental United States. See supra note 1, U.S. FISH AND WILDLIFE SERVICE, WETLANDS OF THE UNITED STATES, at 29. That number will be reduced by more than half if reform of the law and promulgation of new, effective regulations occurs in ten years and wetlands continue to be destroyed at the current rate. See supra note 1. Bersani v. EPA One recent case, heralded as a victory for the environment,8 is Bersani v. EPA, a Second Circuit decision that spared from devel- opment a red maple swamp in Massachussetts well-known for its beauty. 9 Bersant involved the Environmental Protection Agency's ("EPA") veto of a permit to fill a wetland area on the ground that an alternative was available when the developer entered the mar- ket for a site.' 0 The Second Circuit held that EPA's decision was based on a reasonable interpretation of regulations promulgated pursuant to section 404, the part of the Clean Water Act gov- erning wetland development."' EPA rejected the developer's claim that the relevant time for consideration of whether alterna- tive sites were available to him was when he applied for a permit rather than when he entered the market in search of a site. 12 This comment asks whether EPA's market entry theory, upheld in Bersani, correctly interprets section 404, the part of the Clean Water Act regulating development of wetlands.' 3 It concludes that the market entry theory is illusory because it is irrelevant whether the availability of alternatives is viewed from a market entry or a time-of-application perspective. Yet this comment also finds that Bersani moves closer to a plausible interpretation of the wetland permit regulations than did preceding cases. The so-called "timing issue" is a product of the notoriously loose definition of availiability.' 4 Fleshing out the terms of this definition requires interpretation of section 404 and of the regu- lations as a whole. Part II identifies conflicting interpretations of the wetland regulations in general. Part III compares these inter- pretations by examining the purposes of section 404 and of the regulations. Part IV critiques the market entry theory of Bersani. 8. See Sierra Club Legal Defense Fund, Quarterly Newsletter on Environmental Law, Autumn 1988, at 4, col. i. 9. 850 F.2d at 40. 10. Id. at 38. 11. 40 C.F.R. pt. 230 (1988). For an overview of the controversies surrounding section 404 and its development, see Blumm, The Clean Water Act's Section 404 Permit Program Enters its Adolescence: An Institutional and Programmatic Perspective, 8 ECOLOGY L. Q. 409 (1980). See also Want, Federal Wetlands Law: The Cases and the Problems, 8 HARV. ENV-rL. L. REV. 2 (1984). 12. 850 F.2d at 41. 13. 33 U.S.C.A. § 1344 (West 1986 & Supp. 1989). 14. See, e.g., Tripp & Herz, supra note 5, at 226; Steinberg & Dowd, supra note 3, at 277, 281. 1990] 102 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 II. APPROACHES TO THE 404(b)(1) GUIDELINES A. The Timing Issue in Context Section 404 of the Clean Water Act governs the development of wetland areas. It places responsiblity for implementation on both the Corps and the EPA. As part of its share of this responsi- bility, EPA promulgated regulations, called the 404(b)(1) Guide- lines (the "Guidelines"), which the Corps must follow in considering applications for permits to fill wetland areas. 15 Bersani involves a provision of the Guidelines requiring that in the case of proposed non-water-dependent development "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less ad- verse impact on the aquatic ecosystem.... A practicable alternative is defined as one that is "available and capable of being done after taking into consideration cost, ex- isting technology, and logistics in light of overall project pur- poses."' 17 The Guidelines state that a practicable alternative is presumed to be available unless the applicant shows otherwise. 8 Bersani was distinguished from prior cases involving wetland permit determinations on the ground that the particular issue - that of how timing should affect a decision on availability of an alternative site - was one of first impression.' 9 The court argued that Bersani was unique in that a practicable alternative existed when the developer entered the market for a site but had "evapo- rated" at the time of application for a permit. 20 The conflict over when availability should be determined re- sults from the looseness of the definition of availability in the Guidelines. 2 ' An alternative is available if it is "capable of being 15. 40 C.F.R. pt. 230 (1988). Section 404(b)(1), 33 U.S.C. § 1344(b) (Supp. V 1987), authorizes the Secretary of the Army to specify disposal sites "through the application of guidelines developed by the Administrator" of the EPA "in conjunction with" the Corps. In addition, a permit to fill a wetland often requires an Environmental Impact Statement under the National Environmental Policy Act. See 42 U.S.C. § 4332(2)(c) (Supp. V 1987). See, e.g., Friends of the Earth v. Hall, 693 F. Supp. 904 (W.D. Wash. 1988). 16. 40 C.F.R. § 2 30.10(a) (1988). This restriction applies only on condition that the alternative "does not have other sig- nificant adverse environmental consequences. Id. 17. Id. 18. 40 C.F.R. § 230.10(a)(3) (1988). 19. 850 F.2d at 44. 20. Id. at 43. 21. See supra note 14. Bersani v. EPA done after taking into consideration cost, existing technology, and logistics in light of overall project purposes" and it could "reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity." 22 This defini- tion gives no indication of how the crucial factors of cost and pro- ject purposes should be taken into account in reaching a decision on availability. There are many clues in the Guidelines as to how this definition should be fleshed out. Proper interpretation of these clues de- pends, in turn, on interpreting the balance struck in section 404 and the Guidelines between the developer's interests and the in- terests of society in preserving wetland values. How these con- flicting interests should be balanced is the fundamental issue in all cases involving wetland permit determinations. After ascertaining what balance of these interests was incorpo- rated in the Act and the Guidelines, the task of fleshing out the definition of availability can be approached by stages. The bal- ance of interests determines the role played by the analysis of al- ternatives' practicability ("alternatives analysis"), including the question of availability, in the permit evaluation scheme estab- lished by the Guidelines. The role of the alternatives analysis in this scheme then determines how the definition of availability should be understood. In reaching its decision on the Bersani permit application, the Corps took the view that availability should be determined at the time of application. 23 This position is grounded in the particular approach the Corps takes toward weighing the conflicting private and social interests involved in wetland development in the per- mit consideration process. Cases invloving permit decisions show that the Corps treats the alternatives provision of the Guidelines as the key element of the permit determination process. 24 In addition, the Corps interprets the Guidelines as requiring that alternatives are not "practicable" 22. 40 C.F.R. § 230.10(a)(2) (1988). 23. 850 F.2d at 42. 24. See Bersani, 850 F.2d at 41-43; Friends of the Earth v. Hintz, 800 F.2d 822, 828-36 (9th Cir. 1986); Lousiana Wildlife Federation v. York, 761 F.2d 1044, 1046-48 (5th Cir. 1985); Friends of the Earth v. Hall, 693 F. Supp. 904, 945-48 (W.D. Wash. 1988); National Audubon Society v. Hartz Mountain Development Corp., 14 Envtl. L. Rep. (Envtl. L. Inst.) 20724, 20730-31 (D.N.J. 1983); Hough v. Marsh, 557 F. Supp. 74, 80-86 (D. Mass. 1982). See also Tripp & Herz, supra note 5, at 241 ("the heart of Corps permit review under the guidelines has been the 'alternatives test' "). 1990] 104 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 if they entail any substantial loss of prospective profits to the ap- plicant-developer. 25 The substantiality of the loss of prospective profits is judged in absolute terms, not relative to the prospective loss to society from the damage to the wetland that would result from the development. 26 If no practicable alternative is found to exist, the Corps inevitably determines that denial of the permit would impose excessive costs on the applicant. 2 7 25. See Hintz, 800 F.2d at 833 (Corps found that "no practicable alternative site loca- tions exist which would satisfy [the developer's] logistical needs and are not prohibitively expensive"); Hough, 557 F. Supp. at 83 (Corps rejected a suggested alternative site "be- cause acquiring it would subject the defendants to 'extraordinary expense' "). 26. See Hartz Mountain, 14-Envtl. L. Rep. at 20724 (D.N.J. 1983). Hartz Mountain involved a suit by a national environmental organization claiming that the developer had failed to rebut the presumption that alternatives to the proposed wetland site were available for the developer's non-water-dependent project. Id. The Corps had rejected a number of proposed alternatives on the ground that they were not "cost effective." Id. at 20731. One involved breaking the applicant's project, which included office buildings, warehouses, and retail stores, into separate parts that could be located on several upland sites. Another alternative was found to provide less access to highways, and thus less business, than would be achievable at the wetland site. Reducing the size of the project to lessen impact on the wetland area was similarly rejected because "the project would no longer be viable from a marketing and economic standpoint." In rejecting proposed alternatives because they are not "cost-effective" or because they are not viable from an "economic standpoint," the Corps is addressing the requirement of the alternatives analysis that "costs" be considered in determining whether or not a pro- posed alternative is practicable. See 40 C.F.R. § 230.10(a)(2) (1988) ("An alternative is practicable and capable of being done after taking into consideration cost, existing tech- nology, and logistics in light of overall project purposes."). However, the Corps does not clarify its standard for cost-effectiveness. Would reduction in the size of the project have reduced prospective profits below normal profits? Or would prospective profits have been substantially diminished but still maintained at an above-normal level? In addition, since the Corps focuses its permit evaluation process on the alternatives analysis provision of the Guidelines, a meaningful approach to consideration of "costs" would have to compare the loss of prospective profits to the gain in preserved wetland values that would have resulted from reducing the size of the project. Yet the Corps took only the loss of prospective profits into account in rejecting alternatives as not being cost- effective. A developer-applicant thus evidently has only to show that proposed alternatives would entail a substantial absolute loss of profits for the Corps to reject those alternatives as not being practicable on "cost" grounds. 27. See, e.g., Hough, 557 F. Supp. at 83 (D. Mass 1982). The Corps is not required to reach this conclusion by the Guidelines. The alternatives analysis outlined in the Guidelines is not symmetrical. Though a permit must be denied if a practicable alternative exists, there is no requirement that a permit be granted if no alternative exists. See 40 C.F.R. § 230.10 (1988). However, the Corps has also promulgated its own set of guidelines for review of permit applications, codified at 33 C.F.R. §§ 320.1-320.4, 323.1-323.6, 325.1-325.10, 326.1- 326.5, 327.1-327.11, 328.1-328.5"(1988), and these regulations could be seen to make the analysis symmetrical in that they require that a permit "be granted unless its issuance is found to be contrary to the public interest." See 33 C.F.R. § 320.4(b) (1988). Bersani v. EPA B. Three Approaches to the Conflict of Interests The Corps' approach to the balance embodied in the Guide- lines between the developer's interests and the social interests in wetland values can be described as a private interest approach. This approach is characterized by three elements: treatment of the alternatives analysis as the central provision of the Guidelines, characterization of alternatives as practicable or not practicable based on the absolute size of the loss of prospective profits en- tailed by the alternative, and approval of a permit to develop when no practicable alternative is deemed to exist. In the approach to the Guidelines taken by the Corps, the de- veloper's interests - the private party interests - are weighted more heavily than the social interests implicated in decisions on whether to allow a wetland to be developed. There are two other ways in which these conflicting interests can be balanced, both involving rejection of the three elements of the Corps' approach. A position opposite to the Corps' weights society's interests more heavily than the private interest involved in the permit decision. This could be called a social interest approach. It is the approach usually taken implicitly by environmental groups in challenges to Corps decisions. The third position is a mediate approach in which both interests are weighted equally. A social interest approach focuses on the provision of the Guidelines specifying that filling of wetlands is prohibited unless the developer can show that the fill will not have an "unaccept- able adverse impact" on the wetland ecosystem. 28 "Unaccept- able" is not defined in the Guidelines, but filling a substantial part of a healthy wetland or damaging or destroying a significant number of its uses would arguably have to be considered an "un- acceptable adverse impact." In a social interest approach, permits to fill wetlands would be rejected, without consideration of other factors, when the devel- opment proposed for the wetland site requires fill that would sub- stantially impact the wetland. Thus, the threshold consideration in the permit application process would be the degree of impact on the site and the existence of alternative sites for the proposed project would become important only if this threshold test were passed. 28. 40 C.F.R. § 230.1(c) (1988). 1990] 106 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 A mediate position on the balancing of interests interprets the Guidelines as outlining a social cost-benefit analysis. This ap- proach would focus on both the unacceptable adverse impacts provision and the alternatives analysis provision of the Guide- lines. The adverse impacts provision would not be viewed as a threshold inquiry as in a social interest approach. Nor would the alternatives analysis be given the determinative role it has in the Corps' private cost-benefit analysis. Instead, a mediate approach would incorporate these provisions into a cost-benefit analysis to reach a socially efficient level of wetland development, taking the negative externalities 29 resulting from the polluting byproduct of development into account °3 0 The condition for efficiency would be that a permit for filling the wetland should be granted when the sum of all the negative externalities that would result from development is less than the benefit to the developer of develop- ing the wetland as opposed to an alternative upland site.3 ' 29. An externality results when the production or consumption of a commodity pro- duces costs or benefits which are not reflected in the price of that commodity. Wetland development produces negative production externalities in that the cost of the project to the developer does not include the costs to society of damage or destruction of the wet- land site. 30. See, e.g., Ray, supra note 3, at 51 (noting that "wetlands have certain values which are not present in other real estate .. .[that are] more social or public than private... [and] are not reflected in the marketplace"); J. Kusler, supra note 1, at 1-8; Blumm, Wetlands Preservation, Fish and Wildlife Protection, and 404 Regulation: A Response, LAND AND WATER L. REV. 469, 474-76 (1983). 31. Many commentators on wetland regulation discuss the importance of taking the al- leged social benefits of developing a wetland into account in the permit review process. See, e.g., Steinberg & Dowd, supra note 3, at 285. These commentators might object to the absence of "'beneficial externalities," such as job-creation and an enlarged tax base, in the social cost-benefit analysis described above. The Corps has in the past considered benefits to a community like job creation and an enlarged tax base as part of the public interest review process set forth in its own regula- tions on evaluation of permit applications. See 33 C.F.R. § 3 2 0. 4 (q) (1988). It may have to stop doing so explicitly after Mall Properties, Inc. v. Marsh, 672 F. Supp. 561 (D. Mass. 1987), appeal dismissed, 841 F.2d 440 (1st Cir. 1988), cert. denied, 109 S.Ct. 128 (1988). Mall Properties held that the Corps was not authorized under section 404 and the Guidelines to take into account economic factors not directly related to the effect a proposed project would have on the physical environment. "Beneficial externalities" are properly left out of a social cost-benefit analysis carried out under the aegis of the Guidelines because they are not externalities. The damage to the social values of a wetland that result from development is an externality because no market for those wetland values exists. Social benefits in terms ofjob creation and enlarge- ment of the tax base that would result from development of the wetland, on the other hand are reflected in market price changes. They are what are known to economists as "pecuni- ary externalities," which are not really externalities at all. Bersani v. EPA Section 404 of the Act requires the Administrator of EPA to include in the Guidelines measurement of the impacts of the fill on the values of the wetland site. 32 The Act includes "aesthetic, recreation, and economic values" among benefits of the wetland that could be damaged or destroyed by fill activity. 33 The Guide- lines require determination of the adverse impacts of fill on uses of the wetland as a spawning ground for fish and other marketa- ble marine life, as wildlife habitat, as a water purifier, as a water supply for humans, and as a resource with aesthetic value.34 The expected total damage or destruction to these uses that would re- sult from a permit applicant's proposed project is the measure of the negative externalities that would result from that project. Obviously some of the uses of a wetland are not easily valued. 35 This should not pose a problem since the Act stipulates that in cases "where insufficient information exists on any proposed dis- charge to make a reasonable judgment on any of the guidelines established pursuant to this subsection no permit shall be is- sued. ... 36 Considering this provision of the Act, a mediate ap- proach would require permit applicants to accept a reasonably- determined upper bound measure of the adverse impact of their proposed fill project on social values. On the benefit side of the cost-benefit analysis would be the potential gain to the applicant of developing the wetland site as opposed to any alternative site. This is where the alternatives analysis would come into play. The factors to be considered in determining the benefit to the applicant of being granted a permit to develop the wetland site are found in the definition of practica- bility: these include "cost, existing technology, and logistics," ex- amined in light of "overall project purposes." III. PLAUSIBLE APPROACHES TO THE GUIDELINES Whether the market entry theory is the proper interpretation of the Guidelines is thus a two-part question. The first part asks 32. 33 U.S.C. § 1343(c) (1982). 33. 33 U.S.C. § 1343(c)(1)(C) (1982). 34. 40 C.F.R. 99 230.31(a) and (b), 230.51 (fish and other marketable marine life); H 230.30, 230.32(a) and (b), 230.40 (wildlife); § 230.41(b) (water purification); §§ 230.22(b), 230.25, 230.50 (water supply); § 230.53 (aesthetics) (1988). 35. But see Farber & Costanza, The Economic Value of Wetlands Systems, 24 J. OF ENVTL. MGMT. 41 (1987). 36. 33 U.S.C. § 1343(c)(2) (1982). 1990] 108 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 which of the three approaches to balancing the conflicting social and private interests is a reasonable inIterpretation of the Act and the Guidelines. The second part looks at which of these three ap- proaches is represented by the market entry theory. Analysis of the Act and the Guidelines shows that the private interest approach taken by the Corps is insupportable. Therefore, the Corps' time-of-application test for when an alternative to a wetland site should be termed available was properly rejected, as it derives its validity from the private interest approach. In fact, not only the time-of-application test but the whole tradition of the Corps' permit evaluation process should be rejected on the ground that the private interest approach which underlies it, de- forms the permit determination process from a social to a private cost-benefit analysis. 3 7 The Corps' interpretation of availability and the alternatives analysis mandated by the Guidelines has the effect of elevating protection of the applicant-developer's potential profits over the other social objectives of the regulations. Even more fundamen- tally, it destroys the very mechanism by which the alternatives provision functions. A. Distortion of the Alternatives Analysis Though the language of the alternatives analysis is ambiguous, the overall purpose of section 404 and the Guidelines is quite clear. The section is intended as a wetland protection law and the Guidelines are meant to implement that intent. 38 Even the Corps' own set of regulations for evaluating applications, not mandated 37. A private cost-benefit analysis considers only the costs and benefits of a particular action for the private actors involved. In conducting a private cost-benefit analysis, the government agency is in effect standing in the shoes of the private, profit-maximizing actor and judging the desireability of the action from his or her point of view. 38. Federal courts have recognized the wetland protection purposes of section 404 in a number of recent cases. See, e.g., Riverside Bayview Homes v. United States, 474 U.S. 121 (1985); Deltona Corp. v. United States, 657 F.2d 1184 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982); Avoyelles Sportsmen's League, Inc. v. Alexander, 473 F.Supp. 525, 532 (W.D. La. 1979),aff'd, 715 F.2d 897 (5th Cir. 1983); Loveladies Harbor, Inc. v. United States, 19 Envtl. L. Rep. (Envtl. L. Inst.) 20092 (Ct. CI. 1988). Legislative debate on section 404 of the Clean Water Act of 1977 also focused on its wetland protection purposes. Senator Bentsen had proposed an amendment to restrict the scope of section 404. In rejecting this amendment, the legislators pointed out the strong public interest in preserving wetland areas. See 123 CONG. REC. S26710-S26729 (1977), reprinted in 4 SENATE COMMITrEE ON ENVIRONMENTAL AND PUBLIC WORKS, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977: A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, at 901-50 (1978). Bersani v. EPA by section 404, express an intention to promote wetland protec- tion. 39 Further, wetland development is intended to be ap- proached as a problem of controlling pollutants. The Corps' private interest approach is incompatible with these clear purposes. The Guidelines state that "[flrom a national perspective, the degredation or destruction of special aquatic sites, such as filling operations in wetland, is considered to be among the most severe environmental impacts covered by these Guidelines." 40 Similarly, the Corps' regulations recognize that "[m]ost wetlands constitute a productive and valuable resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest." 4' Even more expressive of concern for wetland protection is the prohibition in the Guidelines on fill that would have an "unacceptable adverse impact." 42 The Corps' approach to the Guidelines treats such statements as expressive of a mere sentiment rather than an objective of the statute. Yet more fundamental to the Corps' mistaken interpreta- tion of the Act is its refusal to treat the problem of the optimal level of wetland development as a problem of pollution control. 43 This refusal ignores glaring evidence of the legislative view of wetland development. Federal regulation of the filling of wetlands is embedded in the Clean Water Act ("CWA"), 44 which is the major federal legisla- tion controlling the discharge of pollution into the nation's wa- ters. 45 Section 201(a) of the CWA prohibits discharge of any pollutant into a water body except in accordance with other sec- 39. 33 C.F.R. §§ 320.1-320.4, 323.1-323.6, 325.1-325.10, 326.1-326.5, 327.1-327.11, 328.1-328.5 (1988). 40. 40 C.F.R. § 230.1(d) (1988). 41. 33 C.F.R. § 320.4(b)(1) (1988). 42. 40 C.F.R. § 230.1(c) (1988). 43. A recurrent theme in the literature criticizing the laxity of wetland protection is the choice of the Corps as the agency with primary responsibility for wetland protection. The Corps is considered, in such criticism, to be a particularly unsuitable choice as wetland protector because it is the nation's largest dredger and filler. See, e.g., Tripp & Herz, supra note 5, at 226-30. 44. 33 U.S.C.A. §§ 1251-1387 (West 1986 & Supp. 1989). 45. Section 101(a), 33 U.S.C. § 1251 (1982 & Supp. V 1987), the "Congressional decla- ration of goals and policy" section of the Act, expresses the Act's scope: "The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 1990] 110 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [Vol. 15:99 tions of the Act. 46 Fill material used to develop a wetland area is included as a pollutant under section 502.47 This treatment of the development of wetlands is continued in the Guidelines, which are entitled "Guidelines for Specification of Disposal Sites for Dredged or Fill Material." 48 "Pollution" is de- fined as "the man-made or man-induced alteration of the chemi- cal, physical, biological or radiological integrity of an aquatic ecosystem." 49 While the clear legislative purpose in the Act necessitates rejec- tion of the Corps' private interest approach, it supports both a social interest approach and a mediate approach to balancing the conflicting interests involved in wetland development. Both of these latter approaches are compatible with the protective pur- poses of the law and with treatment of the optimal level of wet- land development as a pollution problem. Structural analysis of the Guidelines also leads to rejection of the private interest approach while offering support for the other two approaches. It shows that an interpretation of the Guidelines focusing solely on the, alternatives analysis is insupportable. The alternatives analysis is included in Subpart B, entitled "Compliance with the Guidelines," which is the operational part of the Guidelines. Subpart B is divided into two parts: "Restric- tions on discharge" 50 and "Factual Determinations." 5' The sub- part entitled "Restrictions on discharge" outlines the evaluation process that must be followed by the Corps and is further divided into four sections. Two of these, sections (a) and (c), are substan- tive. Section (a) is the alternatives analysis. Section (c) is the unac- ceptable adverse impacts provision. Thus, the alternatives analysis was conceived as one part of a two-part analysis, the other part being the measurement of the extent of potential loss of wetland values to the society. This lends support to a mediate approach to the Guidelines. Even more striking than the structure of Subpart B is the glar- ing presence in that section of the prohibition on development 46. 33 U.S.C. § 1311(a) (1982). 47. 33 U.S.C. § 1362(6) (1982). See, e.g., United States v. Bradshaw, 541 F.Supp. 880 (D.C. Md. 1981). 48. 40 C.F.R. pt. 230 (1988). 49. 40 C.FR. § 230.3(o) (1988). 50. 40 C.F.R. § 230.10 (1988). 51. 40 C.F.R. § 230.11 (1988). Bersani v. EPA that would lead to unacceptable impacts, first encountered in the earlier "Purpose and Policy" section of the Guidelines. 52 The presence of the adverse impacts provision in the operational part of the Guidelines provides support for a social interest approach. In treating the adverse impacts provision as a mere sentiment rather than an integral part of the permit evaluation process, the Corps ignores its position in the Guidelines. 53 B. Destruction of the Mechanism of the Alternatives Analysis The Corps' private interest approach is clearly at odds with the purpose and structure of the Guidelines. In addition, it destroys the very mechanism by which the alternatives provision functions. The Guidelines do not contemplate search by the government for practicable alternatives as a matter of standard procedure in the case of every permit application. A search by the Corps for practicable alternatives to a proposed wetland site precedent to decision on every wetland permit application would be prohibi- tively expensive. 54 Search by a government agency may also be incapable of accurately estimating the potential benefits to the ap- plicant of the wetland site because the government has limited information about the development options available to the appli- cant. These problems of cost and information are avoided by the provision in the Guidelines that when proposed projects are not water-dependent there is a presumption that a practicable alter- native to the wetland site is available "unless clearly demon- strated otherwise." 55 The presumption is intended to provide the developer with an incentive to search for alternatives. 56 An externally-provided in- centive is necessary because the lower cost of wetland relative to upland sites 57 means that in general the permit applicant has no 52. 40 C.F.R. § 230.1 (1988). 53. See Tripp & Herz, supra note 5 at 240-41 (noting that in spite of the potential power of the unacceptable adverse impacts provision the Corps has seldom, if ever, denied a section 404 permit on that ground, possibly because some of its own projects would be affected). 54. See, e.g., Steinberg & Dowd, supra note 3, at 285 (observing that "[als a practical matter, economic analysis prepared by applicants or by state or local agencies are not often questioned by the Corps"); Seltzer & Steinberg, Wetlands and Pnivate Development, 12 COLUM.J. ENVrL. L. 159, 178-79 ("The applicant has the burden of providing.., data on practicable alternative sites."). 55. 40 C.F.R. § 230.10(a)(3) (1988). 56. See Bersani, 850 F.2d at 44. 57. See Ray, supra note 3, at 51. 1990] 112 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 market-derived incentive to analyze upland sites as alternatives. By essentially reading the presumption of existence of practicable alternatives out of the Guidelines through its interpretation of the defintion of practicable, the Corps undercuts the incentive-com- patibility mechanism provided in the Guidelines. The permit decision in Hough v. Marsh 58 illustrates the effect of the Corps' approach on the applicant's incentive to search. In Hough an applicant sought a permit to fill a small wetland area in order to build two houses and a tennis court. The Corps con- cluded that there were no practicable alternatives on the basis of a single letter from a real estate broker stating that the only other prime real estate available in the area was too small for the pro- ject and too expensive. 59 This approach to the alternatives analy- sis defeats the purpose of the wetland protection law. Although the terms of the alternative analysis, viewed in isola- tion, are ambiguous, there are clear indications from the purpose and structure of the Act and the Guidelines of how these terms should be interpreted. In addition, the role the alternatives analy- sis plays in the permit evaluation scheme established by the Guidelines is clear. The Corps' private interest approach involves a role for the alternatives analysis and an interpretation of its terms that is inconsistent with the Act and the Guidelines. 60 As a consequence, the Corps' approach to the timing issue in Bersani was properly rejected. Courts should reject the entire tra- 58. 557 F.Supp. 74 (D. Mass. 1982). 59. Id. at 82-83. 60. The Corps' application of the alternatives analysis focuses on the requirement that "costs" and the applicant's "overall basic purpose" be taken into account in determining whether or not a proposed alternative site would be practicable. Yet the Corps interprets "basic purpose" and "costs" in such a way that in many cases it is difficult to imagine how any proposed alternative could be found practicable. This puts the Corps' approach to the alternatives analysis at cross purposes with the Guidelines' presumption that alternative sites exist unless the applicant makes a clear showing otherwise. As described in notes 25-27, and accompanying text, the Corps interprets the require- ment that "costs" be taken into account to mean that an alternative is not practicable if it imposes costs of any significant size on the applicant. However, in every case use of an alternative site for the proposed development would entail a reduction in profits for the developer, since a developer-applicant chooses the wetland site because that choice guar- antees higher profits than any alternative site. Contributing to this is the fact that wetland sites are cheaper than upland sites. The Corps' interpretation of "basic purpose" often collapses into its treatment of "costs" in that the agency describes the basic purpose of a project as increasing profits. See Friends of the Earth v. Hintz, 800 F. 2d 822, 833 (9th Cir. 1986); Louisiana Wildlife Feder- ation v. York, 761 F. 2d 1044 (5th Cir. 1985); National Audubon Society v. Hartz Moun- 1990] Bersani v. EPA dition of Corps determinations which have been based upon a mistaken approach to the weighing of the private and social inter- ests involved in wetland permit evaluations. The remaining ques- tion is whether the market entry theory of Bersani reflects a more reasonable approach to the Act and Guidelines. IV. BERSANI'S EFFECT ON WETLAND PROTECTION LAW Courts reviewing the Corps' permit determinations have in general given the judicial imprimatur to the agency's approach to section 404 and the Guidelines. 6' Fortunately the wetland protec- tion scheme of section 404 does not depend entirely on the Corps and reviewing courts. An additional safeguard was provided by giving EPA a veto power over the grant of a permit. Section 404(c) authorizes the Administrator of EPA to "prohibit the spec- ification ... of any, defined area as a disposal site ... whenever he determines, after notice and opportunity for public hearing, that the discharge of such materials into such area will have an unac- ceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wild- life, or recreational areas." 62 This veto power has been exercised tain Development Corp., 14 Envtl. L. Rep. (Envtl. L. Inst.) 20724, 20731 (D.N.J. 1983); Hough v. Marsh, 557 F. Supp. 74, 83 (D. Mass. 1982). At the same time, the Corps often describes the applicant's "basic purpose" very specifi- cally. In Hough, 557 F. Supp. at 83, it was described as "providing two homes and a tennis court". The applicant wanted to develop raw land on Martha's Vineyard for this purpose. No other appropriate lots on Martha's Vineyard could accomodate the development, so the Corps found that no practicable alternative existed. Similarly, in York, 761 F. 2d at 1046-48, an applicant was granted a permit because no nearby site suitable for soybean farming on the scale the applicant desired could be aquired at a price at which farming would be profitable. In each of these cases, because of the Corps' treatment of "costs" and "basic purpose," it was a foregone conclusion that no practicable alternative would be found. Such a treat- ment of the definition of practicability clearly does not leave the presumption of practica- ble alternatives intact. The Corps' approach to "costs" and practicability was seriously questioned virtually for the first time in Friends of the Earth v. Hall, 693 F.Supp. 904 (W.D. Wash. 1988), in which the court stated that "significant additional cost can prove determinative, in and of itself, only if the competing alternatives can reasonably be viewed as equivalent with respect to other factors." Id. at 947. 61. See Seltzer & Steinberg, supra note 54, at 182 ("Courts typically uphold the Corps' determination."); Tripp & Herz, supra note 5, at 242, ("[Clourts have deferred to agency expertise in determining whether an alternative is 'practicable' ".). 62. 33 U.S.C. § 1344(c) (1988). Until Newport Galleria Group v. Deland, 618 F. Supp. 1179 (D.D.C. 1985), there was disagreement about the extent of EPA's veto power. New- port Galleria determined that the veto was not limited to extraordinary cases or in any way restricted, except by the regulatory provision that the Regional Administrator have "rea- 114 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 with extreme frugality by EPA - only five Corps decisions had been vetoed as of the Bersani decision - allegedly out of deference to the Corps' central role in the day-to-day implementation of the Guidelines. 63 Bersani involved the EPA's veto of the grant of a permit to fill "or alter" most of a wetland area known as Sweeden's Swamp for the purpose of building a mall. The court's review of the veto pertained to disagreement between the two agencies over whether the developer had adequately rebutted the presumption of the existence of practicable alternatives to the Sweeden's Swamp site. 64 The Corps' Director of Civil Works found that the proposed upland alternative, called "the North Attleboro site," was unavail- able to the applicant "because it has been optioned to another developer." 65 In vetoing the grant of the permit, EPA argued that the Corps' finding was inaccurate because the North Attleboro site "could have been available to [the applicant] at the time [the applicant] investigated the area to search for a site," 6 6 since the other developer did not buy the options for the site until after the applicant.had entered the market. 67 Review of EPA's veto was sought on the ground that EPA's "market entry theory," as the developer called it, was "inconsis- tent with both the language of the 404(b)(1) guidelines and the son to believe... that an 'unacceptable adverse effect' could result." 40 C.F.R. § 231.3(a) (1988). For discussion of the effect of Bersani on the scope of EPA's veto power, see Note, Bersani v. EPA: The EPA's Authority Under the Clean Water Act to Veto Section 404 Wetland-Filling Permits, 19 ENVTL. L. 389 (1989); Comment, EPA's Evolving Role in Wetlands Protection: Elaboration in Bersani v. U.S. EPA, 18 Envtl. L. Rep. (Envtl. L. Inst.) 10479 (1988). 63. 850 F.2d at 40. 64. Id. at 42. A second point of disagreement, not discussed on appeal, concerned the applicant's mitigation proposal. The Director of Civil Works at the national headquarters of the Corps granted the permit despite the recommendation of the Northeast Regional Corps to deny it. The N.E. Corps had recommended denial becuase it found that the North Attleboro alternative was feasible for mall development. ("[Wlide-spread publicity" may also have contributed to the N.E. Corps' decision. Id.) The Director of Civil Works decided to grant the permit "after finding that [the appli- cant's] offsite mitigation proposal would reduce the adverse impacts sufficiently to allow the 'practicable alternative' test to be deemed satisfied". However, the Corp's argument about the mitigation proposal was rejected by the EPA because of "scientific uncertainty of success." Id. at 43. 65. Id. at 42. 66. Id. 67. EPA also gave other reasons for the veto, including its finding "that the filling of the Swamp would adversely affect wildlife." Id. Bersani v. EPA past practice of the Corps and the EPA." 68 The developer argued that both the language of the Guidelines and past practice indi- cated that the availability of an alternative site should be analyzed as of the time at which the applicant applied for a permit. These arguments were rejected by both the District Court and the Second Circuit. The developer claimed that the "most natu- ral" reading of the alternatives provision required a time-of-appli- cation rule because the provision was written in the present tense.69 Both courts found that no conclusion as to intent on tim- ing could be drawn from the tense of the provision and that intent would have to be discovered from examining the objective of the Guidelines. The Second Circuit stated that "the purpose is to cre- ate an incentive for developers to avoid choosing wetlands when they could choose an alternative upland site," 70 and that "[i]f the practicable alternatives analysis were applied to the time of the application for a permit, the developer would have little incentive to search for alternatives, especially if it were confident that alter- natives soon would disappear." 7' Thus, the court concluded that ,.'a common-sense reading of the statute can lead only to the use of the market entry approach used by EPA."' 72 Past practices of the agencies in applying the Guidelines were found to inapplica- ble because the timing issue was one of first impression. 73 Bersani is not fully consistent with either a social interest ap- proach or a mediate approach to interpreting section 404 and the Guidelines. It diverges from those approaches partly as a result of its characterization of the purpose of the Guidelines and partly because of its focus on the "timing" issue. Nevertheless,the ap- proach taken by EPA and the Bersani court does come closer to 68. Id. at 43. The developer also sought review of the veto on procedural grounds. He claimed that EPA's interpretation of the Guidelines was not "entitled to the deference usually accorded an agency with regard to its interpretation of regulations it is charged with administering," id. at 45, on the ground that no deference is warranted when two agencies (the Corps and the EPA) are responsible for administering regulations and they disagree on interpreta- tion. The developer also claimed that EPA had less expertise than the Corps in administer- ing the regulations. Id. The court came to no conclusion on this issue. It found that even if EPA's interpretation were not entitled to deference, it would still be upheld as satisfying the reasonability stan- dard of review. Id. at 46. 69. Id. at 43. 70. Id. at 44. 71. Id. 72. Id. 73. Id. at 75. 1990] 116 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 implementing a social cost-benefit analysis and activating the in- centive mechanism necessary to perform that analysis than do prior decisions of the Corps and the courts. A. The Threshold Issue Ignored Again The Bersani court notes, in passing, that the developer-appli- cant's proposed project included a plan to fill "or alter" 32 of 49.6 acres of the wetland site.74 Thus the developer planned to destroy or damage sixty-five percent of the site. While the devel- oper had proposed some mitigation of the damage, by altering other parts of the wetland "to improve its environmental qual- ity," 75 that proposal was rejected by EPA as scientifically uncer- tain. 76 As one of its reasons for vetoing the Corps' grant of the permit, EPA stated that the project would "adversely affect wild- life." Considering the expressly stated prohibition in the Guide- lines on dredging or filling when it would have "unacceptable adverse impacts" on the aquatic ecosystem, the Sweeden's Swamp project raised a question of whether the effects of the pro- posed development should be considered unacceptable under the Guidelines. Yet the court did nothing more than quote the ad- verse impacts provision. The scant treatment of the unacceptability provision in Bersani cannot be excused on the ground that only the timing dimension of determining avaiability was at issue on appeal. In reaching a decision on the timing issue the court had to consider the role played in the Guidelines by the alternatives analysis. This should have brought the acceptability of the adverse impacts of the pro- ject into question. If the unacceptability provision is treated as a threshold consideration, then the alternatives analysis plays a sec- ondary rather than a central role in the analysis. The court failed to discuss the unacceptability provision and it unquestioningly treated the alternatives analysis as the central mechanism of the Guidelines. It stated that the purpose of the Guidelines is "to create an incentive for developers to avoid choosing wetlands" when practicable alternatives exist. 77 This is a very different assessment of the purposes of the Guidelines both philosophically and practically than is arrived at 74. Id. at 41. 75. Id. 76. Id. at 43. 77. Id. at 44. Bersani v. EPA if the unacceptability provision is considered a threshold determi- nation. In an approach to the Guidelines that gives effect to the unacceptibility provision, the purpose of the Guidelines is aggres- sive protection of valuable wetland values. In this approach, re- gardless of whether or not there are any practicable alternatives to a proposed wetland site, it should not be developed if the pro- posed project would have serious adverse impacts on it. B. Moving Toward A Social Cost-Benefit Analysis The Bersani court claimed that EPA's market entry interpreta- tion of the alternatives analysis was necessary to implement the Guidelines' purpose of providing an incentive for a developer to search for an alternative to the wetland site. It stated that "if the practicable alternatives analysis were applied to the time of the application for a permit, the developer would have little incentive to search for alternatives .... '78 EPA focused on the issue of timing because in its view after another developer bought options on the North Attleboro site it was no longer available to the applicant. 79 This view of availability is simple-minded. Any site under Consideration for its practicabil- ity as an alternative to an applicant's proposed wetland site will be owned by someone. At some price virtually any private owner (ex- cept perhaps The Nature Conservancy or other private conserva- tor of land) will be willing to sell to the applicant. The validity of this proposition is not affected by the owner's identity as a devel- oper. Bersani is illustrative: the opinion notes that after cross-mo- tions for summary judgment had been filed, newspapers reported plans by the applicant to enter into a joint venture to build a mall 78. Id. Ironically, given the Corps' criteria of practicability, (see supra notes 25-26, and 60), the timing issue has no effect on whether or not a developer has an incentive to search for an alternative site. None of the factors the Corps takes into account are affected by the lapse of time between entry into the market and application for a permit. The physcial character- istics of the potential alternative site will not change, hence there will be no change in whether or not the applicant's project can be built there, in a physical sense, with no signif- icant modifications. The applicant's projections of the volume and kind of customers the proposal would attract if the alternative site were used will be unaffected by the timing issue. Finally, the prospect of a decline in prospective profits resulting from the higher price of any alternative upland site relative to the discounted wetland site, exists both at the time of entry into the market and at the time of application. 79. Id. at 38. 1990] 118 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 15:99 with the developer who had bought the options on the North Att- leboro site.80 The relevant question in determining whether an alternative site should be judged practicable for purposes of the Guidelines is at what price the site can be bought. Information about price is obviously necessary in order to calculate the loss in profits to the applicant if the permit is denied. It is not obvious a priori what will happen to the price of a site between the moment of entry by the developer into the market and the time of application. In fact, purchase of a site by another developer for a purpose similar to that planned by the applicant could be interpreted as an indica- tion that use of the alternative would entail at least normal profits. Yet, in spite of the mistaken importance attached by the court to the timing issue, Bersani does move closer to viewing the Guidelines as implicating a social cost-benefit analysis than do prior cases involving wetland permit determinations. Though the court fails to treat the alternatives analysis as a means for ascer- taining the potential loss to the applicant from denial of the per- mit, it does recognize that a site cannot be labeled impracticable simply because it implies loss of profits to the developer. After noting that the timing issue is "crucial", the court observes that "of course it also is possible that the North Attleboro site re- mained 'available' after [the other developer's] acquisition of the options, since [the applicant] arguably could have pirchased the options from [the other developer]." 8 1 C. An Incentive to Search In upholding EPA's veto, Bersani also created a real incentive to search for alternative sites.8 2 One of the reasons EPA gave for vetoing the grant of the permit was that "considering [the appli- cant's] failure or unwillingness to provide further materials about its investigation of alternative sites, it was uncontested that, at best, [the applicant] never checked the availability of the North Attleboro site as an alternative. ' '83 The applicant had claimed summarily that the North Attleboro site was not practicable be- cause "it was not feasible" as a result of "insufficient traffic vol- ume" and "doubts" by potential tenants, and because it was 80. Id. at 43. 81. Id. at 41. 82. See Note, supra note 62, at 403; Comment, supra note 62, at 10488-89. 83. Id. at 42. Bersani v. EPA "unavailable.- 8 4 In response to its demand for more information, EPA was told by the applicant that "[i]t simply does not exist."85 EPA's veto sends permit applicants a message that summary as- sertions of infeasibility are not sufficient to rebut the presumption of availability of alternatives in the Guidelines. V. CONCLUSION The only lasting importance of Bersani may be that it temporar- ily spared a lovely fifty-acre red maple swamp from being re- placed by a shopping mall. Bersani's holding will probably not make a difference to the future of wetland permit determinations because the issue it resolved was illusory. The timing issue of the alternatives analysis of the 404(b)(1) Guidelines fails to focus on any of the criteria crucial to determing the availability of practica- ble alternatives to a developer's proposed wetland site. Yet, though Bersani's market entry theory clearly does not re- flect a new and more effective interpretation of the Guidelines, there is encouraging language in the decision that appears to re- ject an approach to wetland development that focuses on the de- veloper's interests alone. Hopefully the positive movement taken in Bersani toward protecting society's strong interests in wetlands will be continued and accelerated in future court review of wet- land permit determinations. Heidi Wendel 84. Id. at 4 1. 85. Id. at 42. 1990]