A Former Foe, Army Corps Now Fights for Wetlands

Alex Dolgos can barely make himself heard over the din of the construction rigs carving another cul-de-sac from the thickly wooded wetlands that dot the peninsula between the Atlantic Ocean and the Chesapeake Bay.

“This whole area is non-tidal wetlands,” shouts Dolgos at the backhoe operator. Drawing a blank response, Dolgos, hands on hips and squinting against the sun’s glare, underscores the point: “You can’t be building here!”

The foreman shakes his head: “I don’t believe it. We get down to the last day on the job damn near, and you come along and tell us we can’t do this. Two years of work, man.”

“Believe it,” shoots back Dolgos, the area’s lone U.S. Army Corps of Engineers wetlands enforcement officer.

The outcome: a multimillion-dollar, county-approved housing tract is scotched, and 10 acres of wetlands are spared.

Saving wetlands is a relatively new and unusual role for the corps, which for more than a century had been the primary government force in destroying millions of acres.

The corps’ new goal of preventing a net loss of wetlands is not likely to be accomplished soon, if ever, given the legal and political problems, the contradictory policy signals and the confusing instructions it receives. But many consider it amazing that the corps is even trying.

“Under the Reagan Administration it was rape, pillage and burn, and all of a sudden within the last 12 months it’s become no net loss,” said Ned Gerber, a wetlands advocate in the Chesapeake Bay area. “It’s a total swing of the pendulum.”

At stake are an estimated 95 million acres of wetlands in the Continental United States. They sustain nearly one-third of the nation’s threatened and endangered species and provide breeding grounds for millions of waterfowl and shorebirds. Coastal wetlands provide nursery and spawning grounds for 60% to 90% of U.S. commercial fish catches.

At the same time, the wetlands are disappearing at an estimated rate of 300,000 to 450,000 acres annually.

But the agency that once joined in their destruction with relish is now fighting to save them. Lt. Gen. Henry J. Hatch, corps commander, has said he wants it to be “the nation’s environmental corps.”

The corps has proposed $260 million for environmental projects in fiscal 1991, in part to build fish and waterfowl populations and to put the bends back into the rivers flowing into the Gulf of Mexico--rivers that the corps straightened in the 1930s.

The corps also has plans for a $22-million, three-year research program devoted to creating wetlands from scratch, possibly using controlled flooding and soil dredged from harbor bottoms.

“Hank Hatch is really committed to defining a new mission for the Corps of Engineers,” said Jay D. Hair, who as president of the National Wildlife Federation is usually a caustic critic of federal environmental policies.

“The days of big dams, big levies, big projects are over,” said Hope Babcock, legislative director of the National Audubon Society. “The corps has really fought the program . . . but now it’s really turned around. This is all revolutionary.”

But that is not to say that the corps is without major problems. Among them are contradictory signals from the top.

In his 1989 State of the Union address, President Bush said the nation must conserve wetlands. “I believe this should be our national goal--no net loss of wetlands.”

But the Administration has yet to define the no-net-loss goal, much less settle on a strategy for achieving it, concedes John Meagher, director of wetlands strategies for the Environmental Protection Agency’s Office of Wetlands Protection.

How Far to Go

The corps and the EPA have been left to wrangle with the principal pitfall of wetlands protection: balancing public environmental interests with private property rights. Three-fourths of the wetlands are privately owned.

In the past two years, the corps and EPA have cooperated in reworking a joint memorandum of agreement--an effort aimed at reorganizing efforts and defining which regulations apply to which kinds of wetlands.

Environmentalists had hoped that the agreement would have incorporated a strictly defined no-net-loss policy.

However, the White House ordered the corps and EPA to postpone the agreement--in November, 1989, and again in January--until its language could be sufficiently toned down. The final agreement has satisfied almost no one.

It mandates that wetland-filling permits will be granted only if no “practical” alternate site is available; and if that is the case, any destructed wetlands must be replaced, or “mitigated,” in some fashion. That remark is qualified, however, by the endlessly debatable phrase “wherever feasible.”

Development lobbyists such as the powerful National Assn. of Realtors decry what they deem to be a prohibitively costly policy. Anti-growth advocates in turn complain that the accord offers developers so much “wiggle room” as to be virtually worthless.

“Our policy should be a net gain of wetlands, because we already have lost too much,” argued Chuck Fox, legislative director of the Environmental Policy Institute think tank and the Friends of the Earth. “One of the most telling issues here is that after the Army Corps finally negotiated this agreement, Bush and (Chief of Staff John H.) Sununu stepped in and said even this is too strong. They have clearly stepped back from what they promised.”

However, developers and farmers continue to feel under siege, particularly because of the adoption last year of a new federal manual for defining wetlands. The manual establishes three criteria that generally must be present for a tract of land to be branded a wetland. They include areas with water-saturated soil and areas with hydrophytic vegetation, meaning plants that grow in wetland areas. Finally, the most controversial category includes most places where the water table is within 18 inches--even if ground water reaches that level during only one week of the growing season.

That definition has brought millions of acres of low-lying developed farm fields under corps jurisdiction. This includes vast regions of the Midwest and West, where settlers long ago killed the wetlands vegetation by ditching and draining. Such processes destroyed, for example, an estimated 91% of California’s wetlands and an estimated 99% of Iowa’s.

Not Just Swamps

In practical terms, the definition means that tens of millions of acres of fields and forests that appear dry to the eye are now regulated wetlands. That hasn’t gone over well with people, some suggest the President himself, who associate “wetlands” with cattails, mosquitoes and hip waders, not surface-dry soybean fields.

Wetlands advocate Gerber concedes the broad new definition creates problems for farmers.

“All of a sudden the corps folks have gone into this guy’s soybean field and said, ‘Not only is the woods non-tidal wetlands, your field’s wetlands as well. It’s no longer worth $5,000 an acre, it’s worth a thousand maybe.’ They take the man’s land and say, ‘All you can do is keep farming it. You don’t like it--tough.’

“That’s what’s so terrifying.”

However, others argue that the wetlands campaign remains weak and ineffective.

Babcock and others say that the real problem--one that dogs the corps’ current attempts to regulate--is the limited scope of Section 404, which requires would-be developers to apply for a corps permit only if they are filling in a wetland area. By most estimates, that covers perhaps only 20% of wetland loss.

“You can destroy a wetland in a lot of ways not covered by 404--drain it, dam up the flow of water to it, chop down the plants that live off it,” Babcock said, adding, “Developers complain, but they can circumnavigate the process with a little American ingenuity. The fact is, 404 barely works.”

Pete Weber, Washington state’s environmental coordinator for the Farmers Home Administration, a rural development-funding agency of the U.S. Department of Agriculture, warns that the government needs to legislate more leverage on private owners of wetlands.

The USDA’s 5-year-old “Swampbuster” rules, which authorize the withholding of federal aid to farmers who destroy wetlands, serve as an inadequate deterrent, Weber says. However, he added, the rules suggest strategies that federal authorities should pursue to make it too costly for people to destroy wetlands.

“The tremendous annihilation of wetlands by private entrepreneurs isn’t going to stop until Congress passes a law, and you know developers are going to scream bloody murder, plain and simple,” Weber said. “In the private sector . . . if there’s profit to be made, they’ll make it.”

But even the laws already on the books have overwhelmed the agents in charge of enforcing them.

Just ask field biologist Alex Dolgos, the corps’ only enforcement official on Maryland’s Eastern Shore--one of the most wetlands-intensive areas in the nation.

In many ways, the Eastern Shore--torn by strident growth pressures, a failing farm economy and water, water everywhere underfoot--represents both the front line and the weakest link in federal wetlands enforcement.

While EPA and corps officials in Washington maintain that the new policies have not changed the acreage being policed as wetlands, Maryland developers and wildlife advocates both project that the aggressive interpretations of the new directives mean that 50% or more of the Eastern Shore is now viewed as wetlands.

“Frankly, we’re up to our armpits in work. We don’t have enough resources,” Dolgos said.

All four desks and tables in his one-man office are covered six inches deep with paperwork--a monument to an impossible workload. About 300 permits are awaiting approval on the Eastern Shore--a thousand statewide.

Dolgos has spent much of his past two months in court defending the corps’ right to halt developments on wetlands. These legal tests will make or break the corps’ ability to protect Section 404-regulated development, said Gerber.

“It’s one thing to have a law and to enforce it, it’s another to get a jury to convict somebody and fine ‘em and make ‘em restore it,” he said.

Is It a Wetland?

Dolgos sums up the dilemma facing regulation of “wet” cultivated farm fields in general: “Is it a field, or is it a wetland, or is it a field that is a wetland? Nobody knows what to do with these farmed areas. Meanwhile, it’s making my job impossible.”

Developers fear that in some parts of the Eastern Shore, where towns were founded on wetlands decades and centuries ago, they will be effectively barred from expanding their communities.

“You can’t just be looking out for the interests of the little old ladies watching birds,” Dolgos said. “We’ve got to perform a balancing act.”

The balance Dolgos and other corps officials strike seems to please no one.

What ordinary citizens need to understand, biologists say, is how important healthy wetlands are to continued good water quality and to fish and wildlife.

“The wetlands are the key to all marine life, as well as shorebirds and wintering water fowl,” says Peter Bontadelli, director of the California Department of Fish and Game.

And despite all the confusion, federal regulators, environmentalists and developers seem to agree on one thing: As things stand today, the Administration’s policy and corps powers ensure that “no net loss” will remain an unattainable goal.

“And when the wetlands are gone,” says Dolgos, “they’re gone. It’s a one-shot deal.”