U.S. to Promulgate New Guidelines Aimed at Protection of Wetlands

With little effort, Gerry Tracy guides a stainless steel probe into the soil of Virginia’s Eastern Shore.

The probe is a straightforward-enough gadget. Two perpendicular tubes form a waist-high T with a beveled edge at the bottom, business end, of the upright; the crosspiece at the top forms a handle. Its simplicity stands in contrast to the often convoluted, frequently complicated, and nearly always controversial environmental work for which he wields it.

On this sleet-darkened afternoon, Tracy finds himself, as he often does, in a patch of woods. Rubber boots reaching nearly to the knees of his blue jeans have replaced the gray Hush Puppies he wears in the office; a blue down vest and gray, white and red flannel shirt offer scant warmth.

Tracy, an Army Corps of Engineers environmental scientist, uses the probe to pull out a plug of moist gray dirt mottled with a rust tone. From the barely perceptible depression where he stands, he scans the upward roll of the land toward the west. Surrounding him are loblolly pines, red maples, sweet gum trees.

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The soil sample, the topography, the vegetation all tell him he is in the midst of a textbook example of what is known as a Carolina Bay wetland--a water-collecting depression in the wooded landscape characteristic of the shoreline here and to the south.

But in its very ordinariness, indeed in its universal link to similar small, undeveloped plots around the country, it illustrates the reach of a pending Clinton administration decision.

In early December, the federal government will tell the nation how it can and cannot go about using such environmentally sensitive property. To the untrained eye, such patches appear to be little more than common woods, mudholes and marsh. But to scientists and environmentalists, they are crucial breeding and feeding habitat for both common and disappearing species of birds, amphibians and fish.

The term wetlands, often a misnomer, applies to often-dry topographical depressions known as prairie potholes, desert-like in a summer drought but filled with snowmelt and rain runoff during the spring when they attract migrating birds. It applies to the small ponds, known as vernal pools, that are home to one-inch-long brine-loving creatures called fairy shrimp near Sacramento.

And it applies to sometimes-soggy 10-acre woods like the one Tracy is visiting on this stretch of land favored by poultry processors and largely shunned by tourists.

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While the assault on tidal marshes, flooded twice a day with salt water, has slowed, the inland, wooded wetlands such as those on the spit of land between the Chesapeake Bay and the Atlantic are being “destroyed at alarming rates,” the U.S. Fish and Wildlife Service reports.

In recent years, Virginia has lost more than any other state, approximately 23,000 acres during the mid- and late-1980s, the agency says.

The new rules on wetlands development are being drawn by the Army Corps of Engineers to restrict the amount of land that can be filled without stringent review of the impact on the environment. But even before the regulations can be presented publicly, they are drawing fire.

“It’s an illusory advance,” complains Drew Caputo, a staff attorney at the Natural Resources Defense Council, a national environmental group.

The regulations provide a series of thresholds intended to grant speedy permission to develop small lots without forcing property owners to provide extensive documentation about the environmental impact of a project; the larger the project, the more study required before it can be developed. The new rules would raise the thresholds by reducing the acreage that can be filled without government scrutiny.

The system, developed during the Reagan administration, “has created a legacy of unacceptable wetland loss across the country,” the director of the Interior Department’s environmental policy office, Willie R. Taylor, wrote to the Corps of Engineers. Michael L. Davis, deputy assistant secretary of the Army for civil works, has called elements of the original system “ecologically flawed.”

During a seven-year period ending in 1994, according to Interior’s Fish and Wildlife Service, the permit program has authorized the loss of 1,000 acres of wetlands and other waters in Northern California alone, and its impact “on the limited remaining habitat” throughout the states is “becoming significant on an individual and cumulative basis.”

Under current regulations, wetlands of less than one acre can, in nearly all circumstances, be filled without notifying the federal government. Under what is described as the most likely version of the new plan, the limit would be dropped to one-third of an acre.

Under the current rules, developers of parcels between one and 10 acres must inform the Corps of Engineers of their plans, and the agency has 30 days in which to raise objections. The Corps must relay the plans to the Interior Department’s Fish and Wildlife Service, the Commerce Department’s National Marine Fisheries Service, and the Environmental Protection Agency, which can also object. Under the proposed new rules, this “show and tell” policy would apply to parcels between one-third of an acre and three acres, according to several government officials with whom the Corps of Engineers has consulted. Developers seeking to fill parcels larger than three acres would obtain specific permission from the Corps of Engineers, a lengthy process than now applies only to parcels of more than 10 acres.

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In its broadest sense, the effort to restrain development of wetlands--a category of land that is defined by the number of days each year the surface is under water--is intended to maintain biologically rich and ecologically productive forests, marshes and prairies. In addition to providing habitat and food, the plants and soil of wetlands serve as a purifying water filter and as a natural form of flood control.

Environmentalists are concerned that the new plan, while seeming to make dramatic reductions in the ability of property owners to fill or pave wetlands without review, fails to attack the most difficult aspect of wetlands protection--the gradual chipping away of small, but often still precious, parcels.

“A half-acre here and a half-acre there might or might not be a big loss, but 10,000 half-acres is an incredibly big deal,” Caputo says, echoing a concern raised by government biologists. “I’m not convinced this is going to change the situation on the ground.”

Dropping the threshold for full reviews from 10 to three acres represents a “greening” of the program, he says. Even so, he adds, as much as 95% of the properties currently not subject to extensive review involves plots of less than three acres.

Rather than apply limits based strictly on the amount of wetlands that would be lost in a project, he says, the Corps of Engineers should consider the range of development activities that results in the loss of wetlands and determine the categories of projects most likely to cause harm.

Thus, he says, ready approval should be offered to those constructing small boat ramps or paving a small patch of land to build a farm irrigation system, but the building of even small strip malls should require extensive scrutiny.

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The Corps of Engineers is obligated under federal law to consider revising its wetlands regulations every five years. When it came up with a draft of new rules on June 17, it drew quick criticism from its traditional rivals within the government. They argued the plan did not comply with laws protecting water supplies and endangered species.

The new plan offered “the potential for greater-than-minimal environmental effects,” Gregory E. Peck, the acting deputy director of the Environmental Protection Agency’s water division, wrote to the Corps of Engineers.

Such comments and detailed criticism forced the Army branch to revise the plan, devising the tougher thresholds that will go into effect in roughly two months unless they meet once again with strenuous objections.

To see how the thresholds are used, consider the woods through which Tracy, the sole occupant of the Corps of Engineers’ Eastern Shore field office, is tramping.

Two decades ago, Accomack County obtained from the Navy a 7,000-foot runway built during World War II. The woods sit east of the runway and north of land already cleared for a general aviation terminal.

To the north, a 2-year-old farmers’ market provides a central shipping point for produce and Chesapeake Bay shellfish. It is already being expanded, and the county wants to cut through the woods to build a 2,000-foot road, at $500,000, that would connect airport cargo facilities and the market.

To build around the woods rather than through them would add several miles to the construction project and cost several million dollars, according to Jack Adams, the Accomack County Industrial Development Authority’s purchasing agent, who is responsible for the project.

Adams found another solution.

“I cut a little piece out of it,” he says.

He designed the project to cover precisely 9.87 acres. By shaving 5,662.8 square feet off the project, literally cutting off a corner the size of a suburban backyard, Adams was able to report to the Corps of Engineers that it would cover fewer than 10 acres.

He avoided the circuit around the woods, and the time-consuming delays and environmental scrutiny accompanying a project greater than 10 acres.

“It’s hassle-free, it’s fast,” he says. “It eliminates a huge amount of paperwork. It eliminates a huge number of agencies that would get into it.”

And what if the upper limit of property not subject to extensive review is dropped from 10 acres to three acres, as the Corps of Engineers is proposing?

“Three acres would not have done me any good,” Adams said.