New Policies Threaten to Dry Up Wetland Protection

A new policy by the U.S. Army Corps of Engineers could substantially weaken protection of the nation’s remaining wetlands, including the ragged remnants of marshes and streams in California, federal officials and environmentalists say.

Critics say that a corps letter, dated Oct. 31 and written without the knowledge of other federal agencies that oversee wetlands, retreats from a decade-old policy that the nation’s amount of wetlands cannot be reduced.

“This letter signals the end of no net loss of wetlands within the regulatory program,” said Julie Sibbing, wetlands legislative representative for the National Wildlife Federation.

At corps headquarters, however, regulatory chief John Studt denied his agency is backing off the “no net loss” approach embraced in 1989 by the first President Bush.

“There is absolutely no variation from that policy,” Studt said. But several other federal officials familiar with the policy, all requesting anonymity, said the letter’s contents suggest otherwise.

Marshes, swamps, creeks and other wetlands filter water pollution, soak up flood waters and provide habitat for migrating birds and other creatures. America has lost more than 50% of its historic wetlands. In California, farming and development have destroyed more than 90% of the state’s wetlands, the worst record of any state.

Under 1980 regulations written by the U.S. Environmental Protection Agency, the corps has required builders who fill or destroy wetlands to offset the losses by restoring or creating wetlands elsewhere.

But the Oct. 31 letter states that developers now can use dry land to partially offset wetlands losses if that land helps protect remaining wetlands.

The letter also advises corps regulators across the country that in some cases developers can compensate for destroying wetlands by simply bolstering protection of other, existing wetlands--an approach that would seem to allow a net decline of wetlands acreage.

“If they fill an acre and preserve an acre, you’ve had a net loss of an acre,” said a federal official who requested anonymity.

Some biologists say the approach could have an especially detrimental impact in California and the arid Southwest, where natural streams and marshes are scarce, and so many have been drained or filled.

The letter, written by high-ranking corps officials, is meant to guide 38 district offices nationwide as they negotiate with developers, mining companies and others seeking to build on salt marshes, line creeks with concrete and fill ponds and swamps.

Corps officials called the letter an effort to improve wetlands protection in response to major criticisms raised earlier this year by a panel of the National Academy of Sciences.

“This is an extremely positive thing for the aquatic environment,” said Studt.

The corps regulatory office that oversees wetlands in Southern California and all of Arizona has more stringent rules than many offices for protecting wetlands slated for development. The chief of that office could not be reached Friday to comment if the stronger rules would remain in place despite the Oct. 31 letter.

Studt said the corps is trying to meet recommendations made by the National Academy of Sciences panel. In particular, he pointed to the letter’s emphasis on taking entire watersheds into account when deciding how to offset wetlands losses. It means, he said, that the corps will now look at how a wetland targeted for alteration plays a role in the functioning of a connecting system of rivers and other waterways.

The letter also firms up the timing of compensatory projects--whether restoring, creating or preserving wetlands--by stating that before construction begins in aquatic areas, compensatory plans must be approved, a site secured and financing assured.

The biologist who chaired the National Academy of Sciences panel was cautious in commenting on the Oct. 31 letter.

“I can see positive, and I can also see potential for abuse,” said Joy Zedler, who holds the Aldo Leopold Chair in Restoration Ecology at the University of Wisconsin. She complimented the corps on such steps as looking at entire watersheds, but questioned how that approach would be enforced. She also said she was not sure how the agency intended to keep track of wetlands lost and gained. Zedler’s panel had faulted the corps for poor record-keeping and had called for a national database.

Breaking with past practice, the corps did not consult with the EPA or the U.S. Fish and Wildlife Service before issuing its October letter.

To some regulators, that flies in the face of a 1990 memorandum of understanding between the corps and the EPA intended to guide the agencies in enforcing wetlands protections under the Clean Water Act.

“Normally, when you have a regulatory guidance letter that this one did, there is usually a fundamental discussion among the other resource agencies, a heads-up,” one federal official said. “That did not take place.”

The EPA had convened a forum Oct. 1 and 2 on federal wetlands protection that included representatives of state governments, consultants, conservation groups and major corporations. A key topic was how to address the National Academy of Sciences panel’s concerns. Although corps regulators in Washington were invited, no one showed up.

“We had conflicts and other priorities that we had to attend to,” said Studt at the corps. While the meeting was a good idea, he said, “it was not in our judgment a landmark meeting.”

Studt said the corps was within its rights to issue the letter without consulting with the EPA or other agencies.

“We view this as entirely the corps’ authority under 404(a),” a section of the Clean Water Act that allows the corps to issue permits, Studt said. The corps did not confer with other agencies on the letter, he said, because “we wanted to get it out in a timely way to improve mitigation.”

Others say, however, that the roles of the corps and EPA are fundamentally intertwined when it comes to protecting wetlands.

“In issuing permits, the corps is required to apply guidelines issued by EPA” under the Clean Water Act, said Hugh Barroll, an EPA attorney who deals with water issues at the agency’s regional office in San Francisco.