Wetland Safeguards Eroded by New Nationwide Permits

WASHINGTON, DC, January 15, 2002 (ENS) - Developers will no longer have to restore or create new wetlands acre for acre when they drain or fill existing wetlands under regulations reissued Monday by the U.S. Army Corps of Engineers (USACE). While the Corps says this newest version of the rules strengthens wetlands protection, environmentalists say the result will be increased water pollution, aggravated flooding and loss of wildlife habitat.

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Martis Creek Wildlife Area, Truckee, California (Photos courtesy USACE)
The Clean Water Act allows the Corps to issue nationwide general permits for activities that discharge fill or dredged material into wetlands and streams, so that developers do not have to apply for individual permits, a time consuming process.

But those nationwide general permits may only apply if the development activities in question will have no more than minimal adverse environmental effects on wetlands.

"Overall, the permits are undergoing several small but important changes," said John Studt, chief of the U.S. Army Corps of Engineers Regulatory Branch. "The revised permits will do a better job of protecting aquatic ecosystems while simplifying some administrative burdens for the regulated public. The changes also reinforce and clarify the Corps' commitment to the no net loss of wetlands goal."

Wetlands are a collective term for marshes, swamps, bogs and other wet areas. They filter and cleanse waterways, helping to retain flood waters and providing wildlife habitat and spawning areas for fish. They are natural filters for toxics, heavy metals, nutrients, and other pollutants because the vegetation and wet soils serve to trap these contaminants.

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Development over wetland, Galveston, Texas
Activities performed by developers under a nationwide permit (NWP) that affect wetlands do not require public notice or comment, and they undergo a more relaxed review by the Corps than do individual permits, or they may not be reviewed at all.

Environmental groups including the National Wildlife Federation, American Rivers, Earthjustice, the Natural Resources Defense Council, and the Sierra Club, charge that the Corps uses these permits to allow destructive activities, including mountaintop removal coal mining.

The latest version of the nationwide permit does keep a protective measure put in place under President Bill Clinton in March 2000 which reduced permissible impacts from three acres to half an acre, but environmental groups see that as the bare minimum of wetlands protection the Corps had to keep in place.

Daniel Rosenberg, an attorney with the Clean Water Project of the Natural Resources Defense Council, says, "That's just saying we haven't gone even farther backwards than we are going. There's no way the Corps could sustain the argument, legally or scientifically, that allowing three acres of wetlands loss for each general permit would meet the requirements of the Clean Water Act for minimal adverse effect."

"The problem is that the Corps has reversed course and are weakening modest protections for wetlands and streams that were added in March 2000," Rosenberg said.

The Corps says the reissued nationwide permits are not weakening, but strengthening, wetlands protection. The reissued nationwide permits "require U.S. Army Corps of Engineers regulatory offices to meet and measure their success regarding the "no net loss" goal programmatically. While Corps districts are not required to provide a one-for-one replacement for impacted acreage for each individual project, they must meet or exceed that goal for their entire program," the Corps said in a statement Monday.

The Corps said the revised permits are "the result of extensive coordination" with the Environmental Protection Agency and other federal agencies.

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Great blue heron on a small creek in South Georgia
But critical comments on the Corps nationwide permit proposals made last fall by the U.S. Fish and Wildlife Service were never submitted to the Corps by the cabinet secretary responsible for the service, Interior Secretary Gale Norton.

Rosenberg says the Fish and Wildlife Service comments really focused on NWP 21, the mountaintop removal mining permit that covers surface mining. "It has become an issue of national focus, because the Corps has essentially authorized every mountaintop removal mining project in Appalachia through a general permit which is ostensibly not supposed to allow greater than minimal adverse effects individually and cumulatively," he said.

"What you're talking about is a practice that blows up the top of mountains, dumps the mining waste, meaning everything in the mountain that isn't coal, down into river valleys, covers the streams, completely buries them. And the Corps is authorizing this as a minimal adverse effect. It's the most incredible abuse of a general permit that could ever be," Rosenberg said.

The Corps says its the new rule "strengthens protections for mining related permits."

The National Wildlife Federation says the weakened nationwide permits allow the Corps to waive the 300 foot limit on stream destruction for intermittent streams, "meaning a developer could dig or fill a mile or more of a stream under a general permit that is only supposed to allow minimal adverse effects."

But the Corps says it has strengthened protections for streams because a nationwide permits proposal made by the Corps in August 2001 would have waived a previous prohibition of no more than 300 linear foot impacts for perennial streams as well as intermittent streams.

The reissued permits make a distinction between intermittent and more established, permanent streams, and allow the waiver for intermittent streams only.

To receive a nationwide permit for work that impacts a perennial stream, the applicant cannot fill more than 300 linear feet of that stream. Anything above that would be considered more than a minimal impact and could not be authorized with a nationwide permit, the Corps says.

On April 16, 2001, in the run up to Earth Day 2001, EPA Administrator Christie Whitman announced that the U.S. Environmental Protection Agency would protect wetlands by moving forward with a rule clarifying what discharges are subject to environmental review under the Clean Water Act.

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Mississippi River wetland in Louisiana
"The Bush administration is committed to keeping our waterways clean and safe," said Whitman announcing the move. "The protection of America's vanishing wetlands is a vital step toward ensuring cleaner water for everyone. In addition to serving as habitat for wildlife, wetlands help filter and protect our country's water supply. Today's action will help preserve our wetlands for ourselves and for future generations."

Rosenberg says that move appears "hollow" in view of the Corps reissued nationwide permit rules. "I don't know whether that was just a publicity stunt for Earth Week or what they had in mind back in April, but their pledge to protect wetlands in April is looking particularly hollow these many months later when what they're doing is weakening the protections that are on the books," he said.

"What the administration's game plan seems to be doing is increase the rhetoric of commitment to wetlands protection at the same time that they remove the actual substantive protections. The result is sort of a sense that they're speaking in Orwellian terms," said Rosenberg.

Even with the reissued nationwide permit in place, the Corps will still be able to stop a developer from destroying a wetland, Studt explained. "Nationwide permits are general permits that authorize categories of activities which the Corps has determined will have minimal impacts on the aquatic environment, individually and cumulatively, when conducted in accordance with the permit conditions," he said. "However, the Corps will continue to require an individual permit for any project, whether covered by a general permit or not, which it determines would have more than minimal environmental impact."

The environmental groups are reviewing the Corps' action on nationwide permits to see what can be done to really protect wetlands. Rosenberg said, "There are litigation possibilities, there are legislative oversight possibilities. We need to consider how we're best going to get the administration to reverse the way they're going on wetlands."