October 19, 2003
Builders Swamp Wetlands
Developers are taking advantage of a 2001 Supreme Court ruling that removes 'isolated'
waterways from any federal protection.
By Elizabeth Shogren, Times Staff Writer
ST. MARYS, Ga. — The views across grassy salt
marshes and the Intracoastal Waterway to a federally
protected island wilderness are so picturesque that
Home & Garden Television chose the Cumberland
Harbour housing development as the location for its
2004 "dream home."
So far, HGTV's large, genteel Victorian with a private
deep-water dock is the only house constructed among
the cypress and live oaks dripping with Spanish moss.
But on these 1,100 acres in southeastern Georgia, the
developer has plans for a gated community of 1,200
residences — plus streets, a yacht club, swimming
pools and other upscale amenities.
Potential home buyers may be eagerly anticipating the
completion of luxury housing on pristine waterfront
property, but federal officials charged with protecting
rare plants and animals are worried: Two endangered
species, the wood stork and the Eastern indigo snake,
rely on these wetlands for habitat. But because these
wetlands have been designated "isolated," no federal agency has a say in what
happens to them.
The U.S. Supreme Court ruled in 2001 that under the Clean Water Act, the
government can protect waterways that are navigable or tributaries or marshes
that drain into navigable waters — but can no longer regulate "nonnavigable,
isolated, intrastate" ponds, wetlands or mud flats just because they provide a
habitat for migratory birds.
The Army Corps of Engineers, which has jurisdiction over the nation's
waterways, has interpreted that ruling to mean that isolated wetlands no longer fall
under the provisions of the Clean Water Act — and are thus no longer protected
from development.
Before the court's decision, Cumberland Harbour's developer would have been
required to seek a permit from the Army Corps of Engineers before filling in or
draining any of the wetlands. The U.S. Fish and Wildlife Service would have
investigated the potential effect on rare animals and plants. And the Army Corps
of Engineers would have either rejected the permit or, at the least, required the
developer to make up for the loss of each acre of wetland by restoring or creating
wetlands nearby.
Now, once a wetland area is determined to be "isolated," a developer may not
even have to notify state or federal authorities before bringing in the bulldozers.
But the environment pays a price each time wetlands are filled, say those who
study them.
"Wetlands ... can release water slowly over time, even during drought periods,"
said Keith Parsons, an environmental specialist with the Georgia Department of
Natural Resources. "As wetlands are being developed, they're no longer acting as
reservoirs."
President Bush has declared his commitment to a goal of "no net loss" of
wetlands, first set in 1990 during his father's presidency, but the Army Corps of
Engineers does not know how many wetlands and streams nationwide are being
lost or polluted as a result of the Supreme Court ruling. The Fish and Wildlife
Service and the Environmental Protection Agency are not keeping track, either.
Top officials in the Army Corps of Engineers downplayed the effect of the ruling
so far but conceded that it could grow in the coming years.
"The significant losses predicted immediately after [the court ruling], from what
we've been able to see, are not occurring," said Mark Sudol, chief of the Corps'
regulatory branch. "There may be [such losses] in the future."
But regulators, environmentalists and wetlands experts in states like Georgia and
Texas, which have no programs to protect isolated waters, point to projects
where hundreds of acres of wetlands and streams have been destroyed or are
slated for destruction because they were judged to be isolated.
Even in California and Washington, which are among the 18 states with their own
regulations for isolated waters, some wetlands and arroyos that used to be
protected are being obliterated, officials said.
Over time, the state officials and environmentalists warned, the cumulative effect
on water quality and wildlife could be significant, especially if the Army Corps of
Engineers takes a broad view of what is considered "isolated."
On the Texas Gulf Coast, thousands of acres of wetlands are being filled and
drained near Galveston Bay to build housing developments, shopping centers and
a new port, aggravating a severe water-quality problem that is decimating sea life
and commercial fishing, according to an official of the Texas Parks and Wildlife
Department.
Near Vancouver, Wash., in preparation for the construction of a new Costco,
earth-moving equipment recently covered up a wetland that local biologists say
was a habitat for juvenile salmon.
In Southern California, the Army Corps of Engineers has continued to protect
"the vast majority" of the wetlands, arroyos and streams on the coastal plain,
officials said.
But in the Mojave and Sonoran deserts, where there are many closed basins, the
Corps has stopped regulating many wetlands and ephemeral streams, which run
only after storms, said David Castanon, acting chief of the regulatory branch at
the Corps' Los Angeles district.
In its ruling, the Supreme Court said it would be a "significant impingement upon a
traditional state power" for the Army Corps of Engineers to regulate isolated
waters and wetlands just because migratory birds depend on them. But,
ironically, the majority of states have indicated they want the federal government
to find a way to regulate as many of these areas as possible.
Local and state environmental officials say they are concerned that the loss of
wetlands and streams will affect water quality and wildlife, but add that they do
not have adequate resources to enforce their regulations.
Among them are officials in California, which has lost more than 90% of its
wetlands to farming and development, according to the U.S. Fish and Wildlife
Service. The state has laws to protect the remaining waters and wetlands, but it
does not have the staff, programs or funding to ensure compliance, said Michael
Levy, senior staff counsel for the State Water Resources Control Board.
The Bush administration contends that other federal and state programs aimed at
preserving and creating wetlands are making up for any losses that may result
from the court's decision.
"It is merely one component of a much more massive effort across the federal
government and states toward the goal of halting overall wetlands loss," said
James Connaughton, chairman of the White House Office of Environmental
Quality.
In January, the administration announced that in response to the Supreme Court
ruling, it would develop regulations clarifying the definition of "waters of the
United States" — those streams, water bodies and wetlands that still will be
protected by the Clean Water Act.
In the absence of such rules, there have been dozens of lawsuits and
on-the-ground disputes over whether local Army Corps of Engineers officials are
making the right calls.
One involves a project in Brantley County, Ga., where as much as 177 acres of
wetlands may be destroyed for a titanium mine. Environmentalists believe the
wetlands should be protected because they are linked to other wetlands that
connect to navigable waters.
Altamaha River Keeper, a Georgia environmental organization, is considering
legal action if the company developing the mine does not agree to protect those
wetlands.
"I'm getting even," said James Holland, a hulking 62-year-old with thick gray hair
who said he helped found the environmental group after the destruction of coastal
wetlands decimated his crabbing business. "Can we afford to lose any more
wetlands than we already have? I say, 'No!' I've given my life to say 'no.' "
On a recent afternoon, Holland watched as a steady stream of trucks filled with
dirt drove into the Cumberland Harbour development. Environmentalists are
considering their options here too, including a possible lawsuit, he said.
"You only bring in dirt to fill in wetlands," Holland grumbled, as he looked through
binoculars at several wood storks flying around a recently created man-made
lake.
Development could be costly for these long-legged wading birds, which forage in
brackish and freshwater wetlands, and for the Eastern indigo snake, which lives in
burrows dug in these wetlands by the gopher tortoise, a threatened species in
Georgia.
Paul Beidel, a senior vice president at Land Resource Cos. which is developing
the property, said his company was committed to having a "soft footprint" on the
environment.
"Our goal is to kind of have zero impact to wetlands," he said, adding that he was
referring only to the so-called jurisdictional wetlands, the ones that the Army
Corps of Engineers has determined have connections with navigable waters. He
does not know, he said, how many acres of isolated wetlands are being
destroyed at Cumberland Harbour.
Some students of wetlands believe that the Army Corps of Engineers'
interpretation of the Supreme Court ruling is not hurting the environment.
David Crawley, a wetlands scientist and consultant for a housing development in
Rincon, a bedroom community of Savannah, believes the regulations are
sufficiently "protective."
Touring the Rincon development on a recent morning, Crawley pointed out the
111 acres of wetlands — with hardwood trees that thrive in soggy soil — that
were designated as isolated. "I don't feel this project is going to have a negative
impact on the environment of Effingham County," Crawley said.
But officials in the Army Corps of Engineers are having second thoughts about
whether those wetlands truly are isolated. They made their determination in the
middle of a seven-year drought, which "skewed" the data, said Terry Kobs,
regulatory specialist for the Corps. Now, after an unusually wet year and a lot of
pressure from state officials and environmentalists, they are taking another look.
In Georgia and elsewhere, scientists, state ecologists and environmental activists
want the Army Corps of Engineers to more narrowly interpret the court's ruling,
since most waters have some link to other waters.
"This whole idea of 'isolated wetlands' is such a piece of fiction," said Parsons, the
state environmental specialist, who oversees Clean Water Act regulations in
Georgia. "Any reputable hydrologist or ecologist is shocked at what the political
[and] regulatory apparatus is doing right now to our wetland resources."
Officials from the Fish and Wildlife Service and the Georgia Department of
Natural Resources visited Cumberland Harbour in April, when large-scale earth
moving was already underway. They were skeptical, they said recently, when the
Army Corps of Engineers determined that large areas of wetlands on the property
were isolated. The development is on a tiny peninsula almost surrounded by
navigable waters.
"How the Corps made its jurisdictional determination is a mystery to most
people," said Parsons, who was on the tour. But since the area had been altered
before he saw it, he said he would "never know" if his hunch was correct.
Parsons said that although he is disturbed by the Cumberland Harbour
development, his real concern is the impact of wetlands destruction in many
projects over the course of many years.
"There is a real potential for loss of endangered species, impacts to coastal
fisheries and increased flooding," he said. "There is a long-term cumulative
impact. Everybody knows it exists, but it's hard to prove." |
