Wetlands Protection Fades

DOUGLAS JEHL / NY Times 11feb03

SEABROOK, Tex. — The first time the Army Corps of Engineers counted how much federally protected wetlands would be lost to a colossal new container port being planned here, it came up with more than 100 acres. The next time, the agency revised that count to fewer than three acres.

That was good news for the Port of Houston, the sponsor of the $1.2 billion project. But it was bad news for environmentalists, who found that one of their main arguments against the terminal, its effects on protected wetlands, had been deeply undercut.

The revision in the wetlands figure may have been drastic, but it was not isolated. For two years, the engineers, by statute the country's pre-eminent protector of wetlands, have been recalculating its authority, and what is now emerging, in places like Seabrook is evidence of a broad retreat.

Along 1,000 miles of Texas coast, the wetlands over which the corps claims jurisdiction has shrunk, to 1.8 million acres, or 60 percent of what it was in 2000, according to an estimate provided by the district headquarters of the corps in Galveston.

In Barnwell, S.C., where the corps once claimed jurisdiction over 76 acres of wetlands that would be affected by a proposed technology park, it now claims 1.7 acres. That opens the way for destruction of the wetlands, which are marshes, swamps, bogs and similar areas that filter and cleanse water, help retain floodwaters and provide habitats for many wildlife species. With its primary emphasis on engineering, including dredging and dike building, the corps has long been derided by critics as ill suited to the task of environmental protection. Its role as the main steward of wetlands has often left it at odds with other federal agencies, including the Environmental Protection Agency, that say the corps is insufficiently vigilant.

Whatever past criticism, the new approach to places like Seabrook carries new breadth and weight. The corps has been trying to resolve questions left unanswered by a Supreme Court decision in 2001 — which of the tens of millions of acres of wetlands are eligible for federal protection as "waters of the United States?"

The decision alone, which rejected one widely used standard as overly broad, almost certainly guaranteed that the peak of federal wetlands protection had passed. In response, the Bush administration has begun to try to write clearer rules. But the corps says its new judgments about its jurisdiction reflect the ruling.

The projects like the container port here, Bayport, offer an example of what is at stake.

"The bottom line is that there's a lot of wetland acreage out there," said Jim Blackburn of Houston, a lawyer and the chairman of the Galveston Bay Conservation and Preservation Association, which is fighting Bayport. "And in Texas, and most other states as well, if the federal government isn't regulating wetlands, no one is."

The corps has tentatively endorsed Bayport. But several state and federal agencies oppose it on the ground that it would harm valuable wetlands. The Fish and Wildlife Service has described the wetlands as having "national significance."

In an interview, H. Thomas Kornegay, executive director of the Port of Houston Authority, said his agency would not take sides as the agencies, environmentalists and the corps battled over how much the project would affect federally protected wetlands.

Mr. Kornegay said if Bayport were built, the port would be committed to fair relief for protected wetlands that were affected. Mitigation is a costly process in which wetlands that are destroyed have to be offset by ones preserved or created elsewhere, usually by a ratio of at least two to one.

"We're saying tell us what it is, that's what we'll do," he said. "If it's two, it's two If it's 20 it's 20. Tell me what it is."

The figure keeps changing. In its third calculation, the engineers put the figure at 18.6 acres. The first calculation, that more than 100 acres would be affected, was made under former federal rules. The second estimate, that fewer than three acres would be lost, was made after the Supreme Court decision.

The latest determination was a response to environmentalists' protests.

Just because a wetland is federally protected does not mean that it cannot be developed. For 10 years, the corps has issued thousands of permits that let homebuilders and others fill in more than 200,000 acres of wetlands, according to the agency.

The requirement for the permits, issued under the Clean Water Act, is the most significant obstacle to building. Some projects are rejected or modified because of their effects. When the corps issues permits, it does so nearly always with a requirement for mitigation.

Critics of the agency say its reinterpretations of protected wetlands, after the Supreme Court decision, will lead to a significant loss of wetland.

"Basically," said Cherie O'Brien, a wetland biologist with the Texas Parks and Wildlife Department, "it means all of that land is developable hassle free."

The federal government maintains no maps or accounting of controlled wetlands. Those decisions are left to the corps, responding to developers' applications case by case.

Still, a general estimate provided last month by a senior official of the Environmental Protection Agency, Benjamin Grumbles, placed the total acreage under federal jurisdiction at 100 million before the Supreme Court decision. Exactly how much that will shrink, Mr. Grumbles said, depends on the administration's new rule. The total loss is likely to be fewer than 20 million acres, he said.

Mr. Grumbles said nearly all that loss would be an unavoidable result of the Supreme Court decision, which barred the government from claiming jurisdiction over a wetland solely because migratory birds used it.

Developers, represented by the National Homebuilders Association and other groups, had celebrated the ruling as confirming their complaints that the government had overreached. The developers want the new rules to limit federal assertions of jurisdiction just to wetlands that touch bays, streams, rivers and other bodies that the courts have held to be indisputably "waters of the United States."

Environmental organizations have argued that the court gave the administration much more leeway than that. They have urged the corps to maintain control over as much area as possible, including wetlands in the project here, on the shore of Galveston Bay.

"We feel like if we can't make the argument at Bayport, we can't make it anywhere," said Mr. Blackburn, the lawyer.

He has argued that the proposed port should be moved to a site where it would cause less damage and is considering a legal challenge to the corps' narrow claims of jurisdiction.

At Bayport, the corps categorized the dozens of acres that it ceded as isolated, rather than adjacent to navigable waters, and thus outside jurisdiction, under its interpretation of the Supreme Court decision.

Mr. Blackburn and other critics said the court did not explicitly rule out federal protection of isolated wetlands, except in cases where the lone claim to jurisdiction was the use by migratory birds. The critics also point out that the distinction between isolated and adjacent wetlands has never been defined and that virtually all the Bayport wetlands declared "isolated" should be categorized as adjacent.

The project, first proposed in 1998, would supplement a container center that Mr. Kornegay said was "busting at the seams."The port is one of the busiest in the country.

The new container port would cover more than 1,000 acres in Harris County, southeast of Houston, just off Galveston Bay. As relief for the wetlands damage, the port has proposed to create or enhance nearly 80 acres of new or existing wetlands. The corps has tentatively endorsed the formula, but the Fish and Wildlife Service and other agencies have criticized it as inadequate.

Most neighboring communities have voiced opposition, because of its probable effects on traffic and air, as well as the wetlands.

The commander of the Galveston District of the corps, Col. Leonard Waterworth, said the findings of the extent of wetlands protection reflected just the best possible judgments at the time, both before and after the Supreme Court decision.

"It was never a question of whether these lands were worthy of regulation," Colonel Waterworth said. "It was a matter of us having jurisdiction."

Ms. O'Brien, the biologist, said the narrowness of the claims made it difficult for her agency and others to press for adequate measures. Part of the reason, she said, is because Texas, like most other states, has generally left wetlands regulation to the federal government.

"This is coastal prairie habitat that's going to be cemented over 100 percent," she said.