Enviros fault Scotus ruling for wetlands' draining

Enviros criticize Army Corps decision to open Tracts of Wetlands to Development following SCOTUS decision from 4 years ago; but if they want more landing areas for ducks, they can go to Congress to change the law September 20, 2005 — Duluth News-TribuneDespite continued government pledges to protect wetlands, the U.S. Army Corps of Engineers has opened thousands of acres of wetlands to development in recent months across the United States. That's the finding of a report released Thursday by the Environmental Integrity Project, a Washington, D.C.-based environmental group. It used the Corps' own regional district reports that show more than 11,000 acres have been opened to draining during the past 18 months across 15 states -- including Minnesota, Wisconsin and the Dakotas. Those wetlands were deemed by the Corps as outside federal protection based on a 2001 U.S. Supreme Court decision SOLID WASTE AGENCY OF NORTHERN COOK CTY. V.ARMY CORPS OF ENGINEERS (99-1178) 531 U.S. 159 (2001) . Justices ruled the federal Clean Water Act doesn't protect wetlands that aren't attached to navigable waterways. 33 USC 1362(7). The Corps says it has closely followed that decision and that most of its lower court challenges have been upheld. Because of the exemption, none of the acres would need to be replaced by developers or farmers filling or draining them. It's not known how many have actually been filled or drained. The 11,000 acres is likely a low number, the group said, and doesn't include wetlands covered by federal protection for which a permit to fill or drain was issued. In some cases, the Corps didn't list the number of acres exempted in a project. Eric Schaeffer, Environmental Integrity Project director, said the Corps was going beyond the Supreme Court decision by allowing wetlands to be developed that still should be protected. In some cases, he said, the Corps was ignoring the Endangered Species Act by allowing wetlands holding endangered species to be filled. Schaeffer also blamed President Bush and Congress for pledging to protect wetlands but failing to act strongly. "We have a president who has pledged no net loss of wetlands, but we are still losing thousands of acres under his leadership," Schaeffer said. "Congress has failed to act to shore up wetlands protections after the Supreme Court decision... And as bad as the Supreme Court decision was, the Army Corps has made it worse by going further than the opinion required." The group found that several corporations will benefit from recent Corps decision to allow wetland filling, including a Wal-Mart in Texas, a titanium sand mine in Georgia, a peat mine in Florida and, in several states, housing subdivisions and golf courses. Candy Walters, spokeswoman for the Corps headquarters in Washington, D.C., said lower courts have upheld eight of nine challenges to Corps wetlands decisions in recent years, indicating the Corps is interpreting the Supreme Court decision correctly. "We have an exceptional record when jurisdiction has been challenged," Walter said, adding that the Corps has made no effort to tally the acres of wetlands lost since the 2001 Supreme Court decision. "We're focusing on protecting wetlands that we do have jurisdictional authority over," she said. Schaeffer said the report was released as Senate confirmation hearings were under way for U.S. Chief Justice nominee John Roberts in Washington. "This shows the courts have huge power over natural resource protections," Schaeffer said, noting people should be able to learn Roberts' views on environmental protection. Wetlands are considered critical for many wildlife species such as migratory waterfowl but also to buffer against floods and to help cleanse stream water and groundwater. The EPA estimates nearly a third of all endangered species spend all or most of their time in wetlands. The Corps has been especially busy allowing projects in the most critical waterfowl habitat. In North Dakota, since April 2004, the Corps approved draining or filling wetlands in 69 of 77 requests. In South Dakota, 54 of 125 projects were allowed. Nebraska had nearly 3,000 acres exempted. "If this trend continues, and you're a migratory bird flying over the Dakotas, you're going to need to carry your own water," Schaeffer said. Dave Zentner, a Duluth Izaak Walton League activist and organizer of last spring's wetlands rally at the Minnesota state Capitol, said government is sending mixed messages about wetlands. For example, the Bush administration issued an executive order to agencies requiring that the 2001 Supreme Court decision be interpreted broadly to allow wetland draining. Then, under pressure from conservation groups, he issued a less powerful decree saying the decision should be interpreted narrowly. But the original order still has not been rescinded, Zentner noted. Some state politicians joined thousands of wetland supporters at the Capitol rally last spring but then failed to pass any meaningful wetlands protections. "We need to find out if no net loss of wetlands really means that. This is a huge issue," Zentner said. "The bottom line is that we continue to slide the wrong direction." The United States has lost more than half its original wetlands over the past200 years. Wetland losses averaged 300,000 acres each year in the late 1970s and early 1980s, according to the U.S. Fish and Wildlife Service, but slowed to about 60,000 acres a year in the late 1990s under Clean Water Act protections -- before the Supreme Court decision. The report, including state listings, can be seen at www.environmentalintegrity.org.