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It's open season for wetland development The Corps of Engineers' Pittsburgh District hasn't denied a permit of consequence since the '70s Sunday, November 14, 1999 By Don Hopey, Post-Gazette Staff Writer
Developers and industries that want to fill in or drain wetlands almost always get the green light from the federal agency charged with protecting these natural resources -- the U.S. Army Corps of Engineers.
Wetlands are valuable natural sponges for flood waters, filters for pollutants and habitats for wildlife, but the Corps' Pittsburgh District hasn't denied a permit to develop a wetland of any consequence since the late 1970s. And that was in West Virginia.
The problem isn't confined to this region. Records from Corps district offices across the nation show the military agency best known for its dam-building, is granting more development permits in wetlands than ever before, while denying next to none.
The Corps says that instead of simply turning down permit requests, it works with developers to revise or redesign projects to minimize their impact on the environment.
But the Corps, historically an engineering and construction agency with little experience in environmental protection, has tended to side with developers, builders and extractive industries, and has spent little of its limited financial resources on enforcement of wetland regulations
It also gets a lot of political pressure -- Sen. Robert Byrd, D-W.Va. -- is holding up appropriations bills in Congress now in an effort to change the Clean Water Act to permit the destruction of wetlands and streams under coal waste deposited from mountain top mining activities.
As a result, critics say the agency is failing to live up to its responsibility to enforce the nation's primary law preserving swamps, fens, marshes, bogs, headwater streams and seasonal ponds.
Nowhere is this more evident than in the Corps' Pittsburgh District.
The district, covering Western Pennsylvania up to Erie and northern West Virginia, issued 171 permits to develop, fill or drain wetlands or creeks, or impinge on streams or rivers, for the years 1996 through 1998. It denied only one.
Over the last six years, Pittsburgh District Corps records show 298 permits issued and nine denied, with almost all the denials based on the project's effect on navigation, not wetlands encroachment.
The vast majority of wetlands development permit approvals are for small areas, under half an acre, which have little individual impact.
But the Pittsburgh Corps also has approved dozens of permits affecting larger wetlands over the strong objections of the U.S. Fish and Wildlife Service -- the federal entity that enforces endangered species and migratory bird laws -- as well as the state Fish and Boat Commission.
Even the U.S. Environmental Protection Agency, which is supposed to work with the Corps in enforcing the wetlands rules, has questioned some of the Corps' permits, especially in West Virginia. In that state, the Pittsburgh and Huntington, W.Va., Corps districts have permitted the filling of valleys with coal mining waste, resulting in the loss of hundreds of acres of wetlands and 900 to 1,500 miles of streams.
"In general, in Pittsburgh, if you apply for a permit you'll get it," said Ed Perry, assistant supervisor at the Fish and Wildlife Service office in State College. "Of all the districts we work with, Pittsburgh not only issues permits over our objections, it is the least likely to respond to our objections.
"Certainly in Pennsylvania, I would rate the Pittsburgh District the lowest. I don't think it's ever denied any permit application on environmental grounds. Certainly it has never denied a proposed wetland fill that we have objected to in the history of the program."
Albert Rogalla, chief of the Pittsburgh Corps' regulatory branch since 1997, said the Corps has been "even-handed" in its permit actions.
"We don't have to deny a permit to preserve the environment," he said. "Yes, we've allowed developers to do projects. But we've also preserved some high quality wetlands."
One example provided by the Corps is the Corridor-H highway project in West Virginia, a 100-mile long, four-lane road that originally went through 700 acres of wetlands. The Corps says that because it raised concerns about the route, the final permit for the project affects just 45 acres of wetlands.
But John Schmidt, a biologist in Fish and Wildlife Service's West Virginia field office, said that avoidance of those wetlands was "a multi-agency effort, and the Corps was really a minor player."
Lately, wetlands filling and draining has increased in the Pittsburgh district. The Corps has approved "impacts" on 61.7 acres of wetlands already this year, compared with 44.3 acres in 1998 -- a 39-percent increase.
Under federal and state laws, developers are supposed to replace any destroyed wetlands acreage with an equal number of acres of new wetlands, and sometimes at a two-to-one or three-to-one ratio, depending on value of the original wetlands.
District Corps records show it is doing that. To offset losses from development, its permits required the construction of 47 acres in 1998, and 104 acres in 1999.
Studies in Pennsylvania, Ohio, Florida and Washington show that anywhere from half to 90 percent of these rebuilt wetlands fail. In some cases required mitigation projects are never built.
"The studies from around the country have shown that creating wetlands is extremely difficult," Perry said. "And of all the facets of wetlands regulation," he said, enforcing these replacement projects "is the weakest part."
Even when developers report that they have successfully established new wetlands, studies show they often don't perform the same flood control, water filtration, erosion and wildlife functions as the original wetlands did.
Although the Pittsburgh District Corps said it is working to reduce the impact of development on wetlands, it has approved dozens of permits against the advice of state and federal agencies and citizen groups, including:
In addition, the Corps is now considering a proposal by Consolidation Coal Co. of Pittsburgh for a permit to build dikes around 21 acres of wetlands along Little Sewickley Creek, near Cowansburg, Westmoreland County, changing it into a passive treatment system for mine discharges.
A letter to the Corps and the state's district mining office from David Densmore, supervisor of the U.S. Fish and Wildlife office in State College, states that the area is a high-quality cattail marsh, and "Consol's proposal would essentially convert this marsh into a waste treatment facility." His recommendation is that the mining company should clean up the mine discharge without degrading waters of the commonwealth.
Another proposal of concern to some federal and state regulators -- one just put out by the Corps for public comment last week -- is for development of Deer Creek Crossing, a proposed shopping mall on Route 910 in Harmar at the junction of the Pennsylvania Turnpike and Route 28.
The project by Woodmont Corp., the same Fort Worth, Texas, developer building Cranberry Commons, would require filling almost seven acres of wetlands and would obliterate 2,700 feet of Deer Creek, a popular fishing stream.
Wetlands loss in Pennsylvania is nothing new. Since the 1780s, when the state had more than 1 million acres of rippling, cattail-waving, shrub and forest wetlands, more than half have been lost under ponds, roads, strip mines, farm fields, and commercial and urban sprawl.
From 1956 to 1979, the state lost 28,000 acres of wetlands, and the wild, wet and perpetually muddy spots had a tough time getting credit for anything more than mosquito breeding.
But science has established that wetlands, even small ones, can have significant ecological value. They can protect water quality by trapping organic waste, fertilizer, lawn chemicals, sediment and other pollutants that would otherwise flow unimpeded into streams, rivers and aquifers that may serve as municipal water sources.
During storms, wetlands store surface water that drains from the surrounding watershed. The cumulative impact of eliminating wetlands a half-acre at a time as areas become urbanized often is flooding for downstream property owners.
After the especially heavy storms that caused massive flooding along the Mississippi River in 1994, a federal study found that the amount of water that had been displaced by the loss of wetlands in the river basin would cover 1,000 football fields to a depth of 4 1/2 miles.
No local studies have detailed the effects of wetlands loss, but the flash-flooding that has occurred in places such as Etna and Monroeville hasn't been helped by wetlands-devouring development in those watersheds.
Wetlands also provide riparian habitat for wildlife, including migratory birds that use the areas for food, cover and breeding. And they provide a variety of recreation venues for hunting, fishing, boating, hiking and bird watching.
Recognizing those values, President George Bush vowed a "no net loss" wetlands policy. And President Clinton followed up by promising not only to stop the draining, filling and destruction of wetlands, but also to add 200,000 acres.
But that never happened. The nation continues to lose wetlands, although the preservation and replacement efforts are slowing the decline -- from more than 450,000 acres a year in the 1960s, to 290,000 acres annually in the 1970s, to 117,000 acres each year through the first half of the 1990s, according to federal figures.
But even a 100,000 acre-a-year loss amounts to 1 percent of the wetlands in the lower 48 states. And that erosion hasn't been helped by Corps' policies and budgeting decisions.
Shopping malls, housing plans, industrial parks and roadways seeking permits to develop wetlands are almost guaranteed to get approval from the Corps. And if a developer violates the conditions of a permit or just fills a wetland without permission, the chances of getting caught are extremely small.
That's the story told by Pittsburgh District Corps records and U.S. Fish and Wildlife Service documents obtained under the federal Freedom of Information Act by the Pittsburgh Post-Gazette, as well as six years of national Corps records reviewed by the Public Employees for Environmental Responsibility, an advocacy group.
PEER's review of records at 37 district offices from 1993 through 1998 shows that permit inspections have dropped by almost 40 percent. That means the Corps has relied more and more on information supplied to them by developers.
And Corps-initiated lawsuits to remedy unauthorized wetlands destruction have tumbled almost 80 percent between 1992 and 1998.
The Corps doesn't dispute PEER's statistics, but it doesn't agree with the group's conclusions. John Studt, national chief of the Corps regulatory branch, said there are fewer lawsuits because there are fewer substantial violations.
"We'd rather work with the individual and help them repair the aquatic environment than take legal action," Studt said, shortly after the PEER review was released in August.
But PEER says that a program without enforcement is an invitation to break the law.
"The complete disappearance of enforcement signifies that the public interest has been discarded in favor of one factor -- economics," said Magi Shapiro, a PEER board member who quit the Corps' Richmond, Va., office in 1996 rather than approve what she thought were questionable wetlands development permits. "There's a growing disconnect between our national goals and the Corps program."
That disconnect is especially glaring in the Corps' Pittsburgh District office, where individual permit approvals have more than doubled from 36 in 1993 to 74 in 1998, and denials have all but evaporated.
Denials have fallen off sharply over the past six years in other Corps districts, too: from 36 to five in Buffalo, 90 to 21 in Detroit, and 14 to two in Nashville. But none can match the Pittsburgh District's record -- one denial over the past three years.
The Corps' Rogalla said denials had declined because developers have become more sophisticated in applying for permits. Most developers will meet with federal and state permit reviewers to go over proposals before they're submitted, he said.
Site visits by Corps personnel also have declined, from 790 in 1993 to 123 last year. Critics say the Corps is relying too much on data supplied by developers and not enough on field observation.
Rogalla said, however, that the decline in site visits is partly the result of a 1995 agreement with the state that turns over initial permit and review work on 80 percent of the applications to the state Department of Environmental Protection. The agreement allows the DEP to issue a general permit for routine development activities affecting less than one acre of wetlands and 250 feet of stream without forwarding the proposal to the Corps.
Under the agreement, the DEP also can issue a general permit for projects that affect up to five acres of wetlands and have an impact on more than 250 linear feet of streams, as long as it forwards those decisions to the Corps for review.
Rogalla said Corps regulators make every effort to minimize the impacts on wetlands by working with developers to reconfigure projects, but he noted that the Corps has to consider 21 factors, including economic benefits from development, before it makes a permit decision.
"Other agencies only have to look at conservation or endangered species to make their recommendations. We listen, but we have to look at other things," he said.
Because Fish and Wildlife officials were so opposed to the Cranberry Commons mall, Rogalla said, the Corps boosted the developer's performance bond from $500,000 to $1 million. "That's our way of ensuring the mitigation project will be successful."
But Bonnie Crosby, a Fish and Wildlife Service biologist who has reviewed wetlands permits for four years, said she had seen very little effort by the Pittsburgh Corps to minimize wetlands impacts.
"They don't care. Often they don't go out on site. A lot of it is that they don't have as many people as other Corps districts, but they don't seem to be involved," Crosby said.
"The DEP is part of the problem, too. But the Corps is supposed to oversee the state program and they're not doing that."
Nancy Rackham, a DEP biologist who reviews wetlands permits in Pittsburgh, said the state hasn't denied any wetlands development permits under its purview.
Last year, DEP's southwestern district issued 36 permits with wetlands impacts. Those permits affected a total of 13.8 acres of wetlands and required construction of 15 acres of replacement wetlands. Additional permits affecting wetlands are issued by the state's Mining Bureau office in McMurray.
"Generally, we'll tell the developer if we expect to deny a permit so they can make changes or withdraw it. Generally, they withdraw," Rackham said, although she couldn't say what percentage do so.
The permitting workload has put stress on the Corps' district regulatory staff, Rogalla said. The 10-person contingent hasn't changed since 1993, and devotes most of its time to permitting and little to enforcement.
Corps regional offices in Philadelphia and Baltimore have bigger staffs and deny more permits. Federal and state regulators say they also do a better job reducing the amount of wetlands acreage affected by permits they approve.
"The regulatory budget has been flat, and, as for enforcement, with the increase in permit actions something is going to give as far as our attention, and many times it is enforcement," Rogalla said.
"We still try to determine where we can have the most significant enforcement impacts and apply manpower there, but there's no doubt we don't have 100-percent coverage."
In 1998, the Pittsburgh Corps filed no lawsuits, imposed no fines, and ordered no wetlands restorations or modifications on permitted work. The region's field inspections of permitted wetlands development sites fell from 202 in 1997 to 110 in 1998, even as permitted sites increased.
In 1993, it went to court once to stop an illegal wetlands fill, but it hasn't gone back since. From 1993 to 1998, the Corps imposed a total of six fines for filling or draining wetlands without a permit.
"If the Corps really wants to save wetlands, it should concentrate on enforcement, not permitting. The fact that it doesn't is a conscious administrative decision," said Perry of U.S. Fish and Wildlife, who has asked the EPA to take over more wetlands law enforcement from the Pittsburgh District.
Rogalla contended that the Corps actually had stepped up its enforcement efforts, turning over four actions to the EPA in the past two years.
Jeff Lapp, the EPA enforcement coordinator for Pennsylvania and four other states, plus the District of Columbia, said the Corps doesn't have a large enforcement or legal arm, so his agency handles most of the larger violations.
"I'm not sure if it's resources or type of personnel or proximity to our office," Lapp said, but "we don't have the same relationship with the Pittsburgh office as we do with other Corps offices."
Lapp said reduced field work by the Corps is occurring nationally in response to budget constraints, not because of a change in philosophy. But he acknowledged it "isn't a good trend."
"The Corps has seen shifts in resources away from the regulatory program," Lapp said. "Its answer is to review projects presented by developers' consultants and make determinations based on that data. It's appropriate, but it's nothing like getting out to the site and walking around to determine if everything's all right."
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Is Corps 'even-handed'?