Officials at the Environmental Protection Agency are concerned that a little-noticed federal appeals court decision last year is opening the door to large-scale destruction of wetlands via a loophole that is large enough to drive a backhoe through.
The EPA and the Army Corps of Engineers thought they had slammed the loophole shut in 1993 with what became known as the "Tulloch rule." But the U.S. Court of Appeals for the D.C. Circuit opened it again in June 1998, and since then EPA officials estimate some 30,000 acres of wetlands have been destroyed.
At issue is to what extent the Clean Water Act regulates the dredging and draining of wetlands. Under Section 404 of the act, the Corps is clearly given the authority to regulate the discharge of dredged material into the waters of the United States, which include wetlands.
In 1986, the Corps issued regulations defining "discharge of dredged material" and included a de minimis exception for "incidental soil movement occurring during normal dredging operations." In other words, if you were dredging and some material slopped over the side of your bucket, it was all right and you didn't need a 404 permit.
Responding in 1993 to litigation--and what EPA officials say was the clever use by developers of welded-shut buckets and sealed dump trucks--the Corps issued a new rule dumping the exception and expanding the discharge definition so it included "any redeposit of dredged material." That effectively gave the Corps regulatory authority over all dredging and draining of wetlands.
Enter the federal courts, which last year ruled that the Corps, in assuming authority over not just the discharge of dredged material but the dredging itself, had exceeded congressional intent in passing Section 404. The actual dredging of wetlands is governed by the Rivers and Harbors Act of 1899, said the court.
In the year since that ruling, say EPA officials, welded-shut backhoes have come back with a vengeance as developers have rushed to drain wetlands without having to obtain 404 permits.
"It's a virtual blank check for them in trying to get around the wetlands laws," said J. Charles Fox, assistant EPA administrator for water. "We are losing just as many wetlands in this country through this loophole as we are through the permitting program." And under the 404 permitting program, developers are usually required to mitigate for the destruction of wetlands by building new ones, while "Tulloch" losses are uncompensated.
The problem, according to EPA officials, is most acute in the Southeast, particularly in North Carolina, where in just over a year more than 20,000 acres of wetlands have been lost.
"This is serious," said EPA Administrator Carol M. Browner. "The amount of damage, the number of acres of wetlands that are essentially being destroyed is a real concern."
"At the end of the day," Browner added, "this will require a fix by Congress." And given the GOP-led Congress's hostility to federal wetlands protections, she said, it is unlikely the fix will be quick or easy.
BEACH READING: Just in time for vacation reading season, the U.S. Geological Survey has produced a two-volume diagnosis of the nation's biological health. At 1,000 pages, "Status and Trends of the Nation's Biological Resources" is a bit of heavy lifting, but well worth the effort.
Some 200 experts from government, academia and the private sector collaborated so "we can all know the state of our natural resource legacy," said Dennis Feen, chief biologist for the Interior Department.
For more information see the USGS Web site at www.usgs.gov or contact the project manager at 703-648-4073.
SHHHHH ... In the it's-never-over department, the Federal Aviation Administration has come out with its latest proposal for implementing legislation passed in 1987 requiring the "substantial restoration of the natural quiet" in Grand Canyon National Park. The idea is to restrict overflights by helicopters and airplanes so most of the park is quiet most of the time.
This is a rule-making with a long and tortured history. And the FAA's latest notice of proposed rule-making, which would limit flights to about 88,000 a year, change flight corridors and make other alterations, is unlikely to be the last word. The enviros hate it, the industry doesn't like it, and hey, it's only been 12 years since the original legislation, so what's the hurry?