From: National Wildlife Federation EnviroAction, June 1998
Wetlands provide flood control, water quality protection and critical wildlife habitat, benefits which are lost when these areas are filled for development.
In a move that may stop a serious cause of wetlands destruction in America and set the stage for better long-term protection of aquatic resources, a federal judge has ordered the suspension of an Army Corps of Engineers (Corps) permit that provides blanket authorization for the filling of wetlands and other waters to construct single-family homes.
According to the U.S. Department of Agriculture, the United States is still losing more than 70,000 acres of vital wetlands habitat each year. Sixty percent of endangered species depend upon wetlands for their survival.
On May 1, a federal district court in Anchorage, Alaska handed the National Wildlife Federation (NWF) a major legal victory in the battle to protect wetlands when it ruled that the Corps failed to comply with the National Environmental Policy Act when it issued Nationwide Permit 29 (NWP 29).
The decision, representing a rare successful challenge to a nationwide permit, means that as of June 30, 1998, the Corps will no longer be allowed to use NWP 29 to authorize the unnecessary destruction of wetlands for residential construction.
"The Judge's ruling sends a clear message to the Corps that it must make reasoned decisions and adequately consider the environmental consequences of its actions," says Tony Turrini, Director of NWF's Alaska office, which led the legal challenge against the Corps.
NWP 29: habitat hostile
The Corps announced the issuance of Nationwide Permit 29 (NWP 29) on July 29, 1995. The permit allowed the discharge of dredged or fill material in up to one-half acre of non-tidal waters of the United States for the purposes of building or expanding single-family residences and "attendant features" such as septic systems, garages, driveways, landscaping, swimming pools and tennis courts.
According to the Corps, NWP 29 applied to more than 95 percent of all single-family housing activity in the country. The permit eliminated most of the environmental protections associated with the Clean Water Act (CWA), and applied indiscriminately to all non-tidal waters regardless of value or scarcity, including wetlands that are essential for wildlife, water quality protection, and flood control.
Under the CWA, activities with significant potential impact on wetlands require a review process allowing federal agency and public comment. The law authorized the Corps to issue general permits, including nationwide general permits, but only for fill discharges that are "similar in nature" and have "minimal" adverse effects on the environment.
General permits were meant to allow very small projects without consequence to go forward without regulatory review. Unfortunately, the Corps has steadily and illegally expanded the scope of its nationwide permit program. As a result, more than 80 percent of all wetlands fills are authorized by general permit. The intended exception has become the rule! NWP 29 exemplified that trend.
It applied to a poorly defined set of construction projects that were similar only in their general association with residential housing.
Individually these projects could have serious effects on fragile aquatic resources. Cumulatively, the adverse effects of hundreds or even thousands of residential fill projects, each up to a half acre in size were obviously far more than minimal.
Despite this, the Corps failed to consider the common sense alternative of issuing a permit that allowed less than .5 acres of wetlands destruction at a time, failed to determine whether the impacts of the permit would be minimal, and failed to consult with the U.S. Fish and Wildlife Service as required by law to determine if the permit would harm endangered species.
The lawsuit has produced two important results that will greatly improve prospects for wetlands and wildlife.
First, as a result of the lawsuit, the Corps agreed to consult with the Fish and Wildlife Service on the impacts of NWP 29 on endangered species. This was an important concession, representing the first time in the history of the program that the Corps agreed to consult with the experts to ensure that its general permits were not harming already endangered species and habitat.
Second, the federal district court found that NWP 29 had been illegally issued, because the Corps had failed to consider common sense alternatives to the permit- like lowering of the water acreage cap, or excluding high-value wetlands. Says Tony Turrini, "The Clean Water Act already provides a workable process for authorizing residential fills; there is no need for a nationwide loophole."
Promising precedent
Beyond its immediate suspension of NWP 29, the judge's ruling could help shape other nationwide permits. Last year, NWF and other environmental organizations forced the Corps to withdraw NWP 26, the most destructive general permit ever issued (EnviroAction, December 1996 January 1997). The Corps now proposes to issue nationwide permits that are modeled on NWP 29 to replace NWP 26.
"We hope that the Corps will learn from this decision, and issue permits that comply with the law and do not needlessly diminish environmental protections says Tony Turrini. "We must bring the Corps' destructive general permit program to heel, and this is an excellent step in that direction."
The successful lawsuit was brought by NWF and 16 other national, regional and local public interest organization from 11 states, the District of Columbia, and the Virgin Islands.
Among the groups were eight affiliates :Delaware Nature Society, Inc., Idaho Wildlife Federation, Nebraska Wildlife Federation, Pennsylvania Wildlife Federation, South Carolina Wildlife Federation, Virgin Islands Conservation Society, Inc., Wildlife Federation of Alaska, and Wyoming Wildlife Federation.
-Jim Adams/Rick Spencer
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