REPORT:

U.S. Army Corps of Engineers to Open up 11,000 Acres of Wetlands in 15 States

Total Wetlands Area in Question is 5 Times Bigger Than Drillable Portion of Arctic National Wildlife Refuge

Nearly five years ago, the Supreme Court ruled 5-4 that the Clean Water Act did not protect so-called “isolated” wetlands that provide critical habitat for migratory birds. The 15 states with the most wetlands exempted by the Corps’ aggressive implementation of that decision since 2004 are: Nebraska (2,970-3,139 acres); North Dakota (2,134-2,474 acres); Florida (1,699-1,884 acres); Illinois (643-1,332 acres); Texas (642-887 acres); Georgia (539-1,104 acres); South Dakota (479-704 acres); Colorado (469-872 acres); Wisconsin (434-641 acres); Indiana (407-645 acres); Ohio (259-325 acres); California (215-344 acres); Minnesota (169-356 acres); Iowa (150-274 acres); and New York (140-205 acres).

Even at the low-end estimate of 11,000 acres of wetlands opened to potential exploitation by the U.S. Army Corps of Engineers, the area in question is more than five times larger than the 2,000 acres that proponents of oil exploration in the Artic National Wildlife Refuge (ANWR) claim that they need for actual drilling purposes.

EIP Director Eric Schaeffer said, in a prepared statement to the press, “By a narrow majority, the Supreme Court voted to shrink the Clean Water Act and opened thousands of acres of wetlands to commercial development. Disappearing wetlands increase the risk of flooding, threaten the survival of migrating birds and endangered species, and diminish the environment for outdoor lovers and sportsmen. Developers are going to keep attacking the Clean Water Act, and the public should understand that the new Supreme Court has the power to determine whether our wetlands live or die.”

EIP found that a wide range of commercial interests will benefit from recent determinations by the Corps' wetlands-related decisions, including a Wal-Mart shopping center in Texas, a titanium sand mine in Georgia, a peat bog mine in Florida, and, in several states, residential development and golf courses. The fact that the Corps has determined a wetland is exempt from the Clean Water Act does not necessarily mean that all of the acreage in question will be destroyed. Developers may choose to preserve some for aesthetic reasons, and in a few instances, state or local regulation could help to fill the void left by the Corps. But in the vast majority of cases, once the Corps decides that the Clean Water Act no longer applies, the wetland at issue are completely vulnerable to being carved up by commercial interests.

• An apparent bias against wetlands preservation. In at least one state, nearly all of the wetlands reviewed by the Corps so far have been found to be exempt from the Clean Water Act. For example, the Corps found that the affected wetlands in North Dakota were exempt in 69 of the 77 projects it has reviewed since March 30, 1977. Wetlands were determined to be exempt in 54 out of 125 cases reviewed in South Dakota since April 27, 2004. Both states are home to home to “prairie potholes” and other wetlands that provide critical habitat for waterfowl that migrate between Canada and our southern states.
  
  
• Writing off of wetlands that provide habitat for endangered species. Endangered species were present, or thought to be present, in about 15 percent of the cases in which the Corps determined that wetlands were no longer covered by the Clean Water Act. In many other cases, the Corps simply did not know. The US Environmental Protection Agency (EPA) estimates that about a third of endangered species live their entire lives within wetlands.
  
  
• Discounting the input of sport fishermen. In at least one instance, the Sacramento district office of the Army Corps tried to present data showing that California’s 38 mile Poso Creek was subject to the Clean Water Act, in part because it supported recreational fisheries. The Corps’ Washington office refused to consider this evidence, and the creek and its watershed are not longer protected under the Clean Water Act. Poso Creek flows only intermittently today because it has been dammed and diverted for many years. As a consequence, the Kern National Wildlife Refuge into which it flows is suffering from a drought that threatens to extinguish one or more endangered species.
  
  
• Underestimating wetlands destruction. For example, the Corps district office in Galveston, Texas, did not know the size or even the location of some of the wetlands it has determined are no longer subject to the Clean Water Act. In at least 34 cases in other states, the Corps reported that the “isolated” wetlands exceeded 50 acres, but did not know their full extent. Most importantly, the data do not include the large number of development projects undertaken every year by private interests without any Corps’ review.
  
  
• Losses to other than traditional wetlands. The Corps decisions also reach other waters that the Corps believes were “isolated” from the Clean Water Act under court rulings. In California, a 38-mile creek was declared an unprotected “isolated water,” even though it drained to a national wildlife refuge suffering from drought. The mudflats of China Lake in California cover many square miles, but were judged “isolated” under SWANCC.

As the EIP report notes, the United State has lost more than half its native wetlands since European settlement began. Wetland losses averaged 300,000 acres a year in the late 1970s and early 1980s, according to the US Fish and Wildlife Service, but slowed to about 60,000 acres a year in the late 1990s, thanks to a combination of Clean Water Act regulation and voluntary incentives for conservation.

While the Supreme Court’s opinion was limited to “isolated” wetlands that are home to migratory birds, the Corps has gone further in many cases by dismissing wetlands without considering other benefits. Schaeffer said: “As bad as the Supreme Court decision was, the Army Corps has made it worse by going further than the opinion required. President Bush has pledged to support 'no net loss of wetlands.' But the Corps’ decisions to remove wetlands from the Clean Water Act in so many cases speak louder than words.”