By Danny Wicentowski
By Lindsay Toler
By RFT Staff
By Lindsay Toler
By Allison Babka
By Lindsay Toler
By Lindsay Toler
By Ray Downs
"People began to see that wetlands served a lot of good purposes," says Lowry, of Washington University. "But by then, we had gotten rid of most of them, and once you get rid of them, they're pretty hard to restore. When people started realizing that wetlands do provide more than just a breeding ground for mosquitoes, the federal policies on wetlands changed somewhat to reflect that, at least more rhetorical attention was paid to their restoration."
Lowry's point about rhetorical attention is important, because despite all the policy changes aimed at restoration, there is still wetland loss. Quite a bit of it.
Now, under the Clean Water Act, if Wal-Mart wants to build on a wetland, it must gain approval from the Corps of Engineers by showing that its store cannot be built anywhere other than on that particular wetland. If that is shown, then the developer must mitigate any damage caused, meaning the developer must either "minimize" the damage done to the wetland or actually create a new wetland as a replacement.
The developer of the Festus-Crystal City Wal-Mart, for example, dug out a 5-acre hole just south of the building, graded it, reseeded it and then let it fill up with water. This was "mitigation" for the loss of the 5 acres of wetland on which the Wal-Mart sits.
These types of permits for larger projects, called "individual permits," take about 127 days for approval, and in Missouri they make up only about 18 percent of those issued by the Corps. The remaining permits -- the vast majority called "general permits" -- take only 16 days for approval, because they destroy an "insignificant" amount of wetland acreage, usually one-third of an acre or less. They, however, usually don't require any mitigation.
According to the Environmental Working Group in Washington, D.C., of the 1,214 individual permits and 4,989 general permits applied for in Missouri between 1988-96, the Corps approved all but 1.9 percent. Nationwide, the statistics are worse (see box).
"Our denial rate is actually seven-tenths of 1 percent. We deny very few," says Rugiel, of the Corps' Washington, D.C., office. "And that's probably not so strange. That's a last resort. We pretty much go through all sorts of alternatives to try and come up with something so we can issue a permit. An applicant makes a proposal, we suggest something else, the applicant comes back and says, 'How about this?' and it goes back and forth until it's finally realized that in less than 1 percent of the cases, there isn't going to be any meeting of the minds."
Under the Clean Water Act, the EPA has veto authority over permits issued by the Corps. But according to Miller, this veto power has only been used about a dozen times since the law's inception.
The other agency with some veto authority over the Corps is the Missouri DNR, which must issue a water-quality certificate before any project can move forward. John Madras, a water-pollution-control specialist with the DNR, says that if his agency finds that a wetland-development project harms the physical, chemical or biological integrities of a water body, then it may deny the Corps its needed water-quality permit. How often does the DNR act on this authority? "Very rarely," Madras says.
Both agencies defend their rare use of veto power by saying that the Corps and the permit applicants usually find a solution suitable to all parties.
But just how effective is this process?
"That a very good question," says one EPA official who asked not to be identified. "We hear again and again at conferences from state and tribal governments, from federal agencies and from industry folks that very few people are doing any monitoring. Monitoring is never a huge chunk of any agency's budget. We rely a lot on volunteers."
Case in point: In 1995, several members of the American Fly Fishers Federation and Trout Unlimited were fishing on Mill Creek, a spring-fed cold-water trout stream in the Mark Twain National Forest. When they got to a low-water bridge that was being rebuilt by a contractor for the U.S. Forest Service, they saw a bulldozer operator in the process of trying to channelize the creek 100 feet upstream of the bridge and 975 feet downstream.
According to the permit the contractor was operating under, this was absolutely, unequivocally not allowed. The fishermen "rather unceremoniously assisted" the bulldozer operator from the site and immediately contacted Midkiff, of the Sierra Club.
"People get these permits knowing full well that nobody is monitoring or supervising," Midkiff says. "The channelization of that stream would not have been permitted under any permit, but nobody was monitoring or supervising it. Fortunately, those trout fishermen were there and just raised holy hell about it, ended up calling us, and we called the Forest Service and the Corps and ended up sort of negotiating between the two agencies to get somebody to deal with it."
Midkiff can recite dozens of similar examples, including an incident last summer in which a Sierra Club member ran across a large gravel excavation taking place next to Huzzah Creek. When the member called the Corps of Engineers in St. Louis, they learned there was no permit for the excavation. Midkiff says the member was told that an investigation couldn't be launched for another three to six months, because the Corps has only two people in the St. Louis district office conducting site investigations over a 28,000-square-mile area.