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Builders Swamp Wetlands

Developers are taking advantage of a 2001 Supreme Court ruling that removes 'isolated' waterways from any federal protection.

October 19, 2003|Elizabeth Shogren | Times Staff Writer

ST. MARYS, Ga. — The views across grassy salt marshes and the Intracoastal Waterway to a federally protected island wilderness are so picturesque that Home & Garden Television chose the Cumberland Harbour housing development as the location for its 2004 "dream home."

So far, HGTV's large, genteel Victorian with a private deep-water dock is the only house constructed among the cypress and live oaks dripping with Spanish moss. But on these 1,100 acres in southeastern Georgia, the developer has plans for a gated community of 1,200 residences -- plus streets, a yacht club, swimming pools and other upscale amenities.

Potential home buyers may be eagerly anticipating the completion of luxury housing on pristine waterfront property, but federal officials charged with protecting rare plants and animals are worried: Two endangered species, the wood stork and the Eastern indigo snake, rely on these wetlands for habitat. But because these wetlands have been designated "isolated," no federal agency has a say in what happens to them.

The U.S. Supreme Court ruled in 2001 that under the Clean Water Act, the government can protect waterways that are navigable or tributaries or marshes that drain into navigable waters -- but can no longer regulate "nonnavigable, isolated, intrastate" ponds, wetlands or mud flats just because they provide a habitat for migratory birds.

The Army Corps of Engineers, which has jurisdiction over the nation's waterways, has interpreted that ruling to mean that isolated wetlands no longer fall under the provisions of the Clean Water Act -- and are thus no longer protected from development.

Before the court's decision, Cumberland Harbour's developer would have been required to seek a permit from the Army Corps of Engineers before filling in or draining any of the wetlands. The U.S. Fish and Wildlife Service would have investigated the potential effect on rare animals and plants. And the Army Corps of Engineers would have either rejected the permit or, at the least, required the developer to make up for the loss of each acre of wetland by restoring or creating wetlands nearby.

Now, once a wetland area is determined to be "isolated," a developer may not even have to notify state or federal authorities before bringing in the bulldozers.

But the environment pays a price each time wetlands are filled, say those who study them.

"Wetlands ... can release water slowly over time, even during drought periods," said Keith Parsons, an environmental specialist with the Georgia Department of Natural Resources. "As wetlands are being developed, they're no longer acting as reservoirs."

President Bush has declared his commitment to a goal of "no net loss" of wetlands, first set in 1990 during his father's presidency, but the Army Corps of Engineers does not know how many wetlands and streams nationwide are being lost or polluted as a result of the Supreme Court ruling. The Fish and Wildlife Service and the Environmental Protection Agency are not keeping track, either.

Top officials in the Army Corps of Engineers downplayed the effect of the ruling so far but conceded that it could grow in the coming years.

"The significant losses predicted immediately after [the court ruling], from what we've been able to see, are not occurring," said Mark Sudol, chief of the Corps' regulatory branch. "There may be [such losses] in the future."

But regulators, environmentalists and wetlands experts in states like Georgia and Texas, which have no programs to protect isolated waters, point to projects where hundreds of acres of wetlands and streams have been destroyed or are slated for destruction because they were judged to be isolated.

Even in California and Washington, which are among the 18 states with their own regulations for isolated waters, some wetlands and arroyos that used to be protected are being obliterated, officials said.

Over time, the state officials and environmentalists warned, the cumulative effect on water quality and wildlife could be significant, especially if the Army Corps of Engineers takes a broad view of what is considered "isolated."

On the Texas Gulf Coast, thousands of acres of wetlands are being filled and drained near Galveston Bay to build housing developments, shopping centers and a new port, aggravating a severe water-quality problem that is decimating sea life and commercial fishing, according to an official of the Texas Parks and Wildlife Department.

Near Vancouver, Wash., in preparation for the construction of a new Costco, earth-moving equipment recently covered up a wetland that local biologists say was a habitat for juvenile salmon.

In Southern California, the Army Corps of Engineers has continued to protect "the vast majority" of the wetlands, arroyos and streams on the coastal plain, officials said.

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