|Fill a quarter-acre wetland and build a house. Fill a
smaller wetland and bury a septic tank. Fill yet another and pave it over for a backyard
Red tape? No problem. Nationwide
Permit 29, which sanctions such residential projects on a half-acre or less, is rarely
denied by the U.S. Army Corps of Engineers. And while "individual" permits
issued by the Corps call for public comment and a thorough environmental review,
"general" permits like NWP 29 dodge both public and environmental scrutiny.
But maybe not for long. In April, a federal court judge in
Alaska ruled that the Corps violated the National Environmental Policy Act when it first
issued NWP 29 in 1996. Judge John Sedwick said that in crafting the permit, the Corps
didn't consider alternatives that would be less damaging, such as limiting the permit to
smaller wetlands, or excluding "more valuable" wetlands.
Sedwick told the Corps to conduct a more thorough NEPA
review and barred the agency from processing new fill applications after June 30. Once the
Corps has completed its review, which may involve withdrawing NWP 29 or changing its
conditions, it must get an order from the court to reinstate the permit. Until then,
projects previously covered by NWP 29 will be governed by the more thorough individual
Wetlands activists are hailing the judge's decision not
only as a validation of their claims against a single general permit, but as a possible
harbinger of good news for NWP 26, another controversial permit that allows fills of up to
three acres with little analysis. The Clinton administration, after years of pressure from
the environmental community, last year agreed to phase out that permit over the next two
years and issue replacement permits -- ostensibly less damaging to the environment.
"The judge's decision should send a signal to the
Corps that it needs to approach the NWP 26 replacements with more caution and
environmental review," said Robin Mann, chair of the Club's Wetlands and Clean Water
Campaign. "In February, when Clinton announced that his Clean Water Action Plan had a
goal to achieve a 100,000-acre net gain in wetlands per year by 2005, we were very
skeptical. The administration was in the process of drafting replacement permits that
would actually broaden the rubber-stamp permitting, thereby totally undermining their own
action-plan goal. But this court ruling has the potential to steer the government toward
replacement permits that are less damaging."
Sedwick's ruling was the result of a lawsuit filed in 1995
by the National Wildlife Federation, the Sierra Club and a dozen other environmental
groups. Among the many Sierra Club members whose contributions helped win the case were
Deborah Messer, chair of the Algonquin Group in Michigan and Jay Vincent of the Delta
Many of the environmental groups and individuals involved
in the case charged when NWP 29 was created that the permit would pave the way for the
incremental destruction of wetlands. Another NWP 29 critic was the U.S. Department of the
Interior, which found that 2,507 wetland acres were at risk of being filled for
residential development projects in one Pennsylvania county alone.
No wetland parcel is too small to merit protection.
"The Corps has no scientific basis for saying fills of
one-half acre have no significant environmental impacts," said Tony Turrini, the
Alaska-based National Wildlife Federation attorney who filed the suit. "A
scientifically based permit that truly scrutinizes a project's impact on wetlands will
discourage people from building in wetlands if they don't have to."