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The Planet

    The Planet
    July/August 1998, Volume 5, Number 6

    Big Win for Small Wetlands

    by Jenny Coyle

    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 tennis court.

    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 permit review.

    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 (Louisiana) Chapter.

    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."

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