Army Corps Ignores "No Net Loss" Wetlands Policy

Immediate Release:                
November 6, 2001   

Contact:   
Julie Sibbing, NWF, (202) 797-6832   
Robin Mann, Sierra Club, (610) 527-4598
Daniel Rosenberg, NRDC, (202) 289-2389       
Howard Fox, Earthjustice, (202) 667-4500
Melissa Samet, American Rivers (415) 482-8150

Army Corps Ignores "No Net Loss" Wetlands Policy

Five of the country's foremost conservation groups expressed outrage over an Army Corps of Engineers (Corps) Regulatory Guidance Letter on wetlands mitigation released late Friday. Without any public notice or coordination with other federal agencies who share responsibility for wetlands policy, the Corps has unilaterally ignored the national goal of achieving "no net loss" of wetlands, a goal established during the first Bush administration which has been the guiding principle of the national wetlands regulatory
program since.

"This arrogant move by the Corps demonstrates the agency's complete lack of respect for the public, other federal agencies, and most of all for our country's natural resources," said Julie Sibbing, NWF's Wetlands Legislative Representative.

The Regulatory Guidance Letter, dated October 31, sets out new Corps' policy regarding compensation for destroyed wetlands. Mitigation involves construction of new wetlands to replace those destroyed by development activities. The Corps is supposed to place highest priority on avoiding harm to wetlands, rather than mitigating damage after it has occurred. Unfortunately, the Corps often overlooks avoidance and allows destruction
of wetlands, based on speculative promises of mitigation.

According to Robin Mann, Chair of the Sierra Club Wetlands Committee, the Corps' new policy sets up an "anything goes approach" to wetland replacement.  The policy allows for wetland mitigation to consist of preservation or enhancement of existing wetlands, small buffer strips along streams, upland areas, ponds and other waters, or simply deepening an existing wetlands for swimming or fishing.  "None of these types of 'mitigation' can compensate for the loss of natural wetlands and will contribute to a continued net loss of our nation's valuable wetlands," said Mann.

The Corps has come under increased criticism over the past year for its failure to ensure that compensatory mitigation adequately replaces the functions and acreage lost when wetlands are allowed to be destroyed.  The General Accounting Office (GAO) published a study last spring which was extremely critical of the Corps' use of certain third party mitigation schemes.  The National Academy of Science (NAS) also published a report
last spring that found that Corps' mitigation policy was not providing for "no net loss" of wetlands within the regulatory program and that serious improvements were needed.

While the Corps claims that the new guidance letter is responsive to recommendations of the National Academy of Science study, only a few of the NAS recommendations are incorporated into the new policy, the GAO study is not mentioned and several weakening policy changes are included that were not recommended by either study.

"It is bizarre that the Corps proposes to weaken their inadequate program further, given that recent studies by the National Academy of Sciences, GAO and the Corps itself detail the widespread failure of the Corps' current mitigation policies to adequately protect wetlands and achieve the goal of "no net loss," said Daniel Rosenberg, an attorney with the Natural Resources Defense Council.  "Apparently, when it comes to wetland protection, there is no success like failure for the Army Corps," he added.

According to Melissa Samet, Senior Director of Water Resources with American Rivers, the Corps' guidance letter  "violates the spirit of interagency cooperation in administering the 404 program, and goes against the specific agreement that has guided wetlands compensatory mitigation in recent years." She points out that the Corps has a 1990 Memorandum of Agreement (MOA) with the U.S. EPA on mitigation.  This MOA can be modified or revoked only by agreement of both agencies or else by one agency with six months advance notice. "Yet it appears that the Corps has decided to informally revoke this agreement by replacing it with weaker standards," says Samet.

In April, the Bush Administration allowed a Clinton-era wetlands protection rule to take effect and pledged that it would continue to take responsible steps to ensure the protection of wetlands.  "Either the Corps didn't get the memo, or the Administration's policies regarding wetlands protection have been reversed without notice to the public," said Rosenberg.

While the Corps' press statements tout the guidance letter as improving protection for the nation's waters, Howard Fox of Earthjustice points out, "if this document were truly protective of wetlands and streams, the Corps wouldn't have felt the need to rush it onto the street without any public input. Refusing to allow the public a chance to point out the problems with the Corps' approach won't make those problems go away." The Sierra Club's Robin Mann agreed, adding "the Administration must not allow this guidance
letter to stand."