By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
Sipocz decided the corps was simply confused. Corps workers said they didn't believe the wetland was connected to Gum Bayou, a navigable water body. So Sipocz and his colleagues sent them photographs of water flowing out of the wetland, along roadside trenches and into the bayou. The trenches were brimming with a brown torrent.
"So in regards to whether the area is isolated from other water bodies, it's definitely not," Sipocz says. "No question about it."
But even the photos weren't good enough for the corps. Environmentalists eventually figured out that the rules in the Galveston district were simply going to be different from those in the rest of the country. The district was not going to count man-made drainage ditches or "sheet flow" -- diffuse overflows across flat land -- as valid connections between wetlands and navigable waters. And that meant up to half the wetlands in the Houston area weren't protected.
National environmental groups were aghast. A report released in November by the National Wildlife Federation found the district has put 3.3 million acres of wetlands -- an area twice the size of Delaware -- at risk of development. "The result of the interpretation of this court decision has been particularly devastating in Texas," says Julie Sibbing, a wetlands policy expert for the federation in Washington, D.C. "Open season has been declared on almost all of the wetlands on the coastal plain, and the state of Texas has no laws to stop the destruction."
Sipocz says the Galveston district simply misinterpreted the court decision. The ruling legitimately affected many wetlands in the Midwest, which really are isolated holes in the ground. But Houston's wetlands should be some of the best-protected in the nation. They're almost never "isolated" from navigable streams because they almost always overflow when it rains. "There is a deep misunderstanding about how wetlands work here," Sipocz says.
Yet Cutler, the corps compliance director, is never short on reasons why wetlands in places such as South Shore Harbour can be ignored. Sitting in a conference room recently, he glances at Sipocz's photo of the water gushing out of the bulldozed property. "Quantity of water alone does not matter," he says. "Because every time Houston floods, roadside ditches turn into whitewater rapids."
Several biologists outside the corps say they believe Cutler's reasoning is based on a simple reluctance to protect Houston's wetlands. This hands-off approach is grounded less in policy, one researcher privately claims, than in a pro-developer agenda.
For somebody perceived as a swamp-hating zealot, Cutler has an odd résumé. He was an environmental activist in the 1970s with the Stop Movement, a group that sought to block the corps from issuing a permit to the proposed Pelco oil tanker port on Pelican Island. Cutler discovered that an explosion at the port could wipe out much of Galveston, including the hospital. But the corps granted the permit anyway.
Pelco never went into Galveston Bay; another oil port built off the Louisiana coast rendered the Pelican Island plan redundant. Yet the close call left a deep impression on Cutler, who was at the time a high school teacher of earth sciences. "That's when I decided to join the corps," he says. "I wanted to try to ensure all environmental impacts were properly assessed in the future."
Over several decades at the corps, Cutler watched wetland protections grow progressively stronger. The bird rule went into place in 1986. In 1990, President George H.W. Bush pledged a policy of "no net loss" of wetlands. Bush, and then Clinton, attacked permits that had granted developers the right to fill "isolated" wetlands as large as ten acres. The permits now cover less than an acre.
Cutler transferred to the corps regulatory division in the hope that he could use the stronger rules to make a difference, he says. He has grown out a beard nearly to his belly and often wears a cardigan, funky woven shoes and black John Lennon reading glasses on a chain. Fellow workers decorate their cubes with mounted dragonflies, nature calendars and advice from the Buddha.
The regulators hardly seem like the kind of division of the army that would gleefully bomb hundreds of acres of wetlands. But it's not up to them. In fact, the bomb was dropped by Fred Anthamatten, the district's chief of policy analysis. A month after the Supreme Court removed the migratory waterfowl rule, Anthamatten sent a memo telling corps workers to fall back on a set of policies he had helped create in the 1980s. Those rules banned regulators from protecting wetlands connected to water bodies via sheet flow or drainage ditches. These were the policies that let South Shore Harbour off the hook.
Some corps regulators express grave concerns about the wetlands rules but asked to speak anonymously for fear of reprisals from Washington. "It's like Iraq," one regulator says. "It's like we're medics working on a dying patient. We're on triage."
Anthamatten defends the rules and points out that his superiors have told him to continue with the status quo. "We are following the law," he responds, "and our criteria have been upheld through the Assistant Secretary of the Army's office. So I am just saying, 'Hey, if this is incorrect, and we are told to change it out of Washington, D.C., then we will.' "