By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
The deferential attitude of many corps employees is a product of intimidation from the Bush administration, one regulator says. Bush has "wised up to the fact that you really need to clamp down on your agencies if you want to control them."
The regulator describes the mind-set at the district as a bunker mentality. Even the office feels like a fortress. It's built next to a U.S. Marine base on what looks to be a drained peninsular wetland. Visitors must sign in with guards at a tall barbed-wire fence and again with a security officer inside the building. An employee accompanies guests at all times, even on trips to the bathroom.
In the event a serious attack materializes, however, it will probably come via fax machine from New Orleans, home base to the Fifth Circuit Court of Appeals. The court makes Anthamatten look like an egret lover. It has indicated it wants to cut wetland protections even further, suggesting in written comments last year that it might soon rule marshes along smaller streams to be beyond the corps's reach.
Other circuit courts have upheld much stronger safeguards. For example, the Fourth Circuit Court of Appeals ruled the same year that even wetlands adjacent to "a roadside ditch" that connects to a river "through an eight-mile-long series of non-navigable ditches and creeks" qualify for conservation. And the Sixth Circuit Court upheld a similar decision.
"It is widely accepted that the level of wetland protection in other parts of the United States is different than it is in the Galveston district," says Jim Blackburn, a Houston environmental attorney who specializes in wetlands.
Cutler certainly isn't the outspoken activist of 25 years ago. Lacking the bird rule, and given that Houston is filled with wetland plants and plagued by floods, he argues that a different interpretation of existing laws and guidances is difficult to implement. In effect, he says, there could be too much conservation: "With an extremely liberal interpretation, anything that sits there and ponds for two weeks might be, if you were to sit there and claim it, you might be able to claim an awful lot of Harris County that is not a wetland as a wetland, if you were not careful."
"Careful" is the last word Jacob would use to talk about local wetlands development. "I would say it's alarming," he suggests. And unlike the average nature lover who's freaked out by the latest Wal-Mart parking lot, he has a bird's-eye view of what's really happening.
In the Clear Lake office of the Texas Coastal Watershed Program, an extension of Texas A&M University, Jacob's colleague, Ricardo Lopez, sits in front of a $10,000 computer. Two monitors are plugged into a massive processor capable of displaying, in a matter of a few seconds, one of any of a thousand aerial photos, each detailed enough to show roads, houses and parking lots -- even to measure wetlands destruction. "With our photography," Lopez says, "it's very easy to track that."
By way of example, Lopez uploads an aerial view of a large undeveloped lot across the street from Willowbrook Mall. He superimposes it with a U.S. Geological Survey map, which shows the outlines of numerous wetlands. This is 1992. "Now let's switch that photo to the 2002 version," he says. One click fills the screen with a Home Depot Expo, Mi Casa outlet, Circuit City, Linens 'n Things, Champps America, AMC 24, Starbucks, Subway and Hooters. Good-bye wetlands, hello Potemkin village.
Scrutinizing reams of these photographs for more than a year, Jacob and Lopez have measured wetlands loss across the entire Galveston Bay watershed. Massive projects such as those around Willowbrook, which never required wetland permits, have eradicated many of the most valuable marshes in Harris County. "The best habitat is in the large undeveloped parcels," Jacob says, "and I would say we are on the verge, even in the next five to ten years, of losing all of those."
If the corps had protected the wetlands, it would have required the developers to mitigate the destruction. Building detention ponds, which imperfectly replicate real wetlands, would have been an option. Or the developers could have purchased natural wetlands elsewhere and set them aside.
But even areas the corps would claim to control aren't being protected, Jacob's study indicates. For example, before-and-after photographs taken above Friendswood show dozens of acres of marshland stripped bare right up to the edge of Clear Creek. The creek has been the subject of development battles since the 1980s, when portions were set aside as flood-controllers and wildlife habitat.
The Houston Press e-mailed copies of the photos to Cutler, who agrees the area probably contained jurisdictional wetlands and confirmed nobody had applied for a permit to fill it. "We have opened up an investigation," he says, "and we will see what's going on at that site."
Most such investigations go nowhere, however, in part because regulators are buried under an impossible caseload.
Another photo e-mailed to Cutler showed what seemed to be the most clear-cut example of illegal wetlands destruction imaginable: the bulkheading and filling of an estuary jutting directly into the Houston Ship Channel. The corps had launched an investigation in spring 2004, but still hadn't visited the site as of December. "In other words," Cutler says, "due to an overwhelming workload and reduced staff, that case basically has been pushed to the back of the stove as we are getting other ones that we feel are bigger environmental impacts."