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By Craig Malisow
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By Sean Pendergast
By Sean Pendergast
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The mud stretches for 200 acres, a shimmering paddy of rutted black gumbo. It is flanked by a highway and a gravel road, real estate signs and an overpass. The developers look at it and envision an Italian village, an ambitious League City subdivision called Tuscan Lakes. But John Jacob prefers the mud.
Standing in the clingy loam, his boots caked past his ankles, the Texas A&M University soil scientist scoops up a handful of muck. He squishes it between his fingers and approvingly watches it ooze out like a sun-baked chunk of Nestlé's Crunch. This thick clay soil once formed a bed of the Brazos River, which shifted 30,000 years ago and left a thriving wetland.
"It's irreplaceable," Jacob says of the old riverbed. "It's a geologic legacy, a gift."
Yet several days, three hydraulic shovels and a few gallons of diesel were all it took to plow the riverbed bare. The bullfrogs and dragonflies have disappeared, and the meager remains have become a last supper: Flocks of herons and pink-feathered roseate spoonbills spear dead mosquito fish and crawdads, leaving thousands of footprints atop the bulldozer tracks. "They're refugees," Jacob says. "This is their home, their habitat, and it has been zapped."
The presence of such birds once meant the federal government would preserve this land. And for good reason: Wetlands are Houston's most important environmental resource; they control its floods, purify its polluted water and support the globally crucial migratory waterfowl flyway through its backyards.
And yet biologists say wetlands are now vanishing from the Houston region faster than from any other urban area in the nation. A new study found that 13 percent of inland, freshwater wetlands in Harris County were filled or drained over the past decade and the vast majority were lost since 2000. If the development continues, most of the region's freshwater marshlands could disappear in 20 years.
Responsibility for wetlands in Houston, and along the entire Texas coast, rests on the shoulders of Casey Cutler, the controversial chief of compliance for the regulatory branch of the U.S. Army Corps of Engineers Galveston District.
Some environmentalists call Cutler's district the worst in the nation. "Their wetlands calls cannot withstand the light of day," says Andy Sipocz, a biologist with the Texas Parks and Wildlife Department in Clear Lake. "There is really no logic to it."
Criticisms from reputable scientists haven't changed the district. In fact, environmental protections have grown much weaker. And thanks to federal courts, the Bush administration and congressmen such as Representative Tom DeLay, the district's drain-fill-and-pave approach to wetlands management could soon become standard practice nationwide.
Any local knows this city was built on a sweaty, pestilent, mosquito-infested swamp. Mud-clogged streets and yellow fever epidemics were played down in the early days, when advertisements for Houston looked like postcards from Vermont and land speculators said the site enjoyed "a healthy, cool sea breeze."
In more recent years, Houston's variegated feculence has oozed into the national consciousness. The journalist Hunter S. Thompson in 2004 described the city as "a cruel and crazy town on a filthy river in East Texas with no zoning laws and a culture of sex, money and violence." The New York Times travel section last month simply called it the "city on the swamp."
Real denizens of the Houston muck, however, know the city isn't so much built on a swamp -- in the archetypal Okefenokee sense -- as on a wide expanse of wetlands scientifically known as prairie potholes. The potholes are like glorified puddles; they fill up when it rains and spill into bayous, ditches and sometimes people's yards.
Nobody was complaining about this in Houston's younger years; downtown was a hard-won island atop the goop. Yet thanks to a modern army of Bubbas on Caterpillar tractors, that goop is now much more malleable, and is being sculpted into a landscape that looks parklike, kid-friendly and deceptively benign.
Jacob and Sipocz, the local biologists, climb into a van and drive down Texas Highway 96, hooking through the gates of a subdivision called South Shore Harbour. A snaking path leads to jogging trails, freshly stamped houses and young lawns. Scattered cattle egrets -- the waterfowl equivalent of pigeons -- wade the banks of ornamental ponds, snatching bugs from the thin grass.
A reedy, soft-spoken scientist with curly black hair and a young face, Sipocz could be the typical suburban soccer dad. But when he visits South Shore Harbour he tries to contain his rage. In 2000, when the subdivision was under construction, he tipped off the corps to the presence of prairie slough wetlands on the land. Development halted, and he thought he had won.
But a few months later, wetlands rules suddenly changed. A key regulatory tool had allowed the U.S. government to protect wetlands if they could be used by migratory waterfowl. When the U.S. Supreme Court shot down this "bird rule" in early 2001, the corps immediately closed the books on South Shore Harbour. A worker told Sipocz that the wetlands were beyond the agency's control.
The decision perplexed Sipocz. Lacking the bird rule, the corps can still protect most marshes under the U.S. Clean Water Act. They're protected if they contain wetland plants and soils and are connected to navigable water bodies. Sipocz saw no reason why the South Shore Harbour wetlands wouldn't qualify. "Those are the exact same conditions those wetlands exist under," he says.
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.' "
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."
But the corps has rarely investigated even the biggest violations far enough to dole out punishment. Documents obtained under the Freedom of Information Act show the agency confirmed 804 violations of wetlands regulations between 1992 and December 2004 in the Galveston district. Yet records and interviews with corps officials reveal less than 1 percent of those cases resulted in penalties.
In other states, people are severely penalized for filling wetlands without a permit, Sipocz says. "But as far as I know, this district doesn't do that."
Many of the few successful punishments are recent products of Cutler's efforts to fix the enforcement problems. Frustrated by the time-consuming and costly process of pursuing fines through the courts, he now negotiates punishments directly with violators. Since 2002, with the help of the district's attorney, he has extracted more than $200,000 from delinquent developers. Excepting one unusually large fine, that's more money than the corps won during the previous decade.
But instead of praising the corps for enforcing the law, some local congressmen have excoriated the district. After Cutler halted the expansion of State Highway 6 in Sugar Land, which was about to destroy a long stretch of wetlands, Representative Tom DeLay forwarded letters to the district from irate highway contractors.
"The Corps has a new man in Galveston by the name Casey Cutler that seems to be causing all the problems," wrote Larry Deavers, president of Deavers Construction. "I am convinced he will shut down every highway project in his district."
Passing on letters from angry constituents is nothing new; most local congressmen forward reams of such correspondence. Yet DeLay took the unusual step of using his considerable sway to pressure the corps personally. He wrote to Lieutenant General Joe N. Ballard, the top commander of the corps in Washington, and asked him to loosen the Galveston district's clamp on Highway 6 and other freeways.
"There appears to be an indication that this may be a regional problem resulting from over-zealous enforcement and ultra-conservative delineation of wetlands," DeLay wrote. "I am extremely disturbed by reports that I have heard that some Corps personnel have used threats and intimidation to accomplish their goals.
"I urge the Corps to work with TxDot," he concluded, "and eliminate unnecessary delays in order to continue with these projects."
A Washington administrator wrote back and defended the district. Even so, that kind of pressure makes it hard to condemn workers within the corps for laxity, Blackburn says. "The Galveston district is in some respects one of the worst districts in the United States," he says. "In other respects, it's a reflection of the state of Texas."
And even when congressmen don't tamper with corps workers directly, they can neutralize them by slashing the agency's funding. Because of a limited budget, nine employees in the Galveston district's compliance section must police an area roughly the size of Florida. The section lost two enforcement officers in 2003 and could lose another this year.
Although overall funding for the corps dipped only slightly in 2004, conversations with corps regulators in three Southwestern districts reveal top Washington administrators privately directed regulators to slash key budgets even more.
One senior regulator, who asked to remain anonymous for fear of reprisals, says the enforcement department has been put in a chokehold. The district has typically acted on 70 percent of known wetland violations each year, he says, but thanks to staffing cuts, last year touched only 43 percent of the cases. A worker complained of the backlog to Mark Sudol, national chief of the Corps' Regulatory Branch, he says, who told him the shortfall wasn't short enough. Sudol's instructions were to cut enforcement down to 30 percent of each year's cases and shift the rest of the enforcement money somewhere else. He threatened to move the funds himself if the department didn't comply.
Sudol denies instructing any district to cut enforcement funding. "What I did tell everybody was that this is going to be a lean year," he says. "With a flat budget after three years, we are down significantly."
The regulator says the noose on the department continues tightening. Beginning this year, he says, corps officials will be required to log one of nine expense codes for major activities, including enforcing wetland violations, conducting inspections and issuing different types of permits. "They want to be sure we are not putting more resources into busting people," he says.
Sudol confirms the codes will be used to set targets. In fact, he says, enforcement goals probably will be set at 25 to 30 percent of each year's violations -- on par with the levels the source reports he mandated. But, Sudol adds, individual districts can exceed enforcement goals if other departments also meet their targets.
Even so, several regulators view the moves as a backhanded attempt by the Bush administration to further weaken wetland protections without taking flak for it publicly. "You just strangle out these funds to these areas so nobody can do enforcement anymore," a regulator says. "That way, you can look like a good guy, because on the surface you are not opposing anything."
Thanks to modern science, politicians have a much harder time these days writing off wetlands as little more than vermin-infested swamps. Suburban marshlands clearly are not as sacrosanct as national parks, but from a health perspective, they do a lot more for city dwellers than does the Half Dome or Old Faithful.
Any Texas urbanite who wants to pave more wetlands should first take a swim in Buffalo Bayou. Houston's premier downtown waterway exceeds federal standards for fecal coliform bacteria, the stuff in poop. In fact, more than half of all freshwater in the Houston area is too dirty for swimming or fishing. A dip at a Galveston County beach would also be informative, especially during the summer, when the feces and yard fertilizer flow out of the bayous into Galveston Bay and spread dangerous bacteria and toxic algae blooms. It would be best to go when one of the beaches is closed because of such health concerns, which shouldn't be hard: Between 2001 and 2003, Galveston beaches were shut down 446 times.
If so many local wetlands hadn't been filled, they would have served as relatively cheap solutions to these problems. The shallow water in wetlands traps harmful bacteria and kills them by exposing them to ultraviolet light. Aquatic plants and beneficial bacteria absorb excess nutrients before they can cause algae blooms in streams. And toxic heavy metals and chemicals tend to bind to wetlands' clay soils, where they are slowly neutralized. "A sewage treatment plant is just a very, very simplified version of a lot of the same chemistry," Jacob says.
Thus it's no wonder many cities aren't just saving wetlands; they're spending big money to build new ones. Montgomery and Harris counties recently set aside more than 100 acres of parkland along Spring Creek, just west of Interstate 45, which will improve water quality, control floods and provide open space. The counties plan to acquire much more. And a massive project funded by the Tarrant Regional Water District, which supplies drinking water to Fort Worth, is creating 2,000 acres of wetlands along the Trinity River. The $22 million marsh will purify sewage-laced water flowing from Dallas before it enters the Richland-Chambers reservoir.
"This is the beginning of a very large movement in the area of water reuse throughout Texas," says B.L. Harris, associate director of the Texas Water Resources Institute. "It's like developing an entirely new water supply."
Toss in the benefit of wetlands for wildlife habitat, and they even start to look profitable. Duck hunting alone brings Texas $100 million in yearly revenue. And Ted Eubanks, president of the ecotourism company Fermata, says bird-watchers probably spend tens of millions annually in the Houston region alone. An international crowd flocks to High Island each spring to see migratory birds land after crossing the Gulf of Mexico.
"I think the ecotourism potential is phenomenal," he says. The seven-county Houston area has more recorded bird species than all but three states. "It's a phenomenally rich area regarding avifauna."
Yet Houston won't become a bird-watching mecca if those species disappear. Vanishing wetlands soon could cause the local eradication of graceful creatures such as the mottled duck and sandhill crane. "We as a world won't lose the sandhill crane," Jacob says, "but Houston will."
The Bush administration has shown concern about the impact of wetland losses on wildlife -- or at least on votes from hunters and fishermen. In 2003, Bush met with some 20 representatives from "hook and bullet" clubs -- groups such as the National Rifle Association and Ducks Unlimited. At issue were possible changes to the Clean Water Act. According to a document leaked to the Los Angeles Times, the administration had been considering eliminating protections for "ephemeral streams," potentially opening up development on millions of miles of riparian areas in the West.
Four days after the meeting, Bush killed plans to revise the act. The following April, he stood in a marsh in Kennebunkport, Maine, and reaffirmed his father's old pledge to maintain "no net loss" of wetlands.
But the words had a different meaning. Cutler wagers an interpretation: "I think what that means, after [the Supreme Court decision], is no net loss of jurisdictional wetlands."
The Bush administration's real plans for America's wetlands can seem as slippery as a homeless mud crab. Yet Houston may provide a glimpse into the future. The $1 billion Bayport container ship terminal has been more than a lightning rod for environmentalists; it has provided a glimpse into how Washington is gearing up for a fight.
A high-ranking corps source says the port's permit -- which allows it to destroy more than 100 acres of "isolated" wetlands without any mitigation -- was the subject of a battle in Washington that lasted for months. The Environmental Protection Agency wanted the corps to claim control over the wetlands because they were connected to Galveston Bay via "sheet flow" -- shallow, wide overflows atop levees. Corps officials in D.C. resisted. "It was such a hot issue that it bounced everywhere," the source says. "And in the end, we were told not to count sheet flow."
The national corps kept local regulators on a tight leash. Before the permit was issued, the Pentagon sent Brigadier General Alfred K. Flowers, who had no biology experience, to walk the site and uphold the final wetlands determination.
More important, the official adds, the district viewed the Bayport decision as evidence that national headquarters would shoot down any attempts to more comprehensively protect wetlands in the future.
Local environmentalists are still fighting back. Last year four local cities and eight environmental groups lost a challenge to the decision in federal district court in Galveston. They've taken the case to the Fifth Circuit Court of Appeals, a move that has national environmental groups on edge.
"We have been getting phone calls from people in other parts of the country that are scared to death," says Blackburn, who represents the Bayport opposition in the case.
If the Fifth Circuit sides with the corps, the ruling will conflict with pro-environment decisions from other circuit courts. It might cause the Supreme Court to take up the issue, pitting Blackburn and the Bush administration in a high-stakes face-off that could determine the fate of wetland protections nationwide.
A loss for Blackburn could mean the national corps wins a court-ordered rollback: Galveston's wetland policies could be applied to California, Florida, Vermont and everywhere else in the United States, exposing thousands of acres to development.
But a victory could help alter the course in Texas. "We in Texas should enjoy the same protection that the rest of the United States is getting," Blackburn says, "and it's wrong that we are not."
A few miles from NASA, past the plowed front lines of Clear Lake City's rising outer subdivisions, a neighborhood park welcomes Boy Scout troops and high school cross-country teams into a frequently sweltering den of alligators, thorns and chomping insects.
The Armand Bayou Nature Center might not always be the best spot for a volleyball game or a picnic, but Sipocz and Jacob are regulars here. After a strong November rain, Jacob fires up an all-terrain vehicle and Sipocz stands on the back, casually ducking to avoid trees. The roaring machine curves down a dirt road into one of the region's few protected tracts of forested wetlands.
Founded in 1974, the preserve may soon become one of the last places in the Houston area where large uninterrupted wetlands are visible. The 2,500-acre site provides an all-too-rare laboratory for researchers to learn about such ecosystems -- and to challenge the corps's assumptions.
The scientists come to a jerky stop and bushwhack past magnolias and palmettos up a small stream. It soon disappears, yet shallow water continues to wash over the land. It is flowing from a wetland, an acre-sized open pool a few dozen yards deeper into forest, full of gambusia fish and reedy sugarcane plumegrass.
Sipocz punches data into a global positioning system and dictates coordinates to Jacob. He aims to prove the wetland drains into Armand Bayou. And along the way, he wants to measure how much pollution the marsh removes from rainwater, which collects here after absorbing toxins such as benzene and nitrous oxide from the ground and Houston's troposphere.
The first of its kind on the Texas coast, the study ultimately could give the corps a stronger case to conserve local wetlands for their role as water purifiers. "It just seems natural that they would want this information," Sipocz says.
Yet it's unclear what the corps could do with it. Regulators say science has become almost irrelevant to the agency's approach. "It doesn't make sense," one corps employee says. "It's not science; it's politics."
After decades with the corps, however, Cutler seems to have come to terms with his job's natural political ebbs and flows. "The politicians respond to the interest the public expresses," he says.
"If you are not happy with what's going on, change it."