The Council of Civic Associations, Inc.
Honorable John Paul Woodley, Jr.
Assistant Secretary of the Army (Civil Works)
108 Army Pentagon, Room 3E446
Washington, D.C., 20310-0108
Council of Civic Associations, Inc., (CCA) is a not-for-profit organization
founded in 1996. We are affiliated with over 70 civic organizations, government
liaisons and community leaders in Southwest Florida. Our
goal is to make government at all levels accountable for enforcing the laws for
which they are responsible, for the benefit of all citizens and not just
specific special interest groups.
Council of Civic Associations has received a copy of your October 18, 2007 testimony
before the House Transportation and Infrastructure Committee.
It appears to include misleading information or omissions that
may have affected the Committee members' responses and/or
conclusions. We would appreciate your reply to our concerns.
basis for our concerns is that we are facing dire consequences from
our actions: developments on the land surface such as urbanization and wetland
drainage inadvertently modify weather patterns. The total removal of wetlands
from the weather cycle through deforestation, asphalt and concrete paving and
other urban development further amplifies the shift toward high temperatures
(Source: Marshall, Boyle and Mechum. 1982).
comments are written in bold type followed by our rebuttal.
[Your testimony] "summarizes
the Army's responsibilities under the Clean Water Act and describes the
significant progress that we have made improving program performance over the years,
making sure that section 404 is implemented consistent with the goals of the
Clean Water Act." Further, "In the 35 years since its enactment, the
Clean Water Act, together with Swampbuster, ongoing
public and private wetlands restoration programs, and active tribal, state,
local and private protection efforts have helped to prevent the destruction and
degradation of hundreds of thousands of acres of wetlands and similar impacts
to thousand of miles of rivers and streams. The average annual net rate
of wetland loss, from development and natural causes...has been reduced from
about 460,000 acres per year between the mid 1950s to the mid 1970s to 60,000
acres of annual net loss, between 1986 and 1997."
- As you know, Congress
requires an update on wetlands trends at ten year intervals called
"Status and Trends of Wetlands in the Conterminous United
States." According to your testimony, the annual net
wetlands loss between 1986 and 1997 was 60,000 acres. However, a
September 12, 1997
, showed a net loss of 117,000 acres per year between 1985 -1995 ,
much of which occurred in highly productive, freshwater, forested
wetlands. What statistics source/s did you use in
your testimony and why did you choose an outdated report instead of
the updated Status and Trends of Wetlands report for 1998-2004?
- The third Fish and Wildlife
Service (FWS) "Wetlands Status and Trends 2000
"Report Summary Findings" (Thomas E. Dahl), says that while
freshwater ponds (see below) continued to increase by nearly 13%,
forested wetlands experienced the greatest decline of all wetland
types with a loss of 1.2 million acres.
- The latest report: http://wetlandsfws.er.usgs.gov/status_trends/national_reports/trends_2005
report.pdf contends that the losses of
520,000 acres between 1998-2004 were
offset by creating more than 715,000 acres of new wetlands.
However, according to the study data collected for the "big
increase" in wetlands counts, the
largest percent increase in area of any wetland type in the study was
artificial ponds that do not provide the same functions and
values. Ponds, as described in the report, are water traps on golf
courses, small residential lakes and water retention for farms.
"Without the increased pond acreage, wetland gains would not
have surpassed wetland losses during the timeframe of this study."
Simply put, a hole in the ground does not make a wetland.
- In the Preface to the
report for the years 1998-2004, Secretary of the
Interior, the Honorable Gail Norton wrote that the report does not draw
conclusions regarding trends in the quality of the nation's wetlands but gains
are achieved through the contributions of restoration and creation
activities. This admission is a red flag for us. "Restored,
protected or improved" wetlands does not increase
the total acreage: A wetland gain occurs only when a non-wetland
becomes a wetland (Source: FWS.gov/southeast/news/1997/r97-84.html)
- The FWS study for the years
1998-2004 uses the Cowardin (1979) wetland
definition to describe wetland types. This 'system' which was formally
adopted by the Federal Geographic Data Committee on December, 1996, as the
standard for wetlands classification, mapping and data reporting
activities deals strictly with vegetated wetlands while the non-regulatory
definition includes both vegetated and non-vegetated areas. The
non-regulatory definition used to inventory the nation's wetlands captures
a broader range, i.e., wetter and drier extremes of wetlands than wetlands
captures by the regulatory definition.
- According to an e-mail
received from Dr. John Hall, former chief regulatory officer of
the Corps JAX District, "Ponds should not be classified as vegetated
wetlands under any wetlands classification system I know of."
your testimony you give definitive numbers for wetlands losses, we
assume, nationwide. The USACE Jacksonville District did not start keeping
combined, integrated comprehensive records for wetland activity or incidental
taking in Florida until
2003. How do you account for this failure and did the USACE maintain 'complete'
records for other Corps districts nationwide? In other words, how did you
arrive at the tallies documented in your testimony? What
percentage of the tallies were "improved" wetlands (removal of
exotics et al.)? What percentage of the gains in your report are ponds and
artificial lakes? What percentage are 'restored' wetlands?
that we arrived at is that since there is little or no enforcement
the federal government cannot determine with reasonable accuracy
wetlands losses and gains. A GAO report supports this premise: it
says that the consistency and reliability of wetlands data reports by the
federal government are unreliable.
testimony before the Committee was distributed by the Council of Civic
Associations to leading South Florida area scientists, the USACE, EPA,
FWS, USGS, Florida Department of Environmental Protection, Lee County
government, SW Florida Regional Planning Council, National Wildlife
Federation, Sierra Club, Conservancy of SW Florida, Audubon of
Florida and other sources that participated in the CCA symposium in
2006 with a request for feedback. The following are some government
responses (names withheld):
- "I am really
interested in finding out if anyone has audited the "Trends"
document referenced in your [Woodley Congressional testimony] attachment.
I question the accounting used to arrive at the various wetland acres statistics
quoted in the document you sent. The Regional Planning Council in Ft.
Myers has some very
interesting statistics in a study currently in draft form regarding the
wetland losses and future projections for the Estero Bay
- "...is as bogus
as the typical Corps Cost/Benefit evaluations--pure [expletive].
- "I never cease
to be amazed at the absolute delusional stuff that can be spewed from
these people. I would use the Pittman (Craig Pittman, St. Petersburg
Times) data/article to show how utterly ridiculous his statements
are--however he told the congressmen just what they wanted to hear."
- "Hey, well,
that work is done, let’s move to global peace, a
similar area of improvement over the last few years. I think Jim Beever had documented within the Estero
basin the unmitigated loss of over 1000 acres in one year."
[Your testimony] "The Corps of Engineers Clean Water
Act section 404 program has played an important role in maintaining the
Nation's aquatic resources by encouraging people to avoid them if possible,
minimizing their involvement if necessary, and by compensating for unavoidable
impacts to aquatic resources, including wetlands."
- In Florida
alone, the USACE approved more than 12,000 permits and denied one
between 1989 and 2003.
- Avoidance and
minimization are rarely carried out. The USACE's
oversight is hampered by vague and inconsistent guidance. (Source:
GAO-05-898 Wetlands Protection report.).
- Compensation for
unavoidable impacts in the form of mitigation banks is a
money-making scheme. The USACE permits the destruction of wetlands on the
promise that the mitigation banks will compensate for the loss but then
does no inspections. (Source: GAO ibid.). Mitigation that occurs
outside the watershed does not replace type-for-type functions on site.
- Dr. John Hall, Chief
Regulatory Office, (RET), USACE, Jacksonville District wrote: "No net
loss [wetlands] is based on functions not acres." This means that
they can approve mitigation LESS than 1:1 when viewed on an acreage basis
and still call it no net loss because [they would claim] that the
mitigation has better functions and values than the degraded natural
wetlands being destroyed.
- In South Florida
enormous changes have occurred in the drainage boundaries and
runoff patterns that have had significant impacts on the system and the
waters that flow south to the National Panther Refuge, Big
and the Ten Thousand Islands - Everglades
- According to an
article by Craig Pittman of the St.
Petersburg Times, between 1990 and 2003,
about 84,000 acres of wetlands disappeared in Florida
alone. The analysis, using satellite images of the State did not
include wetlands destroyed by mining and farming so the actual losses are
likely to exceed 100,000.(http://www.sptimes.com/2005/webspecials05/wetlands/index.shtml).
[Your testimony] “The EPA's role under the CWA's Section 404 includes coordinating with States or
Tribes that choose to administer the Section 404 program.”
- What "coordination
with tribes," are you referring to? In Florida,
a string of lawsuits related to water quality issues were filed
by the Miccosukee Tribe of Indians and by Earth
Justice and Fisherman Against the Destruction of
the Environment. The EPA has been on the wrong side of every one of the
lawsuits and even after losing, the EPA has continued to support the wrong
side through the appeals process. This is a damning track record:
1995: The Everglades
Forever Act Lawsuit: Case No. 95-0533-CIV-Davis. The Miccosukee
Tribe sued the Environmental Protection Agency under the Clean Water Act for
failing to review the Amended Everglades Forever Act as a change in water
1998: The Miccosukee
Tribe v. United States,
Case No. 95-553-CIV-Davis (SD Fla.).
The Judge sided with the Tribe against the EPA and found that by not requiring
farmers to implement additional water quality measures until 2006, the
Everglades Forever Act allows discharges of phosphorus that violate Florida's
narrative standard until 2006 and that this was a de facto suspension of water
quality standards. 1998: The S-9 Lawsuit : Case
Nos. 98-CV-605698-CV-6057, 1999 WL 33494862 at 7 (S.D. Fla.
1999). The Miccosukee Tribe sued the South Florida
Water Management District (SFWMD) alleging that it was discharging pollutants
into the Everglades Protection Area from its S-9 pump. In 2004, in response to
the SFWMD, and EPA's taking the S-9 case to the U.S. Supreme Court, the Supreme
Court ruled in the Tribe's favor.
2002: The Lake Okeechobee
S-2, S-3, S-4 Lawsuit: Case No.
02-80309-CIV. In 2005, the EPA intervened in this case on the side of the
SFWMD. In 2006, Judge Altonaga found that
the canals and the Lake were meaningfully distinct
bodies of water; that requiring permits for backpumping
is consistent with the CWA goal of restoring and maintaining the chemical,
physical and biological integrity of our nation's waters. The Court rejected
EPA's Agency Interpretation on Water Transfers as contrary to the unambiguous
language in the CWA.
2004: The Amended EFA and Phosphorus Rule Lawsuit: Lead
Case 04-21448-CIV-Gold). The Tribe filed a lawsuit against EPA for its
failure to review the 2003 Amendments to the EFA as a change in Florida's
water quality standards under section 303 of the CWA and for failure to review
the State's 2004 Phosphorus Rule as a change in water quality standards.
[Your testimony] "...since Earth Day 2004, the
Administration has restored, protected or improved 2,769,000 acres of wetland.
This figure represents gross gains (i.e., it does not factor in wetlands
losses).” You discuss the President's desire to attain an overall increase in
quantity and quality of wetlands in America.
- The President has achieved
neither. What meaningful significance do you apply
to "gross gains" of wetlands acres without factoring in
wetlands losses or functions and values?
- On Earth Day, 2004, the
President Bush traveled to Rookery Bay National Estuarine Research
Reserve, which is adjacent to Belle Meade and within the Picayune
State Park. It is
notable that shortly after the President's "restore, protect and
improve" speech a large development proposal - Winding Cypress - aka Barron Collier Companies-located in the middle of
a swamp at the headwaters of Rookery Bay was approved,
including impacts of 197 wetland acres even though it did not meet
the EPA's water quality criteria at that time and is likely to effect
water quality downstream to the Reserve. See comments re:
political pressure under Winding Cypress in the Boxer Report). See
"Congress Watch" re: Florida
- Since there is little
- if any - meaningful enforcement, there is no way of determining the
success of restored or improved wetlands.
[Your testimony] The Corps' data show an overall no net
loss of wetlands for the 404 program and that lost aquatic functions are being
replaced. However, the Federal government uses many other programs and
authorities, including the Comprehensive Everglades
Restoration Program to achieve an overall increase or improvement in the waters
and wetlands nationwide. "The Corps and EPA work together to administer
the Clean Water Act."
- Enormous changes have
occurred in the drainage boundaries and runoff patterns of South
Florida watershed since the 1947 USACE determinations of
watershed and surface water runoff volumes. These changes, as mentioned
previously, have had significant impacts on the waters flowing south into
public trust lands. With some critical exceptions the eco-system for south
Florida is one.
- It is now becoming
apparent to the general public that they have been duped
and that CERP is a water management project typical of other Corps
water projects. Under the CERP and Accelor8 programs between 40,000 and
50,000 acres of reservoirs will be constructed based on current estimates
and there could be more. These reservoirs will be "waters of the U.S."
and, therefore, subject to meeting state and federal water quality standards.
Yet, legitimate water quality issues (e.g. potential incubators for
toxic algae) and solutions to those problems are not being addressed prior
to permit issuance/construction - for political reasons - to allow for
their expeditious construction.
- These reservoirs are
managed systems not natural systems. The definition of restoration
according to the federal Geographic Data Committee, which includes the
EPA, defines restoration as the manipulation of the physical, chemical or
biological characteristics of a site with the goal of returning natural/historic
functions to a former or degraded wetland. In your testimony you claim
that CERP will play a part in achieving "an overall increase
or improvement in the waters and wetlands nationwide." How
can water [flow] be restored to the Everglades
at the same time structures are being built to throw water off the
landscape? Are these reservoirs potential incubators for toxins? (see EPA comments on the Everglades
Agricultural Area (EAA) reservoir which address Water Quality.)
- A memo from Major General Don T. Riley, Assistant
Secretary of the Army (Civil Works), May 25, 2007, says that "The State
is not currently meeting WQ requirements for water that would flow into the
proposed features and it is not likely to come into compliance for several
decades. Although for decades the actions
(permitting, public works drainage projects, the operation of public works
such as managing the water levels in Lake
Okeechobee, etc.) have significantly contributed to
highly degraded water quality conditions in South
Florida, USACE now say that they will not cost
share for CERP projects to improve/correct water quality conditions.
"Executive Summary" of a 'new' report on the Florida Department
of Environmental Protection web site "Evaluation of
Current Stormwater Design Criteria within the
State of Florida"* raises concerns regarding toxins in waterbodies and is peppered with negative comments:
Executive Summary: "The subtropical climate and
significant hydrologic modifications associated with urban development in Florida
support Cyanobacteria growth in many of the surface
waters throughout the State." Section 6, page one, paragraph
one: "...existing stormwater design criteria
fail to consistently meet either the 80% or 95% target goals outlined in
Chapter 62-40. Section 5, page 26, paragraph two:
"...current design criteria based on retention of the first 0.5-inch of
runoff or 1.25 inches from the impervious area fail to meet the target annual
mass pollutant removal efficiency of 80% for stormwater
management systems outlined in the Water Resource Implementation Rule.
Section 5, page 35, second paragraph: "...wet
detention ponds designed to the St. Johns River Water Management District
criteria fail to meet the 80% removal criteria outlined in Chapter 62-40.
- The Southwest Florida
Feasibility Study was an important component of the Everglades Restoration
project. The Corps attempted - for the third time since 2000 - to
side-line the study, at least once without any notice to the Study
Team. If there are budgetary problems then how can the USACE create
a brand new Phase 2? Allegedly, it is not about money but political and
geographical issues. Development is moving from the coastal regions to
central Florida. The Collier
County Rural Lands Program is touted as the most successful proposal
in the state but, in reality, development is out of control. PUDs have been replaced, allowing people to build anywhere
i.e., Big Cypress, a city in nowhere. We have been told that this
project will wipe out the panther in the wild.
June, 2006, the Council of Civic Associations held a symposium at Edison
College which included 65
representatives from the EPA, FWS, FDEP, SFWMD, USGS, Audubon of Florida,
National Wildlife Federation, Florida Wildlife Federation, Sierra Club,
Regional Planning Council, Lee and Collier county government. Although
invited, the USACE was not present with the exception that on the
final afternoon Ms. Dorothy Board, counsel, attended and participated.
look forward to hearing from you.
tel and fax: 239-495-7379
Members of the Committee on Transportation and Infrastructure, U. S. House of
Representatives 110th Congress