The Council of Civic Associations, Inc.
24910 Goldcrest Drive
Bonita Springs
, Florida 34134 

November 19, 2007


The Honorable John Paul Woodley, Jr.
Assistant Secretary of the Army (Civil Works)
108 Army Pentagon, Room 3E446
Washington, D.C., 20310-0108 


 Dear Mr. Woodley:


The 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.


The 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.


The 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).


Your 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 report ( , 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: 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:
  • 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." 


In 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? 


The conclusion 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.

Your 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 watershed..."  
    • " 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 Cypress Swamp and the Ten Thousand Islands - Everglades National Park 
  •  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.(


[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 quality.  


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 political contributions.
  • 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.
  •  The "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.


In 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. 


We look forward to hearing from you.




Ann Hauck, Secretary
tel and fax: 239-495-7379


CC: Members of the Committee on Transportation and Infrastructure, U. S. House of Representatives 110th Congress