Fly Rod & Reel
January/February 2000
Published by Down East Enterprises Inc


How the Army Corps of Engineers blows off the Fish and Wildlife Service

Ted Williams

Ed Perry, assistant supervisor of the US Fish and Wildlife Service's Pennsylvania field office, had told me how the confrontation would turn out. With a one-page letter the Army Corps of Engineers would "blow off" his agency, thereby trashing almost 3,000 acres of prime wildlife habitat, along with months of hard work.

Now, five weeks later, on the sweltering morning of June 7, 1999, 1 was talking to him again-this time on Bald Eagle Mountain, in central Pennsylvania. Cooled by a light breeze rolling down the Allegheny front, we hiked through a forest of oak, hickory, magnolia, maple, beech, hemlock and pine, jumping over brooks and skirting thickets of mountain laurel in profuse white bloom. In the valley, where the drought was already severe, wed kicked up red clouds of earth, but here the ground was wet. Wild turkeys yelped from grassy draws, and woodcock spiraled up from spring seeps on whistling wings. I almost stepped on a nesting ovenbird, and the caroling of scarlet-tanagers, wood thrushes, wood peewees and black-throated green warblers drifted down from the lush hardwood canopy.

When we intersected Blue Spring Hollow-a stream where native brook trout spawn-we followed it up the mountain, searching for its source. We found it 50 yards from the Pennsylvania Dept. of Transportation (PennDOT) survey stakes-a spring 25 feet across, overhung with rhododendron and ringed with chest high cinnamon ferns, Brook trout hovered four feet below the surface, the ivory trim on their pectoral fins plainly visible in the transparent water. Bald Eagle Mountain struck me as an unfortunate site for eight miles of four-lane superhighway.

Ed Perry (left), of the US Fish and Wildlife Service, and Carmen Santasania, the Pennsylvania Audubon Society's president, inspect what the Army Corps of Engineers claims is an important wetland. The Corps wants to protect it from a highway project, and instead ruin a wild trout stream.

That's how it struck the Fish and Wildlife Service, too. The Clean Water Act forbids destruction of wetlands except by permission of the Corps of Engineers. While obtaining such permission is rarely more difficult than asking, the service can appeal the permit under a Memorandum of Agreement (MOA) that has existed in one form or another since 1967, provided it declares the project area an "Aquatic Resource of National Importance." In federal bureaucratese this appeals process is called an "elevation."

So when the Corps announced that it planned to let PennDOT run its $430 million Route 220 Improvement Project over water-rich Bald Eagle Mountain, Perry and his supervisor, David Densmore, sought to elevate the permit. They took their case to Don Barry, Assistant Secretary of the Interior for Fish, Wildlife and Parks, who agreed, eventually sending a 25-page elevation letter to Joseph Westphal, Assistant Secretary of the Army for Civil Works. The highway, noted Barry, will disrupt groundwater flows to hillside and valley wet lands and streams. It will ruin 2,895 acres of habitat for species dependent upon this mix of wetlands, seeps, streams and forest, including 33 species of neotropical birds and 26 species of reptiles and amphibians. He further informed Westphal that Bald Eagle Mountain had been designated an Important Bird Area "due to the large expanse of unfragmented forest, its value for neotropical migratory birds dependent on forest interior habitats, and because it is a major flyway for migrating raptors." An alternative to the mountain route, unopposed by federal, state or private fish and wildlife advocates, would have placed the highway in the valley. Four times I drove the valley option, trying to figure how any engineer in his right mind could have rejected it. It was more direct; streams had already been bridged; existing Route 220, which had only to be widened or paralleled, ran through it. The Corps maintains that the valley route would disrupt agriculture, but what it will really disrupt is the cash flow of property owners who are busily selling. off the land to developers. According to the Fish and Wildlife Service, 78 percent of valley farmland is poor to unsuitable for grain and fair to poor for grass.

Dry shod, I walked through valley wetlands the Corps claims are too valuable to compromise with a second or wider highway. Some had been planted with grass and were being grazed by cattle. Others were planted in corn. One had been planted with several thousand derelict automobiles.

The ridgetop alternative is also opposed by Penn Trout (the local Trout Unlimited chapter), other fishing and hunting groups, the Pennsylvania Fish and Boat Commission, the Pennsylvania Game Commission and the environmental community. Even PennDOT wanted no part of it until confronted by FR&R Dirty Dozener Rep. Bud Shuster (R-PA). the powerful chairman of the House Transportation Committee. Because the ridgetop proposal will flood his district with federal pork he tried to stop environmental review of the valley alternative by slipping a rider into a $200 billion-plus transportation bill. When he proclaimed that environmentalists "had blood on their hands" because of accidents on existing Route 220, sportsmen and environmentalists advised him and the at the new highway would have been built by now had he not insisted on ramrodding it over the mountain.

What I found most amazing was that before choosing the ridgetop alignment the Corps had spent seven years evaluating both alternatives. How could this be? Richard Spencer, who has been involved in the project more than any other Corps official, didn't provide me with any insights. "The valley wetlands have functions and values that are important," he declared.

"Would you say a cornfield is important as a functioning wetlands?" I asked. He said he hadn't heard that corn was being grown on designated valley wetlands. "How about a junkyard?"

"If the wetland is taking whatever's running out of that junkyard and detoxifying it and retaining those heavy metals, it's doing a very valuable function," he said. But he agreed that it could do even better if PennDOT removed the junk.

In an October 11, 1995 memo Spencer had noted that as much as 134.49 acres of wetlands would have to be created in order to mitigate damage from the ridgetop alignment, as opposed to only 33.16 acres for the valley route, an indisputable acknowledgment that the latter was less environmentally hurtful. On the same day, the Corps had informed the Federal Highway Administration that it could "develop mitigation options for either alternative." So I reminded Spencer that under the Clean Water Act his agency cannot issue a wetlands-destruction permit "if there is a practicable alternative...which would have less adverse impact on the aquatic ecosystem," and I asked him if, given the relative impacts of the two alternatives, the Corps hadn't violated the law by choosing to run the highway over Bald Eagle Mountain. "Four years have gone by since I made those comments," he replied. "Things have changed on this project, including a full assessment of the wetlands."

"So all that stuff about the relative mitigation values was wrong?" I asked.

"It was right at the time," he said.

Now the Corps proposes to help mitigate the loss of 192 wetlands and 35 streams by having PennDOT gouge out 11 artificial "wetlands," seven of them next to the highway--not much help for trout or forest-interior species.

Ed Perry had erred when he'd predicted that the Corps would blow off the Fish and Wildlife Service with a one-page letter. The letter denying the elevation and affirming the ridgetop route ran seven lines onto a second page. The Corps offered no explanation. Shuster-who was informed about the decision before Fish and Wildlife-broke the news to the public on June 3.

It's not as if the service nags the Army engineers. Nationally, it elevates about two permits a year, but the Corps invariably sides with the developer. In fact, since the Memorandum of Agreement was renegotiated in 1992 the service has batted zero for 15, and it didn't do much better under the old MOAs. "We shoot our letter over to the Corps; they fire one back, and it's over," says Densmore. "That's the way it's gone for 30 years."

Still, there are a lot of good people in the Corps who genuinely care about fish and wildlife. One of them is Mike Davis, Deputy Assistant Secretary of the Army for Civil Works. As the key player in developing Corps wetlands policy, Davis is justly credited with initiating the Herculean task of greening the agency. He averred that service comments arc routinely considered in writing conditions for permitted projects and that it is "grossly unfair" of the agency to keep saying the Corps blows it off. "We're not automatically defaulting; I can tell you that," he said. When I inquired what the Corp should do to correct the universal impression to the contrary among service personnel, he replied: "I guess I don't know what the answer is. Someone has to be in charge of this program, and the Congress chose the Army Corps of Engineers. We don't even have to have this elevation process. There's not a legal requirement for us to grant another agency the ability to request an elevation."

But a federal judge might disagree. The Fish and Wildlife Coordination Act from which the MOA derives-requires that before issuing a wetlands-destruction permit the Corps "shall give full consideration to the reports and recommendations of the Secretary of the Interior. Clearly, it does not.

All service field supervisors can't be "grossly unfair," and yet all the ones I talk to tell me the Corps does indeed blow them, off. Dave Hudak, who retired last August after supervising the Bloomington, Indiana field office for 20 years, says it got so bad that he finally instructed his people not to contest wetland-destruction permits. "You don't win elevations," he asserts. "We elevated six to eight projects before we learned; and that was 12 or 15 years ago. My philosophy was don't elevate any thing, get the best deal you can for the critters at the field level because you get less of a deal as it goes up the line."

But that was when the service could bluff the Corps by threatening an elevation. District engineers used to fear at least the remote possibility of having one of their decisions overturned. But, with more and more service field supervisors avoiding elevations and the Assistant Secretary of the Army for Civil Works automatically siding with district engineers, the bluffs aren't working anymore and the deals for wildlife and fish aren't getting cut. Meanwhile, permitted projects are getting increasingly outrageous.

A case in point is the dam to be built by the Natural Resources Conservation Service (NRCS) on the North Fork of the Hughes River, in West Virginia. The North Fork, a candidate for National, Wild and Scenic River status, is a limpid , fish-rich stream that dawdles through a bottomland hardwood forest. Even the Corps admits that it's an Aquatic Resource of National Importance.

The dam-86 feet high, 505 feet long and containing 96,000 cubic yards of concrete and rock fill-will flood 3.4 miles of river, compromise 4.6 miles below the dam and destroy the habitat of 15 species of freshwater mussels, including the imperiled snuffbox. It's the sort of boondoggle the Corps itself used to keep busy with, basically money that went looking for a project. Almost a decade ago Sen. Robert Byrd (D-WV) wrangled $30 million from the Appalachian Regional Commission (a federal agency hatched by the Johnson Administration to boost the economics of the 13 Appalachian states). A dam, effused Byrd, would create a fabulous reservoir for recreation such as fishing (even though there were plenty of still-water fishing opportunities nearby, even though the Corps had already constructed 10 reservoirs in the state with average surface areas of 1,500 acres; and even though the natural, free-flowing stream abounds with 27 species of fish including smallmouth, largemouth, spotted and rock bass, green, longear and bluegill sunfish, and native muskellunge). Fifty-eight percent of the projected recreational benefits consisted of camping, picnicking, hiking, biking and swimming (including in swimming pools), all of which can be done as well or better without the dam. Flood control and water supply amounted to only 13.7 percent of the benefits.

When the Hughes River Watershed Conservancy, the Sierra Club and the West Virginia Rivers Coalition sued the Corps, an appeals-court judge ruled the benefitcost ratio inadequate and blocked the project, but only until the figures could be rejuggled. The Fish and Wildlife Service contested the Corps permit, but the Corps summarily rejected the elevation. So the dam started going up last July.

The Fish and Wildlife Service staff person who oversaw the drafting of the MOA currently in use is Gary Frazer now assistant director of the agency "The process is broken when the US Dept. of Interior says something is an Aquatic Resource of National Importance and it's not accepted at face value by Army," he says. Frazer is particularly exercised about Interior's recent failure with the elevation of the Northstar oil and gas unit in the

Beaufort Sea, 15 miles northwest of Prudoe Bay, Alaska. British Petroleum had sought permission from the Corps to run six miles of oil-gas pipeline that, for the first time in our nation's history, offshore oil would be pumped to the mainland under pack ice. According to the final environmental impact statement, a single oil spill could kill 30 polar bears. The project area is also important habitat for caribou, huge numbers of migratory birds including spectacled eiders, (a threatened species), and at least five species of anadromous fish.

The route preferred by the EPA, the Fish and Wildlife Service and the National Marine Fisheries Service would have kept the pipeline out of the near-shore area and landed it on an existing gravel causeway, thereby avoiding permafrost, which can melt and cause overlying pipe to buckle and break. "It really came down to a clear-cut view of which was the least environmentally damaging alternative," Frazer told me." And that's the job of the Fish and Wildlife Service. Under the Fish and Wildlife Coordination Act we are the Corps' environmental consultant. We had expert biologists, excellent resource data. There was a science base to this elevation like nothing I'd ever seen before. Every rebuttal raised by the applicant we addressed. I thought it was a slam-dunk."

Barry mailed the elevation letter on April 5, 1999, and three weeks later the Corps' rejected it with one page of condescending boilerplate offering no response, no analysis, no rebuttal, just "we disagree."

The reason for these decisions is that there's no challenge," says Perry. "The Corps has been blowing us off for years, and no one's talking about it."

That could change if citizens groups sue the Corps. It's not that important what the judge decides; you can win for wildlife just by going to court. Consider the federal action filed in May 1996 by the Sierra Club, the Houston Audubon Society and Sharron Stewart against the Army and Lake Jackson, Texas after the Corps had granted the city permission to build a golf course in a bottomland hardwood forest adjacent to the Brazos River. The site is part of a contiguous 1,600-acre forest tract, one of the largest mature bottomland forests in Texas. In its elevation letter the Fish and Wildlife Service noted that: radar images show clouds of warblers pouring into the site after their exhausting migration across the Gulf of Mexico; the continent's waterfowl depend on such wintering habitat, these woods sustain deer, bobcats, 36 species of amphibians 59 species of reptiles and at least 102 species of neotropical birds. "Golf courses," the service astutely noted, "do not have to be built on wetlands or the limited remaining high quality bottomland forests of this nation." The Corps disagreed and issued the permit on February 12, 1

For five months Army and city officials had been unable to get onto the site to do their analysis because it was flooded. Then, ignoring the forest and the wildlife that depends on it, the Corps merely added the areas of 1,200 water-filled depressions on the 200-acre project site"cow hoof prints," the project's fairy godfather, FR&R Dirty Dozcner Rep. Tom DeLay (R-TX) had called them when he dipped language into the Omnibus Appropriations Act in an aborted effort to block the service from elevating the permit. According to the Corps' arithmetic, the wetland area to be affected was only two acres.

The plaintiffs lost when they challenged the way the Corps had considered alternatives to the project. They lost when they challenged the way the Corps did its offsite impact analysis. But they won when they challenged the Corps on its failure to consider cumulative impacts such as destruction of trees and birds, as required by the National Environmental Policy Act.

In his March 7,1998 ruling US District Court judge Sam Kent upbraided the Army engineers for duplicity in claiming they had no jurisdiction over trees, even as they promised in the very same paragraph that future development generated by the golf course (stores, houses, etc.) -wouldn't be a problem because they'd write conditions into permits that would protect trees. "The Federal Defendants' assertion in their Response to Plaintiffs' Motion that the Corps gave a hard look at the cumulative impacts of the fragmentation of the forest and consequent loss of habitat for neotropical migrant birds is simply not true," Kent wrote. "To suggest that the Corps has no jurisdiction to consider the environmental impacts of fragmentation of the forest, even though it has jurisdiction to consider the impacts of the wetlands which co-exist underneath those very trees, is asinine."

Not much was won in court. (The ruling means only that the Corps has to go back and play with its figures.) But the plaintiffs bought the critters vital time; during the two-year court battle the pro-development city counsel was voted out and fish and wildlife sympathizers voted in. At this writing it appears that the site will be purchased as a sanctuary.

The case proves that people who care about wild things and wild places can compensate for and perhaps correct the broken elevation process by suing the Corps individually or encouraging such actions by groups they belong to. They can also review and comment on public notices for intended wetland-destruction permits. The safest way to get these notice is to ask the Corps' nearest district headquarters to put you on the mailing list "We're one of the few advocates of fish and wildlife that comment on these things," complains Frazer.

On our way down from Blue Spring Hollow Ed Perry had stopped beside a bath-tub-size spring seep that starts in the water recharge zone high on Bald Eagle Mountain, flows through its fragmented interior and out its mossy, grassy, wooded side. "All the Corps wants to know is what the impact is right here," he'd said. "Never mind the cumulative impacts, never mind the wild turkeys and woodcock that depend on these seeps, never mind the hog-nosed snakes that five in the dry uplands but hunt amphibians that five in wetlands. We have international treaty obligations to protect migratory birds. So here's the government undertaking a project that everyone agrees will have substantial adverse impacts on neotropical migrants and forest-interior species. All our people out there in our other field offices have given up. If I didn't have such a hard head and so much support from environmentalists, I'd give up, too."

Posted by Anthony Benoit
Environmental Engineering Technology at Three Rivers