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Great Lakes Article:

Interior's Silence on Corps Plan Questioned
Norton Never Submitted Fish and Wildlife Critique of Controversial Proposal to Relax Wetlands Rules

By Michael Grunwald
Washington Post Staff Writer
Monday, January 14, 2002; Page A05

In October, after the Army Corps of Engineers floated a controversial proposal that would relax a series of wetlands protection rules, the Fish and Wildlife Service drafted comments denouncing the plan as scientifically and environmentally unjustified.

The service's 15-page salvo warned that the Corps proposal would "result in tremendous destruction of aquatic and terrestrial habitats," sacrificing far too many streams and swamps for houses, levees and coal mines. The plan, the comments stated, "has no scientific basis."

But the Corps never received those comments. That's because Interior Secretary Gale A. Norton, who oversees Fish and Wildlife, never submitted them. So today, the Corps will announce its final version of its controversial plan without formal input from Interior's key biological agency.

The only input Interior offered was a memo supporting the coal-mining rule that the wildlife service found by far the most objectionable.
"Our job is to make sure the secretary gets our best biological advice, and we did that," said Marshall Jones, the service's acting director. "We don't decide what happens next."

Interior spokesman Mark Pfeifle said the department had hoped to submit formal comments on the Corps proposal but ran out of time before it could finish ironing out disagreements between its Office for Surface Mining and the wildlife service over the coal-mining rule.

Pfeifle blamed the mix-up on the Democratic-controlled Senate, which has yet to confirm the assistant secretaries or agency directors that President Bush has tapped to oversee the mining office and the wildlife service. "There were not enough hands on deck to move the paperwork through the system," he said. "That's a genuine concern. It hinders our ability to have dialogue among the agencies."

Pfeifle also pointed out that the mining office's comments on the Corps proposals -- which had little in common with the wildlife service's environmental concerns -- were not submitted either. He said the two agencies hashed out a compromise letter two days before the Corps deadline, but Interior's political appointees did not believe it was ready for submission. The two agencies also have begun to work together on strategies to minimize the environmental damage caused by strip mining and mountaintop-removal mining in Appalachia.

Bush has vowed to protect wetlands in no uncertain terms, and his Environmental Protection Agency submitted comments objecting to the Corps proposal. But environmentalists and some federal employees argued that the no-comment situation reflects a new hostility toward environmental issues at Interior. They said they could not recall a previous case when Interior failed to supply any formal comments on an issue as important as the Corps program that provides 80,000 permits to develop in wetlands every year. They also noted that even though the wildlife service's Oct. 15 comments -- which were provided to The Washington Post by environmentalists who agree with them -- went well beyond the disputed mining rule, Interior failed to pass along any of its concerns on other issues.
In general, the critics accused Norton of suppressing the wildlife service's science to curry favor with industry, noting that both aides involved with the memo to the Corps about the coal-mining rule -- Deputy Secretary Steven Griles and counselor Ann Klee -- had represented mining interests in the past.

Jamie Rappaport Clark, a National Wildlife Federation vice president who was Fish and Wildlife director under President Bill Clinton, said Interior would not have abstained from commenting on a major wetlands issue during her tenure.

"This is just nuts," Clark said. "For Interior to stop Fish and Wildlife from commenting on something of this magnitude and importance, that's really unbelievable."
Everyone agrees that the Corps proposals are extremely important. Under the Clean Water Act, anyone who wants to drain or fill wetlands must first obtain a permit from the Corps, which is supposed to make sure the permitted activities do not create significant harm to the environment. Today, the Corps will finalize its rules that determine when developers and other applicants are eligible for "general permits," which are virtually automatic, and when they must seek "individual permits," which are somewhat more onerous.

In March 2000, the Clinton administration forced the Corps to propose some revisions to the general permit program to enhance protections for streams, bogs and other wetlands, which tend to provide wildlife habitat, filter drinking water and absorb floods. The revisions would have eliminated general permits for projects in floodplains, or projects that affect more than a half-acre of wetlands or more than 300 feet of streams. They also would have required all permitees to "mitigate" as many acres of wetlands as they destroy. Environmentalists were delighted, but the National Association of Home Builders filed suit.

In May 2001, the Corps, never known for environmental activism, proposed a new plan that eliminated the 300-foot and mitigation rules, weakened other restrictions but still promised the permit program would have minimal impact on the environment. The idea, Corps officials said, was to reduce the bureaucratic review processes for minor projects, allowing regulators to spend more time analyzing projects with more significant ecological risks.

"We think these new changes are basically about reducing paperwork," said Susan Asmus, a vice president for the home builders group. "I don't know if I'd say they'll have no impact on the environment, but I don't think they'll have much impact."

Officials at the EPA and Fish and Wildlife did not agree. EPA dashed off a critical comment. Led by federal program activities chief Benjamin Tuggle, the wildlife service also put together its scathing comment letter, questioning the science behind many of the Corps proposals. Waiving the 300-foot rule, the letter said, "will encourage the destruction of stream channels and lead to increased loss of aquatic functions." Trusting applicants to enumerate endangered species on their property, it continued, "could be construed to suggest the Corps would be abrogating its responsibilities under the Endangered Species Act." Allowing general permits for flood-control projects, it warned, would confer carte blanche upon "a range of undefined, unlimited activities."

The letter reserved its harshest comments for proposed general permits for surface-mining operations. It argued that the Corps' own data "speak overwhelmingly" against the rules, showing that mining operations authorized with general permits had destroyed thousands of acres of aquatic habitat and many miles of streams, "far exceed[ing] the Corps' predictions," affecting as many as 50 threatened or endangered species. It also chided the Corps for its "lack of basic knowledge of the effects of these permitted losses on the environment."

On Friday, Tuggle said he was encouraged by the wildlife service's improved relationship with the Mining Office, but he was clearly disappointed that Interior had failed to challenge the Corps with formal comments. Fish and Wildlife, an agency dominated by biologists who tend to tilt green on environmental issues, has an often tense relationship with Norton and her aides, most notably over oil-drilling in the Arctic National Wildlife Refuge. "Fish and Wildlife is getting rolled," a federal official said.

Pfeifle said Norton is committed to protecting wetlands and other natural resources. But he said she is also committed to developing natural resources such as oil, gas and coal, a commitment to energy production he suggested was lacking in the Clinton administration. "We're trying to restore the balance," he said.

Pfeifle said environmentalists are unfairly caricaturing public servants like Klee, who worked for years as an environmental counsel in the Senate after representing the American Mining Congress, and Griles, who represented America's largest renewable energy company as well as several mining firms. But Joe Lovett, a lawyer battling mining companies in Appalachia, said the no-comment confusion did not suggest a deep environmental commitment.

"That's just amazing," said Lovett, who recently challenged a general permit that allowed a firm to bury six miles of streams in Kentucky. "They're abdicating their responsibility."

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