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Washington, DC — The U.S. Environmental Protection Agency has imposed new political screening of any objections agency staff contemplates filing against wetlands destruction permits, according to an internal directive released today by Public Employees for Environmental Responsibility (PEER). Under the new procedure, every EPA protest, however preliminary, sent to the U.S. Army Corps of Engineers requires prior approval from EPA Headquarters.

The October 30, 2006 “Memorandum for the Field” signed by EPA Assistant Administrator for Water, Benjamin Grumbles, directs all regional offices to “notify HQ immediately” and provide advance drafts before issuing a letter to the Corps indicating that a pending permit may result in “substantial and unacceptable” impacts to aquatic resources of national importance. The stated rationale for this new, tighter policy is to “ensure consistency with national program regulations, policies, and goals.”

“The aim and effect of this policy is to stifle EPA’s own staff from protecting wetlands,” stated New England PEER Director Kyla Bennett, a biologist and lawyer formerly within EPA’s wetland program. “This new policy puts the final decision in the hands of officials who have never seen the land in question and whose principal interest is political rather than environmental.”

Under a 1992 interagency agreement between EPA and the Corps, the EPA regional wetland program must notify the Corps district office during the public notice period when it believes a proposed permit may violate the wetland protections of the Clean Water Act. This preliminary warning is called a “3(a) letter.” Typically, this type of letter is sent directly from the wetlands program staff without input from the Regional Administrator, but each EPA Region has its own practice. If the Corps proceeds with the permit despite the 3(a) letter, the Regional Administrator can send what is called a “3(b) letter” to the Corps District Engineer stating that EPA believes the proposed project will have a substantial and unacceptable impact to aquatic resources of national importance.

If the Corps decides to issue the permit anyway, despite the 3(b) letter, it must send a draft copy of the permit to the EPA. At that point the EPA Regional Office can “elevate” the permit dispute to EPA Headquarters. This elevation step has occurred only 18 times in the history of the program.

“This added layer of scrutiny by Headquarters will discourage the regions from trying to elevate cases, or just increase the instances where ‘HQ’ quashes a regional decision to elevate,” Bennett added, noting that under the new policy, EPA regions must get permission from Headquarters before they even send a 3(a) letter. “Given that EPA has formally objected to fewer than 20 permits in 16 years, this elevation process was hardly a runaway stallion that required corralling.”

The U.S. Fish & Wildlife Service, which has an elevation option similar to that of EPA, is already under strict controls by political appointees within the Interior Department. As a consequence, the Fish & Wildlife Service has not objected to a single wetlands permit during the Bush administration.

Due to its pronounced pro-developer bias, Corps wetlands permitting practices have been consistently criticized in independent reviews by entities such as the National Academies of Science and the Governmental Accountability Office. Corps records assembled by PEER indicate declining regard for wetlands. PEER is now suing the Corps in federal district court to force the disgorging of its permitting records since 2003. That suit, filed this spring, is now in a final settlement process.

“As a result of this new EPA policy, even feeble checks on abuses by the Corps will be quashed,” Bennett concluded.


Read the EPA “Memorandum for the Field”

View the Memorandum of Agreement between the Corps and EPA

Look at the PEER suit for Corps wetland records and the declining protection trends

See the absence of “elevations” by the Fish & Wildlife Service since the advent of the Bush administration

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