Va. wetlands under siege

On The Bay

Environment: By failing to plug a legal loophole, Gov. James S. Gilmore III has endangered thousands of acres in river watersheds.

August 27, 1999|By Tom Horton | Tom Horton,SUN STAFF

CHESAPEAKE, Va. -- This and next week's columns take two views of one river, the Elizabeth, which forms Norfolk's harbor and branches through the bay watershed's southeast corner.

It is the story of an ironic coupling of environmental ruin and promise, of land and water, and of our continuing inability to treat them as a connected watershed, despite a bay restoration predicated on that approach for some two decades.

Next week we will look downstream, at perhaps the first truly wise management of the bay's critically important oyster stocks in well over a century.

Virginia is investing millions of dollars in it, and the results are bearing fruit -- in more bivalves and in the excitement of thousands of school kids with a hands-on approach to bringing back the estuary.

Meanwhile, upstream, Virginia's Gov. James S. Gilmore III is cravenly giving away the store to big development companies.

By refusing this month even to try to close a loophole opened last year in federal wetlands law, Gilmore has declared open season on thousands of acres of forested wetlands in the watersheds of the Elizabeth and other rivers.

Threatened wetlands

More than a half-million acres of Virginia's wetlands are potentially threatened by the loophole. Here, around the city of Chesapeake, more than three square miles have been drained in the past year -- 10 times the losses in the previous five years -- and drainage is considered imminent for another 10 square miles.

This is despite legal analyses given to the Virginia governor by the Chesapeake Bay Foundation and the Southern Environmental Law Center in Charlottesville, Va., showing how existing state laws could halt the destruction.

Gilmore has not responded, except to announce recently that he feared losing "an expensive lawsuit" if Virginia acted.

Virginia, unlike Maryland and Pennsylvania, has no state wetlands law that covers the loophole created by a successful lawsuit last year against federal wetlands regulations.

But North Carolina, with laws very similar to Virginia, acted to stop similar drainage -- after an astounding 20,000 acres of wetlands, about 30 square miles, were lost to developers there.

For Gilmore, who took more than $1.2 million from the development community in his 1997 campaign, it is worse than making a lie of his frequent pledge to add to Virginia's wetlands.

The losses may be large enough to undermine the tri-state bay restoration goal -- agreed to in 1989 -- of an overall wetlands increase.

Pollution buffers

Ironically, the wetlands Virginia is stupidly writing off upstream and the oyster reefs it is wisely investing in downstream are prized as filters and buffers against bay pollution.

To comprehend the cynical nature of the assault on Virginia's wetlands, one must understand that Congress, despite decades of concern with wetlands, never passed a law that just said, "Don't mess with them."

To fill the void, environmental lawsuits, court rulings and regulatory agencies over the years construed a section (404) of the federal Clean Water Act to stop most activities that degrade and destroy wetlands.

This section makes "the discharge of dredged or fill material into the navigable waters" of the United States illegal without a tightly regulated permit from the U.S. Army Corps of Engineers.

Wetlands, even those that are flooded seasonally, are all legally "waters of the U.S."

So, while it's technically legal to drain wetlands to where they are no longer protected as "waters of the U.S.," it's been hard to dig the necessary drainage ditches without the soil from ditching creating "dredged or fill material."

Recently developers have engineered special ditching equipment and techniques solely for the purpose of excavating in, and draining wetlands with minimal fill -- only the little bit that drips off the dredge bucket.

In June 1998, a federal appeals court in Washington, D.C., agreed this little bit was not fill, and did not require regulatory oversight.

30,000 acres wrecked

Since then, it's been bombs away, with more than 30,000 acres of wetlands wrecked nationally, most of it in North Carolina and Virginia. "Tulloch ditching" it is called, after John Tulloch, the Corps of Engineers officer who made the rule the court overturned.

Tulloch projects bear no resemblance to the "mom and pop" cases where small landowners have needed relief from wetlands rules.

Tulloch ditching takes equipment like dump trucks on tracks that travel alongside the huge ditching machines to keep any fill from falling back onto the wetlands.

To further avoid fill, stumps in the paths that are cut through forests for ditching equipment are not pulled out -- special equipment chips them into mulch where they stand.

It can cost $300,000 to prepare 150 acres of wetlands for drainage and eventual development. Presumably to further increase profit, a Virginia developer, with the National Association of Homebuilders, this month sued the Corps of Engineers to expand last year's court decision so bulldozers can be used to clear wetlands.

This is Governor Gilmore's true constituency, it seems, and this is the legacy of the governor who promised to leave office with more wetlands than when he entered.

Pub Date: 8/27/99

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