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Lawful Loss

In the Houston/Galveston area, a housing boom coupled with weak legal protection has led to an alarming loss of wetlands.

By Tom Harvey

Near the western shore of Galveston Bay, there once was a wetland-splashed expanse of coastal prairie. Wetlands here used to be protected under the federal Clean Water Act.

Today the area is becoming housing subdivisions with names like Mar Bella and Tuscan Lakes. Just these two projects comprise 1,404 acres, where people will live in more than 3,000 homes.

Wetlands are also lost to roads, industry, agriculture and other factors, but this example shows how changing interpretations of regulations and laws affect wetlands protection.

“Before the SWANCC decision, this area was about 3,000 acres of coastal prairie and wetlands, and now it’s gone,” says Andy Sipocz, a TPWD biologist and wetlands expert. “It had large areas of water on it that flowed into Galveston Bay, deep enough for large gar to swim into. We have 2004 aerial photos of undeveloped prairie there.”

Sipocz is talking about the 2001 Supreme Court case “SWANCC vs. U.S. Army Corps of Engineers.” This had the effect of removing protection for an estimated 40 percent of previously protected freshwater wetlands on the upper coast, according to the Corps Galveston district. (See also “Redefining Wetlands,” July 2003).

Even without the SWANCC interpretation, coastal prairie loss to growth would still happen, but there would be a mitigation requirement to create, restore or protect wetlands.

The crux of the issue is defining which wetlands are considered connected to navigable waterways and are thus regulated under the Clean Water Act, and which are considered isolated and can be filled without a Corps permit. Many observers believe the Corps Galveston district interpreted the SWANCC decision in a way that resulted in less protection for overland “sheet flow” wetlands common on the Texas coast. “If the Galveston district’s interpretation was in place in Florida, most of the Everglades would be considered isolated and subject to filling,” says Sipocz.

“The definition of wetlands did not change with the SWANCC decision, but the requirements for how we regulate them did,” says Fred Anthamatten, a marine biologist and chief of policy analysis with the Galveston Corps district. “We still do regulate adjacent wetlands. And we can regulate isolated wetlands if there’s a connection with interstate commerce. We’ve been criticized as one of the more conservative districts. We’re actually one of the more middle-of-the-road approaches.” Even so, no one denies the region is losing wetlands.

According to the Greater Houston Partnership, new housing starts in the Houston-Galveston-Brazoria area for 2003 and 2004 were the highest since 1983. Other data show a corresponding loss of wetlands. In June 2005, Texas Sea Grant issued a report on wetlands loss. It stated “The Lower Galveston Bay watershed lost at least 3.1 percent of its natural freshwater wetlands between 1992 and 2002. Most of the loss occurred in Harris County, which lost at least 13 percent of its natural freshwater wetlands in the same period.” Researchers concluded “Rapid development in Galveston, Ft. Bend, and Brazoria Counties suggests losses on a par with Harris County in the next two to five years, and catastrophic losses for the entire area in the next two decades.”

Wetlands protection laws could get weaker across the rest of Texas and the nation. Early this year, the U.S. Supreme Court began hearing two cases in which Michigan developers are challenging the Clean Water Act. Some observers believe that more than half of the nation’s streams and wetlands could no longer get Clean Water Act protection if the newly remade court sides with developers.

In one case, a developer wanted to sell a wetland for a shopping center and filled it without a permit. In the other, a condominium developer was denied a permit to fill a wetland.

The developers argue that Clean Water Act regulators have overreached by claiming jurisdiction over wetlands far from larger waterways where federal lawmakers have clear authority.

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