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E-M:/ Cong. Jim Barcia VS America's (and Michigan's) wetlands

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

Another hair-brainer from Michigan's own Jim Barcia, 
Democrat congressman from Bay City....A prime sponsor of trashing
wetlands with so-called " wetlands mitigation banking legislation"

Date: Thu, 16 Sep 1999 18:36:52 -0400
From: Ami Grace <cleanwaternt@igc.org>
Organization: Clean Water Network
Sender: owner-cleanwater-info@igc.apc.org
Subject: Wetlands Action Alert: Mitigation Banking bill
To: cleanwater-info@igc.org
X-Accept-Language: en


As many of you know, a wetlands mitigation banking bill (HR 1290) was
introduced by Rep. Walter Jones (R-NC) into the 106th Congress on March
25, 1999. H.R. 1290 amends the Clean Water Act for the purpose of
wetlands mitigation banking. When the bill was introduced, you all
enough comments to dampen the leadership's enthusiasm for moving the
However, there seems to be renewed interest among House Transportation
Infrastructure Committee members to move the bills.  We have heard that
mitigation bankers are encouraging members of the T&I Committee to mark
up the
bill in the next few weeks.


If your Representatives are on the House Transportation and
Committee (listed below) please take a minute today to call or fax them.
Even if
you did it last spring, please do it again or consider writing them a
writing a letter to the editor, or printing an update in your chapter or
coalition newsletter to help spread the word.  

THE MESSAGE? Tell your Representative you are opposed to the bill, H.R.
because it does not protect the environment and fails to address the
reasons why America is losing more than 100,000 acres of wetlands a
year.  Ask your member to vote against the Jones bill when the Water
Resources and the Environment Subcommittee considers the bill.
In most cases you will get their staff and can leave a brief message.

You can reach your Rep. through the Capital Switchboard at

Pass this message on to other wetlands advocates in your community.

To read about problems with the bill, you can access the text and other
information about H.R. 1290 on the web by going to
http://thomas.loc.gov/ and entering the bill number, H.R. 1290.  You can
also read the fact sheet, sample letter and background information

Please feel free to contact CWN if you have any questions.  We will
forward on to you all more information as we gather it.  Thanks as

CWN's fact sheet on HR 1290:

Unlucky for Wetlands:
13 Problems with HR 1290, 
the deceptively named "American Wetlands Restoration Act of 1999"

HR 1290 is basically the same as the version of the bill that was
reported out of the House Transportation and Infrastructure's Water
Resources and Environment Subcommittee last Congress, but it is even a
worse.  For instance, although we opposed the bill last year, at least
Rep. Blumenauer got an amendment added during the subcommittee mark-up
to strengthen requirements for in-kind compensation.  That language is
not in this year's version of the bill.  It is hard to believe that
supporters of the bill are interested in working to improve the bill
when they aren't even starting with the version that the subcommittee
passed after much debate last year. Key problems with the bill include:

1. Sequencing: Under the concept of "sequencing," wetlands are allowed
to be destroyed only as a last resort.  The bill fails to provide that
sequencing (the requirement that developers first avoid and then
minimize wetland impacts before mitigating for those impacts that cannot
be avoided or further minimized) be followed where mitigation banks are
used.  Without a clear sequencing requirement, mitigation banks can
easily be used as an excuse for permitting unnecessary and damaging
wetland destruction.
2. Lack of Adequate Requirements for Ecological Success: H.R. 1290 lacks
adequate provisions to ensure that mitigation banks are successful
ecologically.  For example, there is no requirement for the Army Corps
of Engineers to evaluate and make findings on the success or failure of
a bank, and there is no opportunity for public input in determining and
ensuring the success of a bank.
3. Credit for Preservation: The bill would allow a mitigation bank to
sell credits for preserving wetlands (or even uplands).  Preservation
cannot compensate for wetland destruction in the nation's continuing
effort to achieve and move beyond no net loss of wetlands.
4. Moving Wetlands: H.R. 1290 establishes "service areas," the
geographic areas within which mitigation credits can be traded, that are
far too large.  As a result, the bill would allow wetlands to be
mitigated hundreds of miles away and in a different watershed than the
wetlands being destroyed. This is to allow bankers to establish their
banks where land prices are cheap, far away from the areas where the
natural wetlands they destroyed once provided flood protection, water
filtration and habitat for wildlife.
5. Enforcement: H.R. 1290 contains no provision for enforcement against
mitigation banks that fail to meet their obligations.  The bill makes it
nearly impossible for the Corps to revoke the charter of a mitigation
bank that has failed to achieve ecological success or is not in
compliance with the terms of its charter.  This means that a bank could
continue to sell credits even if it fails in its attempts to create or
restore wetlands.
6. Advance Sale of Mitigation Credits: H.R. 1290 allows a bank to sell
mitigation credits as soon as the bank is chartered by the Corps, before
any wetlands have been created or restored.  The sale of advance credits
both increases the likelihood of bank failure (by reducing the incentive
for a bank sponsor to follow through on a bank's obligations) and
creates a significant temporal gap between the destruction of the
natural wetland and the full functioning of the bank wetlands.
7. Accountability and Oversight: H.R. 1290 does not require that the
Corps issue binding regulations to govern the approval and oversight of
mitigation banks.  The bill also weakens the study process.
8. Failure to Address Wider Mitigation Problems: H.R. 1290 fails to
apply meaningful safeguards to other forms of mitigation, such as
"in-lieu fee" mitigation.  The bill calls for other forms of mitigation
to be subject to "equivalent standards" to banks; but since the bill
lacks appropriate environmental protections for mitigation banking,
these inadequate protections are simply also applied to other types of
9. Compliance of Existing Mitigation Banks: H.R. 1290 explicitly exempts
existing banks from having to comply with any new safeguards.
10. Inadequate Definitions: H.R. 1290 lacks adequate definitions for
crucial terms, leaving the door open for poor implementation and abuse.
11. Squeezing the Federal Resource Agencies Out of the Process: 
Presently, the Environmental Protection Agency, the U.S. Fish and
Wildlife Service, and the National Marine Fisheries Service contribute
vital expertise to the process of reviewing banks and setting their
ecological success standards.  H.R. 1290 significantly reduces the role
of these agencies, giving them little to do but comment on bank
proposals, and even then limiting their comments to a short comment
12. In-Kind Compensation: HR 1290 only "generally requires" that where
developers use mitigation banks, they use banks containing the same type
of wetland as the wetland being destroyed.  It gives the Corps the
option to allow developers to compensate for difficult-to-replace
wetland types (such as forested wetlands) by using other,
cheaper-to-establish types of wetlands "where practicable".
13. Failure to Address Real Wetlands Threats: H.R. 1290 fails to confirm
the Corps' jurisdiction over excavation activities by failing to codify
the "Tulloch Rule," a bipartisan wetland-protection provision that was
struck down by a federal appeals court in June 1998.  With the loss of
the Tulloch Rule, excavation activities are entirely unregulated under
the Clean Water Act and developers can drain wetlands without a Clean
Water Act permit and without any mitigation obligations whatsoever.
Congress should address the real reasons why America is still losing
more than 100,000 acres of wetlands every year.  Congress should be
working to confirm the Corps' jurisdiction over excavation and close a
real loophole in current law instead of working to codify the Corps'
authority for mitigation banking.

Water Resources & Environment Subcommittee:
Baird (D-WA)
Baker (R-LA)
Baldacci (D-ME)
Barcia (D-MI)
Bateman (R-VA)
Bereuter (R-NE)
Blumenauer (D-OR)
Boehlert (R-NY)
Borski (D-PA)
Boswell (D-IA)
Clement (D-TN)
Costello (D-IL)
Doolittle (R-CA)
Ehlers (R-MI)
Franks (R-NJ)
Gilchrest (R-MD)
Horn (R-CA)
Hutchinson (R-AR)
Kelly (R-NY)
Kuykendall (R-CA)
Lampson (D-TX)
LaTourette (R-OH)
LoBiondo (R-NJ)
Mascara (D-PA) 
McGovern (D-MA)
Menendez (D-NJ)
Ney (R-OH)
Pascrell (D-NJ)
Quinn (R-NY)
Simpson (R-ID)
Taucher (D-CA)
Taylor (D-MS)
Young, D. (R-AK)

You can also contact the bill's co-sponsors by contacting: Rep. Bob
Clement (D-TN),
Rep. G. Taylor (D-MS), Rep. J. Traficant (D-OH), Rep. B. Tauzin (R-LA),
Rep. J. Saxton (R-NJ), Rep. R. Baker (R-LA), Rep. J. Barcia (D-MI), 
Rep. R. Army (R-TX), Rep R. Shows (D-MS), Rep P. Ryan (R-WI), Rep. J.
Hansen (R-UT)
Rep. J. Doolittle (R-CA), Rep P. English (R-PA), Rep. G.Gutknecht
(R-MN), Rep. K.Brady (R-TX) 
Rep. B. Cubin (R-WY), and Rep S. Largent (R-OK)



To: Members of the Transportation & Infrastructure Committee
United States House of Representatives


Dear Representatives:

        On behalf of [your organization}, I am writing to express our
to H.R. 1290, a wetlands mitigation banking bill sponsored by
Walter Jones, Jr.  We could not support this piece of legislation in the
Congress, and we once again must oppose the bill.  Although presented by
proponents as a win-win solution for wetlands, as well as for wetland
developers, the bill would undermine the nation's wetlands protection
Make no mistake:  this bill would be a serious loss, not win, for
wetlands conservation.  We urge you to oppose H.R. 1290.

        H.R. 1290 aims fundamentally in the wrong direction.  It
mitigation banking as an end in itself, with few, inadequate safeguards
to ensure that mitigation banking does not result in added environmental
harm to the nation's existing wetlands.  Most importantly, the bill
fails to protect the cornerstone of wetlands protection under the Clean
Water Act (CWA) whereby wetlands destruction must be avoided where
possible, and minimized where it cannot be avoided.

        H.R. 1290 also lacks basic safeguards needed to prevent the
ecological failure of mitigation banks.  For example, the bill lacks
requirements for ecological success standards, neglects to
endow federal agencies or the public with the authority to hold failing
banks to their obligations, and exempts existing banks from the few
meaningful standards the legislation would impose.  In an effort to
protect the profitability of mitigation banks, the bill allows
mitigation banks both to service huge areas and to facilitate the
destruction of wetlands types that simply cannot be replaced.  The cost
of all this-mitigation bank misuse, abuse, and even fraud-will be borne
by the landowners and small communities across American that rely on
wetlands to filter pollutants out of their water supplies, absorb flood
waters, and feed and sustain local fish and wildlife.

        Finally if Congress really wants to address wetlands problems in
U.S., you should focus your efforts on an amendment needed to resolve
confusion, created by last year's court decision over the jurisdiction
the CWA Section 404 federal wetlands protection program.  In June 1998,
federal appeals court struck down the "Tulloch Rule," a regulation that
developers to obtain a CWA 404 permit for all discharges into wetlands
and other
waters, including discharges accompanying drainage activities. 
clarification is necessary to reinforce that the CWA does indeed apply
to all
discharges of dredged or fill material.  Any Members who are genuinely
interested in advancing wetlands conservation or improving the federal
efficiency must work to address such a "Tulloch" fix.  

        Attached is a detailed list of our key concerns-13 Reasons H.R.
1290 is
unlucky for citizens and our remaining natural wetlands.

        Thank you for your consideration of our views.


Background information on mitigation banking from the National Audubon


Section 404 of the Clean Water Act requires those proposing to impact
wetlands to first obtain a permit from the U.S. Army Corps of
Engineers.  In order for a permit application to be considered, the
applicant must demonstrate that they have followed a process called
"sequencing."  Through "sequencing" an applicant must show that 1) they
have avoided wetlands where possible, 2) they have minimized their
impacts on wetlands to the greatest extent practicable, and 3) that all
unavoidable impacts to wetlands are compensated (i.e. mitigated). 

Mitigation of wetland impacts can take several forms including
restoration of a former wetland, creation of a wetland in an upland
area, or repairing one or more functions of a degraded wetland.  In the
past, the Corps generally preferred that mitigation be located as close
as possible to the wetland that was destroyed.  In recent years,
however, the Corps has increasingly supported a controversial new
concept in wetland impact mitigation called mitigation banking.
Mitigation banks are large-scale wetlands restoration projects that are
created by a third party.  Theoretically, these pre-established, fully
functioning mitigation banks are designed to sell a fixed number of
"credits" to developers for use in meeting wetland mitigation
requirements. Mitigation banks are generally significantly larger than
project-specific mitigation sites, and might be located some distance
from the site of wetlands loss.  There have not yet been any major
studies of their ecological success.

For more information, contact Julie Sibbing, National Audubon Society at
Alex J. Sagady & Associates        Email:  ajs@sagady.com

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