Review: Developers failing to follow wetlands mandate

More than 38,000 acres of wetlands vanished in greater Houston over the past two decades despite a federal policy that "no net loss" can be caused by encroaching development.

That's an area about the size of The Woodlands and Sugar Land combined turned into neighborhoods, office buildings, strip malls, parking lots and roads.

To remedy the damage, federal permits require developers to create man-made wetlands or preserve them elsewhere, often by a ratio of at least 2 acres for every one destroyed. But the Army Corps of Engineers, by statute the nation's primary steward of wetlands, doesn't track whether most developers satisfy the requirements of their permits, a recent study found.

More than half of the permit records reviewed by researchers revealed little or no evidence of compliance in an eight-county region. The lack of documentation suggests wetlands probably are not being protected as the federal Clean Water Act requires, said John Jacob, director of Texas A&M University's coastal watershed program, which worked on the study with the Houston Advanced Research Center.

"The disappearance of wetlands is widespread and pervasive," Jacob said. "These are the wetlands that improve water quality and reduce flooding, but there is no mitigation."

Upstream development worsens downstream flooding, said Jim Lester, president of HARC, based in The Woodlands. "It's crazy to me that we cover up wetlands, and then we spend a lot of money to build retention ponds."

Corps officials said they are working as hard as they can to maintain wetlands functions.

"But we do it with limited resources from the top down," said Jayson Hudson, regulatory project manager for the Corps' Galveston District, which is responsible for the Houston region.

Criticism is nothing new for the Corps, a public works agency that dredges channels and builds dams and levees but also is tasked with protecting the environment. At times, the roles conflict, leading some to accuse the agency of not being vigilant enough in its care for the nation's dwindling wetlands - ecologically sensitive areas that filter and cleanse water, help store floodwaters and provide habitat for many wildlife species.

'No net loss'

The upper Texas coast is home to a wide range of wetlands, from the tidal flats of Galveston Island to prairie potholes near Katy and bottomland hardwood forests in Montgomery and Liberty counties.

Even though wetlands are federally protected, they can be drained and developed. Corps-issued permits typically require mitigation, an expensive process for developers in which they replace the damaged acres - in other words, "no net loss." The policy goal was adopted by President George H.W. Bush as a way to balance economic and ecological needs, and each subsequent president has pledged the same.

Yet the Houston region has lost thousands of acres of wetlands since 1996, a disappearing act that coincided with explosive population growth in the region. Some 6.5 million people now reside in the eight counties, up from under 4 million people two decades ago.

Harris County, for one, has lost nearly 13,000 acres of wetlands, or 13 percent, while adding 1.6 million residents, according to federal data.

Montgomery County, meanwhile, has lost some 6,600 acres, or 7 percent, while its population more than doubled to 519,000 people. And Fort Bend County has seen 4,000 acres, or 6 percent, go away while its population tripled to 685,000.

So many wetlands were lost during the population surge that researchers say it appears developers were limited only by how quickly they could pour concrete.

Since 1990, the Corps has issued 7,025 permits for destroying wetlands in the eight-county region. The researchers reviewed a random sample of 110 permit records to assess whether the agency achieved federal policy goals.

Their review found that 38 of 62 permits requiring developers to mitigate for destroyed wetlands were out of compliance. Most of the problems involved missing documents, such as monitoring reports.

The permits required developers to create or preserve 1,306 acres of wetlands to make up for 356 acres that were filled in. But the Corps' records showed that only 236 acres were replaced - far short of "no net loss."

"It's a small sample size, but it identifies a big problem," Lester said.

Most of the reviewed permits were for wetlands less than 10 acres in size. One request involved a firm seeking to expand its sand and gravel quarry along the San Jacinto River in Montgomery County in 1996. The Corps allowed the expansion but ordered the company to improve and create 11 acres of wooded wetlands. An inspection report in 2005 indicated that the company was out of compliance and called for a follow-up a month later.

But the report was the last record in the file, the researchers found. Whether the planting of bald cypress, water oak and other trees for the new and improved wetlands was done is unclear.

'Ground truthing'

Researchers said their study was limited by the Corps' records. They apparently did not conduct on-the-ground assessments of the required mitigation.

The absence of records "doesn't necessarily mean mitigation isn't carried out," said Lisa Gonzalez, one of the study's authors and vice president of HARC. "But it does raise questions about how much mitigation may actually take place."

In one case, the Corps required developers to preserve about 20 acres along Spring Creek as compensation for 7 acres of wetlands that were filled in for a housing tract in southeast Montgomery County.

Researchers found no record of the Friendswood Development Co. fulfilling the requirement. But the Bayou Land Conservancy, a nonprofit organization, confirmed to them that the company donated the necessary acreage to help create a large preserve along the creek.

When the next phase of the study starts this fall, researchers plan to do more "ground truthing," the process of evaluating the quality and quantity of mitigation work at the sites.

"This is a paper chase for now," Jacob said. The initial analysis "probably misses more than what it gets, but what it gets is right on. There could be more - a lot more."

Corps officials said they are limited by resources to track every permit. The Galveston office, which has eight people dedicated to compliance, is required each year to follow up with at least 10 percent of the permits issued the previous year. Never mind that many permits are for projects that take eight to 10 years to complete.

"We're able to do what we're required to do and little more," Hudson said.

At the same time, he said the goal of "no net loss" was intended to be achieved at the permit level. Its larger target should be measured by the functionality of wetlands and not by acreage.

The focus on acreage, Hudson said, "muddies the picture."

Clarified rules

The study comes amid political anger over new Obama administration rules that aim to clarify which wetlands, streams and tributaries should be protected from pollution and development under the Clean Water Act. Texas and 15 other states have filed suit to block the rules, which were proposed last year by the Environmental Protection Agency and the Corps of Engineers.

Farmers, developers and landowners say the rules are an overreach by the government.

But the researchers say the new rules could help protect wetlands that are hydrologically isolated from bays, rivers, streams or other "waters of the United States." Since 2001, the Corps' office for the Houston region has claimed jurisdiction over only wetlands within the 100-year floodplain or with distinct channels.

"We're not arguing for no development, but we can be smarter about it," Gonzalez said. HARC was started by the late oilman and developer George Mitchell, who used the natural drainage of The Woodlands to structure its development.

The isolated wetlands found in the Katy Prairie and wooded Montgomery County, for example, are prime targets for builders as the region continues to grow. With a projected wave of some 4 million new residents over the next four decades, it's possible to lose another 100,000 acres of wetlands to development.

"This is the time in the next 20 to 30 years that we really need to save stuff," Jacob said. "It's going ever so quick, and we need that mitigation hammer."