Please see the original website article for photos.

(Note: Sarah Foster has put heart and soul into this article -- she has painted a word-picture of real, honest people that were sought to be made victims by the Army Corps of Engineers. This 'highway robbery' at the hands of Federal agencies is everywhere, and the wolves are taking off the sheep's clothing as they grow more brazen. Please don't just sit and read this: Write some letters! Make some phone calls! Send some emails! Fire off a few Letters to the Editor! This is how we can help 'those poor people!')

December 21, 2002

By Sarah Foster

© 2002 WorldNetDaily.com

sarahfoster@mindspring.com

To submit a Letter to the Editor: letters@worldnetdaily.com

For eight low-income families of Big Pine Key, Fla., this was to be a really special Christmas -- but a bulldozer-made, seven-inch trench the feds have designated as a protected "wetland" has seriously dampened the holiday spirit.

Habitat for Humanity, the well-known house-building charity, had nearly completed eight houses of a 15-unit affordable-housing development in the Florida Keys, and barring any glitches it was likely that the families could move into their own homes before the end of the year.

Bill Loewy, president of the Lower Keys Habitat for Humanity, was almost as excited as the soon-to-be homeowners as he talked to WorldNetDaily about Habitat Landings, as the project is named, and the people who would be moving in.

"There's a fireman and his wife -- they've got five kids; a mother who's a corrections officer in the sheriff's department who has a handicapped child; a nurse at one of the hospitals; two schoolteachers; a man who is disabled but whose wife works in the office of a local construction firm; a maintenance man at one of the trailer parks and his family -- all basically mainstream Americans," he said. These and several others had hoped to celebrate Christmas and welcome the New Year in their new homes.

Then six weeks ago the U.S. Army Corps of Engineers, at the instigation of a local community group, threw a monkey wrench into the project with demands concerning a bulldozer-created wetland on the 3.5-acre building site. Habitat was forced to halt work on the project temporarily, and the families had to put their dreams of homeownership on hold.

"I planned to give them the keys to their homes before Christmas, but that's out of the question now," said Loewy.

In late October, responding to objections lodged by the Big Pine Key Civic Association at the end of the required public-comment period, the Corps notified Habitat for Humanity that mitigation was necessary for the filling of a long, shallow depression the government agency claimed was a wetland, located on the section of the site where the remaining six of the project's houses were to be built. The wetland, according to the Corps, was 24,000 square feet, just over half an acre in size.

The Corps claims jurisdiction over the "waters of the United States" - including "wetlands" - through the 1972 and 1977 Clean Water Act and a slew of subsequent amendments, regulations and court rulings. Any so-called disturbance to a wetland, such as filling or draining, requires a permit from the Corps, which will generally be issued only if there is some kind of "mitigation" to compensate for the "loss of wetlands."

Without mitigation, the Corps refused to issue a permit to Habitat that would clear the way for work to begin on the second phase of the project: the construction of the remaining seven houses. Completion of the first phase - the construction of eight houses on the part of the site where there is no wetland - was also stalled.

The letter from the Corps to Habitat offered no specific instructions as to what it could do to mitigate disturbance to the wetland, nor were any forthcoming during later discussions.

"They didn't say 'do this or that,' but kept saying, 'tell us what you can do and we'll tell you what else you're going to do,'" Loewy said. "No matter what we would have said we'd do, it would have been inadequate."

$118,000 'extortion'

At a meeting early this month, Paul Kruger of the Corps (of Engineers) told Loewy and Monroe County Commissioner George Neugent he was willing to sign off on the permit and leave Habitat free to do whatever it wanted to the site, if the organization forked over nearly $118,000 for "off-site mitigation" -- wetland restoration or land acquisition for conservation purposes at another location. The exact amount demanded was $117,793.40.

Habitat was in a bind, having already budgeted all its available funding for the project.

"I don't know where the money is going to come from," said Loewy. "No nonprofit has $118,000 that's not already budgeted."

Yet without the money, the project couldn't be finished.

"They can call it 'mitigation,' but in most parts of the world this is called 'extortion,'" he observed sarcastically.

But the work stoppage was the least of the group's immediate worries. Looming ahead was the possibility of losing some major funding. The Corps refused to issue a permit unless it received its fee, and if Habitat did not have all necessary permits by Dec. 31, it would lose a $700,000 grant from the Federal Emergency Management Agency. The money was earmarked to pay for infrastructure on the site -- roads, water and electrical lines, and wastewater and sewage treatment that still must be built -- and would have been built by now had the Corps not made its demands. Without the funding, the project could be shut down permanently.

Habitat for Humanity is not a "deep-pocket" organization. It relies on volunteers and donations of building materials and funds to further its mission of providing "simple, decent housing" for those who could not otherwise afford to be homeowners. Loewy, 70, is a retired contractor, and he doesn't receive a penny for his work as president of the local Habitat affiliate, work that includes supervision and coordination of the projects. The owner-occupants pay for part of their homes with "sweat equity" -- hours spent either in actual construction on their own or other Habitat houses or in related work, such as answering the telephone at the Habitat office and doing repairs on homes of needy people in the community. This reliance on volunteers and their hours of donated time keep construction and administrative costs to a minimum.

Particularly egregious, in Loewy's view is that the mitigation fee would be turned over to the Florida Keys Environmental Restoration Trust Fund, a program of the Florida Audubon Society, for restoration and to purchase land on which to create more wetlands. The trust would receive a 15 percent commission ($17,669.01) to administer the money, an amount Loewy regards as excessive.

"We do many government grants, and the maximum we've ever been paid is 6 percent -- this whole thing stinks," he said flatly.

Roberta Loudenslager, Habitat's executive director, said they generally receive about 2 percent to 3 percent for handling grants. "But then, nonprofits are not supposed to make money," she added.

The mitigation fee would add about roughly $19,000 to the cost of each of the homes that are to be built, which is something their owners would be hard-pressed to pay. The Habitat Landings families will be handling 30-year mortgages, plus taxes and insurance. An additional $19,000 per house would move the project out of the realm of "affordable."

Of course, Monroe County might have paid the fee had Loewy asked, but he had several reasons for not wanting to go that route.

"If the county picks up the tab, the taxpayers of this county will be the losers," he explained. "They'll be paying for something they shouldn't have to pay for. Plus, the opposition will always have that to wave in the air: that Habitat for Humanity was only able to build these houses because the county bailed them out. The people living in those houses will always be looked upon as being somewhat on the dole, which they're not. They're working; and they're paying their taxes and mortgages and bills."

County officials, while perhaps sharing many of the same values as Corps personnel toward the environment, were nonetheless stunned by its demands.

"This is a unique and environmentally sensitive county," Neugent told WND. "It ought to be preserved because of its marine estuary and sensitive land. We get caught in these sticky-wicket situations, and I tend to be more on the side of environmentalism and conservation than pro-development in this county. But in this particular case, the interpretations of the rules are being somehow abused."

It wasn't as though Loewy was thumbing his nose at environmental regulations. Monroe County has a "no net loss of wetlands" policy, and Habitat for Humanity and the county agencies worked closely together from the project's earliest stages to develop a mitigation plan for wetlands and surface water control that was acceptable to both the county and the state of Florida.

Indeed, Habitat Landings has been something of a collaborative effort between the organization and the county from the beginning.

When Hurricane Georges swept through the Lower Keys in 1998, leaving a trail of devastation in its wake, Habitat for Humanity was deeply involved in the rescue operations and helped arrange shelter, emergency medical services and food distribution for the many victims who lost their homes and were literally out on the street. For his efforts, Loewy was honored as Citizen of the Year.

One of Georges' many casualties was the Halcyon Trailer Park at the edge of Bogie Channel, where 41 families lived. Most of the trailers were destroyed, and the residents moved away. Monroe County Land Authority bought the waterfront site in 2000 for $1.4 million and donated it to the charity to build some much-needed affordable housing.

Loewy had hoped he'd be allowed to build at least three dozen houses, or perhaps a row of townhouses, considering the size of the site and the dearth of low-cost housing locally, but the county limited the project to 15.

It was within this timeframe that the notorious wetland, which critics of the Corps' actions say is essentially a mud puddle, was created.

A dozer-made wetland

For Loewy, it's bad enough that the project is being held hostage to what biologists have termed a "low-quality wetland," but this wetland is not even a natural one. It was created by a bulldozer during the site clearance following Hurricane Georges, and he can point to official documents that confirm this.

Loewy recalled that during the permitting process last spring, Habitat was notified that in the removal of debris from the trailer park, "a small strip of land -- approximately 20 feet wide by 300 feet long -- had inadvertently had dirt removed from it, creating a wetland."

The depression is about seven inches deep, and a large puddle forms in it when it rains. Marsh vegetation began growing there.

Jeanette Hobbs, a Monroe County biologist, identified the new "wetland" in a 1999 report and reiterated her observations in a departmental memo dated April 24 of this year.

"In addition to a large shoreline wetland area (which will not be affected by the project), there is a 20-30 foot wide wetland strip extending through Lots 12, 13, 14, 15, and into lots 1 and 2." Hobbs wrote. "This wetland area was previously identified as disturbed. … It is my belief that the wetland did not exist prior to the Hurricane Georges cleanup of the property which occurred in 1998; however, in an on-site meeting on March 13, 2000, Vic Anderson of the Army Corps of Engineers stated that they would require a permit and probable compensation for the fill of this area, regardless of when or why it was created."

According to Loewy, in Florida wetland issues are handled by two government agencies, no matter how a wetland is created. One is the South Florida Water Management District; the other is the Army Corps of Engineers.

Although knowing that demands for "probable compensation" might be required, Loewy never dreamed the tab would come to $118,000. After all, Habitat had developed wetland mitigation plans that satisfied the county and the state of Florida, and some of the work had been completed.

"The South Florida Water Management District said we needed to do certain things to the property, and these would cost $23,000," he recalled. "We agreed to do these -- like restoring the wetland along the shore, and they signed off on the project. Then we filed with the second agency, the Army Corps of Engineers, requesting permission to go ahead with the project, but so far they have been totally inflexible."

Habitat also agreed to deed the shoreline area to the county when the restoration is completed.

"What the Corps has said," Loewy paraphrased, "is, 'Yes, you've got a wetland; yes, it's a low-quality wetland; yes, it's too bad this is for affordable housing -- but it's going to cost you $118,000 to fill that which was inadvertently removed in the first place.'"

In late September, the Corps opened the period for public comment, and the Big Pine Key Civic Association -- which had opposed the project from the outset -- seized the opportunity to slam the proposal, charging Habitat for Humanity with wanting to bring environmental ruin to the site.

Association President Larry Sullivan, whose home is in the same neighborhood as Habitat Landings, was strident in his criticism, setting forth his objections in the group's newsletter, a copy of which he sent as a statement of his position to the Army Corps. The section set in << >> is a quote from the Corps' "Public Notice" for comments.

"Just when you think it's OK to support affordable housing, something comes up," Sullivan wrote. "Habitat for Humanity … has applied for a permit to fill a .55 acre sized piece of waterfront wetland on Halcyon Bay. … The request for the Army Corps of Engineers is to fill in coastal wetlands for the <<expanded surface area for homesites and yards. The project may affect known federally listed endangered species, including the Florida Key deer and the Lower Keys marsh rabbit.>> Oh, and by the way, this permit would allow them to destroy some of the mangroves. …

"Now, as the project goes up, the project managers realize they can't live within the constraints of the original area. They have to fill in wetlands, destroy mangroves and take habitat from endangered species. … I feel personal anger at wanting affordable housing, a real need in Monroe County, and having the builder of affordable housing here on Big Pine want to violate environmental laws."

In late November, the group's board of directors voted to oppose the Corps issuing a permit.

"The developer wishes to fill in wetlands," it announced in a press release. "The project would fulfill a much-needed bit of affordable housing for our island. However, no one is above the law. … We cannot let the law be violated, no matter how noble the cause."

The press release did not explain how applying for a permit to fill a wetland violated the law. When the public learned of the civic association's position and that the Army Corps of Engineers was holding an affordable housing project hostage for $118,000, all hell broke loose on Big Pine Key.

Letters of outrage poured into the local and D.C. offices of Republican Rep. Illeana Ros-Lehtinen, who represents the Keys in Congress, urging her to use her influence to persuade the Corps to reduce the $118,000 fee substantially.

County Mayor Dixie Spehar told listeners on a morning radio show that she and Ros-Lehtinen were working to save the FEMA funding and that county consultants were in Washington trying to get the permits in place.

Boxing with God

The local media had a field day bashing the civic association. Two examples:

"Your arms are not long enough to box with God," chided Solares Hill editor David Ethridge. "The Big Pine Civic Association finds itself eyeball deep in a bucket of swill because of its challenge to six affordable housing units on Big Pine Key. … Habitat has a wonderful reputation for doing good in the community, and leader Bill Loewy is much admired. It is like the association is going into battle against the allied forces of God, and this is not the issue on which the association should choose to live or die."

"Never mind that there are no mangroves in the disputed area, and that the U.S. Fish and Wildlife Service had already determined that filling the depression would have no impact on endangered species," wrote Tom Tuell, editor of The Key West Citizen. "Sullivan's statements to the Corps include other misrepresentations, such as his allegation that development of the area was not part of the original plan."

In the face of the outpouring of criticism, Sullivan shifted his position. He was not opposed to affordable housing, per se, he said, but wanted mitigation to make up for the loss of wetlands. At the same time, however, he didn't want Habitat for Humanity stuck with that $118,000 fee and was "sad that [the Corps] tried to do it financially," as he had hoped for mitigation in the form of a land swap.

Habitat for Humanity, he suggested, could donate some of its land for conservation purposes in return for which the association would drop its objection to the issuance of a permit.

The land Sullivan had his eye on was a 3.5-acre parcel Habitat had acquired by trading two pieces of land from its own inventory. It was located immediately north of the 3.5-acre Habitat Landings project and adjacent to it, in an already developed subdivision. This second parcel was slated for eventual use as a playground, not only for the children of Habitat Landings but the entire community.

"We promised to donate this to the citizens of Big Pine for a playground," said Loewy. "We didn't want to put the burden on the county, so we were planning to do a fund-raiser and build it ourselves, then give it to the county."

The suggestion to turn a projected playground into a conservation preserve was trounced by editorial writers.

The Citizen's Tom Tuell proposed that the association withdraw its objection to the project, issue a formal apology to Habitat and follow up with a donation of playground equipment. Board members, he added, "might want to bring covered dishes to the celebration Habitat always hosts when a family gets a new home of its own."

Corps values

In the brouhaha springing from the civic association's public-relations blunders, it was easy to overlook the "heavy" in the act: the Army Corps of Engineers.

It was the Corps that determined that a seven-inch-deep swath cut by a bulldozer was a wetland and set the figure for the amount of compensation owed for replacing topsoil that had been removed.

Vic Anderson in the Corps' Marathon, Fla., office told WND the Corps has developed a way of calculating a mitigation fee based on various values, using a "Mitigative Index Guideline that we plug the values into" -- for example, "the values of the particular wetlands out there … everything from salt marsh to the shrub vegetation to the overstory. …"

Anderson said there are mangroves in the disputed area, but mowing has kept them low.

None of the plants at the site are on the endangered or threatened species lists, he said.

Anderson explained that the MIG takes into account the impact to the wetland by a project, how much of a value a particular wetland is to the aquatic ecosystem, how much is it over time, and if it's to be restored, what things would have to be done. If mitigation is to be referred to the Florida Keys Environmental Restoration Trust for implementation, those costs -- including overhead -- are factored in. The MIG is a locally developed calculation for the Florida Keys, Anderson said, and has only been used since March.

"That was the first time we used this particular value or set of values on any project that requires mitigation or mitigation contribution -- a monetary contribution in lieu of actual creation," he said.

It is not necessary for an area to have standing water for it to be defined as a wetland, and Anderson takes exception to the argument that because a dozer created the depression, the area scooped out isn't one.

"That's not accurate at all," he said. "Essentially, they moved the earth and material around there during that period of time, but they really didn't change the character of the area from a wetland before or a wetland after. It didn't really change the vegetation complex of the plant community that now exists on the site."

Swamped by wetlands

The Corps' demands and its definitions of what constitutes a wetland are not a surprise to those familiar with its history. The agency has developed a reputation during the past 30 years of playing hardball with property owners over wetlands issues. In their 1996 book, "This Land is Our Land," WND Editor Joseph Farah and Rep. Richard Pombo, R-Calif., in the chapter "Swamped by Wetlands," detail numerous cases of property owners whose lives were often shattered by the actions of the Army Corps of Engineers and other agencies with similar powers. Some examples:

Ocie Mills and his son Carey of Navarre, Fla., drew sentences of 21 months in the federal penitentiary and $5,000 fines for putting clean sand on their less than half-acre lot of dry, residentially zoned parcel of land. The Corps specifically recommended that the Millses be prosecuted criminally because of the publicity their case had drawn.

John Pozgai of Morristown, Pa., removed tons of garbage and thousands of old tires from a dump he had bought, replacing the public eyesore with clean dirt. Charged and convicted of filling a wetland without a permit, he was sentenced to 33 months in prison in 1991.

Gaston and Monique Roberge of Old Orchard, Maine, in 1986 contracted to sell a lot they had held for over 20 years for $440,000 to fund their retirement. The Corps claimed the land was a filled wetland and the dirt had to be removed, even though the fill had been put on the land in 1976 by the town of Old Orchard, not the Roberges. The value of the land plummeted and the sale fell through. The Roberges sued and won an admission from the Corps that it never had jurisdiction over the land. In 1994, the Justice Department settled with the Roberges for $338,000 after their attorneys uncovered a 1987 memo from Corps' field agent Jay Clement to the regional chief of enforcement which said: "Roberge would be a good one to squash and set an example." An 'isolated wetland'?

On Dec. 6, USA Today published an article on the fallout from a 2-year-old decision of the U.S. Supreme Court on Corps jurisdiction over isolated wetlands, that is, wetlands that are not connected by a channel, river or tributary to a larger body of water.

In a 5-4 decision, the justices ruled on Jan. 9, 2001, that the Corps of Engineers' jurisdiction over the Waters of the United States extended only to navigable waters, waters or wetlands adjacent to navigable waters and tributaries that flow directly into navigable waters.

Solid Waste Agency of Northern Cook County v. Army Corps of Engineers concerned 23 Illinois cities that for 10 years had been trying to obtain Corps approval of an abandoned sand and gravel pit as a landfill for baled trash. The site contained several excavation trenches "that had evolved into permanent and seasonal ponds," and since the operation called for filling some of these, a permit from the Corps was required, which it refused to grant.

The high court reversed earlier decisions of lower courts, stripping regulation of isolated wetlands from the Corps and leaving it with the individual states.

Reporter Traci Watson deplored the fact that following the decision developers had built shopping malls and housing subdivisions.

"Thousands of acres of wetlands across the country are being bulldozed or filled with dirt because of a 2001 Supreme Court decision that stripped them of federal protection," she wrote.

But for the supporters of the Habitat Landings project, Watson's article in USA Today was the best news they'd heard since their problems with the Corps began.

"This really changes things," Loewy exclaimed. "We're no longer in the backseat; now we're in the front seat. We already have a permit from the state, so if they say it's a case of state jurisdiction, we've got the permit. It shines a whole new light on the problem."

However, he wondered why he'd never heard of the decision. He knows many of the local property-rights activists, yet no one ever mentioned it to him. Commissioner Neugent, too, was ignorant of the ruling "until Bill walked into my office Sunday (Dec. 8) with the newspaper and showed me the article."

Timing might explain the reason the decision fell through the cracks. The court heard the case on Oct. 31, 2000, when the country was in a countdown mode prior to the November election. Two months later, when the court rendered its decision, the controversy of the presidential contest was still the focus of public attention.

Nonetheless, the ruling did attract some notice, and a number of articles are on the Web. Carol LaGrasse, president of Property Rights Foundation of America, hailed the decision in an analysis she authored as a "fatal blow to the [Corps'] decades of regulation of isolated wetlands."

Anderson said he did not believe the ruling changes a thing in the Habitat Landings case since -- in the Corps' view -- the dozer-cut depression there is not an isolated wetland.

"It's adjacent to Bogie Channel and not an isolated wetland," he said. "Isolated wetlands are things like prairie potholes. This one is probably within a hundred feet of Bogie Channel."

Maybe. But Neugent said he showed the USA Today article to Monroe County Attorney James Hendrick, who specializes in land-use issues, and Hendrick -- already familiar with the Supreme Court ruling -- said in his view the wetland at Habitat Landings is an isolated one. If he's right, the Corps should not have been involved in the first place.

Whose jurisdiction?

Habitat Landings would seem a good place to test the questions of what constitutes an isolated wetland and Corps jurisdiction. Loewy hoped the county would challenge the Corps' notion that a dozer cut over a hundred feet from the shore of a channel -- or 350 feet, as some claim -- was a non-isolated wetland and assert its jurisdiction over the Corps.

That didn't happen.

Reporter Mandy Bolen of The Citizen described the Dec. 13 events when Loewy, attorney Hendrick, Corps staffer Kruger and others met at the site and worked out a compromise:

On Friday morning, more than 10 people bent over construction blueprints spread out on the hood of a red pickup truck to discuss how a Habitat for Humanity home building project could compensate for a half acre of lost wetlands.

After detailed and tedious discussions, the crowd walked to the edge of the property of the Habitat Landings neighborhood. Monroe County Attorney Jim Hendrick wondered aloud why the county couldn't just turn the end of the road into a wetland, thereby making further mitigation unnecessary.

A quick assessment with a tape measure proved that the 5,100-square-foot area was of a comparable size, and Bert Loudenslager, Habitat director, held her breath for a response from Paul Kruger of the Corps of Engineers.

"We've eliminated all the mitigation requirements with this road removal," he said.

Problem solved. The debate and delays are over, and the remaining seven Habitat for Humanity homes on Big Pine Key will be built with a permit from the Corps.

To "mitigate," or make up for, the lost wetlands area, county officials agreed to abandon the segment of a dead-end road adjacent to the Habitat neighborhood.

The road, which is unused and ends near the water's edge … will be converted back into wetlands. The pavement will be dug up, and the elevation lowered to match that of the adjacent mangrove area.

A wetland for a wetland.

A catastrophe avoided.

Habitat for Humanity will not have to spend a dime for the mitigation, since Kruger's action absolved everyone of that burden.

At the same time, the Corps tacitly admitted that the square footage of the wetland as they projected had been grossly oversized -- which Habitat contended all along.

>From the outset, the Corps referred to the wetland area as being half an acre, or 24,000 square feet. Sometimes in discussion they'd allow it to be only 15,000 square feet, but most often it was 24,000 square feet. Bolen notes the half-acre to be compensated and reports the 5,100-square-foot area of road as being of "comparable size" to the wetland.

"The Corps allowed our figures [on the size of the area] in the mitigation to go forward, not theirs," said Loewy. "They finally accepted our figures which cut the mitigation area (of 15,000 square feet) by two-thirds."

Although the Corps waived the $118,000 mitigation fee in exchange for some restoration work the county will perform, Loewy does not view this as a complete victory.

"The reality is that while I'm glad that it's over, I'm sorry that the jurisdiction of the Corps of Engineers was not fully tested on this issue because we would have been victorious, and I'm sad that others are going to have to go through this again," he said.

"I guess it's a victory for everybody and a loss for everybody, because the issue (of Corps jurisdiction) is still out there. While everybody is joyous about this, and I'm glad everything has worked out on the surface for us, we still haven't corrected the problem. We're still going to have to deal with it. People throughout the country are still going to have to deal with it, and that's sad."

Merry Christmas next year?

The project is back on track, and the families of Habitat Landings hope to move into their homes in the spring -- that's if no other monkey wrenches are thrown in the works. In the meantime, Loewy said, they'll continue living where they've been living: Some are with their families, but most are in trailers.

"I still plan to give the new owners the keys to their homes by Christmas -- it just won't be this Christmas," he joked.

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