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Chapter 10: Puerto Rican Coast



Introduction

Physical Description: Saline flats, freshwater marshes, and freshwater swamp forests all face development pressure in Puerto Rico1. Mangrove forests and freshwater wetlands are the primary wetland types at risk. Mangroves are found in brackish and salt water along tropical and subtropical shores. (See shaded areas in Figure X-1.) In northern Puerto Rico, mangroves grow on broad coastal plains near river mouths or adjacent to the Atlantic Ocean behind protective sand dunes. In southern Puerto Rico, the islands of Vieques and Culebra, and the Virgin Islands are semi-arid with wave-sheltered shorelines and embayments. Offshore mangrove cays (known as overwash islands), fringing mangrove, dwarf mangrove, salt ponds, and vegetated saline flats are typical of the southern coasts.

Figure X-1: PUERTO RICO'S MANGROVES

Puerto Rico's Mangroves

Characteristics and Functions: Mangroves

  • Form biomass at rates equal to most intensively cultivated tropical agricultural lands, with only marine grass beds, coral reefs, and tropical rain forests exceeding mangroves in productivity;
  • Export organic matter to adjacent coastal food chains, thereby playing a critical role in sustaining life in environments such as coral reefs and seagrass beds;
  • Provide habitat for many birds, fish, and invertebrates in their maze of trunks, prop roots, and muddy substrates. (Several endangered, threatened, and candidate species of birds depend on Puerto Rican mangroves. Resident, commercially important shellfish include the mangrove oyster, juvenile spiny lobster, and land crab.);
  • Protect shorelines, boats, and land-based structures from erosion and wave damage, particularly during tropical storms and hurricanes;
  • Serve as physical and chemical filters for upland runoff and enhance marine water quality;
  • Comprise a significant portion of Puerto Rico's public forests, with recreational and educational value.2
Original Acreage: Historically in Puerto Rico, estuaries covered 60,000 acres, of which about 30,000 were mangroves.

Current Acreage: The most recent estimate of mangroves in 1974 put the remaining acreage at 16,029 acres or about 53 percent of the original acreage.

Trends: Mangrove forests and freshwater wetlands are the primary wetland types at risk. By 1918, mangroves had been reduced to 20,000 acres, falling to 16,000 by 1938. By 1959, mangroves recovered to about 18,000 acres due to: the absence of major hurricanes; the electrification of the island which reduced the demand for charcoal and firewood; a depressed economy; and emigration of a half million residents. But between 1959 and 1968, mangroves disappeared at a rate of 160 acres per year. This jumped to a rate of 500 acres per year between 1972 and 1974 because of the development of heavy industry, housing, and tourism complexes. If sustained, this loss rate would have destroyed all the mangroves in 20 years. Between 1975 and 1987, the rate slowed to what is roughly estimated as 100 acres per year. An improved investment climate from 1985 to 1988 has greatly increased the number and size of proposed development projects in wetlands (particularly marinas and resorts) along the remaining, undeveloped portions of the coast.

Freshwater wetlands have been increasing as previously farmed fields are abandoned and allowed to revert. These newly re-established wetlands are at risk as urban coastal development replaces agriculture.

Given the relatively small size of Puerto Rico and the Virgin Islands, wetland losses here cannot be compared to those in the mainland United States. Wetlands in the Virgin Islands are confined to narrow coastal fringes and "salt ponds." Although small, these wetlands are vital to migratory birds and native wildlife. The elimination of a 5-acre salt pond can be devastating in the Virgin Islands.

Factors Adversely Affecting Wetlands 

In the past, mangrove and upland deforestation resulted from the demand for fuel by households and large sugarcane mills. Drainage of fresh and brackish wetlands for sugarcane and malaria control also took its toll on wetlands, and by the 1940s, canals, dikes, and pumps had altered hydrological patterns. Economic development programs aimed at transforming Puerto Rico from an agrarian to an industrial economy had a significant impact on Puerto Rican wetlands during the 1950s and 1960s. The petrochemical industry, in particular, spurred the development of refineries, factories, navigation channels, cooling and waste ponds, and peripheral industries. For a number of major firms, expansion proved unsustainable,3 and abandoned sites now occupy former mangroves. Sugarcane farming also became uneconomical in the 1980s. As drainage systems deteriorated, freshwater wetlands and lagoons began to re-emerge. For example, the Humacao Wildlife Refuge is comprised of abandoned sugarcane fields and cattle pasture.4

The unemployment rate in Puerto Rico hovers between 15 and 20 percent and, thus, efforts to provide jobs for residents account for the major activities now affecting mangroves. The tourist industry -- with its attendant hotels, resort housing, marinas, and golf courses -- is one key factor threatening mangroves. Another is business ventures such as office buildings and industrial parks. In the rush to get projects underway, planning has sometimes suffered, and although mangrove sites have been cleared, the projects have not always materialized as planned. Some former mangroves host abandoned resorts and industrial parks. Agriculture is no longer a factor in wetland conversion and decline, but proposed copper and gold mining in several mountainous areas could pose a threat by degrading water quality and requiring additional port facilities.

Unauthorized filling of wetlands is a substantial and continuing problem. Although the Corps of Engineers issues many cease and desist orders, and several cases have been tried in Federal court, only about 25 percent of the illegal fills have been restored. The Corps' regulatory office in San Juan is inadequately staffed to handle the case load,5 and penalties are insufficient to serve as meaningful deterrents to continued illegal fills.

Manpower constraints also hamper the Corps' ability to inspect for and enforce compliance with permit conditions. All to often required mitigation is not performed by project sponsors. A case in point is a project undertaken by Caribbean Airlines Services in 1987. As a condition of its permit, Caribbean agreed to create 22 acres of wetlands in the Luis Muñoz Marín International Airport. Caribbean never did the required mitigation work. The Fish and Wildlife Service notified the Corps of this violation in August, 1992. As of January, 1994, the Corps had not issued a notice of noncompliance. Further, despite this violation, the Corps is processing a new permit for Caribbean without requiring compliance with the 1987 permit. Several other major projects have not complied with mitigation requirements. The Corps has recently increased its regulatory staff by 20 percent, and made enforcement of permit conditions a higher priority.

EPA has wetland enforcement authority, as well, but the sole wetlands biologist in the EPA's San Juan office is responsible for all wetland issues in Puerto Rico and the Virgin Islands. Wetlands program management and legal counsel are located in EPA's New York regional office, however. The lack of field personnel and extended lines of communication have limited EPA's effectiveness in wetlands enforcement activities in Puerto Rico and the Virgin Islands.

Federal Programs and Projects 

A diverse group of Federal programs promotes the tourist industry and urban development. Environmental safeguards are inadequate, and this development affects coastal wetlands, especially mangroves. The Federal programs include grants for economic development, mortgage and flood insurance, provisions of the income tax code specific to Puerto Rico and the Virgin Islands, and flood control and navigation projects. Highway and airport projects, which provide the infrastructure for further development, also affect wetlands. The intent of the Coastal Barrier Resources Act can be circumvented on areas ostensibly dedicated to conservation.

Urban Development

Urban Development Action Grants: The Urban Development Action Grants Program (UDAG) was last funded in FY88. It awarded matching funds to attract private investment to distressed areas. From 1980 through 1986, HUD awarded over $191 million for 168 projects in Puerto Rico. Between January and July, 1986, the Federal government awarded $23.4 million in UDAG funds, attracting $72 million in private investment. This amounted to a 25 percent Federal subsidy without which the projects would not have been constructed.6

Under both the UDAG Program and the Community Development Block Grant Program (see below), grant recipients are responsible for complying with all Federal environmental laws, the Wetlands Executive Order, and NEPA. HUD retains oversight responsibility, and is responsible for monitoring grant recipients to make sure that they have fulfilled all statutory and regulatory requirements. HUD regulations require grant recipients to have complied with all environmental requirements prior to release of construction funds.

Because Fish and Wildlife Service documentation has been spotty, the extent to which UDAG has affected wetlands in Puerto Rico is unknown. Nonetheless, the delegation of responsibility for environmental compliance together with the existing HUD oversight procedure may not be an appropriate design for a place with numerous, pressing, social and economic problems and grant recipients whose experience with environmental protection procedures is limited and whose priorities lie elsewhere. The Department believes that the potentiality for environmental damage could be avoided if, prior to release of funds, HUD required grant recipients to provide documentation of concurrence by resource and regulatory agencies that environmental responsibilities had been fulfilled.7 HUD maintains that its grantees already must comply with an extensive series of procedural safeguards and that this additional step is unnecessary.8 HUD also observes that imposing an additional requirement on an area (State, community, region) based on its demographic characteristics (as opposed to focussing on specific violators) is prejudicial and discriminatory, and would undoubtedly be challenged.

Community Development Block Grants: Under the Community Development Block Grant Program (CDBG), HUD often funds projects like roads, recreational facilities, and shoreline protection. For FY 1989-1993, Puerto Rico received $292 million in CDBG funds for its 14 larger cities and in excess of $200 million for its smaller communities.9 As with the UDAG Program above, responsibility for environmental compliance falls to the grant recipients, the cities and the Municipal Services Administration. Under current staffing levels it is difficult for the various resource agencies to adequately review or monitor all the numerous CDBG proposals.

Many projects have gone forward without adequate engineering studies. In one case, the Municipality of Mayagüez built a road across a deep marsh, isolating a section of marsh from its water source. Fill had to be deposited across an area four times the width of the road. The underlying soft peat was so unstable that light poles are leaning, and fill obstructs culverts intended to allow some water exchange.10 The road serves to encourage the filling of adjacent marsh for commercial use, thus indirectly destroying an important receptor of flood waters which protects the water quality of downstream mangrove forests.

It is frequently the case that CDBG grant recipients in Puerto Rico are not qualified to fulfill procedural requirements and conduct environmental reviews for funded projects.11 For example, the Municipality of Lajas received a CDBG grant to construct an office complex and parking lot in wetlands in La Parguera. The Municipality failed to conduct required environmental reviews and fulfill all permitting requirements. Ultimately, the Corps of Engineers issued a cease and desist order for the project, requiring complete removal of building foundations and restoration of the site. Ironically, the office complex was intended for the Puerto Rico Department of Natural Resources.

The large number of projects dispersed over so many communities makes it difficult to determine the magnitude of CDBG's effect on wetlands, but the Fish and Wildlife Service believes the cumulative impact to be significant. Given the pressure for development in Puerto Rico and the extent of wetland loss and degradation, a procedure needs to be developed for identifying potential wetland impacts prior to project approval and funding.12 A relatively inexpensive step would be to provide maps to HUD's local offices, the large Puerto Rico cities, and the Municipal Services Administration. As suggested above, the potentiality for environmental damage could be avoided if, prior to release of funds, HUD required grant recipients to provide documentation of concurrence by resource and regulatory agencies that environmental responsibilities had been fulfilled.

Economic Development Administration: The Economic Development Administration (Department of Commerce) provides funds to the Puerto Rico Industrial Development Company (PRIDCO) which are designed to stimulate the economy. The FWS believes that the program poses a significant, potential threat to wetlands.

In one instance, PRIDCO applied for funds to upgrade a water supply pipeline to an existing, industrial zone and adjacent residential area in Ponce. PRIDCO officials were told that to compete effectively with other EDA funding proposals they had to link the project to plans for additional factory construction. Even though several industrial parks in Ponce stand empty, PRIDCO drew up plans for a large new industrial park. After EDA requested environmental review by the FWS, the plans were modified so as to avert damage to wetlands. This successful outcome is not the rule for the environmental review process. Impacts to wetlands were avoided in this instance due to the unusual conscientiousness of the EDA official managing the grant. Going forward with such projects in the absence of need is a poor use of the land and of Federal monies. The EDA should encourage the rehabilitation of abandoned facilities zoned for industrial use before developing new industrial areas.

National Flood Insurance Program: The National Flood Insurance Program (NFIP) and the Disaster Assistance Program administered by the Federal Emergency Management Agency (FEMA) are not fulfilling their potential to prevent poor floodplain management and the resulting wetland destruction in Puerto Rico. To participate in the NFIP, communities must adopt local ordinances regulating development in floodplains. The ordinances must conform to minimum Federal standards. Under a FEMA contract, the Corps of Engineers found that the Puerto Rico Planning Board had not enforced the standards. In regulating floodplain development, the Planning Board had not followed the Flood Insurance Rate Maps (FIRMS) that indicate various hazard zones.

The Planning Board recently promulgated a new regulation (Regulation 13) to bring the program into compliance. FEMA has recommended additional changes in the regulation, but these changes will neither resolve all the problems inherent in the existing regulation nor eliminate all the abuses of the program. For instance, Regulation 13 does not account for cumulative impacts to flood storage capacity from fill.13 New construction within floodplains is being elevated by fill so as to locate it above designated flood heights. Although this may technically comply with NFIP standards, it is certainly at variance with the purposes of the floodplain protection program, and where such filling is in wetlands, it violates the Wetlands Executive Order. Finally, although FEMA regulations prohibit construction in floodways,14 floodway maps have not been distributed to all permitting and planning agencies, and thus, it seems likely that at least some construction is occurring in floodways.

Another feature of the flood insurance program which frustrates wetland protection emanates from the way FEMA draws the flood insurance maps. FEMA regulations ostensibly protect mangroves by prohibiting any alteration of mangroves in the V-Zone (a coastal, high-hazard area subject to high velocity waters). However, the maps for Puerto Rico include only a few fringing, mangrove forests along the south coast. The FIRMS should be redrawn to include additional mangrove and beach areas, because (1) they appear to be part of the V-Zone, and (2) wave energy and flooding potential are exacerbated when mangroves or dunes are destroyed by construction activities or sand extraction.15

The FWS recommends that all wetlands within the reach of storm surge from a major hurricane be protected from future development or, at least, that the FIRMS be redrawn to take into consideration continuing wetland losses and the increased intensity of flooding elsewhere resulting from these losses. FIRMS are suppose to identify the different risk areas within a floodplain and take into account the existing flood control capacity of the areas of concern. There is currently no requirement that the wetlands used in calculating the existing flood control capacity be protected, and thus they are sometimes developed, while their protective qualities are still assumed in the existing FIRMS. These areas should be protected or, if not, the FIRMS should be redrawn to reflect their loss, insurance premiums adjusted, and construction standards enforced. The lack of accurate FIRMS and of effective enforcement of existing FIRMS undermines wetland and floodplain protection by offering insurance for inappropriate development.

Mortgage Insurance: Mortgage insurance or guarantees provided through commercial lenders by HUD and the Department of Veterans Affairs result in lending on more favorable terms than would have occurred in the absence of the guarantees, thereby stimulating the demand for housing.16 Nationwide, HUD and VA loans account for about 10 percent of the financing for new residential construction.

For single family housing, neither HUD nor the VA perform environmental review at the subdivision development stage.17 HUD performs an environmental review for all new multifamily developments. The VA and HUD used to conduct reviews of residential subdivisions prior to approving financing. The reviews focussed primarily on the construction aspects of projects, although some environmental considerations were involved. In the mid-1980s, the VA's general counsel issued an opinion that NEPA did not apply to the loan guarantee program. Having concluded that its construction reviews duplicated State and local regulatory programs, the VA terminated reviews of subdivisions. HUD formally followed suit in 1993, having significantly curtailed its scrutiny several years earlier.18

The Wetlands Executive Order mandates that, where practicable, Federal agencies administer their programs so as to protect wetlands. Opinion differs, however, regarding the Order's applicability to the financing of activities on non-Federal property. Although Federal financing of construction in wetlands is covered under section 1(a), section 1(b) states that the order does not apply to Federal "allocations" on non-Federal property, the Department's Solicitor advises that in law there is no generally accepted interpretation of the term "allocations." It would be useful if these two sections of the Wetlands Executive Order were clarified. Housing developments continue to be constructed in vulnerable areas. If Federal mortgage insurance were unavailable to developments proposed for wetland areas, the increased financial risk might reduce wetland loss.

Tax Code: Two features of the Federal tax code may play a role in the future of Puerto Rico's wetlands. First, section 936 of the Internal Revenue Code is a tax exemption program designed to attract corporations to establish factories in Puerto Rico and the Virgin Islands. The success of this program depends on whether manufacturing plants can be constructed in stages, with final assembly occurring in U.S. territories under the Section 936 tax incentives. Secondly, the deduction of mortgage interest on second homes may affect wetlands in the islands, because a large number of vacation homes are constructed in sensitive wetland areas. The interest deduction subsidizes this activity.

Jurisdictional Limitations and Community Priorities: Clearly, wetlands are disappearing due to urban development in Puerto Rico. Some of these losses may be due to lax enforcement and/or to developers and project sponsors violating environmental constraints and evading detection. But some loss and degradation may simply reflect the different conservation standards and priorities in the Commonwealth. These latter represent a more challenging problem, because strictly speaking they do not constitute Executive Order or regulatory violations. Rather they reflect different interpretations of the regulatory and Executive Order standards. Neither the Executive Order nor section 404 of the Clean Water Act prohibit development in wetlands. The Executive Order encourages Federal agencies to minimize the destruction, loss, or degradation of wetlands in conducting their activities, and 404 has jurisdictional limitations and is subject to variations in interpretation, e.g., the extent of impact and the required mitigation. Often the various resource agencies are dissatisfied with the choices made by grant recipients or regulatory authorities, and generally, these agencies have only review and comment authority, and cannot substitute their own preferences for those of grant recipients or regulatory agencies. This problem is amenable to the full range of solutions -- less flexible standards, increased oversight, more programmatic emphasis on conservation -- none of which are quick, cheap, or easy. As an initial step toward resolving environmental disputes, HUD recommends that Fish and Wildlife Service offices with objections to projects affecting wetlands forward a copy of their objections to the Director, Office of Environment and Energy, HUD, Washington, DC.

Water Projects 

Flood control, water supply, and to a lesser degree, navigation projects sponsored by the Army Corps of Engineers could have significant impacts on wetlands in the future. The Corps is now constructing only one major project in the islands: the Portugués and Bucaná Rivers Project in Ponce. This project channelizes a river and creates a reservoir, but has minimal impact on coastal wetlands. A thorough review of the effects of past Corps projects was not possible, but one proposed flood control project (the Río Puerto Nuevo Flood Control Project) could harm coastal wetlands in Puerto Rico. Located in the center of the San Juan metropolitan area, the project would cost $253 million and eliminate 20.5 acres of mature mangrove wetlands. The affected area includes the Constitution Bridge mudflats and mangroves, a Commonwealth designated Critical Coastal Wildlife Habitat. A 30-acre mitigation plan will be implemented to partially compensate for wetland loss.

Lack of coordination with FWS during the reconnaissance phase of flood control projects continues to result in wetland impacts not being recognized until later phases of the Corps' project evaluation process. The Corps' method of calculating benefits for flood control projects has been criticized on the grounds that it tends to justify development in wetlands, compromising the Floodplain Management and Wetland Protection Executive Orders. A review of the methods used by the Corps for calculating flood control benefits would help to dispel any doubts about the validity of the techniques utilized.

Transportation 

As a result of negotiations by the natural resource agencies and a growing awareness about wetlands by the construction community, a major highway project to alleviate traffic jams around the international airport has been redesigned. As originally conceived, the Baldorioty de Castro Expressway would have eliminated 50 acres of wetlands, more than half of those remaining along the entire San Jose Lagoon perimeter. It is now estimated that only 6 acres of mangroves and 12 acres of herbaceous wetlands will be lost.

The direct effects of the San Juan Urban Core Transportation System were successfully mitigated, but the system could have significant indirect effects. The Commonwealth admitted that to make the $20 million channel to provide ferry service appear economically viable, the projected level of commuter use was inflated in the Environmental Impact Statement. The Commonwealth now wants additional development of the remaining wetlands in this already crowded area to promote patronage of the Transportation System.

Expansion at the Luis Muñoz Marín International Airport, typically involving equal cost sharing between the Commonwealth and the Federal Aviation Administration, regularly destroys surrounding wetlands. At the urging of the Corps and FWS, the Ports Authority has developed a long-term mitigation plan for the airport to address all wetland impacts. As proposed, the mitigation plan calls for acquiring and placing protective covenants on high-value, privately owned wetlands, rather than creating or restoring wetlands. The mitigation plan eliminates the risk of conversion for some wetlands, but it does not offset the loss of wetlands due to planned expansion of the airport. Although it is possible to create mangroves, the communities in the vicinity of the airport strongly objected to the Ports Authority using uplands for wetland mitigation. Land for expansion for these communities is very limited, and over 100 acres would have been needed to fully offset the losses from planned development at the airport. Nonetheless, a mitigation plan which focussed on restoration of degraded or previously converted wetlands would have been preferable to the one which was proposed. Agriculture While agriculture, per se, no longer has a major impact on wetlands in Puerto Rico, some SCS watershed projects which are justified for agricultural purposes may pose a threat to wetlands, and portions of them seem to violate SCS operating procedures.19 Many coastal sugarcane fields were originally developed for agriculture by draining wetlands and floodplains. Large tracts of former sugarcane fields have long been abandoned due to market conditions, sufficiently long that some fields have either acquired wetland characteristics or reverted to wetlands. Under SCS regulations, an area which has not been cropped for over 5 years does not qualify as a prior converted wetland, and is not eligible for SCS assistance as part of a watershed project. SCS is currently working with the Fish and Wildlife Service to determine if modifications are needed on one project in order to protect valuable wetlands. The Fish and Wildlife Service hopes to review, in conjunction with the SCS, the watershed projects planned for Puerto Rico to determine whether they comply with SCS procedures and regulations.

Coastal Barrier Improvement Act 

Congress accepted the principal of withdrawing Federal support for activities that disrupt fragile coastal and floodplain environments when it passed the Coastal Barrier Resources Act of 1982 (CBRA). With enactment of the Coastal Barrier Improvement Act of 1990 (CBIA), Congress amended CBRA and extended this principal to the coastal environments of Puerto Rico and the Virgin Islands. The CBIA reduces the incentive to develop designated coastal wetlands in Puerto Rico and the Virgin Islands, but as enacted the intent of the statute can be circumvented on areas ostensibly dedicated to conservation.

Under CBRA, areas that are "otherwise protected" are generally not included in the Coastal Barrier Resources System (CBRS). Congress apparently thought that including these areas in the CBRS would be redundant and did not want to preempt legitimate State, local, and private conservation decisions. CBRA regulations define an otherwise protected area (OPA) as one which "has been withdrawn from the normal cycle of private development and dedicated for conservation, wildlife management, public recreation, or scientific purposes." The CBIA prohibits the provision of new flood insurance coverage on OPAs. However, no additional penalties are triggered if the protective covenants on an OPA are ignored and the area is made available for development. NFIP coverage remains unavailable for projects in an OPA that is proposed for development, but there are no restrictions on the availability of development assistance from other Federal programs. Development proposals are pending for numerous OPAs in Puerto Rico. If withdrawal of flood insurance proves insufficient to discourage disregard of protective covenants and development of OPAs, then Congress may want to consider stronger sanctions.

Status and Prospects

Agriculture no longer has a major impact on wetlands. Economic development and housing projects, often justified as ways to relieve the 15 to 20 percent unemployment rate, pose the greatest threats to coastal wetlands. The economy of Puerto Rico appears to be emerging from a period of sluggish activity; development pressure in the form of resorts, marinas, vacation homes, housing projects, and industrial facilities has sharply increased since 1985. Existing regulatory programs and pre-development consultation policies have failed to stem construction in mangroves and coastal wetlands. The devastation from Hurricane Hugo in 1989 raised serious questions concerning coastal development. However, development continues, and in many areas such as Culebra, structures were rebuilt in the same locations.

Federal economic incentives play a major role in promoting these activities. Most significant seem to be flood insurance, federally insured home mortgages, and flood control projects, followed by Community Development Block Grants, transportation projects, grants offered by the Economic Development Administration, tax code provisions allowing the deduction of interest on second homes, and income tax exemptions for companies locating in the islands. The Urban Development Action Grant Program had a significant effect on wetlands, but it is no longer funded. Without this heavy Federal investment many of the development projects would not have gone forward. Despite the subsidies and the heavy investment, the unemployment rate remains relatively constant. Current laws and regulations may not be strong enough to withstand this mounting economic pressure, and mitigation opportunities for mangrove losses are limited because of the relatively confined area they now occupy.

Recommendations

  1. Urban Development:
    a. FEMA should deny flood insurance and disaster assistance to communities which do not enforce floodplain management ordinances.
    To participate in the National Flood Insurance Program and the Disaster Assistance Program, communities must adopt local ordinances regulating development in floodplains. These ordinances are regularly violated in Puerto Rico, often resulting in the destruction of wetlands having important flood prevention and ecological characteristics. FEMA has the authority to deny flood insurance and disaster assistance if the ordinances are not enforced. In a region with such severe developmental pressures, if the ordinances can be ignored with impunity, they likely will be.
    b. If withdrawal of flood insurance proves insufficient to discourage development of "otherwise protected areas" (OPA), Congress should amend the Coastal Barrier Resources Act to provide for automatic inclusion in the Coastal Barrier Resources System (CBRS) of OPAs whose protective covenants are violated.
    The CBIA greatly reduces the incentive to develop designated coastal wetlands in Puerto Rico, but as enacted the intent of the Act can be circumvented on OPAs. New flood insurance coverage is unavailable on OPAs, but if the protective covenants are violated and an OPA is made available for development, no additional sanctions are triggered. NFIP coverage continues to be unavailable for projects in a former OPA, but there are no restrictions on the availability of development assistance from other Federal programs. Automatic inclusion in the CBRS and denial of all Federal benefits supporting development would seem the appropriate response for such a breach of faith.
    c. Flood insurance rate maps (FIRMS) should be drawn to include more mangrove and beach areas.
    FEMA regulations ostensibly protect mangroves by prohibiting their alteration in the V-Zone (a coastal, high-hazard area subject to high velocity waters). However, the maps for Puerto Rico include only a few fringing, mangrove forests along the south coast. FIRMS should be drawn to include additional mangrove areas, because construction activities alter the mangrove stands and sand dunes, and in turn these alterations alter wave energy and increase the intensity of storm waves. The Planning Board takes account of Federal flood-zone designations when designing ordinances which regulate development in floodplains. Clearly, if the maps are not inclusive, wetlands can be converted for ill-advised development.
    d. In recognition of their flood control benefits, all wetlands subject to storm surge from a major hurricane should be protected from future development. Further, the FIRMS should be redrawn to take into consideration past wetland losses and the resulting increased intensity of wave action and river flows elsewhere.
    FIRMS are drawn in order to identify the different risk areas within a floodplain. As such, they should account for the flood control benefits of existing wetlands. There is currently no requirement that the wetlands used in calculating the existing flood control capacity be protected. Consequently, these wetlands sometimes get developed, while their protective qualities continue to be assumed in the existing FIRMS. Either these wetlands should be protected or, following their loss, the FIRMS should be redrawn to reflect the elimination of their flood control benefits, insurance premiums adjusted, and construction standards enforced. The lack of accurate FIRMS and of effective enforcement of existing FIRMS undermines wetland and floodplain protection by offering insurance for inappropriate development.
    e. Prior to release of funds, HUD should require grant recipients to provide documentation of coordination with resource and regulatory agencies and of concurrence by these agencies that grant recipients fulfilled their environmental responsibilities.
    HUD maintains elaborate procedures for monitoring projects funded under the UDAG and CDBG programs and for reviewing grant recipients' compliance with environmental requirements. These procedures notwithstanding, developers, grant recipients, and the HUD San Juan Field Office have been unresponsive to concerns raised by the Fish and Wildlife Service about potential violations. HUD has never contacted the Service during a procedural review to inquire about the resolution of formally registered concerns. Potential environmental damage could be avoided if HUD required grant recipients to provide documentation of concurrence by the Fish and Wildlife Service and other resource and regulatory agencies that environmental responsibilities had been fulfilled.
    f. HUD should impose appropriate sanctions on grant recipients for environmental violations.
    The Fish and Wildlife Service is unaware of any sanctions being imposed by HUD on grant recipients who violated environmental requirements. In the absence of appropriate sanctions, grant recipients will violate requirements with impunity, or accept small penalties as a normal cost of conducting business.
    g. The Municipal Services Administration and the larger municipalities should develop wetland identification expertise for use in reviewing Community Development Block Grant proposals. National Wetland Inventory maps should be used as a basis for environmental review of Community Development Block Grant (CDBG) proposals.
    There are a large number of projects approved under the CDBG program. The cumulative impact of these programs on wetlands may be significant. Frequently, threats to wetlands are identified only after the fact. The wetland effects of the program could be reduced if HUD management reemphasized wetland conservation as a high priority and if HUD and municipalities trained their personnel in identifying potential wetland impacts. CDBG proposals are too numerous to allow resource agencies to review each proposal thoroughly. However, if HUD and municipal personnel were provided with wetland identification training and NWI maps, the number of referrals to resource agencies could be reduced to a manageable level. Alternatively, and perhaps more cheaply, if HUD grantees provided the Fish and Wildlife Service with maps or plats for proposed projects, the Service could notify project sponsors of potential wetland problems.
    h. Federal agencies (mainly HUD and the Department of Commerce) involved in promoting industrial development should modify policies, whenever possible, to encourage the rehabilitation of abandoned facilities that are already zoned for industrial use, rather than promoting the development of new industrial areas.
    In order to transform Puerto Rico from an agrarian to an industrial economy and to relieve unemployment problems, Federal agencies have sometimes promoted new development which was harmful to wetlands. New development was encouraged even though abandoned sites were available. Before new projects are approved and supported with Federal funds, sponsoring agencies should be required to demonstrate that existing capacity cannot be rehabilitated more cheaply or cannot serve the desired function.
  2. Regulation:
    Strengthen the enforcement program of the Army Corps of Engineers and EPA to respond to illegal filling of wetlands and noncompliance with mitigation conditions in permits.
    Unauthorized filling of wetlands and nonfulfillment of mitigation conditions in permits are substantial and continuing problems in Puerto Rico. Although the Corps issues many cease and desist orders, and several cases have been tried in Federal court, only 25 percent of the illegal fills have been restored. The Corps' and EPA's enforcement efforts are inadequately staffed to handle the case load, and penalties are insufficient to serve as meaningful deterrents to continued illegal fills and developers' disregard of mitigation requirements in permits.

References

Fridman, H. L. 1986. Building Starts Soar as Barriers Go Down. The San Juan Star (August 10), pp 1+.

Pace, R. 1986. The Impact of Federal Programs on Wetlands in Puerto Rico. Background Report. Office of Policy Analysis, U.S. Department of the Interior, Washington, DC, 36 pp.


Footnotes

1 Although this chapter focuses on Puerto Rico, the trends identified apply to the Virgin Islands, as well.

2 Protected areas include Piñones, Aguirre, Boquerón, and Ceiba Commonwealth forests.

3 Commonwealth Oil Refining Company, Puerto Rico Olefins, PPG, Union Carbide, Hess Virgin Islands Corporation, and Harvey Alumina.

4 The refuge is composed of over 3,000 acres of recently re-established wetlands and lagoons.

5 The Corps' Jacksonville District has recently transferred full regulatory functions to the San Juan Office. The combination of limited staff and increased workload makes it difficult to handle enforcement, mitigation, and compliance cases.

6 In order to fund a project, UDAG had to make a determination that the project could not proceed in the absence of the UDAG grant.

7 In cooperation with the Fish and Wildlife Service, FmHA has developed just such a procedure.

8 HUD environmental rules require that grantees comply with the Wetlands Executive Order, which mandates two public notices requesting public comment for proposed projects affecting wetlands. HUD requires that these notices be published in local newspapers. The first notice is published at the start of the grantee's environmental review, and is intended to involve the public and affected agencies in the review and decisionmaking. At the conclusion of the review, the second notice announces the grantee's decision to avoid or to affect wetlands. In addition, HUD program rules require a third and final public notice by the grantee, which is the Notice of Intent to Request the Release of Funds. Unless there are objections from the public and affected agencies, the grantee's Certifying Officer forwards the "Request for Release of Funds and Environmental Certification." Funds are released either by HUD for HUD-administered grants or by States for State-administered grants. The Fish and Wildlife Service's principal concern with these procedures is that public notices are published for only one day. It is almost a fulltime job to review the public notices in five newspapers covering 78 communities. This is quite burdensome for a field office with only two wetland staffers.

9 78 communities in all.

10 The construction of this project was originally financed with funds from the Economic Development Administration. CDBG funds were used during 1976-77 to pay for fill materials. The project was initiated prior to issuance of the Wetlands Executive Order.

11 CDBG recipients in Puerto Rico receive little training in complying with environmental constraints and wetland requirements.

12 Municipal personnel handling these programs are not trained in wetland identification and values, and training them could prove an expensive option. With present budgetary and staff constraints (two wetland specialists covering 78 municipalities), the FWS's preference is for HUD or its grant recipients to provide maps or plats for all proposed projects. The FWS would then notify the sponsors of projects with potential wetland problems. With exactly the same constraints, HUD has requested that the FWS provide (with or without fee) wetland delineation maps to the public in the same manner as FEMA does for maps designating flood hazard areas under NFIP. The FWS has already provided wetland maps to the Puerto Rico Planning Board, the Department of Natural Resources, and the Corps of Engineers. Any developer following procedures will be involved with one or more of these agencies, and could utilize the available maps. These initial steps notwithstanding, FWS and HUD officials in Puerto Rico need to develop a more effective set of procedures for compliance with wetland and environmental constraints.

13 Not all of this filling is in wetlands.

14 A floodway is an area dedicated for conveyance of waters from the 100-year flood.

15 FEMA recently revised the FIRMS to incorporate newly designated units of the Coastal Barrier Resources System, but failed to correct inaccuracies in the maps for any other areas.

16 In general, most types of housing are eligible under these programs, including single-family and multifamily housing, manufactured homes, and condominiums. HUD and the VA no longer insure subdivision site development, and their activity in insuring mobile home parks is limited.

17 HUD requires a builder certification that the property complies with State and local codes, including environmental requirements. HUD can impose sanctions on builders who violate the requirement. The VA assumes that construction is evidence of compliance with State and local codes.

18 HUD curtailed its scrutiny several years earlier, in compliance with a 1983 Congressional mandate that HUD, VA, and FmHA accept each other's subdivision approvals reciprocally. (See Section 535 of the Housing Act of 1949, added by Section 523 of the Housing and Urban-Rural Recovery Act of 1983.) This provision prevented any one of the agencies from conducting its own environmental review of a subdivision which had been approved by either of the other two agencies. When VA subsequently eliminated its subdivision approvals, HUD again ordered environmental reviews in subdivisions containing properties certified by the VA. In response, the housing industry urged Congressional action to continue HUD's automatic acceptance of VA-processed properties. Congress amended Section 535 to require that HUD consider a VA Certificate of Reasonable Value on as little as one house in a subdivision "to be an administrative approval for the entire subdivision." Consequently, a subdivision that received no VA environmental review was excluded by statute from HUD environmental subdivision review. A substantial portion of HUD-insured homes were accepted by HUD as the result of VA processing during the period 1983-1993.

19 Since 1987, the Executive Order on Wetlands Protection has restricted direct Federal action to drain wetlands. Further, in June, 1987, the SCS Director issued guidance halting all new planning starts for watershed projects that would increase crop production.


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For more information on the impact of Federal programs on wetlands,
contact Jon H. Goldstein by email at jon_goldstein@ios.doi.gov or
by telephone at 202-208-4077