SOMEBODY ELSE'S PROBLEM: MAN SAYS DIVERTED WHITEWATER RIVER DRAINED HIS HERITAGE

WHITEWATER, Mo. -- A two-year struggle with bureaucrats has left a Cape Girardeau County man with little hope of restoring 27 acres of private wetland drained when a neighbor interfered with the Whitewater River.

But R.B. Welty has vowed to keep fighting until his acreage is returned to its former glory.

Welty said his family has been cultivating a wetlands preserve on his rural, 108-acre Cape Girardeau County property for three generations. These wetlands -- halfway between Gordonville and Whitewater -- held fish, trumpeter swans, ducks, geese, otter, and beaver, he said. Then his neighbor, looking to increase cropland acreage, built a ditch and a levee system along the Whitewater.

All 27 wetland acres on Welty's property drained away. There are mere puddles where chest-high marsh water once stood.

"He drained my whole farm," said Welty, 54.

The retired heavy equipment operator spent the last two years requesting the intervention of government agencies. Welty has received the same answer from the U.S. Department of Agriculture, the Missouri Department of Natural Resources, the U.S. Army Corps of Engineers, and the U.S. Environmental Protection Agency: "There's nothing we can do."

"They know they're wrong. They're just putting up roadblocks," he said. "But they're not going to stop me."

Welty lives in Cape Girardeau but has metal folding chairs set up on the leaf-covered earth at three different points across his Whitewater property. He comes to the chairs to sit sometimes, he said, to be alone under the tree canopy. Resting there, he plans the next move in his campaign to fight the ditch abutting the southeastern tip of his land and the levee system built to the southwest of his property.

The drained wetlands aren't his only problem. The levee sends the floodwaters of Whitewater River intermittently spilling over his property, cutting off land access to large sections of the estate, Welty said.

Terry Givens, a full-time farmer admittedly responsible for the modifications to Whitewater River, declined to comment. He referred all inquiries to the U.S. Department of Agriculture Natural Resources Conservation Service in Jackson.

Support system

Welty's fight to restore his wetlands has won the support of a Southeast Missouri State University biology professor and the director of a regional chapter of the Sierra Club, a national environmental watchdog organization.

Professor Alan Journet has long been an advocate of regional environmental issues.

"In R.B. Welty, we have a gentleman trying to do the best he can to maintain his wetlands," he said. "I've been out there a couple of times, and it just seems to get worse and worse. He's been trying to get federal and state agencies involved. But everybody's been dropping an iron curtain between him and, what seems to me, to be reasonable responses."

There are at least two government agencies that should be doing something about the drained wetland, said the professor -- the U.S. Department of Agriculture Natural Resources Conservation Service and the U.S. Army Corps of Engineers.

"They should be jumping up and down and saying, 'Wait a minute. You can't do this'," said Journet.

Ken Midkiff, director of the Ozark Chapter of the Sierra Club in Columbia, Mo., toured Welty's property in October. Midkiff said one government agency in particular has been long overdue in correcting the wetland drainage and flooding.

"The only agency I can point a finger to is the U.S. Department of Agriculture Natural Resources Conservation Service," he said. "They're the ones given the responsibility to oversee permits for activities which impact wetlands. They, for whatever reason, have been unable and unwilling to make the neighboring landowner make this right."

Swampbuster provisions

Not so, said Ron Darden, assistant state conservationist for field operations with the USDA NRCS in Jackson.

"This is a matter that does not come under our regulations," said Darden. "This is a matter between two individuals. It appears as though it's a civil matter. The USDA, the Army Corps of Engineers, and the U.S. Environmental Protection Agency have all looked at it."

Darden said Givens called the NRCS years ago and asked if he'd violate the Food Security Act by making modifications to Whitewater River. The NRCS gave the neighbor verbal permission to proceed but did not issue a permit, which wasn't necessary, said Darden.

The "swampbuster" provision of the Food Security Act of 1985 blocks federal subsidies to farmers who drain wetlands.

Given's ditch is not a violation of NRCS regulations, said Darden, because the neighbor has reported he cleaned out a pre-existing ditch and has not dug the depression deeper.

"That's key," said Darden.

Given's levee is not a violation of NRCS regulations either, said Darden, because the flooding affects cropland and does not present a direct threat to any wetlands.

A 1999 NRCS survey of the Welty property classified less than 30 acres as active wetlands, reported Darden. The survey also documented less than 20 acres as drained wetlands, in the southern region of the property, he said. But these survey results provide no assistance to Welty's cause.

Different standards

A U.S. Army Corps of Engineers official said the Welty situation likewise falls outside that agency's regulations.

The Corps of Engineers did become involved in the project to build an industrial park near Cape LaCroix Creek in Cape Girardeau in 1987, when a question arose regarding the conservation of wetlands at the site. The corps eventually approved the construction of the industrial park in 1998 after developers agreed to establish a six to seven acre wetlands preserve to replace the wetlands destroyed in construction.

Yet the Corps of Engineers has no regulatory authority in the Welty situation, said a spokeswoman for the corps' St. Louis district. This is because the laws regulate only the filling in of wetlands and the moving of wetlands material, she said. Any digging falls outside the statutes.

"They tried to find a rule the neighbor is violating and couldn't," said public affairs specialist Terrie Hatfield. "Where and how the ditch was constructed is not a violation of the Clean Water Act. They can only enforce filling in and the redistribution of material. Somebody can dig all the way to China if they want to, and there's nothing anybody can do about that."

The Clean Water Act of 1972 mandates that a wetland cannot be significantly altered without permission from the corps.

But wouldn't building a levee constitute redistributing materials?

"The corps does not regulate the floodplain. Only wetlands, streams, creeks, and rivers," said Hatfield. "The levee was built on cropland exempt from the corps' regulations. So we have no jurisdiction over that whatsoever."

Excavation vs. filling

The Missouri Department of Natural Resources reported that the Welty situation also falls outside their regulations, citing the same excavation vs. filling loophole.

The DNR did become involved in the project to build Central High School in Cape Girardeau in 1998 when it declared that wetlands acreage existed on the construction site west of Kingshighway. The Cape Girardeau School District was forced to hire a surveyor to chart the wetlands on its property and swap out other wetlands for every wetlands acre that would be consumed in the construction of the school.

The difference, explained Linda Vogt, water quality certification coordinator for the DNR, is what is done with the dirt.

"There's a difference. That's why we keep saying there's a gap in the conservation laws," said Vogt. "If someone excavates, and they're putting the material somewhere that's not a wetland, that's not a regulated activity. If they're filling a wetland, that is a regulated activity.

"In the case of the school, I'm sure they were filling."

Considering the neighbor who made the modifications to Whitewater River remains eligible for USDA NRCS subsidies, Vogt said, it falls on the NRCS to apply their influence to the situation, even if they can't mandate changes.

"I am still not clear why the NRCS cannot take a more active role in this. The landowner who drained the land was a USDA participant and remains a USDA participant, which means he can still apply for benefits on his land," Vogt said. "It just seems to me they should have worked with Mr. Welty more."

Confusing legal options

Welty's difficulties have arisen, in part, because he and his family financed their wetlands preserve with their own money, said Midkiff, the regional director of the Sierra Club. Had Welty accepted federal conservation funds, the government might be more interested in the deterioration of the wetlands, he said.

"Part of the problem is he did this on his own," said Midkiff.

There's an environmental effect if wetlands are lost, said Journet.

"Wetlands are critical. They slow down the rate at which floodwaters run through the land," said the biology professor.

Of Welty, said Journet, "He's trying to get something done. I think a lot of people just hoped he'd go away. You have to give him credit. He hasn't done that."

Midkiff said the Sierra Club is committed to pursuing the issue of Welty's behalf, but the legal options are confusing.

"I think it's a damn shame. The Welty family has carefully nurtured this wetland system. They have planted wetland plants, like cypress. For someone to come in and so callously build a ditch, that's unwarranted," said Midkiff. "I think the NRCS has dropped the ball on this."