By: Julie Sibbing,Wetland Policy Specialist, National Wildlife Federation
In a move that was greeted with much celebration, the Bush Administration recently announced that it was abandoning a planned rulemaking that could have eliminated Clean Water Act protections for up to 60 percent of the nation’s waters. While this decision was a big win for the conservation and environmental community, in reality, less formal policy changes by the administration had already accomplished a significant rollback in implementation of the Act.
When the U.S. Supreme Court ruled in January of 2001 that Clean Water Act protections do not extend to certain “isolated” wetlands and ponds, conservationists were quite concerned. The court’s ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (the SWANCC case) struck down the Corps’ policy of applying protection to “isolated,” intrastate, nonnavigable waters, based solely on the fact that the water body is used by migratory birds. Although quite narrow, the decision did create a new loophole in Clean Water Act coverage of the nation’s beleaguered wetlands. This loophole would apply not only to dredge and fill permits, but to all provisions of the Act, including regulation of point source pollution discharges, regulations governing oil spill liability, etc.
Yet few predicted that this narrow loophole could be seized upon by developers, mining interests and industry-friendly officials in the Bush administration to mount an unprecedented attack on the types of waters that receive protection under the Clean Water Act. Calling off a plan to issue an explanation of the narrow ruling to field staff in the summer of 2002, high level political appointees within the administration decided to push for a broadening of the loophole.
In January of 2003, the U.S. EPA and Army Corps of Engineers published an “Advance Notice of Proposed Rulemaking,” to solicit public comment on what types of waters should be removed from protection under the Clean Water Act. At the same, they also issued a guidance memo to their field staff, directing them to immediately cease protection of what the U.S. EPA estimates is about 20 million acres of wetlands and other waters. While the rulemaking has now been abandoned, this damaging guidance memo remains in effect, needlessly putting critical wetlands, streams and other waters at risk of unlimited pollution and destruction.
The guidance memo is most notable for the fact that it provides very little real guidance to field staff trying to figure out what the Supreme Court’s SWANCC decision means. It gives an unbalanced and confusing (now out of date) discussion of lower court decisions that confuses more than it enlightens. It does give clear direction that all “isolated”waters are to be removed from protection, though it does not define “isolated.” This clearly goes beyond the SWANCC ruling which only eliminated protection for some “isolated” waters. It even allows that some streams should no longer receive protection. Perhaps most damaging, the guidance requires field staff to gain approval from headquarters prior to protecting any water that might be considered “isolated.” If staff decides not to enforce the Act, they do not have to justify their decision or even keep track of their action. To date, only a handful of cases have been elevated to headquarters, strongly signaling that regulators are taking the path of least resistance and failing to regulate waters that are still clearly protected by law.
The National Wildlife Federation is currently reviewing the results of a Freedom of Information Act request for decisions not to extend Clean Water Act protections in the St. Paul, Minnesota district of the Army Corps of Engineers. Although not yet one third of the way through the more than 3,000 decisions not to regulate, and only half of the decisions note the acreage involved, we have already counted more than 2,000 acres of waters impacted. In numerous decisions, large lakes were ruled “isolated” and outside the scope of the Clean Water Act. While it is highly unlikely that the lakes are in fact “isolated,” even if they are, they are clearly navigable and support interstate recreation in the form of fishing and boating – factors that should still ensure protection under the Act.
While the guidance memo and resulting failures to implement the Act begin to add up to major damage to the aquatic system, it is not surprising that the formal rule changes were abandoned. The administration received an unprecedented 135,000 letters on the Notice of Rulemaking, with 99 percent opposing any weakening of the Act. States weighed in heavily in opposition, with 39 out of 42 opposing weakening of federal protections. This overwhelming opposition led 218 members of the House of Representatives (a majority), and 23 Senators to sign a letter to the President, asking him to abandon the rulemaking and rescind the guidance memo.
Another key voice came from the hunting and fishing community. A Hunter/Angler Campaign for Clean Water was launched in July at a 12-state summit in Chicago sponsored by The National Wildlife Federation, Prairie Rivers Network, Ducks Unlimited and Trout Unlimited. A second summit in Atlanta and outreach to other regions expanded and accelerated the campaign. These sportsmen and sportswomen generated thousands of letters to the President, talked to the media, and met with their federal legislators. In the end, the President met with leaders of the hunting and fishing community before announcing that the rulemaking would be withdrawn. With the rulemaking off the table, attention must now turn to ensuring that less formal policy decisions do not continue to undermine the Act. While withdrawal of the guidance memo will be a major focus, ensuring that the administration enforces the Clean Water Act to the full extent of the law in every region of the country must also be a major focus. Efforts are underway in several states to establish state-level protection, or to defend existing protection, for waters no longer protected under federal law. These efforts deserve strong support.
Ultimately however, the battles will continue until Congress passes the Clean Water Authority Restoration Act (H.R. 962 and S. 473). This bill would end the SWANCC loophole and prevent the current efforts to carve this narrow loophole into a major gap in the protection of our nation’s waters. Until then, there is much work to be done to ensure protection for our nation’s waters.
To learn how you can help and to follow the latest on the guidance and legislation: www.nwf.org/wetlands/ or http://waterforwildlife.org