By: Julie Sibbing,Wetlands Policy Specialist, National Wildlife Federation
Last October marked the 30th anniversary of the passage of the Clean Water Act – one of the most successful environmental laws in history. While celebrating the very significant progress that has been achieved to date, many also took note of the major challenges that remain to achieving the Act’s goal of making all waters once again safe for fishing and swimming. Yet as daunting as that remaining task is, recent moves by the Bush Administration threaten not only to prevent any further progress, but to turn back the clock on the progress that has already been achieved over the past 30 years.
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, non-navigable waters, based only 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 just to dredge and fill permits, but to all provisions of the Act, including National Pollutant Discharge Elimination System (NPDES) permits, regulations governing oil spill liability, etc.
Yet none could have predicted that this narrow loophole would 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. It seemed that the most serious threat posed by SWANCC was mis-implementation by regulatory staff who were given very little guidance from headquarters on what the decision meant in practice.
While a memo to provide this kind of guidance was carefully developed by staff of the U.S. EPA and U.S. Army Corps of Engineers, orders from political appointees kept it from being released. As a result, many wetlands, ponds, and even streams were needlessly destroyed or degraded. In September, 2002, just a month before the Clean Water Act’s 30th anniversary, administration officials testified before a Congressional subcommittee, announcing their intent to change the rules governing which waters are protected under the Clean Water Act. They specifically mentioned their intent to consider which tributaries (streams), manmade conveyances (canals, ditches, culverts, etc.), and wetlands adjacent these waters should retain protection. Since the SWANCC ruling never contemplated such waters and the Corp’s migratory bird policy, which was struck down by the SWANCC decision, was never part of the official Clean Water Act rules, it became clear that a political decision had been made to use the SWANCC ruling to pursue changes to weaken protections under the Clean Water Act.
On January 10, 2003, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers began the rulemaking process by releasing an Advance Notice of Proposed Rulemaking (ANPRM) regarding Clean Water Act Jurisdiction. While the ANPRM only marks the first step in the lengthy rulemaking process, attached to the notice was a newly-prepared guidance memo with immediate direction to regulatory staff regarding the SWANCC decision. In the EPA’s own estimate, this guidance memo alone removed protection from about 20 million acres of wetlands – about 20 percent of the wetlands remaining in the contiguous 48 states.
Instead of offering clear direction to field staff – consistent with the Department of Justices’ legal positions in brief after brief – the guidance memo fosters confusion by providing an unbalanced and confusing discussion of post-SWANCC legal cases. The memo orders staff to immediately stop extending protections to ANY “isolated” water and requires field staff to gain approval from their headquarters offices to extend protections to any water that could possibly be considered “isolated.” No approvals are required when jurisdiction is declined and there is no requirement that the agency keep records regarding their decisions to decline jurisdiction – shutting the public out of any opportunity to appeal inappropriate decisions.
The ANPRM requested public comment on several questions regarding which waters should be protected under the Clean Water Act. It asks whether the term “isolated” should be defined in rule, whether other factors used to extend protection to so-called “isolated” waters should still apply, and what other changes are needed to Clean Water Act rules. This last question seemed to specifically invite the legal theories of industry groups that contend that the Clean Water Act was never intended to apply to anything but navigable rivers and lakes, and wetlands directly touching these waterways.
The comment period on the ANPRM ended on April 16. An impressive 115,000 public comments were submitted, the vast majority of which opposed rule changes as unnecessary and an attempt to undermine the Clean Water Act. Diverse interests, such as state water and sewer authorities, scientists, hunting and fishing groups, religious organizations, floodplain managers, and over 22 state agencies weighed in against the rules. The term, “isolated,” as noted by many commenting on the ANPRM, is meaningless when applied to waterways. Nearly all waters are connected to other waters in some way, be it through periodic overflow, underground or groundwater connections, or through biological and functional connections to the rest of the watershed. Since pollution doesn’t stay put, eliminating Clean Water Act protections for even a small percentage of the nation’s waters could wreak damaging consequences for downstream rivers and lakes.
The Administration has suggested that states be left to protect the waters removed from protection. However, most state laws have co-evolved to compliment and/or implement, not replace Clean Water Act protections. As a result, only about one-third of the states have any wetland protection programs. Even where state laws exist, many have gaps that make them weaker than federal law. Many other states have adopted no-more-stringentthan policies or laws, that keep them from enacting policies that exceed federalstandards. Additionally, most states are currently facing large budget deficits and have cut back environmental protection staff. Even if they wanted to take on more water protection authority, most would be hard-pressed to fund such programs.
While conservationists and others continue efforts to stop the administration from going forward with a rulemaking, legislation has been introduced in both the House and Senate to end any argument regarding Clean Water Act jurisdiction by putting the long-standing regulatory definition of Waters of the United States into law – restoring the extent of protections that existed prior to the SWANCC decision. The Clean Water Authority Restoration Act was introduced in the House by Reps. Oberstar (D-MN), Dingell (D-MI), Leach (R-IA), and Boehlert (R-NY), and in the Senate by Senators Feingold (D-WI), and Jeffords (I-VT).
While it is not expected that Committee Chairmen in the House or Senate will allow the legislation to be voted on in this Congress, only through its eventual passage will the SWANCC loophole be closed completely.