Senate Panel Wades Into Wetlands Debate

By J.R. Pegg

June 10, 2003 (ENS) - In the wake of a Supreme Court ruling more than two years ago that limited the federal government's ability to regulate isolated wetlands, the Bush administration has tried to clarify the scope of the Clean Water Act. But both the ruling and the administration's policies appear to have done little but further cloud an already murky debate over which waters should be protected by the federal law.

"The current situation has created confusion and chaos," said Senator Mike Crapo, the chairman of the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water.

"This confusion that has festered for the last two years is not only detrimental to individuals in the regulated community, but is also detrimental to the environment," said Crapo, an Idaho Republican.

Crapo spoke today during a hearing he orchestrated to examine the regulation of wetlands and the issues raised by the 2001 Supreme Court decision of what is commonly referred to as the SWANCC ruling.

In its ruling, the Supreme Court decided that the U.S. Army Corps of Engineers had overstepped its authority under Section 404 of the Clean Water Act, which requires anyone planning to discharge dredged or fill material into navigable waters must first obtain a permit from the Corps.

In particular, the Clean Water Act prohibits the discharge of pollutants into "navigable waters" defined in the law as "waters of the United States" unless the polluter has a permit.

The Court ruled by a 5-4 majority that the Army Corps could not protect intrastate, isolated, non-navigable ponds solely based on their use by migratory birds. wetland

Clean Water Act protections for wetlands would be relaxed under a Bush administration proposal. (Photo courtesy U.S. Environmental Protection Agency)
It is within this context that debate over the scope of the Clean Water Act is now taking place, with both sides using the ruling to further their desire to either reduce or expand the waters protected under the law.

The jurisdiction of the Army Corps - and the federal government - under the Clean Water Act is "vague and unresolved," Crapo said.

The longer this continues, Crapo added, "the more likely it is that truly valuable wetlands will elude the protection of all of the federal and state programs designed to protect them."

Many in Congress are concerned about the Bush administration's response to the SWANCC ruling and contend that its policies are trying to use a narrow ruling to instigate broad, sweeping changes to the Clean Water Act.

First, it issued guidance in January 2003 to field staff at the U.S. Army Corps and the U.S. Environmental Protection Agency (EPA) not to require permits under the Clean Water Act for the pollution or destruction of wetlands that are located within a single state and are not associated with any navigable waterway.

Second, the administration - also in January 2003 - issued an Advanced Notice of Proposed Rulemaking (ANPRM) asking for public comments on how the SWANCC ruling applies to the full context of the Clean Water Act, which waters in the nation should be considered "isolated."

Defining an "isolated" water is at best a tricky issue and environmentalists believe the waterways at risk could include creeks, small streams, as well as many types of wetlands, which could become vulnerable to unrestricted dredging, filling and waste dumping. The term is not defined or used in current rules.

When the administration announced the new rulemaking and guidance, EPA estimated that as much as 20 percent of the nation's wetlands in the 48 contiguous states and Hawaii - some 20 million acres - could fit under the category of "isolated" and environmentalists fear up to half the nation's waters could fit the definition.

The administration has said that states can choose to protect any waters that fall through the cracks of the Clean Water Act, but critics believe the removal of a federal backstop undermines the law and ignores the interconnections of the nation's waters.

"We need to ensure upstream states can not export pollution to downstream communities," said Senator Hillary Clinton, a New York Democrat. "It is not just a question of what a state can do on its own."

But some Republicans on the committee, while concerned about the continued state of confusion, are confident the SWANCC decision properly reigns in the federal government's oversight.

"Rather than expand Corps and EPA jurisdiction to the very ends of the commerce clause, the Court chose to read the statute as it was written," said Oklahoma Senator James Inhofe, a Republican. "They have jurisdiction over navigable waters." wetlandbirds

The Supreme Court ruled in 2001 that the U.S. Army Corps of Engineers could not protect intrastate, isolated, non-navigable ponds solely based on their use by migratory birds(Photo by Stephan Dobert courtesy U.S. Fish and Wildlife Service)
Tracey Mehan, the EPA's assistant administrator for the Office of Water, told the panel today that the agency has received more than 133,000 comments on the ANPRM and that a "substantial majority support a narrow reading of SWANCC and opposition to reduction in Clean Water Act jurisdiction."

Mehan says it will take much of the summer for the agency to sort out all the comments and move forward with the rule.

In the meantime, the officials with the Department of Justice (DOJ) continue to defend the legal validity of the existing regulatory definition, often arguing that the broad definition of waters in the current rule is valid and necessary in order for the goal of the Clean Water Act to be met.

The DOJ's actions, say critics of the administration, illustrates that the SWANCC ruling did not invalidate existing Clean Water Act rules.

There is no need for the administration's actions, according to Senator Russell Feingold, a Wisconsin Democrat.

"Congress decided this debate over the scope of the Clean Water in 1972 and the renewed debate should end now," testified Senator Russ Feingold, a Wisconsin Democrat. "Congress needs to reaffirm the longstanding understanding of the Clean Water Act's jurisdiction to protect all the waters of the United States."

Critics of the administration's policies have thrown their support behind the Clean Water Authority Restoration Act, a bipartisan bill that has been introduced in both houses of Congress.

The bill, which is sponsored by Feingold, would delete the term "navigable" from the law and would reaffirm that Congress intended the Clean Water Act to protect all waters of the United States, including all wetlands, headwater streams, natural ponds, and other water bodies. wetlandbirds

Vernal pools are a good example of a seasonal wetland that could be affected by the administration's proposed changes. (Photo courtesy EPA)
"We need to be clear that Congress intends to erase any lingering ambiguity, to reconfirm the original intent of the Clean Water Act, and to protect our waters, rather than to lose them," Feingold said.

Environmentalists are keen to see Feingold's bill pass, but are preparing to wage a legal battle of their own to counter administration policies they believe will undermine protection of the nation's waters.

Later this week, the environmental law firm Earthjustice will file papers on behalf of the Natural Resources Defense Council (NRDC) and Sierra Club to intervene in lawsuits filed by the oil industry that challenge the EPA's authority to enforce rules that prevent oil spills from contaminating the nation's waters.

The provision in the Clean Water Act being challenged by the oil industry outlines measures to prevent contamination from oil spills into or upon "navigable waters of the United States."

In their lawsuits, the oil industry is arguing that most of the nation's waters are not protected under the Clean Water Act. The organizations who will seek to intervene are concerned the Bush administration will not aggressively battle the legal challenge of the oil industry and might choose to settle the case on terms favorable to the industry at the expense of environmental protection.

"We are now forced to step in to defend the Clean Water Act," said NRDC attorney Daniel Rosenberg, "because the sad truth is we can not trust the Bush administration to protect our waters from polluters."

The precedent of a settlement could have far reaching implications, added Jennifer Kefer, an attorney with Earthjustice, as other polluting industries would likely seek similar relief from complying with the law.

"If that argument wins the day, either in court or under the administration's proposal, Americans can say goodbye to their favorite swimming holes and fishing spots, and start worrying about their drinking water," Kefer said.