Stop The Rollback Of The Clean Water Act!

Under the guise of trying to clarify a recent Supreme Court ruling, the Bush Administration is attempting to weaken protection for streams and wetlands.

About two years ago, the Supreme Court ruled that the Corps of Engineers (Corps) exceeded their authority when they denied a permit for the Solid Waste Authority of Northern Cook County (SWANCC) to fill wetlands to build a landfill. The Court held that the Corps "…exceeded its authority in asserting CWA jurisdiction... over isolated, intrastate, non-navigable waters... based on their use as habitat for migratory birds pursuant to preamble language commonly referred to as the "Migratory Bird Rule..." (www.epa/owow/wetlands/swanccnav.html)

Until the SWANCC decision, the regulatory agencies used the presence of habitat for migratory birds (birds which cross state lines) as an example of a link to interstate commerce, which is the basis for the federal government exerting jurisdiction over a water of the United States. Since that ruling, the federal regulators determined that the Supreme Court decision only affected wetland protection in very few cases.

But in January 2003, the Corps and the Environmental Protection Agency (EPA) published an "Advance Notice of Proposed Rule Making" (ANPRM) in the January 15, 2003, Federal Register. Its purpose, in light of the SWANCC decision, is supposedly "… to obtain early comment on issues associated with the scope of waters that are subject to the Clean Water Act (CWA)..."

SWANCC was a very narrow ruling, as the Court said the agencies cannot exert jurisdiction "…over isolated, intrastate, non-navigable waters where the sole basis for asserting CWA jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross State lines in their migrations." (ANPRM, page 13, emphasis added).

The ANPRM goes far beyond that, however, as it claims the SWANCC decision "…has focused greater attention on CWA jurisdiction generally, and specifically over tributaries to jurisdictional waters and over wetlands that are "adjacent wetlands" for CWA purposes." The foot is in the door and the rest of the body quickly follows: "Another question that has arisen is whether CWA jurisdiction is affected when a surface tributary to jurisdictional waters flows for some of its length through ditches, culverts, pipes, storm sewers, or similar manmade conveyances."

Now just who could have posed that question? It wouldn’t have been the development community, would it? Given an appetizer by the Supreme Court, they now want the Bush Administration to give them the whole enchilada.

We are not surprised at the ANPRM. At a September 19, 2002, Congressional hearing concerning this rulemaking, EPA and the Corps signaled their intent to exclude intermittent and ephemeral streams, small tributaries, and wetlands adjacent to those waters from coverage under the Clean Water Act.

The ramifications of eliminating federal protection from "isolated wetlands" and headwater streams are enormous. For example, in West Virginia, coal miners are bulldozing the tops of the Appalachians into the adjacent valley to mine coal seams that may be less than two feet thick. Over time, this practice has eliminated nearly 1,000 miles of streams (no, that is not a misprint).

Many so-called isolated wetlands have high value for wildlife (other than waterfowl) that are important in interstate commerce. The kettle-hole bogs in the Pocono Region of Pennsylvania, for example, have high value for black bears, snowshoe hares, grouse, whitetail deer, and wild turkeys. Although these species are not considered to be wetland dependent, they all use these bogs at some point in their life cycle. Hunting is big business in Pennsylvania, and hunters (including non-PA residents) contribute millions of dollars to the economy hunting for wildlife that use these wetlands. In reality, very few waters are isolated; the connection to other streams and wetlands may not be entirely obvious, but it is there.

The value of small isolated wetlands to waterfowl is huge. The February 12, 2003, edition of The Times-Picayune newspaper (New Orleans), quotes US Fish and Wildlife Service waterfowl habitat specialist Ron Reynolds as saying there "… are about 3 million acres of wetlands in North and South Dakota in the prairie pothole region, and of those probably 80 percent are less than an acre in size, not connected to each other or to any navigable water and are temporary. But those are the most productive wetlands for waterfowl production. They are probably responsible for 70 percent of our
waterfowl production in the pothole region."

Given the impediment that small streams and wetlands pose to coal mining and development in general, it is no secret why this ANPRM has been developed. Although the Supreme Court's SWANCC decision was of serious concern, it was a very narrow ruling. The true danger lies in the misinterpretation of this decision and the Bush administration's recent efforts to use it as an opportunity to further roll back Clean Water Act safeguards.

Please take the time to craft a letter to EPA. Form letters are discounted by the agencies, and you can click here to get help in crafting your own letter and sending it electronically (by April 16). The small streams and wetlands in your area need your help!

Click here for a Sample Letter

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