Resource at risk

Bush administration proposal would risk 20 million acres of wetlands by redefining the Clean Water Act

WASHINGTON, D.C. — Fishermen, hunters, environmentalists and other natural resource advocates may have already lost the first battle in their ongoing efforts to protect the nation's wetlands.

Barring an extension, a public comment period has ended and the Bush administration is moving ahead with a proposal that could put at risk 20 million acres of wetlands and half of U.S. streams, not including any regions of Alaska.

"Stripping away Clean Water Act (CWA) protection for these resources would open the way for unregulated wetlands destruction and water pollution on a massive scale," said Daniel Rosenberg, an attorney at the Natural Resources Defense Council (NRDC).

"Water quality in larger rivers and estuaries downstream would worsen due to the increased flows of toxic waste, nutrients, sediment and flood waters. In addition, the resulting loss and destruction of habitat for migratory waterfowl, fish, shellfish, amphibians and other wildlife would be enormous, posing severe consequences for the economy as well as the environment."

The administration claims that its narrowing definition of "protected waters" under the CWA is necessitated by a 2001 Supreme Court decision. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, the court ruled by a 5-4 vote that the Corps could not protect intrastate, isolated, non-navigable ponds solely based on their use by migratory birds.

In response, the NRDC and other citizen groups countered that the decision did not invalidate exiting CWA rules.

"In fact, the U.S. Department of Justice has argued in more than a dozen cases that the (Supreme Court ruling) does not necessitate any additional restriction of the scope of the Clean Water Act," NRDC's Rosenberg said.
Critics argue that the administration, urged on by industry, is using the fact that the CWA uses the adjective "navigable" as a pretext to narrow the law. As written, the 1972 law was intended to "restore and maintain the chemical, physical and biological integrity of the nation's waters."

To achieve that goal, it prohibits discharge of pollutants (without a permit) into "navigable waters," defined in the act as "waters of the United States."
The law historically has been understood to protect traditionally navigable waters, tributaries of navigable waters, wetlands adjacent to these waters, and other wetlands, streams and ponds that, if destroyed or degraded, could negatively impact interstate commerce.

But following the 2001 ruling, developers and industry intensified their efforts to narrow the definition of "waters of the United States." And even though that decision dealt specifically with wetlands, much more than wetlands are at risk.

"Industry proponents of limiting the scope of the law argue that streams that do not flow year-round, waters that run through man-made conveyances (such as canals), and even non-navigable tributaries of navigable waters are 'isolated' and should no longer be protected," NRDC said.

"Although wetlands and other waters that do not have a direct surface connection to navigable waters are often called 'isolated,' such a designation is nonsensical from a scientific, hydrological or biological perspective," the organization continued.

"So-called 'isolated' waters, including wetlands, ponds and streams that do not run year-round are all connected to the larger aquatic ecosystem via subsurface or overflow hydrological connections, and are critical for protecting the integrity of waters, habitat and wildlife downstream. To create a new regulatory category of 'isolated' waters that is not protected by the Clean Water Act is scientifically indefensible."

The U.S. Environmental Protection Agency has estimated that as much as 20 percent of the nation's wetlands in the 48 contiguous states and Hawaii — 20 million acres — could fall under the category of "isolated," and thus lose protection. It also has estimated that as much as 50 percent of the streams in the lower 48 states and Hawaii run intermittently.

And in Colorado alone, 78,000 of 108,000 stream-miles typically run dry at some point in the year.