Defending Against Clean Water Act Rollbacks

(An article excerpt from the Spring 2003 Washington Trout Report)

 

Last October, conservationists celebrated the 30^th Anniversary of the Clean Water Act, one of America’s most important pieces of environmental protection legislation. In 1972, Congress set ambitious goals for the CWA, to make all of the nation’s lakes, rivers, and estuaries safe for swimming and fishing by 1983, and to eliminate all surface-water pollution by 1985. While efforts under the CWA have preserved and restored clean water sources and healthy aquatic habitats all over the country, we have still not met those original goals, 17 years past the deadline. And in January 2003, the Bush Administration announced a pair of actions that could remove Clean Water Act protection from many of our nation’s streams and wetlands.

 

The Bush Administration’s proposed rollback is based on the January 2001 Supreme Court ruling in Solid Waste Agency of Northern Cook County v. the U.S. Army Corps of Engineers, or SWANCC. In SWANCC, the court ruled that the presence of migratory birds alone was not enough to assert a basis for CWA jurisdiction for an isolated, intrastate, non-navigable water, otherwise known as an isolated wetland. Use of water as habitat by migratory birds, endangered species, or to irrigate crops sold in commerce are provisions for protection that have existed since 1975 and have become known as the “Migratory Bird Rule”, which protects waters that would otherwise not fall beneath CWA jurisdiction.

 

The Administration is taking advantage of the decision and removing CWA jurisdiction from isolated wetlands that had been protected by any aspect of the Migratory Bird Rule. Personnel at the Environmental Protection Agency and Army Corps of Engineers staff have already ceased applying CWA jurisdiction over 20 million acres of previously protected wetlands. In fact, if a group wants to assert jurisdiction, they have to get a special permit. Only 15 states have separate pieces of legislation to protect their state’s wetlands; the other 35 rely on the federal government and the Clean Water Act. 

 

The Administration also announced an Advanced Notice of Proposed Rulemaking (ANPRM) on “waters of the United States,” the definition of waters that fall within CWA jurisdiction. The ANPRM will give the public – and industry – the opportunity to define which streams, wetlands, ponds, and other waters should remain protected by the CWA. The review is primarily seeking input regarding isolated wetlands, and encouraging comments for additional review on tributaries to navigable waters, waters that flow for some length through manmade structures such as ditches or pipes, waters with intermittent flows, and adjacent wetlands. The Administration claims the review will provide guidance to the EPA and Corps by clarifying CWA jurisdiction in light of the SWANCC decision.

           

Wetlands and small streams function as critical rearing and spawning habitat for many of Washington’s wild fish populations. Wetlands that appear to be superficially isolated from other waters are often connected hydrologically. The concept of an “isolated” wetland is almost mythical. Removing CWA protection of these wetlands could allow increased groundwater pollution. Groundwater supplies drinking water, connects, filters, and regulates surface waters, and is central to human, animal, and ecosystem health. Protecting these wetlands is currently the only way to protect groundwater sources; the CWA exempts groundwater from its protections. The Clean Water Act is 17 years past deadline, partly because it already fails to protect important water sources. The Act should be strengthened and expanded, not weakened and diluted.

 

            Washington Trout encourages you to help protect the future of the Clean Water Act. The 45-day public comment period on the ANPRM was scheduled to end on March 3. The Clean Water Network, American Rivers, and other organizations were successful in getting the comment period extended; the new deadline will likely be April 17. For more information on the SWANCC decision, the ANPRM, and for samples and guidelines on how you can submit a comment, go to the WT website at www.washingtontrout.org. Protecting our waters is going to be a numbers game, so please submit a comment, contact your local representative, and get involved.