The following information was compiled and produced by the Clean Water Network.

WT feels this is a comprehensive and readily understandable summary of the threat against the Clean Water Act.

 

 

Plan to Limit Clean Water Act Scope Released:

The Clean Water Network Responds

 

 

The Bush administration is working to remove federal protection from many waters (including many creeks, streams, small ponds, and wetlands) that have long been protected by the Clean Water Act.  Below is a message describing what happened, what it means and what you can do.  It is a bit longer than our usual alert, but we want to make sure you have the information you need to stop this effort to dismantle the foundations of the Clean Water Act.  This is the most significant threat the nation’s waters have faced since the 1995 “Dirty Water” bill.  We need all Network members informed and involved for us to save the Act and our waters.

 

Background

In December, the Clean Water Network told you of an expected attempt to limit the jurisdiction of the Clean Water Act.  On Wednesday, January 15, the administration published in the Federal Register their Advanced Notice of Proposed Rulemaking, along with a guidance memorandum sent to agency field staff.  The administration is using a January 2001 Supreme Court ruling known as the “SWANCC” case as their excuse for both of these actions, but the guidance and proposed rulemaking go far beyond the narrow holding of that case.

 

The guidance will have an immediate impact on wetlands, creeks, and streams because it takes effect right away.  It and the proposed rule mark the beginning of a longer rulemaking process that may result in sweeping changes that could completely undermine the effectiveness of the Clean Water Act. 

 

A strong response from the Network and everyone who cares about clean water is necessary to ensure that this rulemaking goes no further and that the guidance is rescinded.

 

What happened?

On Wednesday, January 15, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) raising questions about the jurisdiction of the Clean Water Act (CWA).  Simultaneously, they released guidance to their field staff regarding Clean Water Act jurisdiction over certain non-navigable, intrastate, isolated waters.  

 

The Guidance

The guidance replaces a memorandum to field staff written by the Corps and EPA in January 2001.  The new guidance directs Corps and EPA staff to immediately stop asserting Clean Water Act jurisdiction over so-called “isolated” waters based on the fact that migratory birds use the water.  This is the only part of the new guidance that is justified by the Supreme Court’s decision in the SWANCC* case.  However, the guidance then goes further than the Supreme Court case in 3 significant ways.

 

• It directs staff not to assert jurisdiction based on other factors adopted in the same 1986 Federal Register notice as the Migratory Bird Rule: that the water is used as habitat for federally protected endangered or threatened species or used to irrigate crops sold in interstate commerce.  These factors were not at issue in the Supreme Court’s decision. 
• It creates a presumption that all other “isolated” intrastate, non-navigable waters are no longer protected and requires a case-by-case decision to be made in Washington, D.C. in order to continue to protect them. This means the default position for any such water is that it is not protected.  It tells field staff that if they plan to assert jurisdiction over isolated, intrastate, non-navigable waters based on other factors listed in long-standing federal regulations, they must seek “formal project-specific approval” from Army Corps or EPA headquarters prior to doing so. These factors were not at issue in the Supreme Court’s decision. 
• The guidance says that “generally speaking” the agencies will continue to protect tributaries of navigable waters and their adjacent wetlands.  (The exceptions to this “generally speaking” policy are not spelled out in the “guidance.”)

 

Among several serious problems with this guidance is that the critical term “isolated” is not defined anywhere – not in the guidance, not in existing regulations.  It is not a term used at all in the Clean Water Act.  Very few waters are “isolated” if you look at this from a scientific perspective since pollution in or destruction of even small wetlands, headwaters, and seasonal waterways would have serious effects on the biological, chemical and physical integrity of the nation’s waters. 

 

But this “guidance” will open the way for developers, mining companies, and other polluters to argue with the Corps and EPA that all kinds of wetlands, small streams, non-navigable ponds or other waters are “isolated.”  In other words, the potential for this policy to be abused is great, and the guidance will be used to try to allow destruction and pollution of waters that have been protected by the Clean Water Act and its regulations for 30 years. 

 

For example, EPA is already estimating that as much as 20 percent of U.S. wetlands could be considered “isolated.”  Thus, the guidance (and ANPRM) put at risk CWA protections for as many as 20 million acres of U.S. wetlands, including “isolated” intrastate playas, pocosins, vernal pools and other wetlands.  This estimate does not even count the small streams, creeks and ponds that could also be lost.  All of these waters are critical to the U.S. economy as well as to our environment because they replenish groundwater supplies, filter drinking water sources, store floodwaters, and provide essential fish and wildlife habitat.  They are where life begins in the nation’s watersheds.

 

In fact, the policy is set up in a one-sided way that invites this kind of abuse.  Staff are directed to call HQ for instructions only when they plan to assert jurisdiction over this undefined category of “isolated” waters.  If they plan to ignore the Clean Water Act and not assert jurisdiction, they do not have to ask permission or even inform headquarters.  

 

The Advance Notice Of Proposed Rulemaking

The ANPRM rulemaking announces the administration’s intention to consider even broader changes to Clean Water Act coverage through rulemaking.  None of the waters thrown into question by the proposed rulemaking were held to be outside the scope of the Clean Water Act by the Supreme Court.  The Clean Water Act has covered all of the waters implicated in the proposed rulemaking for 30 years.

 

·       Specifically, the rulemaking questions whether there is any basis for asserting CWA jurisdiction over any “isolated” water that is intrastate and non-navigable.  The ANPRM also asks whether the regulations should define “isolated waters” and what factors should be considered in determining whether a water is or is not isolated for Clean Water Act purposes.

·       Again, depending on how “isolated” is defined, this could be a very small or very large category of waters.  Those who understand the Earth’s hydrology would argue that few if any waters are truly “isolated.”  But developers and other polluters will try to argue that most non-navigable waters are isolated unless they have a fulltime, year round surface water connection directly into a navigable water.  That kind of definition of “isolated” would cut the majority of the nation’s streams and wetlands out of the Clean Water Act.

·       The rulemaking also contains an open invitation for industry groups to comment on other ways they would exempt themselves and the waterways they’d like to destroy or degrade from Clean Water Act protection. 

·       This is also troubling, as EPA and Corps officials testified before Congress last September that they would use this procedure to review whether the Clean Water Act applies to any non-navigable tributaries to navigable waters, intermittent and ephemeral streams, man-made waterways, and adjacent wetlands.

 

What are the impacts? 

Both the guidance and the rulemaking could affect the entire scope of Clean Water Act jurisdiction.  The law has one definition of waters that applies to the entire Act, so whatever wetlands, streams, ponds and other waters the proposed rulemaking and guidance try to leave behind would no longer have any federal legal protection against pollution, filling, and destruction. 

 

The waters that the guidance purports to abandon and those called into question in the ANPRM are critical to public health, our natural environment as well as the U.S. economy.  Abandoning these waters to destruction and degradation will: 

• Pollute more waters; EPA’s most recent data show that the nation’s waters are already getting dirtier and almost half of the rivers, streams, lakes and coastal estuaries are not safe for fishing, swimming, or boating, much less as a source for drinking water or for other basic uses.

• Reduce and potentially extinguish remaining populations of the 43% of endangered or threatened species (including the whooping crane) that rely on wetlands for survival.

• Place at risk the breeding habitat used by over half the ducks in the United States.
• Deplete drinking water sources (like the Ogallalla aquifer in Texas) that are recharged by playa lakes, and other wetland systems.
• Eliminate many seasonal wetlands that serve as nurseries for juvenile frogs, toads, salamanders and other species.
• Increase vulnerability of extinction for fish, amphibians and aquatic invertebrate species that rely on small streams.

 

Adverse economic impacts of these actions will include more polluted waters, more waterborne illness, higher drinking water filtration costs, more flooding, fish kills and impaired sportfishing, fewer waterfowl and less recreational hunting, and reduced tourism spending on birdwatching, ecotourism, and wildlife photography.

 

What happens next?

·       The guidance went into effect when it was printed in the Federal Register on Wednesday January 15.

·       There is a 45-day public comment period for the ANPRM that ends onMarch 3. Following the public comment period, the administration will decide whether or not to pursue a formal rule change regarding the jurisdiction of the Clean Water Act.

(Since the Clean Water Network produced this document the public comment period has been extended to April 16)

 

What you can do:

1. Submit comments– We will need a vocal and forceful response to deliver the message that the administration must (1) not proceed with a rulemaking to eliminate any waters from protection under the Clean Water Act and (2) rescind the guidance.  The Network will be preparing sample comments for our members.  We will have more information soon on our strategy for developing and submitting comments in the coming weeks.  We are working as quickly as possible on sample materials. 

 

Comments can be submitted or viewed electronically (Docket ID NO. OW-2002-0050) at: http://www.epa.gov/edocket.

 

When we have materials prepared, we will be asking all members to submit to comments.  If you would like to get more involved in this effort now, as we are developing comments and materials, please join our jurisdiction listserve by sending an email to Ryan Hamilton at Cleanwaternt@igc.org.

 

2. Call or meet with your elected officials – Please call, write or e-mail your Members of Congress (House and Senate).  Let them know that you oppose the Bush administration rulemaking and the guidance.  Ask them to relay your concerns to the President and to EPA Administrator Whitman and to send their own letters of opposition as well.  Please request an opportunity to meet with your elected officials to discuss this issue when they are home in the district.  The Network is putting together a fact sheet and action strategies to help you generate Congressional action to stop the administration. 

 

3. Identify specific waters or categories of waters that the public knows and values that could be harmed under the administration’s plan – Because the scope of waters put at risk by the rulemaking is unknown – since we do not know what the Bush administration will consider “isolated” – it may be hard to make precise determinations.  But certainly any non-navigable water that is wholly within one state is potentially at risk: wetlands that are not adjacent to navigable waters, small brooks or streams, especially those that run seasonally or intermittently, and small ponds are all in jeopardy because of this guidance and rulemaking.  In addition, any water that runs partly through a manmade conveyance, a pipe, culvert, etc. could also be at risk. It will be extremely helpful in educating the public, lawmakers and the press about this threat to have examples of specific waters or even any estimates of the percentage of waters in your state that could be harmed. 

For example, in a recent Denver Post article, Melinda Kassen of Trout Unlimited told the reporter that the proposal “appears to open the door to them no longer asserting jurisdiction over ephemeral tributaries.”  And she knew the facts for Colorado: “78,000 of our 108,000 stream miles run dry at some point in the year.” That kind of information catches people’s attention.

We want you to highlight these kinds of facts and information about particular waters in to the press and elected officials as well as in your comments.  Please send your examples to Eddie and Ryan so the DC clean water groups we can use this information in our meetings with members of Congress, too.

 

4. Encourage others to get involved  – Share the news about what the Bush administration is doing to clean water with your members, volunteers, and colleagues.  Let them know that their voices are an important part of this fight.  Encourage them to contact elected officials, write letters to the local papers, submit comments and help spread the word.  Please help us reach out to any groups you know of that are not already members of the Network but who might get involved in the effort to see that the Clean Water Act is maintained and enforced, including other environmental and conservation groups, religious organizations, labor unions, student groups, seniors groups and others. 

 

5.  Encourage your local and regional media to cover this issue - We need reporters and editorial boards writing and reporting about the implications of this plan for communities around the country.  We encourage you to talk to your local media about the importance of headwater streams and wetlands in your region, state, or watershed and the threats from increased development and pollution.  Highlight for them the importance of the waters specifically at risk in the rulemaking and guidance as well as the open invitation in the rulemaking for polluters to push for additional narrowing of the Clean Water Act's jurisdiction. Take film or photos to show them or bring them to waterways and wetlands that are at risk of losing Clean Water Act protections.

 

Please send Ryan or Eddie copies of any articles, editorials, op/eds or Letters to the Editor that are printed in your local newspapers.  These are very valuable for use in meetings on the Hill and cumulatively build the case with members that there is opposition across the country.

 

For more information:

Join the Network’s Jurisdiction listserve for the latest information on attempts to undermine the Clean Water Act and visit the Clean Water Network website (www.cwn.org) for more information on the Bush administration’s attempt to undermine the Clean Water Act.  The website will be updated periodically with news and resources.  Please contact Ryan or Eddie directly with any questions or suggestions – at cleanwaternt@igc.org. Or call us:

 

You can view the Bush administration’s announcement on EPA’s website at (http://www.epa.gov/owow/wetlands/swanccnav.html) and get the ANPRM/guidance document from the federal register at (http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-960.pdf).  EPA is now accepting comments on the ANPRM and Guidance for 45 days (March 3^rd is the deadline.)

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*Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).