A leaked copy of a Bush administration proposal to rewrite Clean Water Act rules shows that the administration is considering eliminating federal Clean Water Act protections for hundreds of thousands of miles of streams and tens of millions of acres of wetlands.

“The proposal is the latest step in an industry-led effort to gut the nation’s pre-eminent clean water law,” said Joan Mulhern, Earthjustice senior legislative counsel. “It would eliminate protections for streams, wetlands, ponds and other waters that have been explicitly included in the 1972 Clean Water Act’s implementing regulations since 1975. This attack on clean water flies in the face of common sense – the American public does not want more dirty water.”

Administration officials have claimed that the new rulemaking is in response to a January 9, 2001 Supreme Court decision concerning “isolated” wetlands used as habitat for migratory birds and by subsequent lower court rulings concerning streams and wetlands. But according to Earthjustice, neither the Supreme Court ruling nor the majority of federal courts that have ruled on this issue have suggested that any such weakening of Clean Water Act authority is warranted, let alone the rule changes being considered by the Bush administration.

“The goal of the Clean Water Act – to make all of the nation’s waters safe for fishing, swimming, and other uses – cannot be met if any waters are cut out of the law’s scope,” said Mulhern. “The Bush proposal can only result in more pollution of our nation’s waterways.”

“No other President in the 30 years since the Clean Water Act was adopted has ever even suggested such a sweeping restriction on federal clean water safeguards.”

The following is a comparison of the existing definition of waters and the Bush proposal

Bush Administration Proposal (11-6-2003)

The Bush administration’s draft rewrite of the definition of waters would cover only:

1. the territorial seas;

2. traditional navigable waters;

3. tributaries to traditional navigable waters;

4. wetlands adjacent to waters listed in (1) – (3)

Under this narrow definition, waters that would lose federal Clean Water Act protections would include seasonal streams that have surface flow for less than 6 months a years, ephemeral streams, wetlands adjacent to such streams and other wetlands not adjacent to a navigable water or tributary of a navigable water, small ponds and many other waters. This sweeping restriction of the long-standing definition of waters could possibly leave a majority of the nation’s streams and remaining wetlands without federal Clean Water Act protections.

Current Clean Water Act Definition of “Waters of the United States”

The jurisdictional scope of the Clean Water Act (“CWA”) is “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” CWA section 502(7), 33 U.S.C. 1362(7). Existing EPA and Corps of Engineers regulations define “waters of the United States” as:

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

(i) which are or could be used by interstate or foreign travelers for recreational or other purposes; or

(ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) which are used or could be used for industrial purposes by industries in interstate commerce.

(4) All impoundments of waters otherwise defined as waters of the United States under the definition;

(5) Tributaries of waters identified in paragraphs (a)(1)-(4) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1)-(6) of this section.

(8) Waters of the United States do not include prior converted cropland …. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds …) are not waters of the United States.

40 CFR.230.3(s); 33 CFR 328.3(a) (emphasis added); see also substantively similar regulatory definitions at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 232.2, 300.5, part 300, 302.3 and 401.11.

For More Information, Contact Joan Mulhern, Senior Legislative Counsel, 202-667-4500