Conservationists Seek Voice in Wetlands Litigation

Conservationists today officially requested that they be allowed to participate in settlement discussions between the Bush administration and industry groups regarding a key rule designed to protect wetlands.


Ken Goldman, Earthjustice


(202) 667-4500 x233

Conservationists today officially requested that they be allowed to participate in settlement discussions between the Bush administration and industry groups regarding a key rule designed to protect wetlands. Specifically, the rule seeks to prevent damage to the country’s wetlands and streams resulting from ditching, mining, and draining activities.

The National Wildlife Federation, North Carolina Wildlife Federation, and the Sierra Club today filed motions to intervene in two cases on the side of the United State Army Corps of Engineers and the United States Environmental Protection Agency. Represented in the U.S. District Court for the District of Columbia by Earthjustice, the conservation groups also sent letters to Attorney General John Ashcroft, EPA Administrator Christine Todd Whitman, and Acting Secretary of the Army Dr. Joseph W. Westphal requesting that they be allowed to participate in the ongoing settlement discussions.

Members of the conservation community have requested active participation in the administration’s settlement discussions with two industry groups over a new wetlands rule which was designed to better protect America’s wetlands and streams from ditching, mining, and draining. The National Wildlife Federation (NWF), North Carolina Wildlife Federation (NCWF) and Sierra Club filed motions today to intervene on the side of the U.S. Army Corps of Engineers and U.S. EPA in two cases pending before the U.S. District Court for the District of Columbia: National Association of Home Builders v. Army Corps of Engineers, D.D.C. Civ. No. 01-274 JR. National Stone, Sand and Gravel Assoc. v. Army Corps of Engineers, D.D.C. Civ. No. 01-320 JR. At the same time, the conservation groups, represented by Earthjustice Legal Defense Fund, are requesting that they be allowed to participate in ongoing settlement discussions on the issue.

“We deserve a place at the table,” claims Julie Sibbing, Legislative Representative with the National Wildlife Federation. Sibbing says the health of our nation’s waters and the wildlife that depend on these systems is at risk if this new rule is weakened or eliminated. The Bush administration has claimed credit for allowing this rule to go into effect but “if they really plan to defend this rule, they need to have all perspectives represented,” she continued.

The Bush Administration won cautious approval from the conservation community when it announced on April 16 that it would allow the Clinton-era rule to take effect. On April 19, however, the Department of Justice asked that the district court stay the pending litigation in order to provide time for the industry parties to discuss settlement of their cases with the administration. The Justice Department’s motion revealed that administration officials already had one settlement discussion with the industry groups and anticipated further negotiations in the following weeks.

NWF, NCWF and the Sierra Club are seeking to defend the new “dredged material rule,” because it would greatly narrow a loophole in the federal wetlands regulatory program. Commonly referred to as the Tulloch Rule loophole, it has been used by developers to side-step the need for obtaining permits when draining or excavating wetlands, ponds, or streams. “Protecting America’s waters from being polluted with sediments and toxins is a key mission of the Clean Water Act,” said Howard Fox, the Earthjustice attorney representing the conservation groups in court. “The government should not be required to look the other way while polluters damage our precious wetlands and streams.”

The need for regulations to plug this loophole was underscored in the wake of a 1998 ruling, in which the United States Court of Appeals for the District of Columbia Circuit held that the EPA and the Army Corps had no authority to regulate activities that result in only small amounts of dirt falling back to the same spot in a wetland or stream. The EPA and the Army Corps retained the authority to regulate most activities involving heavy machinery in wetlands and streams, because such activities usually disturb large quantities of sediment and redeposit it in other locations in the wetland or stream. Conservationists charge that the loophole has been used to circumvent protections many times during the past three years, thus degrading and destroying thousands of acres of valuable wetlands and hundreds of miles of streams around the country.

“These waters that the plaintiffs want to ditch, drain and excavate with impunity provide drinking water, pollution filtration, flood storage and critical habitat for birds, fish and wildlife,” claims Robin Mann, Chairperson of the Sierra Club Wetlands Committee. “Sierra Club members are firmly committed to achieving the Clean Water Act goal of ‘restoring and maintaining the chemical, physical and biological integrity of the nation’s waters’, and we strongly support the Dredged Material Rule as an important step towards eliminating a regulatory loophole that stands in the way of achieving this goal.”

North Carolina natural water systems have been affected most by the wetlands rule loophole. Since the 1998 appeals court ruling, developers have drained nearly 20,000 acres of wetlands in the state. Litigation in 1990 by the North Carolina Wildlife Federation and the National Wildlife Federation against destructive wetlands drainage resulted in the issuance of the Tulloch Rule, which was eventually struck down in appeals court. “They may have struck down the predecessor of this rule,” claims Chuck Rice, Executive Director of the North Carolina Wildlife Federation, “but they didn’t declare open season on our nation’s waters. We need this rule to bring back some sanity to wetlands regulation.”

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