The Bush administration is releasing today a new policy and rulemaking effort intended to repeal Clean Water Act protections for a large percentage of the nation’s waterways. The administration is expected to release an “Advanced Notice of Proposed Rulemaking” and a policy guidance suggesting that clean water protection for many streams, brooks, and wetlands in the United States should be eliminated.
The Bush administration’s proposal is the first step in an industry-led effort to gut one of the nation’s most important environmental laws, the 30-year old Clean Water Act. The proposal questions whether the Clean Water Act should continue to prohibit pollution in so-called “isolated” streams, ponds, and wetlands used for recreation, commercial fishing, and other uses. These waters have been explicitly included in the 1972 Clean Water Act’s implementing regulations since 1975.
“This is the first step in the Bush administration’s effort to dismantle significant Clean Water Act protections,” said Joan Mulhern, senior legislative counsel for Earthjustice. “This attack on one of this nation’s most important environmental laws flies in the face of common sense and American values. The public does not want more dirty water.”
- The proposed rulemaking will suggest that so-called “isolated” waters – including wetlands, streams, and ponds that are used for recreation, commercial fishing and shellfishing, industrial purposes and other uses – may no longer be covered by the Clean Water Act. These are waters that have been covered by the Act for 30 years. The proposal will ask for public comment on how to define “isolated” – a term not defined or used in current rules. Depending on how the term is eventually defined, the administration is suggesting that a very large percentage of the nation’s wetlands, streams and ponds may no longer receive federal protection.
- The policy guidance is even broader. It will supercede a guidance written by the EPA and Corps during the Clinton administration. It directs field staff for the Army Corps of Engineers and EPA, who decide on a case-by-case basis which waters are protected from pollution and which are not, that “isolated” waters no longer receive protection. For many other waters, the staff must get approval from agency headquarters before asserting Clean Water Act jurisdiction. The document discusses various federal court cases and raises questions about whether “isolated” waters, as well as wetlands adjacent to non-navigable waters, and tributaries to navigable waters should be protected by the Act. The document suggests to the federal permit writers at the local level that they are now on shaky ground legally if they assert jurisdiction over these waters.
“The Bush administration’s proposal ignores basic hydrology, since pollution in streams and wetlands eventually flows into big rivers and causes more pollution downstream. And it ignores the law, since the very purpose of the Clean Water Act is to eliminate pollution where it begins rather than forcing huge clean-up expenses on communities who depend on clean waterways for fishing, swimming, and drinking water,” said Mulhern. “That fundamental purpose is ignored by Bush’s actions.”
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 and policy guidance announced by the Bush administration.
“The Bush proposal is even contradicted by this administration’s own Justice Department,” said Mulhern. “The Department of Justice has filed dozens of legal briefs in federal court arguing that current Clean Water Act regulations covering all waters of the United States under the law are not only legal but required in order to meet the goal of protecting the health of the nation’s waters.”
“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.”