Opposition Rises to Bush Clean Water Policy

By J.R. Pegg

WASHINGTON, DC, November 26, 2003 (ENS) - More than 200 members of the House of Representatives sent a letter to the White House Tuesday urging the Bush administration to cease efforts to curtail the scope of the Clean Water Act. Administration officials insist they are trying to clarify the reach of the statute, but critics say proposed rule changes and revised enforcement guidance threaten federal protections of many of the nation's wetlands.

"The Clean Water Act is a landmark piece of legislation which should not be diluted," said Representative James Saxton, a New Jersey Republican. "Congress has few responsibilities greater than preserving clean water for future generations, and improving the quality of water damaged by many years of neglect."

Saxton, along with fellow Republican Representative James Leach of Iowa and Democrats John Dingell of Michigan and James Oberstar of Minnesota, coauthored the letter sent Tuesday to President George W. Bush.

The bipartisan letter attracted support from half the 435 House members - including 26 Republicans - and comes on the heels of a similar plea sent to the President by 25 U.S. senators last month.

The House letter urges Bush "not to pursue any policy or regulatory changes that would reduce the scope of waters protected under the Clean Water Act."

Michigan Democrat John Dingell led the effort to forge House opposition to the Bush administration's Clean Water Act policy. (Photo courtesy Representative Dingell's Office)

First is guidance, issued in January 2003 by the Bush administration, ordering the U.S. Environmental Protection Agency (EPA) and U.S. Army Corp of Engineers not to require permits under the Clean Water Act for the pollution or destruction of wetlands that are located within a single state and are not associated with any navigable waterway.

Second, the administration began a rulemaking process in January 2003 that could revise which waters in the nation are considered "isolated" and thus not afforded protection under the Clean Water Act.

The House coalition has asked the administration to rescind its policy guidance and to abandon its proposal to revise the scope of the law.

EPA officials insist the rulemaking process is far from finished and say they are continuing to review the more than 130,000 public comments received on the proposal.

At a Senate hearing in June, G. Tracey Mehan, the EPA's assistant administrator for the Office of Water, said that a "substantial majority [of the comments] support a narrow reading of SWANCC and opposition to reduction in Clean Water Act jurisdiction."

Some 39 states and more than 30 hunting and fishing organizations have filed comments opposing the administration's plan to narrow the scope of the Clean Water.

Wetlands play critical role in ecosystems, filtering water and providing habitat for wildlife. (Photo courtesy U.S. Environmental Protection Agency)

Conservationists say most of the streams in the West and Southwest - and many streams in other parts of the country - would fail to meet these criteria.

"The Bush administration's draft proposal is scientifically indefensible and would consign most Americans to dirtier drinking water and fewer places to safely swim, fish, or canoe," said Daniel Rosenberg, an attorney with the Natural Resources Defense Council.

The waterways at risk could include creeks, small streams, and many types of wetlands, which could become vulnerable to unrestricted dredging, filling and waste dumping.

Critics believe the rule changes would not just threaten the water bodies themselves, but would also threaten the benefits these waters provide, including flood control, water quality protection, ground water recharge and wildlife habitat.

When the administration announced the new rulemaking and guidance in January 2003, EPA estimated that as much as 20 percent of the nation's wetlands in the 48 contiguous states and Hawaii - some 20 million acres - could fit under the category of "isolated" and environmentalists fear up to half the nation's waters could fit the definition.

The administration has said that states can choose to protect any waters that fall through the cracks of the Clean Water Act, but critics believe the removal of a federal backstop undermines the law and ignores the interconnections of the nation's waters.

The goal of the Clean Water Act - to make all of the nation's waters safe for fishing, swimming, drinking and other uses - "cannot be met if any waters are cut out of the law's scope," said Joan Mulhern, senior legislative counsel for Earthjustice.

The Supreme Court ruled in 2001 that the U.S. Army Corps of Engineers could not protect intrastate, isolated, non-navigable ponds solely based on their use by migratory birds(Photo by Stephan Dobert courtesy U.S. Fish and Wildlife Service)

In the ruling - commonly known as the SWANCC ruling - the Supreme Court decided that the U.S. Army Corps of Engineers had overstepped its authority under Section 404 of the Clean Water Act, which requires anyone planning to discharge dredged or fill material into navigable waters must first obtain a permit from the Corps.

In particular, the Clean Water Act prohibits the discharge of pollutants into "navigable waters" defined in the law as "waters of the United States" unless the polluter has a permit.

The Court ruled by a 5-4 majority that the Army Corps could not protect intrastate, isolated, non navigable ponds solely based on their use by migratory birds.

The administration and allies in Congress say the ruling demonstrates that the jurisdiction of the federal government under the Clean Water Act is vague and in need of clarification.

But Dingell, who helped write the Clean Water Act in 1972, says the Supreme Court and the administration have got it wrong.

The intent of the Congress in the statute is clear, Dingell explained - waters should be given "the broadest and most powerful possible constitutional interpretation."

"Regrettably the Supreme Court ignored that history," Dingell said. "But the incorrect and improper action by the Supreme Court does not justify any change in the interpretation of the law with regard to the protection of wetlands."

Three recent federal court decisions found favor with the argument that SWANCC is a narrow ruling and is not the basis for a sweeping change to the authority of the Clean Water Act.

Julie Sibbing, water policy specialist at the National Wildlife Federation, said "no letter to President Bush on a conservation issue" has garnered more signatures that the House letter sent Tuesday.

"The huge number of Congressional signatures makes it clear that the administration's actions to slash Clean Water Act protections do not have broad support in Congress or with the American people," Sibbing said.

If the White House chooses to ignore the pleas of the letter's supporters, Dingell said, its authors will explore "necessary legislative corrections."

"I was proud to play a part in enacting the Clean Water Act," Dingell told reporters. "We have come too far to allow a roll back."