Oversight of Wetlands Might Shift

Jan. 13, 2003
The Bush administration has proposed changes to the Clean Water Act that would remove federal protection from up to 20 million acres of isolated water bodies and prairie potholes that have been historically protected by U.S. law.

The changes, proposed by the Environmental Protection Agency and the Army, would shift responsibility for managing up to 20 percent of the nation's wetlands to the states, according to an EPA spokesman. Currently, activities that would damage these waters require federal permits.

Environmental groups fear the changes could affect more than two-thirds of Colorado's 108,000 miles of streams and rivers. But officials in Gov. Bill Owens' administration said state clean water laws would continue to protect Colorado's water resources.

The EPA said the new rules will "help Americans comply" with the benchmark environmental law while maintaining the administration's "no net loss" wetlands policy.

Critics, including major environmental groups, pointed out the proposed rule would open the door for states to allow developers to fill in some wetlands or discharge pollutants into waterways.

"This attack on one of this nation's most important environmental laws flies in the face of common sense and American values," said Joan Mulhern, senior legislative counsel for Earthjustice. "The public does not want more dirty water."

But development interests, including the housing industry, said the proposed rules don't go far enough. Interested groups can comment for the next 45 days.

The move reflects the administration's interpretation of a 2001 Supreme Court decision that found that the mere presence of migratory birds in a flooded gravel pit that was not connected to a navigable river was not enough to qualify the pond for protection under the Clean Water Act.

"We are committed to protecting America's wetlands and watershed to the full extent under the Clean Water Act and the recent Supreme Court ruling," EPA Administrator Christie Whitman said in a statement. "We are also committed to full public involvement in this process, and we will seek additional information and scientific data for possible rule-making."

Regional offices of the EPA and Army Corps of Engineers were formally instructed Friday to suspend regulation of isolated water bodies and prairie potholes and to seek guidance from headquarters before determining whether to protect other small intrastate streams and waterways that currently enjoy federal protection.

Critics said the administration intends to reduce the authority of the law beyond what the court had required.

"This administration has shown it's willing to use a combination of bad lawyering and bad motives to sharply limit the scope of environmental safeguards," said Scott Faber of Environmental Defense.

Environmental groups also worried that instructions accompanying the proposed rules signaled the administration's desire to abandon protection on headwater streams and other watercourses that periodically run dry.

"It appears to open the door to them no longer asserting jurisdiction over ephemeral tributaries," said Melinda Kassen, water attorney for Trout Unlimited, a private, nonprofit organization whose mission is to protect and restore North America's trout and salmon fisheries and their watersheds.

"That would be bad for Colorado - 78,000 of our 108,000 stream miles run dry at some point in the year," Kassen said. "These streams and isolated wetlands are critical havens for hundreds of imperiled species, especially in the southwest."

EPA spokesman Joe Martyak said the groups are wrong, and that the rules apply only to isolated waters that are wholly within the boundaries of a state and are not connected to a major river or stream.

"In fact, the proposed rule reaffirms federal authority over more than 80 percent of the nation's wetlands," he said.

Martyak added that even though the court decision limits federal jurisdiction over some waters, many would still be protected by state and federal laws.

Source: Denver Post