ASWM WBN 10/31/02 article

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STATES, ENVIRONMENTALISTS PRESS EPA TO DROP WETLANDS RULEMAKING

Source: Inside EPA via InsideEPA.com

Date: October 18, 2002

Issue: Vol. 23, No. 42

State wetlands officials and environmentalists are pressing EPA and the U.S. Army Corps of Engineers to abandon a rulemaking to define Clean Water Act (CWA) jurisdiction over isolated waterbodies following the Supreme Court's landmark ruling in 2001 that limited federal jurisdiction over isolated wetlands.

The state officials and environmentalists fear that a rulemaking will allow widespread filling of isolated wetlands that are critical for protecting water quality and preventing flooding, and could lead to discharges into many non-navigable streams and tributaries.

While agency officials say their planned rule will seek to resolve legal questions raised by the 2001 decision, critics call it a rogue effort to erode the foundation of CWA protections. "This is potentially a bigger issue than any of the previous [Bush Administration] water act policy decisions so far," says one environmentalist. However, EPA and Corps sources say it's unclear how limited or expansive the rulemaking may be.

The dispute is rooted in confusion created by the court's 2001 ruling that limited federal jurisdiction over isolated, intrastate wetlands. On Sept. 19, EPA and the Corps said the high court's ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers has "focused greater attention" on CWA jurisdiction and raised questions about the status of certain non-navigable tributaries, streams and wetlands.

But recent letters to the Bush Administration reveal that some stakeholders are worried that the rulemaking could broadly limit water act oversight, and ask the agency to instead issue guidance consistent with the Department of Justice's narrow reading of SWANCC laid out in a host of recent legal briefs. Relevant documents are available on InsideEPA.com.

In an Oct. 4 letter, The Association of State Wetland Managers (ASWM) says the rulemaking could allow, among other problems, filling of wetlands needed to protect water quality and prevent flooding.

"Removing federal Clean Water Act protection for non-navigable tributaries of navigable waters, including intermittent and ephemeral streams, man-made watercourses connecting these waters, and adjacent and so-called 'isolated' wetlands, would reverse almost 30 years of national policy to protect the nation's waters," according to the group's letter. The letter was sent to the White House Office of Management & Budget and the White House Council on Environmental Quality in addition to the Corps and EPA.

"There would be unpermitted discharges into streams and waters," says a source with the group, adding "this is not just a wetlands issue, this is a Clean Water Act issue. Everything is affected by a change in the definition" of what constitutes waters of the United States regulated under the water act. The source adds that the rulemaking could increase pressure on states to enact costly protections -- a prospect that is especially daunting amidst budget cuts and low revenues.

In addition, the group is worried that a "change in the scope of waters protected by federal law" could also harm states' ability to protect waters under the water act's Section 401 program, which provides additional state oversight of federally permitted activities that could result in discharges.

Beyond ASWM, other state-based groups -- such as the International Association of Fish & Wildlife Agencies (IAFWA) -- are concerned about the rulemaking's potential impact. A source with the group says IAFWA may soon send a letter to the administration expressing fear that the rulemaking could leave some waters unprotected. "We would definitely like them to slow down until state and federal agencies can collectively decide how to protect isolated wetlands," the IAFWA source says.

Elsewhere, a source with the Coastal States Organization says, "we want SWANCC to be interpreted as narrowly as possible in terms of removing waters from federal jurisdiction."

The state concerns come as environmentalists are making the rulemaking a centerpiece of efforts to highlight alleged Bush administration clean water rollbacks on the 30th anniversary of the water act. On Oct. 4, a suite of major environmental groups -- including Sierra Club and the Natural Resources Defense Council -- sent a letter to the administration calling the plan to examine the status of waters beyond just the wetlands in play in the SWANCC decision a "stunning pronouncement."

The groups argue that the agency should issue guidance reflecting a narrow reading of the SWANCC case, note the need to protect many types of waters, and cite the Justice Department brief in a key pending wetlands case to highlight the arguments in favor of a modest interpretation of the high court decision. "Even seemingly isolated wetlands, ephemeral streams and tributaries are integral parts of watersheds that affect the health of all water systems," the letter states.

The environmentalists' critique comes amidst a flurry of broader criticism of the Bush administration on the water act's 30th anniversary. A slew of environmental groups are preparing to release a report Oct. 18 on the scope of alleged Bush administration water act rollbacks, including the SWANCC rulemaking, the administrations' controversial new definition of fill material that allows waste material discharges into waters, and a contentious rulemaking to overhaul the total maximum daily load (TMDL) program for impaired waters.

In addition, the United States Public Interest Research Group is set to release a new report this week quantifying the extent of water act permit discharge violations between 1999 and 2001.

Meanwhile, key senators are also attacking the Bush administration for alleged water act rollbacks. On Oct. 16, Senate Environment & Public Works Committee Chairman James Jeffords (I-VT) and Sen. Hillary Clinton (D-NY) held a press briefing where they publicly asked the administration to make several policy changes, such as supporting increased water infrastructure funding and abandoning the TMDL rulemaking. They also faulted the Bush EPA for delaying implementation of new sanitary sewer overflow controls.

"They do not want to implement and enforce the Clean Water Act and they do not want to meet the current infrastructure needs of our nation," Clinton said. The senators pledged to spell out their concerns in an upcoming letter to the administration.

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This material originally appeared in INSIDE EPA, October, 16, 2002. It is reprinted here with permission of the publisher, Inside Washington Publishers. Copyright 2002. All rights reserved."