January 11, 2004
Erasing Ephemeral Wetlands
[Ed: This article was first published for Vox Populi Nebraska in December and is the fifth in my series on the environment. Earlier articles can be found here: I, II, III, and IV.
In regards to the plans to remove the wetlands from protection of the Clean Water law, there was enough of an outcry that the Bush administration has decided to put these plans on hold.]
The Bush administration is considering rewriting parts of the Clean Water Act in regards to wetlands. In 2001, the Supreme Court ruled that a county was not constrained by the Clean Water Act when considering building a dump in an area with isolated wetlands. The issue before the Supreme Court was that the old gravel pit that Northern Cook County wanted to locate their new dump was considered a wetlands even though the area was not connected to the larger lake system and was dry for a portion of the year. The Corp of Army Engineers said that this location was inappropriate for a solid waste dump because it would violate the Clean Water Act. Environmentalists argued that the seasonal ponds were used by migrating birds and so should be protected as part of the migratory bird act. Yet, the Supreme Court on a 5-4 ruling decided that the area was NOT a protected wetlands, and the fact that the birds used the seasonal ponds during migration was not a sufficient reason to deny the county the right to build their dump on this site. Environmentalists were very unhappy with this outcome because they predicted that this would open the door to many more challenges to the Clean Water Act and could severely impede our ability to protect the nation’s waterways.
Protecting our waterways and wetlands is the responsibility of a network of governmental agencies with the two most important ones being the Army Corp of Engineers (COE) and the Environmental Protection Agency (EPA). The COE is charged with issuing Section 404 permits which govern the discharge of dredged or fill materials into wetlands and other waters of the United States. The EPA can veto the permit issued by the COE if it considered that the discharge materials will adversely affect areas such as the municipal water supplies, wildlife, fishery or shellfish beds and recreational usage.
After the Supreme Court ruling the COE and the EPA issued a memorandum that said from their reading of the ruling, the number of wetlands that were affected by this ruling would be few because there was significant scientific agreement that wetlands perform necessary and effective services for our nation including protecting the water supplies and providing buffers for flood zones, etc. They said that the only wetlands that would be affected were those that were “isolated” and if their only other value was to be used by the migrating birds. If there was any other value from the wetlands, then they would have full protection under the law.
The business community sees a huge opportunity to make it easier to develop areas without having to worry about the regulations covering areas that are seasonal wetlands and have lobbied the Bush administration to issue rules that explicitly state these areas are not covered by the Clean Water Act. They point to the number of court cases that have used this Supreme Court ruling as a reason not requiring a Section 404 permit and have requested that the Bush administration clarify the ruling so as to reduce the uncertainly about whether a isolated or seasonal wetland was covered. The Bush administration is quite amenable to the business community’s suggestion to declare a broad swath of these wetlands as no longer covered. According to Arianna Huffington:
In January 2003, the White House recommended creating a new category of "isolated" waters that wouldn't be subject to the Clean Water Act. According to environmentalists, if the measure is adopted, hundreds of industries won't need permits to dump their potentially toxic sludge and waste into 20 percent of the nation's wetlands and 60 percent of streams that only flow intermittently. [1]
Early this November, the Los Angeles Times received a draft copy of the rules which confirmed the worst fears of many environmentalists.
Julie Sibbing, a wetlands policy expert at the National Wildlife Federation, said: "It's like writing off the entire Southwest from the Clean Water Act, where water is more precious than in any other region of the country. Up to 80 percent to 90 percent of streams in the Southwest would not fall under the Clean Water Act if this rule were to go forward." [2]
The environmentalists are joined by Ducks Unlimited in their concern as this will strip protection for a sizeable percentage of wetlands which are essential for preserving habitat for birds.
"This is a worst-case scenario," said Dr. Alan Wentz, Ducks Unlimited's senior group manager for conservation. "It represents a radical change of direction from 30 years of Clean Water Act implementation and judicial interpretation, and if this becomes the Corps' interpretation of the law, it will create irreparable harm to those wetlands of greatest value to waterfowl, such as the prairie potholes of the northern Great Plains." [3]
The Bush administration is finding that unlike their rewriting the rules for the Clean Air Act, there is significant opposition to their proposal to revise our clean water laws.
On November 24th a federal court issued a ruling that set back the drive for developers and mining companies to roll back the Clean Water Act. Earthjustice (an environmental legal organization) represented the National Resources Defense League and the Sierra Club to defend the current permitting process for affecting the destruction of wetlands.
“We went to court to ensure that the already excessive destruction allowed under the existing permits was not made worse by a return to the days when headwater streams and wetlands were virtually written-off for protection,” said Daniel Rosenberg, an attorney with NRDC. “For the developer and mining interests who brought this case, weak permits aren’t good enough, they want whole classes of streams and wetlands to lose Clean Water Act protection. Today we give thanks that the court recognized their case was a turkey. [4]
And on November 25, 2003, 216 members of Congress (with 26 Republicans) signed a letter which was delivered to the White House urging them to not lessen the protections under the Clean Water Act for the seasonal wetlands. The signers believe that the Clean Water Act was one of the most successful laws in the US history and it should not be weakened.
"The Clean Water Act is a landmark piece of legislation which shouldn't be diluted," said Rep. Jim Saxton (R-N.J.), one of the letter's authors. "Congress has few responsibilities greater than preserving clean water for future generations, and improving the quality of water damaged by many years of neglect." [5]
Currently the spokespersons for the EPA and Council on Environmental Quality say they have not yet decided how they will resolve this issue and they are reviewing the comments that have arrived. Yet, the draft rules are very worrying as are the prior actions of the Bush administration in regards to the environment.
Our elected representatives are correct in understanding the importance of this law. You can help by notifying your senators and representative and either thank them for their part in stopping the rule change or encourage them to join with their colleagues in this effort. Visit the site provided by Earthjustice for more information and to find out how your elected officials stand on this matter.
[1] "Fanatics, Fools and Alpha Males", Arianna Huffington, Salon, November 27, 2003. {Note: I'm unable to find an online copy of this column right now.}
[2] Bush rule would ease wetlands protections, Elizabeth Shogren, LA Times, November 7, 2003.
[3] Ibid.
[4] Court Throws Out Industry’s Challenge to Clean Water Act Permits, Earthjustice Press release, November 26, 2003.
[5] Changes in Water Policy Opposed, Elizabeth Shogren, LA Times, November 26, 2003.