Bog Deal

For once, the Bush administration has done right by the environment.

Fri Dec. 19, 2003 4:00 AM EST

Perhaps for the first time, President Bush has done right by environmentalists -- not to say the environment. On Wednesday his EPA abandoned efforts to relax protections for millions of acres of U.S. wetlands by narrowing the scope of the Clean Water Act.

EPA head Michael O. Leavitt announced his agency wouldn't follow through on an internal draft proposal that would have left many of the nation’s federally protected streams and wetlands vulnerable. The Clean Water Act was developed in 1972 as a way to protect navigable waters and their tributaries, adjacent wetlands, and man-made waterways, from drainage and other damaging effects.

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Leavitt said:"At the root of this is a commitment from the Bush administration to achieve the goal of no net loss of wetlands. He added that the waters "function as nature's kidneys" and "add immense value to economic and aesthetic bounties of this country."

The plan had drawn outrage from an odd assortment of interest groups including environmentalists, conservationists and hunters, not to mention Congress.

Environmentalists expressed relief. Julie Sibbing of the National Wildlife Federation told the Washington Post, "I have to admit this was a real positive development and a win for wetlands and wildlife." Wetlands are crucial to the environment for filtering pollution from our drinking water sources, maintaining water quality in our lakes and rivers, and providing habitat to fish, waterfowl and other wildlife.

Bush received over 133,000 public comments about the proposed plans. Last month, 218 House members, including 26 Republicans, one independent and all but 14 of the House's 205 Democrats, signed a letter to Bush asking him to rethink his decision. Carl Pope, Executive Director of the Sierra Club said that the public outcry "left the Bush administration with little choice but to rescind its misguided proposal," and further explained the rationale behind the initial desire to weaken the Clean Water Act:

"Mining companies, developers and oil companies sought this change in clean water rules because it would have been easier for them to dispose of their waste and fill in wetlands if there were no government oversight. But polluting these small streams and wetlands would have inevitably meant dirtier water downstream, more flooding, and fewer recreational opportunities for hunters, anglers and others who depend upon clean water. Once again the Bush administration was on track to allow polluters to benefit at our expense."

The announcement doesn't call for an all-out celebration. Last January, the Bush administration issued a directive asking for federal authority over a "vast majority" of U.S. wetlands. The problem is "vast majority" leaves out isolated wetlands and non-navigable waters—blurry terminology which most environmentalists and watchdog groups agree will result in a reduction in the number of protected waters.

Moreover, a ruling yesterday from the 5th Circuit Court of Appeals in New Orleans says that both the Clean Water Act and the Oil Protection Act can be applied only to navigable waters and to waters clearly adjacent to navigable waters. Basically, the ruling limits the types of water the U.S. can impose regulations on, and further confuses the issue of what wetlands can and cannot be regulated.

The January change is a direct result of a bizarre Supreme Court decision from January 2001, when the U.S.Army Corps of Engineers attempted to prevent developers from constructing a landfill near Chicago. The Corps tried to use the Clean Water Act to block the project, claiming the landfill would destroy about 17 acres of wetlands for birds.

In its decision on "Solid Waste Agency of Northern Cook County vs. the U.S. Army Corps of Engineers," the Supreme Court said the Corps was overstepping its boundary, and ruled the Clean Water Act didn't extend protection to "isolated water bodies based on their use by migratory birds." The Bush administration then took this decision, to rewrite Clean Water Act rules to comply with the Supreme Court ruling, known as the "SWANCC decision."

Mother Jones recently ran an article about how the Bush administration used the Supreme Court ruling to weaken environmental protection. Ted Williams reports:

"Until January 10, 2003, many of the streams and wetlands on 3,997 acres of the expansion area were protected by the Clean Water Act. But on that date the Bush administration, through its Army Corps of Engineers and Environmental Protection Agency (EPA), issued a "guidance document" instructing field agents on how not to apply the Clean Water Act. No longer were they to bust parties who filled or fouled "isolated waters" that are non-navigable and "intrastate" (completely in one state) just because migratory birds are present. No definition of "isolated waters" was provided, but the agencies have since proclaimed them to be streams that flow intermittently or dip underground, and wetlands that don't have obvious connections to larger waters. The document also ordered agents to seek "headquarters approval" before issuing a citation, thereby dooming enforcement by initiating an endlessly ascending chain reaction of butt-covering permission requests.

With these directives came a proposed rule-making, suggesting that isolated waters don't count anymore and inviting comment on how to define the word "isolated" so as to make the Clean Water Act more palatable to those it inconveniences. If the rule goes through, it could degrade 60 to 80 percent of the stream miles in the United States."

Environmental groups hoped that in deciding not to pursue efforts to further reduce regulation on U.S. wetlands, Bush might also revoke the January rollbacks. He didn’t. Here's Daniel Rosenberg of the Natural Resources Defense Council:

"…we remain concerned that the two agencies have not withdrawn the directive they issued to their staffs last January, which abandoned protection for 20 million acres of wetlands, as well as an unknown number of streams. While dropping plans for weakening the Clean Water Act is a big step in the right direction, our wetlands and streams have already been damaged, and that destruction will continue unless the agencies withdraw that directive."

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