softens protection of wetlands
Michael Kilian and Julie Deardorff
Michael Kilian reported from Washington and Julie Deardorff
WASHINGTON -- The
Environmental Protection Agency took action Friday to curb
the authority of its field agents to enforce rules protecting
the nation's wetlands, and it began a process that could
cut wetlands protection even further.
Environmentalists quickly denounced the actions as an attack
on the Clean Water Act, and they insisted the EPA's moves
had the potential to harm as much as 60 percent of the nation's
"This is just one salvo in the Bush administration's all-out
assault on fundamental protections for our air, water and
public health," said Gregory Wetstone, advocacy director
for the Natural Resources Defense Council. "The Bush administration
has intensified its effort to undermine our landmark environmental
EPA Administrator Christie Whitman insisted that the administration
remains committed to a policy of "no net loss" of wetlands
in the U.S. and said the new measures would not change that.
"We are committed to protecting America's wetlands and watersheds
to the full extent under the Clean Water Act," she said.
The areas involved--known as "isolated wetlands," because
they generally are not connected to other waterways--amount
to no more than 20 percent of the nation's total waterways
and may be only half that, an EPA spokesman said, dismissing
the environmentalists' claims to the contrary.
By the agency's own admission, however, the ability of EPA
field agents to enforce provisions of the clean water law
will be curtailed under the new rules, leaving state, tribal
and local governments to decide the fate of many isolated
In the Great Lakes region, millions of acres of wetlands--including
glacial kettle holes, coastal swales, northern peat bogs
and wetlands created by rainwater in shallow depressions--could
be left unprotected if state or local governments decide
not to step in and assume the jurisdiction abandoned by
the federal government Friday.
Losses in Illinois
Illinois has already lost 85 percent to 90 percent of its
wetlands and 50 percent of the Illinois River flood plain
to urban and agricultural development, according to the
Wetlands Initiative environmental group.
The EPA said Friday's directive to its field agents arose
from a 2001 Supreme Court decision in a dispute between
the Solid Waste Agency of Northern Cook County and the Army
Corps of Engineers.
The federal government had asserted authority to protect
"isolated wetlands" in Cook County under the Clean Water
Act, because the water areas involved were used by federally
protected migratory wildfowl.
The Clean Water Act applies mostly to navigable and interconnected
waterways capable of spreading pollution over large areas.
Its applicability to isolated wetlands--ponds, swamps, bogs,
seasonal streams and the like--is more limited and has been
called into question.
According to Ben Grumbles, deputy associate administrator
of the EPA's Office of Water, the migratory wildfowl concern
has long been the agency's primary justification for exercising
jurisdiction in these isolated water bodies.
In its 2001 ruling, the Supreme Court said the EPA was overstepping
its authority and decreed that the agency could no longer
enforce the Clean Water Act in isolated wetland cases solely
on the basis of threats to migratory fowl.
In one of Friday's major actions, the EPA prohibited its
field agents from using the Clean Water Act to regulate
these wetlands, if migratory bird concerns were their only
reason for doing so. This "guidance" also required local
offices to get permission from EPA headquarters in Washington
before enforcing the pollution control law on isolated wetlands
for any other reason.
Environmentalists argue the Supreme Court decision is narrow
and does not dictate the EPA's action.
In a second action, the EPA launched a process likely to
lead to a new federal rule redefining "isolated wetlands"
and setting new limits on federal jurisdiction over them.
As a result of both actions, much of the responsibility
for protecting these waters would fall to state, tribal
and local governments, although they would not be required
to assume it.
Public input welcome
Whitman said the EPA would continue to seek input on its
new wetlands rules.
"We are also committed to full public involvement in this
process and will seek additional information and scientific
data for possible rule-making," she said.
"It is more important than ever that we work closely with
tribes, states and local agencies to ensure strong protection
of wetlands and other aquatic resources," she said.
Some applauded the EPA's actions. Rep. Doug Ose (R-Calif.),
chairman of the Energy Policy Subcommittee of the House
Government Reform Committee, said the moves "will serve
to protect jobs and our environment."
But environmentalists viewed both moves as major steps backward
and said they were part of the Bush administration's wider
policy of rolling back environmental protections.
"Pollution or habitat destruction in virtually all waters
of the United States are regulated under the Clean Water
Act," said Eric Eckl, a spokesman for the group American
Rivers. "We believe that [the EPA rule-making initiative]
will serve as a test of the political waters for removing
those protections from ephemeral or intermittent streams,
isolated wetlands, and manmade waters such as ditches, canals
Door opening to polluters?
Others said the new rules would allow polluters to harm
unprotected bodies of water.
"There is no legal or scientific justification for legalizing
pollution in waterways that have been protected for three
decades," said Nancy Stoner, director of the Natural Resources
Defense Council. "The Bush administration doesn't seem to
understand that all of our waters are connected. If you
allow corporate polluters to dump toxic waste in creeks,
it will flow into our rivers and threaten our drinking water."
Activists in Illinois were equally displeased.
"The clock is ticking," said Illinois state Rep. Karen May
(D-Highland Park), who unsuccessfully sponsored legislation
to create an Illinois wetlands protection law last year.
"Each year that goes by, wetlands can be filled in with
no mitigation, causing an exacerbation of flooding, a detrimental
effect on our water quality and our natural ecosystems.
We are losing what is left."
What are wetlands?
In general, wetlands are areas where water covers the soil
or is at or near the surface of the soil or within the root
zone all or part of the year, and where the vegetation is
adapted to life in saturated ground. These areas typically
are salt and brackish marshes, freshwater marshes, and forested
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