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Great Lakes Article:

EPA softens protection of wetlands
Michael Kilian and Julie Deardorff
Chicago Tribune
Michael Kilian reported from Washington and Julie Deardorff from Chicago

01/11/2003


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 wetlands.

"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 laws."

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 wetlands.

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 and ponds."

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."

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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 wetlands.
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