The Washington Post
Posted on 09/30/2002
Last year the Supreme Court narrowed the reach of the
Clean Water Act, holding that it doesn't apply to "isolated"
wetlands because it refers to navigable waters. The result
has been confusion, and potential danger to natural habitats.
Federal officials in different areas of the country have
put the court's ruling into practice differently. States
haven't made much progress in filling the gap. Two U.S.
courts have reached opposite conclusions about how much
connection to navigable water is enough to bring a wetland
within the Clean Water Act's reach. And wetlands that
play a critical environmental role are perilously vulnerable
to pollution or destruction by dredging and filling.
There's a right way and a wrong way to end the confusion,
and the administration seems to be reaching for the wrong
way. Officials of the Army Corps of Engineers and the
Environmental Protection Agency let it be known last week
that the administration will consider new rules for applying
the Clean Water Act. The Justice Department, at least
until now, has argued in court cases for a narrow interpretation
of the Supreme Court decision. But new rulemaking could
become an opportunity to further weaken the federal role
in protecting small streams and bodies of water.
The best answer to this problem lies with Congress. Pending
legislation would remove from the act the reference to
navigable waters, making clear lawmakers' intention to
protect all U.S. waters, including the isolated bogs,
pools and "prairie potholes" now in jeopardy. It would
reaffirm Congress's original aim and would conform to
the way the law was understood until last year's ruling.
Opponents of regulation might yet challenge Congress's
constitutional right to regulate waters that are entirely
contained within a single state. But there is a good argument
to be made that wetlands are crucial to wide-ranging natural
processes, including flood control and water filtration,
and provide a habitat for birds and amphibians. Even those
that appear self-contained are linked to groundwater supplies
that aren't constrained by state borders. It's right to
include them in the broad national effort to protect America's
waters from degradation.