Congress passed the Clean Water Act in 1972 to protect surface water bodies in the U.S. As the nation’s primary law governing water quality, it set standards, defined permit requirements, and established enforcement powers and penalties.
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued new guidelines that require the demonstration of a significant connection between intermittent streams or wetlands and a traditional waterway to earn protection.
Although the EPA and Army Corps of Engineers are vowing to protect wetlands, environmental groups are up in arms over the new guidance because, they argue, it will add to the confusion on what waters and wetlands are protected.
Point and Counterpoint
The EPA said the guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the Bush Administration wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement, and protection of three million acres of wetlands by 2009 and a commitment to conserve isolated wetlands.
Last year, a divided Supreme Court created chaos instead of protection for over 50 percent of the nation’s waters, issuing a new take on the Clean Water Act. The Supreme Court ruling made it much harder for agencies to determine what bodies of water qualify for protection, according to the National Audubon Society.
“The guidance creates administrative hurdles for agencies to establish jurisdictions where there is no permanent flow of water into a traditional navigable water,” said Greer Goldman, assistant general counsel at the National Audubon Society. “Wetlands and small streams will be at risk under this guidance unless there is a connection to a traditional navigable water.”
According to Jon Devine, a senior attorney in the Clean Water Project at Natural Resources Defense Council, the document is guidance in name only. In effect, he said, the EPA and the Corps are taking their field staff and the public out to the woods, blindfolding them, spinning them in circles, telling them to “go west,” and calling that guidance.
“This move only underscores the need for Congress to pass the bipartisan Clean Water Restoration Act to restore protections for the nation’s water bodies,” Devine said in a statement.
Seeking Congressional Action
Jan Goldman-Carter, Wetlands Counsel for the National Wildlife Federation, offered a similar take on the matter. The guidance, issued after a year of apparent infighting in the Administration, she said, sheds little light on the issue of whether and when the Clean Water Act protects about 60 percent of the nation’s stream miles and at least 20 percent of its remaining wetlands from pollution and destruction.
“This guidance places an unacceptable number of waters at risk of losing protection and does next to nothing to alleviate the confusion over what waters are federally protected,” Goldman-Carter said in a statement. “The guidance leaves protection of many of our waters in doubt. It doesn’t fix a thing and makes the status of protections even worse for streams and wetlands.”
The nonbinding guidance cannot be challenged in court because the EPA has not issued a regulation. The solution, environmentalists said, is congressional action. An amendment to the law indeed appears to be the only way to clarify the scope of the Clean Water Act.
“In our view, the recent decisions have not been protective and not been consistent with the statute,” the Audubon’s Goldman said. “It’s now up to Congress to amend the statute to make it clear that the Clean Water Act is not limited to protecting navigable waters but is more concerned with protecting against pollution.”