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Confluence: January 2003, Vol. 5, No. 1
In Focus

Changes Proposed for the Clean Water Act
The Bush administration has proposed that enforcement of the Clean Water Act be altered to remove from federal regulation as much as 20 percent of the 100 million acres of U.S. wetlands. The administration said that it was acting in response to a 5-4 U.S. Supreme Court decision in 2001, which found that the Clean Water Act’s jurisdiction did not extend to waters where the sole reason for protection was the existence of migratory birds. Before this ruling, the government had claimed that migratory birds themselves were an integral part of interstate commerce, even if the waters themselves were not connected to navigable waterways or otherwise linked to commerce. In its decision, the court suggested that the legislative intent of the Clean Water Act was to protect navigable water and adjoining wetlands used in commerce, which leaves out waters isolated from navigable waterways. Up until now, only a relatively small percentage of water was considered excluded as a result of this decision, which strictly speaking only struck down the migratory bird rule, but the Bush administration said that the intent of the decision means that other isolated waterways with connections to fishing, recreational use, and other interstate commerce, but not connected to navigable waters, should also be considered for exclusion from Clean Water regulations, opening up the opportunity for developers to potentially fill millions of acres of wetlands without permits or regulatory oversight. The issue is currently open for 45 days of public comment as a preliminary step to implementing new rules. The Environmental Protection Agency and the Army Corps of Engineers support the action, stating that it would reaffirm their mandate over most U.S. wetlands and clarify current protection protocols. However, many environmental organizations are concerned that removal of some wetlands from Clean Water Act protection would open them up to pollution and destruction by commercial interests.

U.S. Public Interest Research Group Advocate Richard Kaplan issued a press release criticizing the new rules, available at http://www.enn.com/direct/display-release.asp?id=7982

Read the Advance Notice of Proposed Rulemaking, EPA-Corps News Release, and the text of the applicable Supreme Court ruling at: http://www.epa.gov/owow/wetlands/swanccnav.html

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