EPA to Review Clean Water Act’s Scope

WASHINGTON -- The Bush administration announced Friday that it will reconsider what waters and wetlands will be protected by the federal Clean Water Act.

Environmental Protection Agency officials said they decided to review the landmark law because of confusion over its scope caused by a 2-year-old Supreme Court ruling. That ruling limited federal jurisdiction over isolated, nonnavigable, intrastate waters and wetlands.

Environmentalists and their supporters in Congress warned that the administration was setting the stage to limit federal safeguards even more than the Supreme Court intended.

At issue is the rule that requires builders, miners and others to seek permits before they can fill or dump pollutants into a stream, pond or other water body or wetland. The Clean Water Act of 1972 prohibits the discharge of pollutants, including dredging or fill material, into any so-called water of the United States without a permit.

The implications of the administration’s announcement were not immediately clear. The administration specifically asked the public and scientific community for input on how to determine what waters and wetlands should count as “isolated.” But it also asked for general feedback on what other waters should or should not be under federal jurisdiction. After a 45-day comment period, the administration plans to propose regulations that will clarify what waters and wetlands are included.

Sen. Barbara Boxer (D-Calif.) called the move an “appalling” effort to exempt waterways and wetlands from protection.

“The American people want all of their water clean, and they will insist on protecting all bodies of water that have historically been covered by the Clean Water Act,” she said.

But EPA officials stressed that their goal is merely to mirror the view the Supreme Court took in Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers.

“We are committed to protecting America’s wetlands and watersheds to the full extent under the Clean Water Act and the recent Supreme Court ruling,” EPA Administrator Christie Whitman said.

California has a huge stake in the outcome because of the abundance of intermittent and ephemeral streams, which only contain water seasonally or after rainstorms, across the arid parts of the state.

The 2001 Supreme Court decision already is being felt in the state, said Mark Durham, the south coast section chief of the corps’ Los Angeles regulatory branch. The corps has stopped regulating most desert washes and ephemeral streams, and it also has stopped regulating about half of the vernal pools (isolated seasonal ponds) in the state.

“Yes, there are more being filled in without the need of a permit,” Durham said. In general, developers want to restrict the application of the Clean Water Act to remove hurdles for their projects. Environmentalists want the law to be applied as broadly as possible to clean up waterways and save wetlands, which provide habitat for wildlife, store flood waters and help purify runoff before it goes into streams and oceans.

Developers and environmentalists expressed disappointment that the administration’s announcement failed to clarify what waters now are covered by federal law.

Particularly confusing, they said, was the administration’s interim plan for addressing the problem before the new rule is established. On Friday, the administration told Army Corps of Engineers field staff to check with Washington before regulating nonnavigable intrastate waters or wetlands that were not excluded by the Supreme Court decision because of their use as habitat by migratory birds. “We were hoping that the agencies would have showed more consideration for the difficulties that landowners are having by providing a bright line of what’s in and what’s out,” said Susan Asmus, a vice president of the National Assn. of Home Builders.

“This is just muddying the waters; this is not a clarification at all,” said Julie Sibbing, wetlands policy specialist at National Wildlife Federation, an environmental group.

Sibbing said she feared that field staff would choose not to require a permit for a body of water, rather than go to the trouble of appealing to Washington for a decision.

“They’re putting a lot of America’s wetlands needlessly at risk,” Sibbing said. “If there are any gray areas, [the Corps of Engineers is] going to err on the side of the developers.”

EPA officials conceded that the temporary guidance leaves developers, conservationists, states and other interested parties without clear guidance on what bodies of water and wetlands will continue to be federally protected.

That is why they are going through formal steps to more clearly define the scope of the Clean Water Act, officials said.The Supreme Court ruling stressed that states could preserve the waters and wetlands that were no longer shielded by the federal law. But only a few states have made moves to replace the federal role. California has not. Last year, even a modest bill to partially regulate wetlands failed in the state Assembly.

“For the last 30 years, the Clean Water Act has been the key tool for protecting the nation’s waters,” said Barry Nelson, a western water policy analyst for the Natural Resources Defense Council in San Francisco.

“It would be extraordinarily difficult for California to build a program from the ground up with this budget crisis.”

Losing more wetlands would be particularly hard on California because the state has lost more than 90% of its natural wetlands, according to the EPA, largely because of agricultural development and sprawl.

As development expands into the desert regions of the state in the future, the effects could become even greater unless the state picks up the role of preserving them, Durham said.

“Ultimately, if development keeps occurring, and it does mushroom into the desert, we’ll lose a lot of desert ephemeral streams,” Durham said. “Losing the desert streams would negatively affect migratory birds and some endangered species of birds and mammals.”

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Times staff writer Julie Cart in Los Angeles contributed to this report.