War on the Wetlands Is Bush’s Latest Environmental Assault

The Bush administration issues daily communiques on a seemingly inevitable war with Iraq, but beneath the radar it is engaged in an assault on the nation’s environmental laws. The Kyoto treaty on global warming, the National Environmental Policy Act, the Clean Air Act, the Endangered Species Act and provisions to protect public lands have been attacked. An obscure notice in the Jan. 15 Federal Register listed the latest target, the Clean Water Act.

While President Bush tries to convince the average American of his commitment to the “no net loss” wetlands policy of his father, his administration’s actions show his real intentions. He is now seeking a review of how the “waters of the United States” should be defined under the Clean Water Act, the first step toward limiting the water bodies subject to federal protections.

Congress passed the Clean Water Act in 1972 because polluted rivers were catching fire and because almost half of the wetlands in the lower 48 states had disappeared. Although the law has not yet fully accomplished its objective “to restore and maintain the chemical, physical and biological integrity of the nation’s waters,” it has resulted in vast improvements in how we protect our nonnavigable waterways. Factories have learned to limit their discharges of pollutants -- often saving money as they limit or recycle waste products -- and the pace of wetlands loss has slowed.

The tourism, fishing and recreation industries also reap financial benefits because of clean water and healthy wetlands. People flock to visit water bodies and to live near them. Much wildlife depends on wetlands at some point in its life cycle.

The last thing Americans need is to roll back the progress we have made in the last 30 years.

Bush’s excuse for seeking to redefine “waters of the U.S.” derives from a 2001 decision by a sharply divided Supreme Court, which struck down the “migratory bird rule.” This decision would restrict the federal government from regulating “isolated wetlands” whose only link to interstate commerce is use by migratory birds.

The constitutionality of the Clean Water Act derives from the authority of Congress to make laws regarding interstate commerce. Thus, a commercial interest must be at stake for the federal government to exert its regulatory powers over water bodies.

Although the court has generally set a low threshold for meeting the commerce test, the ruling erected a higher threshold in the wetlands context, holding that migratory bird use fails to meet the test. This has given the Bush administration the ammunition needed to slowly dismantle the Clean Water Act by preparing to restrict the number of wetlands entitled to protection. Without protection, polluters would be able to discharge wastes into California’s water bodies without fear of federal interference.

Polls have consistently shown that Americans overwhelmingly support the Clean Water Act. But while attention is riveted on the prospect of war with Iraq, the administration is waging guerrilla operations against the environment by systematically dismantling the critical provisions of the nation’s decades-old, bipartisan environmental policy.

This war is well underway and there will be many casualties. Is anyone paying attention?

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Paul Koretz is a Democratic state assemblyman representing the 42nd District, which includes West Hollywood, Beverly Hills and part of Los Angeles. Joan Hartmann, an adjunct professor with the environmental studies program at USC, is on the assemblyman’s environmental advisory committee.