Protect ALL of the Nation’s Waters
Under the Clean Water Act
THE ISSUE:
On January 15, 2003 the EPA and Army Corps of Engineers published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM), beginning a process which could remove federal Clean Water Act protection from many streams, wetlands, ponds and other waters, subjecting them to unregulated pollution, filling, and destruction.
Simultaneously, they released a guidance memo to their field staff that immediately removes federal Clean Water Act protection from many of these waters that have long been protected by the Act. This includes requirements for permits for dredge and fill activities as well as NPDES permits.
The CWA has been a tremendous success in cleaning up and protecting our lakes, rivers, coastal waters, trout streams, and reservoirs. Our waters most at risk are creeks, small streams, seasonal waters, and wetlands.
BACKGROUND:
The ANPRM
• Announces the administration’s intention to consider broad changes to Clean Water Act coverage through rulemaking.
• Questions whether there is any basis for asserting Clean Water Act jurisdiction over any so-called “isolated” water.
• Invites other “views as to whether any other revisions are needed to existing regulations on which waters are jurisdictional.” This opens the door for industry groups to suggest that even more waters (intermittent streams, non-navigable ponds, wetlands and other waters) be cut out of the Act’s protections.
Guidance Memo
• Has immediate impact. Became effective upon publication on January 15, 2003.
• Goes far beyond what is needed to implement the 2001 Supreme Court decision (The “SWANCC” case). The 5-4 majority in that case held that the presence of migratory birds cannot be the sole reason for asserting Clean Water Act jurisdiction over non-navigable intrastate waters that the court termed “isolated.”
• Requires headquarters approval to assert any jurisdiction over so-called “isolated” waters. If jurisdiction is not asserted, these waters can be dumped into, filled, dredged, and polluted without a permit or any other long-standing Clean Water Act safeguard.
“Isolated” Waters:
• The term “isolated” is not used anywhere in the Clean Water Act.
• Depending on how broadly “isolated” is defined by the Administration, the number of waters placed in jeopardy by the guidance and ANPRM could be very large and will affect every state.
• Few, if any, waters are actually isolated. Almost all headwater streams, wetlands, and small ponds that do not have an obvious or year-round surface water connection with other waters are not really “isolated.” They often have subsurface and other connections and serve as integral parts of healthy, functioning watersheds and water systems. There is abundant scientific evidence that pollution dumped into the upper reaches of watersheds not only damages and destroys those waters, but ends up harming lakes, rivers and coastal waters downstream as well.
Impacts:
Impacts of narrowing the scope of clean water protections on public health, our natural environment, and the U.S. economy will be significant. Abandoning “isolated” waters and any additional waters to destruction and degradation will:
• Pollute more waters; EPA’s most recent data show that the nation’s waters are already getting dirtier and almost half are not safe for fishing, swimming, boating, or other uses.
• Threaten public health from contact with bacteria, pathogens, toxics, and other pollutants from waters that would no longer be protected from unlimited industrial discharges.
• Deplete drinking water sources (like the Ogallalla aquifer in Texas) that are recharged by playa lakes, and other wetland and stream systems.
• Reduce and potentially extinguish endangered or threatened wildlife species 43 percent of which (including the whooping crane) rely on wetlands for survival.
• Place at risk the breeding habitat used by over half the ducks in North America.
• Eliminate many seasonal wetlands that serve as nurseries for juvenile frogs, toads, salamanders and other species, and small streams that also are essential to sustain healthy populations of fish, amphibians and other aquatic species.
Impacts on state and local governments:
• Costs of increased flooding downstream, as wetlands nature’s sponges are no longer available to absorb excess water
• Increased treatment costs for community water supplies at risk, to remove additional pollutants.
• The guidance and rulemaking may result in huge additional costs to states and local communities to clean up water pollution that will escape federal protection.
Produced by the Clean Water Network
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