Posted by Jane Clark at [log in to unmask]

Save Some Wetlands Monday!

Call Senators Tom Harkin!! and Chuck Grassley
and Ask Them to Protect Isolated Waters and Wetlands

Senators are urging the EPA and the Corps to issue joint guidance that
retains as much legal protection as possible for isolated wetlands and other
waterbodies.

We need to get as many senators signing on to the letter below as possible
by noon EST on January 16.

Please contact your senators by calling the Capitol Switchboard at
202-224-3121.  Ask to speak with the environmental legislative assistant and
deliver this message:

* I urge Senator X to protect our nation's wetlands.

* I urge Senator X to sign on to the letter being circulated regarding
wetlands and the SWANCC decision by January 16.

A copy of the letter is included below and you can pass this on to
staffers as needed. Some of them have the letter, but some may not. If a
staffer would like to sign on to the letter, they should contact Kristen
Sarri in Sen. Reed's office at 202-224-0606.

In January the Supreme Court dealt a blow to wetlands protections
nationwide.  The SWANCC decision (Solid Waste Agency of Northern Cook
County vs. Army Corps of Engineers) punched a hole in the Clean Water
Act's protection of isolated waters and wetlands.  Since then, Network
members have reported seeing bulldozers destroying countless isolated
wetlands throughout the country.

EPA and the Army Corps of Engineers are developing a guidance document
to be used by Corps Districts when determining if a waterbody falls
under the jurisdiction of the Clean Water Act as defined by the Supreme
Court SWANCC decision. We must ensure that this document defines
isolated waters in the most narrow way possible, consistent with the
Supreme's Court opinion.

Thanks for your help and please pass this around to your organizaton's
members as well!

The Honorable Christine Todd Whitman
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., N.W. (1101A)
Washington, D.C. 20460

The Honorable Mike Parker
Assistant Secretary of Army (Civil Works)
108 Army Pentagon
Washington, DC 20310-0108

Dear Administrator Whitman and Assistant Secretary Parker:

We understand that the Environmental Protection Agency and the Army
Corps of Engineers are developing guidance for the protection of
wetlands, streams and other waters to reflect the U.S. Supreme Court's
decision in Solid Waste Agency of Northern Cook County (SWANCC) vs. Army
Corps of Engineers.  We urge you to work together to promptly develop a
guidance or rule to help regional offices and states understand and
respond to the decision in a consistent manner that will remain
protective of our nation's wetlands and other waterbodies.

The SWANCC decision held that the Corps exceeded its authority when it
used the Migratory Bird Rule to deny a Section 404 permit for a
non-navigable, isolated, intrastate water.  The holding, however, was
limited solely to the use of the Migratory Bird Rule; the Court's
decision did not limit the use of the Commerce Clause or other
appropriate regulatory tools to protect isolated, non-navigable,
intrastate waters.  We believe that this distinction is essential
because, depending on the agencies' interpretation of the decision and
affected waters, SWANCC could remove Clean Water Act protection for 30
to 60 percent of the Nation's wetlands.  In order to avoid potentially
disastrous impacts on wetlands, streams and other waters, we believe any
guidance or rule issued after the SWANCC decision should be clearly
limited to the SWANCC holding that the Migratory Bird Rule was not
proper authority; any guidance or rule should not recognize any other
limitation on the Corps' authority to protect wetlands and other
waterways.  This interpretation of the Court's opinion is consistent
with recent rulings of lower federal courts and positions taken by the
Department of Justice.

 Adopting a policy or guidance that gives an overly-broad reading to the
Court's decision in SWANCC would run counter to the letter and spirit of
the Clean Water Act itself.  When Congress adopted the Act in 1972, it
made clear its objective "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters."  The Act
directs EPA and other federal agencies to give "due regard," to
"improvements which are necessary to conserve such waters for the
protection and propagation of fish and aquatic life and wildlife [and]
recreational purposes..." Any interpretation that does more than discard
the use of the Migratory Bird Rule as the sole basis for Clean Water Act
jurisdiction conflicts with the will of Congress when it adopted these
far-reaching protections for the nation's waters.

This reading of the SWANCC decision also will aid states in their
efforts to regulate development of wetlands and other waterbodies.
State officials are expressing concern that the Supreme Court decision
will force them to extend their role in the regulation of wetlands and
other waterbodies, placing upon them an undue financial burden.  In
addition, there is a great disparity in existing wetlands regulations
between the states; some have adequate programs while most do not.
Finally, in the absence of guidance to interpret this ruling, Corps
districts across the country are taking widely varying approaches to
questions of jurisdiction, frequently resulting in an overly-broad
interpretation of the SWANCC ruling and confusion about where federal
jurisdiction ends.

We hope that you will work hard to avoid the further loss of wetlands
and the devastating environmental and economic consequences that an
improperly broad interpretation of the SWANCC case may bring.  We
respectfully request that the Administration quickly issue guidance that
acknowledges the limitations of the ruling and, if necessary, initiate
subsequent rule-making.  We also respectfully request that you use other
appropriate regulatory measures to retain strong legal protection for
isolated wetlands, streams and other waterbodies. Thank you for your
consideration.  We look forward to your response.

Sincerely,

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