Statement from Sierra Club, forwarded by Jane Clark
January 13, 2003
NEW EPA, ARMY GUIDANCE AND ADVANCE NOTICE
OF PROPOSED RULEMAKING THREATEN
THE NATION'S WATERS
On January 10, 2003, the Environmental Protection Agency and the Army Corps
of Engineers issued an Advance Notice of Proposed Rulemaking and policy
guidance concerning the Clean Water Act's definition of "waters of the
United States." The agencies claim that the Supreme Court's 2001 decision
on Clean Water Act jurisdiction in Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers (SWANCC) prompted these actions to
establish regulatory clarity. But these initiatives go well beyond the
limits the Court established, threatening the Clean Water Act's goals of
restoring and protecting the nation's waters.
In the SWANCC decision, the Court held that the Army Corps of Engineers
lacked jurisdiction to protect 17 acres of seasonal ponds used as habitat
by migratory birds in Cook County, Illinois. The decision also raised
questions about whether the Clean Water Act protects "non-navigable,
isolated, intrastate" waters.
The guidance broadens the scope of waters beyond those the Supreme Court
ruling affected. The ruling did not hold, as the guidance insinuates, that
"isolated" waters are outside the scope of the Clean Water Act. It appears
to ignore that many vernal pools, prairie potholes, and other supposedly
isolated waters are not in fact isolated but have important hydrologic
connections to other waters.
The guidance undermines the rules that have governed the definition of
"waters of the United States" for more than 25 years. Under the guidance,
field staff must seek headquarters approval before asserting jurisdiction
over waters that are used for interstate or foreign recreation, by
industries engaged in interstate commerce, or because fish or shellfish in
those waters could be sold in interstate or foreign commerce. Current
Clean Water Act rules clearly provide protection for these waters. The
Supreme Court could have held that the government should revise these
rules, but it did not.
The guidance fails to describe what standards and procedures headquarters
staff will use to determine if waters referred by field staff are protected
under the Clean Water Act. Reaching decisions about whether to protect
these waters will require detailed local knowledge. Will headquarters
staff have the resources to make these determinations? How will the public
know what standards the government is using to decide whether waters are
protected under the law? By failing to address these issues, the guidance
fails to provide useful guidance.
The guidance may deter field staff even from sending requests for
jurisdictional determination. Some Corps field staff already show a bias
for declaring waters outside their authority to regulate and for granting
permits for filling wetlands. This guidance will provide staff with more
reasons to avoid protecting these resources. In addition, it is unclear how
headquarters staff will reverse improper field staff decisions to exclude
certain waters from protection. Those field determinations will never reach
headquarters.
The guidance raises questions about whether field staff should always
consider the tributary systems and adjacent wetlands protected under the
Clean Water Act. The guidance concludes by advising that "generally
speaking," field staff should assert jurisdiction over these tributaries.
This language, suggesting that in some cases the tributaries to waters
traditionally covered by the Act might not be protected, invites broader
exclusion of waters by field staff than has any legal justification.
Again, what standard will the government use to make these determinations?
The advance rulemaking notice opens the door to excluding potentially a
large percentage of the nation's waters from Clean Water Act protection.
The notice asks whether "isolated" waters used for recreation, fishing or
industry should be covered by the Act. If, as this rulemaking process
unfolds, the EPA determines that these waters are not protected, a
significant portion of the nation's waters that have been protected from
unregulated pollution and filling for more than 25 years could be placed at
risk.
The scope of the advance rulemaking notice is unlimited, which could set
the stage for sweeping changes in the definition of "waters of the United
States." Although the notice appears limited to two discrete questions,
the "Solicitation of information" is extremely broad. It says:
"Additionally, we invite your views as to whether any other revisions are
needed to the existing regulations on which waters are jurisdictional under
the CWA." (emphasis added)
Conclusion
For more than a year, environmental groups have urged the EPA and the Army
to provide guidance that reflects the narrow holding of the SWANCC
decision, consistent with the approach the Department of Justice has been
pursuing in related cases. Instead, through this guidance and advance
rulemaking notice, the agencies have raised issues and injected
uncertainties in the regulatory process that go far beyond what the Supreme
Court holding required. Even if the agencies do not proceed with
rulemaking, the implementation of this guidance alone could threaten
"isolated" and other waters that the Clean Water Act has long protected.
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.
Contact: Ed Hopkins, 202-675-7908 or Robin Mann, 610-527-4598.
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