Bush mulls changes to Clean Water Act- Protection laws wouldn't apply to one-fifth of nation's wetlands

SEATTLE POST-INTELLIGENCER STAFF AND NEWS SERVICES

WASHINGTON, D.C. 1/11/03 -- The Bush administration said yesterday it will consider removing Clean Water Act protections against pollution and development from up to one-fifth of the nation's streams, ponds, lakes, mudflats and wetlands.

While the question is being decided, the administration said, federal regulators should act as if that policy already is in effect. Only by getting clearance from headquarters can the U.S. Army Corps of Engineers and Environmental Protection Agency try to protect the approximately 20 million acres that appear to be affected, administration officials said.

The action was based on a 2001 Supreme Court decision that said federal agencies don't have authority to safeguard wetlands that are not connected to navigable water bodies such as lakes and bays. In contrast to the Clinton administration, which interpreted that opinion very narrowly, the Bush administration signaled its willingness to consider a much broader approach.

Administration officials said the proposed policy would "clarify and reaffirm" the government's authority "over a vast majority of the nation's wetlands."

But critics, including environmental groups, said the plan could reduce the scope of the Clean Water Act well beyond what the court had required. Depending on the outcome of the rule-making process, they said, developers would no longer need to seek federal permits before developing millions of acres of wetlands.

The administration move could benefit homebuilders and other developers, who have long complained that federal agencies unlawfully extended the reach of the Clean Water Act to include waters and wetlands that should not fall under the jurisdiction of the federal government.

The move was denounced by some environmentalists and their allies in Congress. Sen. James Jeffords, I-Vt., said it would "roll back 30 years of progress" under the landmark environmental law.

For those waterways and wetlands that lose protection, "you can throw garbage in it or animal waste in it," said Joan Mulhern, a lawyer-lobbyist with the Earthjustice law firm. "You can kill it, ditch it or destroy it."

In Washington state, the policy apparently would remove protection from mudflats that scientists say are critical to the biological health of Puget Sound, as well as from streams that run only part of the year.

Some of the state's wetlands also would be affected. About one-third of Washington's wetlands already are gone. In parts of Western Washington, such as the portions of southern King and Pierce counties drained by the Duwamish and Puyallup rivers, virtually all the wetlands have been developed. In others, including the area that drains through mouth of the Nisqually River in Thurston County, as much as two-thirds of the wetlands remain.

At issue is to what degree federal officials may protect water bodies and wetlands that are not connected to navigable waterways that are specifically protected under the Clean Water Act. The Supreme Court's 2001 decision overruled an Army Corps policy that said the federal government could safeguard an isolated pond in Illinois because it was used by migratory birds. The policy said destroying such wetlands could affect interstate commerce created by bird-watchers and hunters who travel from state to state.

But the Supreme Court's decision striking down that rule created confusion among federal and state officials over which waters remain under federal control. In arguing cases since in federal court, the Justice Department has generally interpreted the decision narrowly, saying the only waters that lost federal jurisdiction were those completely isolated from streams and rivers and where the migratory bird rule was the only basis of federal regulation.

A 45-day period of public comment will be held in preparation for proposing new rules.