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| Winter 2002-2003 Bulletin |
| Bush Administration Threatens Clean Water Act |
| On January 10th, the Bush administration proposed changes to the Clean Water Act that would result in the pollution of numerous acres of streams, rivers and wetlands in New Mexico. The proposed changes redefine what waters are covered by the Clean Water Act in a way that exempts closed basins from protection. Under this plan, as much as 40% of the land area of New Mexico would no longer be protected! Nation-wide, up to 20 million acres of isolated water bodies and prairie potholes could lose protection under this proposal. The proposed changes come in the form of two documents–an Advanced Notice of Proposed Rulemaking (ANPR) and a policy guidance–both of which address the Clean Water Act’s definition of “waters of the United States.” The advance rulemaking notice asserts that so-called “isolated” waters should not be covered under the Act. The guidance, issued by the Environmental Protection Agency and the Army Corp of Engineers to their field offices, goes into effect immediately. Under the guidance, field offices will now be required to check with headquarters before extending Clean Water Act coverage to many waterways. In addition, the guidance does not outline what standards the agencies’ headquarters will use to determine whether or not waters are covered. The administration claims that this rulemaking was necessary after a January 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. In the SWANCC decision, the court ruled that the Corps did not have jurisdiction to protect a seasonal “isolated” pond used by migratory birds. The EPA and Corps have historically claimed Clean Water Act jurisdiction over isolated waters if they were used as: 1) habitat by migratory birds, 2) habitat for endangered species, or 3) to irrigate crops sold in commerce. The SWANCC case addressed only whether the Corps had jurisdiction over a seasonal pond used by migratory birds. The decision did not address the other two conditions used to determine Clean Water Act coverage of isolated waters and thus broadened the interpretation of the SWANCC ruling to include all “non-navigable isolated” waters. The implications of these proposed rules are widespread, since in both the notice and the policy guidance the definition of “non-navigable isolated” waters is vague and so could be broadly interpreted to include many water-bodies such as streams, arroyos and other waterways that are dry for part of the year. Amigos Bravos strongly opposes this Advance Notice of Proposed Rulemaking and the accompanying guidance document. As the Clean Water Act stands now, the public has a powerful tool for fighting water pollution and protecting the health of their rivers. If these rules are pushed through, communities in New Mexico and across the country would lose much of their ability to stop polluters from dumping in their watersheds. The administration is seeking public comment on the proposed rule changes regarding jurisdiction over “isolated” waters”–until February 28th– and also encouraging comments on whether other waters should lose protection under the Clean Water Act. Please write the administration and let them know you are opposed to the proposed changes. Comments may be submitted by mail, electronically, or through hand del Mail comments to: Water Docket, Environmental Protection Agency, Mailcode 4101T, 1200 Pennsylvania Ave., NW, Washington, DC 20460, Attention Docket ID No.OW-2002-0050. Comments may be sent by electronic mail (e-mail) to CWAwaters@epa.gov, Attention Docket ID No. OW-2002-0050. Spread the word and let your friends and family know about this imminent threat to our waters and how they can write to oppose the gutting of the Clean Water Act. |
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