Birmingham News, January 10, 2003

U.S. Clean Water Act set for rewrite


News staff writer

The Bush administration is planning to rewrite the U.S. Clean Water Act based on a court ruling that called into question how much of the nation's waters can be protected by the 30-year-old law.

Officials at the U.S. Environmental Protection Agency say they are not ready to explain how broad changes in the law may be. The agency is expected to publish a request for public comments on the law's interpretation before drafting new rules. That may be published in the Federal Register at any time, officials said.

Some river advocates say they fear sweeping changes could remove a majority of the nation's waterways from protection and carry the United States back to pre-1972 pollution rules. A former EPA lawyer said even rivers as large as the Cahaba could be excluded from the new law as officials reconsider the entire act.

Restrictive ruling:

For decades, the Clean Water Act was interpreted to mean that all waters and wetlands of the United States were protected from pollution or destruction.

But a U.S. Supreme Court ruling in 2001 found that wetlands in an isolated quarry were not protected by the Clean Water Act. The law was meant to protect navigable waters and adjoining wetlands used in commerce, the justices wrote.

The ruling raised the question of whether any protection would be offered to "non-navigable, isolated, intrastate" wetlands. Environmental groups say 30 percent of the nation's wetlands are isolated.

The Clinton administration told the EPA and Army Corps of Engineers to review wetlands cases. Late last year, Congress asked the EPA to provide guidance on the ruling.

Pat Parenteau, a former EPA attorney and Clean Water Act expert who teaches at the Vermont Law School, testified before Congress on the issue. He said the EPA is being instructed to reinterpret the law to exclude minor tributaries, streams that run dry part of the year, wetlands that are not adjacent to major rivers and artificial connections, such as canals.

"The testimony that I heard was to knock all that out and basically take the Clean Water Act back to where it was before 1972," Parenteau said in a recent interview.

The crux of the legal argument, he said, is that Congress has no right to be involved in the issue of water pollution unless it is affecting navigation or interstate commerce.

"If navigation is the touchstone, it's going to be very narrow," he said.

What about the Cahaba?:

Rivers as large as the Cahaba, which is contained within Alabama and is not navigable in many places, could lose protection under the Clean Water Act, he said. In the West, where water is scarce and many rivers dry up in the summer, such a reinterpretation could end the protection of most of the waterways, environmentalists say.

Tom Welborn of EPA's water office in Atlanta said he'd be surprised if the revamp extended to such large bodies of water, though he doesn't know exactly where the agency is headed since discussions have been limited to top officials.

So far, the Southeast has been relatively unaffected by the 2-year-old wetland ruling, since most of its wetlands are not isolated, said Jeanne Christie, executive director of the Association of State Wetland Managers.

But it is clear that the EPA is considering what is navigable, and many streams in the South are not, she said. However she said she hopes those rivers and creeks will be protected because they feed larger streams.

"You can't possibly protect navigable waters without protecting all these others unless you put in enormous treatment plants at the mouths of all these streams," Christie said.

Activists concerned:

Environmentalists say they are concerned that the Bush administration is aiming to cut back the law as far as possible.

"It would be consistent with what's been coming out of this administration," said Brad McLane, executive director of the Alabama Rivers Alliance. "This EPA is clearly on a path of trying to undermine environmental laws period."

Since the law has previously been interpreted to cover the smallest streams and the most isolated wetlands, environmentalists say any reinterpretation could open loopholes.

Even if the EPA proposes only to remove protection from isolated wetlands and intermittent streams those that dry up for part of the year 60 percent of the nation's stream miles are at stake, said Eric Eckl, spokesman for the advocacy group American Rivers.

 Those streams are some of the most important because they are the spawning grounds for many fish and the headwaters for the larger streams, he said. They also are home to many imperiled or endangered species that are unable to survive in the larger rivers that have been dammed and altered.

If the smaller streams are not protected, environmentalists say they fear polluters will move discharge pipes from the main stems of rivers into remote tributaries, perhaps even building canals to accommodate the pollution. Those streams could flow into the larger rivers.

"If small streams are not protected, then no water is protected," McLane said.

However, the EPA is not moving quickly on any changes. Its request for public comment before any proposal has been praised by some groups as a slow and thoughtful approach to any reinterpretation.

"I think they are making an honest attempt to find out what the nation thinks is a way to address and deal with these issues," Christie said.

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