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U.S. to Rethink Clean Water Rules - Administration Accused of Using Ruling to Weaken Safeguards By
Eric Pianin
During a congressional hearing, officials of the Environmental Protection Agency and the U.S. Army Corps of Engineers revealed plans to reconsider the extent to which the government can prevent unlawful industrial pollution in non-navigable waterways and wetlands. Rep. Doug Ose (R-Calif.), chairman of a House Government Reform subcommittee on natural resources, and other lawmakers have pressed the administration to redefine protected and unprotected waterways and wetlands since the Supreme Court put new limits on the scope of the act in a January 2001 ruling. Some lawmakers say that in light of the ruling, federal authorities are exceeding their jurisdiction in many water pollution cases and should leave enforcement to the states -- although environmentalists say that many states lack adequate laws to cope with massive industrial pollution. "The current situation has created confusion and chaos not only for the regulated community but also for the states," Ose said at the hearing. "Even a casual reading of the [court ruling] suggests that it is the right and responsibility of the states to regulate isolated waterways." Administration officials said there is no way to gauge the outcome of the rulemaking, and that it is possible that the government will end up retaining jurisdiction over much of the water covered by the act. But environmentalists charge that the administration is caving to pressure from home builders and developers to use the ruling as an excuse to gut the legislation, which was enacted to prevent industry from polluting rivers and streams without government permit. "It would throw open the doors to any kind of pollution, filling or destruction" in non-navigable waterways and wetlands, said Joan Mulhern, legislative counsel for Earthjustice, an environmental advocacy group. Last year's 5-4 court ruling written by Chief Justice William H. Rehnquist involved a challenge to federal clean water jurisdiction over isolated ponds in Illinois. While the ponds served as migratory bird habitat, they were non-navigable and isolated from the tributary system regulated by the act. The court held that the Army Corps had exceeded its authority in asserting its jurisdiction over the ponds based on their use as a habitat for migratory birds. The majority of justices said the intent of the Clean Air Act was to protect navigable waters used in commerce and adjoining wetlands, but not isolated, intra-state, non-navigable ponds and wetlands. For years, the EPA and Army Corps have interpreted their regulations to assert jurisdiction over non-navigable tributaries, and the Justice Department recently has prevailed in cases making that argument. But in yesterday's testimony, Dominic Izzo, principal deputy assistant secretary of the Army for civil works, and Robert E. Fabricant, the EPA's general counsel, said the high court's ruling prompted the need for new rulemaking or guidance to clarify numerous jurisdictional questions. "Our efforts have focused on determining what categories of water are jurisdictional or not jurisdictional, and where rulemaking might be advisable and necessary to reinforce the appropriate scope of Clean Water Act jurisdiction," the officials said in a statement. "We have determined that we should engage in such rulemaking." |