The Bush administration, amid sharp criticism from environmental groups and members of Congress, announced in December that it would drop plans to remove federal protection for isolated wetlands.

The EPA and the Army Corps of Engineers last January had said it was considering new rules that would “clarify” federal jurisdiction over isolated wetlands, as well as many small streams, because of questions raised in a 2001 Supreme Court ruling.

Although the agencies received more than 115,000 comments on the issue, overwhelmingly opposed to the change, a draft rule was circulated in the fall which would have sharply curtailed federal oversight for wetlands and headwater streams.

But EPA and Corps officials abruptly announced Dec. 16 that they were dropping plans for any rule change.

“Across the federal government, the Bush administration has reaffirmed and bolstered protections for wetlands, which are vital for water quality, the health of our streams and wildlife habitat,” EPA Administrator Mike Leavitt said in making the announcement.

Assistant Secretary of the Army John Paul Woodley Jr. said the two agencies would “continue our efforts to ensure that the Corps’ regulatory program is as effective, efficient and responsive as it can be.”

The agencies also stated the administration would pursue of goal of “no net loss” of wetlands nationwide.
The call for a new rule stemmed from a January, 2001 Supreme Court ruling that said the federal government could not regulate actions affecting isolated ponds where the only connection to other waterways was the presence of migratory birds.

The wording of the decision, the EPA and Corps said last January, called into question whether the federal government could assert any regulatory authority over isolated, intrastate and nonnavigable waters.

As a result, the agencies considered removing not only isolated wetlands, but many small streams from federal jurisdiction, an act that would also have removed other Clean Water Act protections as well. For instance, federal pollution permits would no longer have been needed to discharge industrial wastes and other pollutants into those waters.

Officials from EPA Region III, in internal comments submitted last summer, warned that up to half of the streams in the mid-Atlantic region and a third of the wetlands, could lose protection, depending on how the rule was rewritten.

That would have made cleaning up the Bay more difficult because studies show that the smallest streams in the watershed are highly effective at removing nutrients through natural processes; if those nutrients get farther downstream, they are more likely to enter the Chesapeake and contribute to its water quality problems.

Such a change would also make it more difficult for the Bay Program to achieve its wetland protection and restoration goals.

In November, 218 members of the House of Representatives, including 26 Republicans, signed a letter sent to President Bush urging him to halt any regulatory changes that would limit the scope of the Clean Water Act.

The need for a rule was also cast in doubt by recent court decisions, including a September ruling in the Fourth U.S. Circuit Court of Appeals concerning a Virginia case, which have interpreted the 2001 decision as applying only to isolated wetlands where birds provided the sole link to other waterbodies.

Environmental groups, who viewed the potential rule change as the largest threat to the Clean Water Act in three decades, were pleased by the announcement.

“In the face of overwhelming support from the public for clean water—and the overwhelming opposition in Congress to weakening the law—the EPA and White House are making the right decision,” said Joan Mulhern, senior legislative counsel for the environmental group Earthjustice. “There is no question that dropping the idea of weakening the Clean Water Act’s rules is the right thing to do.”

But groups also said the administration should revoke guidance issued last January directing field staff not to assert federal jurisdiction over isolated wetlands that are intrastate and nonnavigable unless first getting approval from agency headquarters. That was expected to affect about 20 million acres of wetlands nationwide, about a fifth of the nation’s total.

“The Bush administration committed to no net loss of wetlands, yet this goal will be impossible to meet given that current guidelines remove Clean Water Act protection from more than 20 million acres of wetlands,” said Julie Sibbing, a wetlands policy specialist with the National Wildlife Federation.

Members of Congress had also called on the administration to rescind that guidance in their letter.
Tracy Mehan, EPA assistant administrator for water, told the New York Times that the guidance was still in place, but was being reviewed.

“The guidance is still in effect, although we have been engaged with the Army Corps of Engineers to make sure that we track not just cases where we assert jurisdiction, but questions of how we decline jurisdiction,” he said.