Bush Declines to Issue Wetlands Regulations

Published February 1, 2004

Responding to pressure from environmental activists and many congressional Democrats, President George W. Bush instructed the Environmental Protection Agency (EPA) and Army Corps of Engineers not to issue new regulations interpreting the U.S. Supreme Court’s 2001 Clean Water Act decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (commonly referred to as SWANCC).

The Clean Water Act applies to navigable interstate waterways. The federal government has in the past loosely interpreted the definition of navigable interstate waterways to include most any location subject to periodic standing water.

However, the SWANCC decision held that “navigable waters” subject to the Clean Water Act do not include isolated ponds and mudflats unconnected to navigable waterways except by their potential use by migratory birds. While the decision itself was limited in scope, the Supreme Court hinted in the decision it might nullify other isolated wetlands from Clean Water Act protection if their connection to navigable interstate waters was similarly tenuous.

Following the SWANCC decision, EPA and the Army Corps issued January 2003 guidelines for their agents to implement and enforce the Supreme Court’s decision. The guidelines reflected an interpretation that the SWANCC holding would nullify from Clean Water Act protection isolated wetlands whose only connection to navigable interstate waterways was serving as a habitat for endangered species or as irrigation for crops.

As EPA and the Army Corps prepared to implement formal regulations in keeping with their January 2003 guidelines, environmental activist groups and congressional Democrats turned up the heat on the Bush administration to forgo issuing regulations on the matter. Jim Connaughton of the White House Council on Environmental Quality explained that the isolated wetlands potentially at issue amounted to less than 35,000 of the millions of acres previously covered by the Clean Water Act.

Nevertheless, on November 25, 191 House Democrats and 26 House Republicans wrote and publicly disseminated a letter to Bush urging him not to issue new wetlands regulations. The letter was timed to coincide with a media blitz on the topic conducted by environmental activist groups.

According to a December 16 statement by EPA Administrator Mike Leavitt, Bush himself made the decision not to issue new regulations. Leavitt explained the administration did not seek to initiate “a contentious and lengthy rulemaking debate” over the interpretation of the Clean Water Act and the SWANCC decision.

“President Bush, the Environmental Protection Agency (EPA), and the Army Corps of Engineers (Corps) today reiterated the Administration’s commitment to the goal of ‘no net loss’ of wetlands in the United States,” stated an EPA press release. “EPA and the Corps announced they would not issue a new rule on federal regulatory jurisdiction over isolated wetlands.”

“Shirking Their Responsibility”

Without enforceable guidance regarding what isolated wetlands are and are not covered by the Clean Water Act, citizens risk severe criminal penalties for activities the SWANCC decision appeared to make legal. Moreover, the lack of formal regulation makes it difficult for businesses, and homebuilders in particular, to make confident business decisions.

Said National Association of Home Builders (NAHB) President Kent Conine, “NAHB is dismayed to see the agencies shirking their rulemaking responsibility and relegating environmental decision-making to the courts. This decision ignores the issues raised by the U.S. Supreme Court’s 2001 ruling in the [SWANCC] case … and leaves builders, developers, and landowners in limbo.

“Rulemaking does not constitute a roll back of Clean Water Act regulations,” Conine continued. “Rather, it would ensure consistency and predictability over permitting processes for activities in isolated wetlands. This is bad for business and bad for wetlands.”

No Credit from Eco Activist Groups

Despite the administration’s decision not to issue formal rules in keeping with the SWANCC decision, many environmental activist groups were reluctant to credit the President for his decision.

“We’re happy that they’ve decided not to go forward,” asserted National Wildlife Federation water policy analyst Malia Hale. “However, the [informal] guidance still stands out there.”

“We thank the EPA and the Corps for this announcement but ask them for another: full protection of our nation’s waters,” added Roger Rufe, president of the Ocean Conservancy.

“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,” responded EPA Administrator Mike Leavitt.

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

NAHB’s Conine, however, criticized EPA and the Army Corps for their post-SWANCC enforcement activities.

“Since the SWANCC decision,” said Conine, “the agencies have failed to provide a comprehensive, natural approach to jurisdictional decisions–choosing instead to instruct field staff within each district to interpret local court decisions. Despite this ruling, EPA and the Corps have continued to assert jurisdiction over isolated wetlands without any clear definition of an isolated wetland or clarification of its jurisdiction.

“Absent a rulemaking decision by EPA and the Corps, builders and land developers will continue to face widely varying approaches to wetlands regulation and problems that have persisted since the SWANCC decision,” Conine added.

James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].

For more information …

The U.S. Supreme Court’s 41-page decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers is available through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for document #14110.