Rule Drafted That Would Dilute the Clean Water Act
If implemented, streams and wetlands would be open to development.
California and other parts of the arid West would bear the brunt.
By Elizabeth Shogren
Times Staff Writer
WASHINGTON Bush administration officials have drafted a rule that would significantly narrow the scope of the
Clean Water Act, stripping many wetlands and streams of federal pollution controls and making them available to being filled
for commercial development.
The rule, spelled out in an internal document provided to The Times by a senior government
official, says that Clean Water Act protection would no longer be provided to "ephemeral washes or streams" that do not have
groundwater as a source. Streams that flow for less than six months a year would also lose protection, as would many wetlands,
according to the document.
State and federal officials have estimated that up to 20 million acres of wetlands, 20%
of the wetlands outside of Alaska, could lose protection under a new rule like the one in the draft. The effect would be greater
in California and other parts of the arid West, where many streams flow only seasonally or after rain or snowmelts.
officials cautioned that no rule change could happen without a public process, which would take many months and offer the
public a chance to comment. However, the draft was the first indication of the direction that at least some administration
officials want to take in rewriting the rule.
The new rule-making exercise was triggered by a 2001 Supreme Court ruling
that limited federal jurisdiction over isolated, non-navigable, intrastate waters and wetlands. But the draft rule circulating
within the administration would leave a much broader range of waters and wetlands outside the strictures of the Clean Water
Government officials declined to comment on the draft rule until it becomes a public proposal.
the change would represent one of the most consequential of the actions the Bush administration has taken to ease environmental
"It would dramatically cut back the scope of Clean Water Act jurisdiction," said the official who provided
the document on the condition that neither he nor his agency be identified. "It would eliminate protections for ephemeral
streams, which could be in the millions of miles of streams, particularly out West where many streams do not flow all year
Julie Sibbing, a wetlands policy expert at the National Wildlife Federation, said, "It's like writing off the
entire Southwest from the Clean Water Act, where water is more precious than in any other region of the country. Up to 80%
to 90% of streams in the Southwest would not fall under the Clean Water Act if this rule were to go forward."
of areas in California that could lose protection, according to a state official who asked not to be named, are the Tujunga
Wash in the northeast San Fernando Valley and San Francisco wetlands that are diked and cut off from the bay. The same fate
might await headwater streams of the Klamath, Eel and Salmon rivers on the north coast, important spawning grounds for salmon,
including the endangered Coho.
In January, the Environmental Protection Agency and the Army Corps of Engineers announced
that they were considering rewriting the regulations that establish what wetlands and streams are included in definitions
of waters of the United States, and thereby protected by a variety of Clean Water Act regulations. The EPA is responsible
for enforcing the Clean Water Act; the corps issues permits for filling waters and streams.
In comments on the agencies'
plan, states almost unanimously urged the federal government to retain a broad definition of waters of the United States.
with many other states, California will not be able to comprehensively replicate the corps' regulatory role in the foreseeable
future because of its current budget crisis," the California EPA said in its comments on a rule change. "The entirely foreseeable
result would be dramatic impacts to the potentially affected waters."
State water quality officials and conservationists
said the wetlands and streams that would lose protection under a rule change are essential to maintaining the health of the
larger rivers and lakes that would still be protected by the law. Wetlands filter pollutants and retain water after rainfalls
to lessen flooding. Ephemeral streams reduce flooding. Both provide healthy habitats for fish, birds and other wildlife. The
government received more than 130,000 comments about its proposal to rewrite the rules, and EPA and White House officials
said the government had not yet decided whether to follow through with a new rule.
The draft revision of the rule defining
waters of the United States was prepared by officials at the Army Corps of Engineers and Justice Department, according to
the official who provided the document. Copies of the document were circulated to officials at other agencies in recent weeks,
the official said. Corps spokeswoman Cynthia Smith said there would be no comment on a leaked draft. Justice Department officials
also refused to comment.
James Connaughton, chairman of the White House Council on Environmental Quality, which coordinates
multi-agency policymaking, said he had not seen the draft. He stressed that the EPA would have the lead part in rewriting
the rule, although the corps would also have a significant role.
Conservation, hunting and fishing organizations that
saw the draft criticized it as a major rollback.
"This is a worst-case scenario," said Dr. Alan Wentz, Ducks Unlimited's
senior group manager for conservation. "It represents a radical change of direction from 30 years of Clean Water Act implementation
and judicial interpretation, and if this becomes the corps' interpretation of the law, it will create irreparable harm to
those wetlands of greatest value to waterfowl, such as the prairie potholes of the northern Great Plains."