After being stung by a court case that limited federal authority over certain isolated wetlands, EPA and the Corps of Engineers have begun work on new programs to "reaffirm" federal authority over the vast majority of America's wetlands. The goal is to stress the Administration's commitment to protecting wetlands, including its "no net loss" of wetlands policy.
The actions are in response to the Supreme Court's 2001 decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, which held that the Corps had exceeded its CWA regulatory authority in asserting jurisdiction over isolated intrastate non-navigable ponds based on the Migratory Bird Rule.
The two agencies recently issued clarifying guidance for the federal government's rules used to protect wetlands that are regulated under the CWA. Simultaneously, the Administration announced its intention to publish an Advance Notice of Proposed Rule Making (ANPRM) to solicit from the public data and information to clarify the extent of Clean Water Act coverage in light of SWANCC.
Potentially affected parties include municipal, industrial, commercial, or agricultural entities that discharge or spill pollutants into waters of the U.S.
"We are committed to protecting America's wetlands and watersheds to the full extent under the Clean Water Act and the recent Supreme Court ruling. We are also committed to full public involvement in this process, and we will seek additional information and scientific data for possible rulemaking," said EPA Administrator Christie Whitman.
These two recent actions complement steps announced in December, when the Corps and EPA issued a regulatory guidance letter to improve wetland protections through compensatory mitigation, and the Administration unveiled a National Wetlands Mitigation Action Plan listing 17 action items that federal agencies will undertake to improve the effectiveness of wetlands restoration.
The Administration is also putting our money where its mouth is. The 2002 Farm Bill includes funding for conservation programs that will double the number of wetlands protected to a total of 2.275 million acres of wetlands and other aquatic resources. Also in December, President Bush signed a bill reauthorizing the North American Wetlands Conservation Act, which extends for five years a program under which the federal government matches donations from sportsmen, state wildlife agencies, conservationists and landowners who pledge to protect wetlands.
EPA's Wetland Program Development Grants, currently funded at $15 million annually, would be boosted to $20 million under the FY'04 budget that President Bush will submit to Congress. The grants will help states, tribes, and local governments improve the capability of their wetland programs.
The CWA protects wetlands, streams, and other waters from discharges of pollutants by requiring permits with appropriate environmental safeguards before a discharge may be authorized. Although the SWANCC decision limits federal CWA jurisdiction over isolated, intrastate, non-navigable waters and wetlands, other federal or state laws and programs still cover these waters and wetlands.
The Food Security Act's "Swampbuster" requirements and the Wetlands Reserve Program under the U.S. Department of Agriculture are unaffected. In addition, other federal programs supporting wetlands protection and restoration continue, including the Fish and Wildlife Service's Partners in Wildlife, the National Marine Fisheries Service's Coastal Wetlands Restoration Program, the EPA's Five-Star Restoration program, the National Estuary Program, and the Migratory Bird Conservation Commission.
The Federal Register document on the ANPRM and wetlands regulation are available either on EPA's Office of Water home page at: http://www.epa.gov/owow/wetlands/swanccnav.html or the Corps Regulatory Branch home page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/citizen.htm.