NY Times Editorial March 3 2003
(from Jersey Coast Anglers Association April 2003 Newsletter)
A bipartisan group in Congress has now moved to reassert the historical reach of the Clean Water Act to protect all the waters of the United States — not just those chosen for protection by the Supreme Court, the Bush administration or the Army Corps of Engineers It's a necessary move. An ill-considered Supreme Court decision two years ago narrowed safeguards for certain isolated wetlands long covered by the law. Then, in January, the administration invited a further reinterpretation of the statute that could narrow its scope far more severely than the court required — enriching commercial interests while impoverishing the environment.
For more than 30 years, the act has been broadly interpreted as shielding everything from large navigable rivers and lakes to seasonal streams and "prairie potholes" from pollution and unregulated development. In 2001, however, the Supreme Court ruled that the law could not be applied to certain "isolated" wetlands if the only reason for doing so was their use by migratory birds. The court did not rule out other reasons for protecting these wetlands, like fishing and irrigation. Nevertheless, the administration — arguing that the decision had created confusion among federal and state regulators — chose to open key sections of the act to public review, including the fundamental (and until now well-settled) issue of which waters deserve protection and why.
Given the administration's ties to real estate, oil and mining interests — groups that have long resented the act's restrictions — conservationists fear that this review process can have only one result, shrinking protections not only for prairie potholes but also small streams, wetlands adjacent but not visibly connected to navigable waters, even tributaries of bigger rivers.
Christie Whitman, administrator of the Environmental Protection Agency, says that won't happen. But history provides an uneasy precedent. In 1991, with the economy sputtering as it is now, the first Bush administration proposed new rules that would have exposed half the country's wetlands to development, including much of the Everglades. Only the determined opposition of William Reilly, then boss of the E.P.A., saved the day.
Perhaps Mrs. Whitman can do the same. But just to make sure, Congress should clarify the law so that it says in unmistakable terms that small water bodies deserve the same protection as large ones.
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