4/28/11
The Obama administration’s new guidelines for the Clean Water Act are an important first step in restoring vital legal safeguards to wetlands and streams threatened by development and pollution.
The guidelines are opposed by the usual suspects — real estate interests, homebuilders, farmers, the oil companies. They were welcomed, rightly so, by conservationists and others who have watched in despair as enforcement actions dropped and water pollution levels went up.
For nearly three decades, the 1972 act was broadly interpreted by the courts and federal regulators as shielding virtually all the waters of the United States from pollution and unregulated development — seasonal streams and small, remote wetlands, as well as lakes and large navigable waters. The basic idea was that small waters have some hydrological connection to larger watersheds and should be protected against pollution that would inevitably find its way downstream.
Then came two Supreme Court decisions that left uncertain which waterways were protected by the law. A 2001 decision suggested that the law applied only to large navigable waterways, while a 2006 ruling suggested that only waters with a “significant nexus” to navigable waterways could be protected. Those decisions — plus subsequent guidance from the George W. Bush administration — confused regulators and exposed millions of acres of wetlands and thousands of miles of streams to development.
The new guidelines now restore protections to small streams and wetlands that have a “physical, chemical or biological connection” to larger bodies of water downstream. That is good news with the clear caveat that they are administrative guidance, with no force in law, and subject to fairly easy reversal by another administration.
Legislation reaffirming the original scope of the law would be the best solution. But since that is not in the cards in this Congress, we urge the Environmental Protection Agency to turn the guidance into a formal rule that would, at least, be harder to undo.
