Red Lodge Clearinghouse

The report, released last week by the National Wildlife Federation, Trout Unlimited and other groups, evaluates how the Army Corps of Engineers and U.S. EPA are implementing policies issued in response to two Supreme Court decisions that narrowed the scope of the CWA.

The act directs federal regulators to protect waters of the United States. For the first 30 years of the act, EPA and the corps interpreted the law broadly, asserting jurisdiction over even the smallest arroyo or wetland. But in the 2001 decision for Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, the high court prohibited the government from using migratory bird protections to regulate wetlands "isolated" from navigable waters. The court followed last year with a 4-1-4 ruling in the consolidated cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers that further narrowed federal oversight to navigable waterways or abutting wetlands.

In 2003 and 2007, the agencies issued joint guidance designed to interpret and implement the Supreme Court rulings.

The effect of the rulings and guidelines is a restriction of the federal government's jurisdiction over wetlands and streams. In essence, the Army Corps does not have jurisdiction over wetlands that are not adjacent to navigable waters, or to seasonal streams, such as Southwestern arroyos, that are not connected to a navigable waterway.

Furthermore, a tributary of a navigable waterway has to be "relatively permanent" to be regulated. If not, the guidelines specify that the corps and EPA would have to determine on a case-by-case basis whether a water body had a "significant nexus" to a navigable waterway.

Acute impacts in the Southwest

While the rulings and guidelines affect wetlands and streams across the country, they are of particular concern in the arid Southwest, where streams tend to dry up during certain times of the year and where wetlands, such as playa lakes, are often not connected to a "navigable" waterway. Those water bodies are crucial for both wildlife and people, said Scott Yaich, director of conservation programs for Ducks Unlimited.

"Much of the Southwest isn't particularly wetland-rich compared to the rest of the country, but that makes the wetlands that do exist vitally important," he said.

According to the report, the guidance has left thousands of intermittent streams and isolated wetlands without federal protection from pollution, dredge-and-fill operations, and other types of development.

"The situation is quite dire, and action is needed to make sure Southwestern waters aren't degraded," said Jim Murphy, an attorney with the National Wildlife Federation.

Using jurisdictional determinations issued by the Army Corps, along with information gathered via Freedom of Information Act requests, the groups found that waters previously regulated under CWA can now be developed without federal oversight.

"A steady march of destruction and degradation has already begun to chip away at the region's scarce water resources," the report reads. "At stake is the future of both the human and wildlife populations of the Southwest."

As the states lose ecologically important waterways and wetlands, they could also lose tourism dollars, according to the groups. In Texas, for instance, wildlife watching, hunting and fishing brings in $8.4 billion dollars each year.

Few states have protective measures that would compensate for the loss of federal oversight, the report says.

Ron Curry, secretary of the New Mexico Environment Department, told the Senate Environment and Public Works Committee in December that the rulings "severely limited the waters that receive protection" through the act and expressed his support for the Oberstar-Feingold Clean Water Restoration Act, H.R. 2421. The bill would amend the CWA so that "waters of the United States" would replace "navigable waters of the United States" wherever that phrase appears.

"Basing the decision on what water deserves to be clean or whether or not you can float a boat in it is lunacy," Curry said. "There are times in the summer months when you can't even float a boat down the mighty Rio Grande, New Mexico's main surface water resource" (Land Letter, Dec. 20, 2007).

Stretching jurisdiction too far?

The report contends that the agencies have taken their interpretation of the rulings too far, unnecessarily removing waters from their jurisdictions that could still be regulated under CWA.

For instance, while the 2001 court ruling said that CWA should not be applied to non-navigable, isolated waters based solely on their use by migratory birds, the groups say the agencies could still protect those waters through other CWA criteria, including recreational use by out-of-state visitors, commercial fishing in which the fish are sold across state lines or industrial use of the water.

But Army Corps officials said they continue to view most waterways and wetlands as under their jurisdiction, and that the groups' concerns are unfounded.

"In practice, we go with the assumption that a water is a water of the U.S., rather than assume that it isn't," said Jim Wood, a regulatory project manager and biologist with the corps' Albuquerque District, which oversees New Mexico. "We don't want to lose jurisdiction."

The only waterways the agency sometimes does not assert jurisdiction over are small arroyos near the top of watersheds, far from navigable waterways, he said, adding that typically, those streams are found in remote areas and involve low-impact projects like installing a culvert.

"I think we probably shouldn't have had jurisdiction over some of these arroyos in the first place," Wood said.

Most ephemeral streams are counted as tributaries to waters of the United States, he added.

"Me and my colleagues are considering that a significant nexus to a traditional navigable waterway," meaning that the corps still sees those streams as within their jurisdiction, he said.

As for wetlands, Wood said that most wetlands in the region are located near a perennial stream, because wetlands typically form along streams that flow all or most of the year. That means those wetlands are considered connected to a navigable waterway and are still regulated under the new guidance, he said.

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