How much damage can one administration do to wetlands in 18 months? That’s the question green sportsmen and other environmentalists are asking themselves after the Bush Administration issued its long-awaited “guidance” to key federal agencies on just which wetlands could be automatically protected by the Clean Water Act. The answer: If it doesn’t hold commercial traffic, there is no immunity from development.
That means those isolated and temporary wetlands so critical to fish and wildlife – and absolutely essential to waterfowl – no longer have the protection they have enjoyed since the Clean Water Act was passed in 1975.
This new guidance was the administration’s response to a pair of Supreme Court decisions last year which agreed with developers that the Clean Water Act was never intended to protect temporary and isolated wetlands. But the court was clear that its rulings were not decisions on the importance of those wetlands, only in the language and intent of the legislation as passed, and what it considered an over-reaching by the Army Corps of Engineers in expanding protections to habitats congress had not considered.
While sportsmen and other greens were correctly shocked by the decision, they also recognized the obvious fix: All Congress had to do was pass a law statijng it wanted those wetlands included in CWA protection. That led to introduction of the Clean Water Restoration Act of 2006.
The administration had a clear choice at the time: Stay true to its pledge to protect wetlands and wildlife by supporting the bill that could solve the problem raised by the court, or issue a new “guidance” that would give developers a chance to continue draining critical fish and wildlife habitat.
That decision was apparent with the new guidance. It orders federal agencies to provide automatic protection only to wetlands large enough to carry commercial traffic, the traditional definition of a navigable waterway.
Anything else – including isolated and temporary wetlands – can only be considered if investigations on a case by case basis show “a significant nexus” with a nearby traditional navigable waterway.
“This guidance places an unacceptable number of waters at risk of losing protection and does next to nothing to alleviate the confusion over what waters are federally protected,” said Jan Goldman-Carter, Wetlands Counsel for the National Wildlife Federation. It doesn’t fix a thing and makes the status of protections even worse for streams and wetlands.
“This guidance adds unnecessary and unintended hurdles for agencies and citizens trying to protect our waters. In particular, the guidance inexcusably retreats from protecting many important headwater streams and wetlands.
“The guidance, and the year it took for it to be issued, make plain that this Administration is not up to the task of protecting the nation’s waters. Congress must step in and make sure all wetlands, streams, lakes, rivers and other important waters are protected.”
The only way to do that is with the Clean Water Restoration Act. It should be passed quickly – because if this guidance is left standing, a lot of damage can be done in the final 18 months of the Bush Administration.