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Bush Administration Limits Clean Water Act Far Beyond What the Supreme Court's Ruling Requires
On January 15, 2003, the Environmental Protection Agency and the Army Corps of Engineers issued new guidance to their field staff instructing that wetlands, streams, ponds and other waters that are non-navigable, located wholly within one state, and "isolated," are not considered automatically protected under the Clean Water Act. (There is no category of "isolated" waters, according to the Clean Water Act and, depending on how it might be defined by the Bush administration, this newly-created category could include many waters that aren’t really "isolated" at all, including many streams and wetlands.)
The EPA and Corps consistently state that they are taking this action in response to the Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). Yet there are significant differences between the scope of the Supreme Court’s ruling and the EPA's guidance, with the EPA excluding many more waters from the Clean Water Act's jurisdiction than the Court’s ruling required. The guidance took effect immediately upon publication.
| How the Supreme Court limited Clean Water Act jurisdiction in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers et.al. |
How the EPA and Corps of Engineers limited Clean Water Act jurisdiction in their January 15, 2003 guidance |
| The Supreme Court ruling eliminated Clean Water Act jurisdiction over isolated waters that are intrastate and non-navigable, where the sole basis for jurisdiction is the actual or potential use of the waters as habitat for migratory birds that cross state lines in their migrations. |
As the Supreme Court decision requires, the EPA’s guidance eliminates Clean Water Act jurisdiction over isolated, intrastate, non-navigable waters where the sole basis is the use of the waters as habitat for migratory birds |
| The Supreme Court ruling did not address this issue. |
EPA guidance eliminates jurisdiction over isolated, intrastate, non-navigable waters used as habitat for Federally protected endangered or threatened species. |
| The Supreme Court ruling did not address this issue. |
EPA guidance eliminates jurisdiction over isolated, intrastate, non-navigable waters used to irrigate crops sold in interstate commerce. |
| The Supreme Court ruling did not address this issue. |
EPA guidance requires field staff to seek formal project-specific approval from Headquarters before asserting jurisdiction over intrastate, non-navigable waters used for recreation or other purposes by interstate or foreign travelers. |
| The Supreme Court ruling did not address this issue. |
EPA guidance requires field staff to seek formal project-specific approval from Headquarters before asserting jurisdiction over the use of intrastate, non-navigable waters from which fish or shellfish could be taken and sold in interstate commerce. |
| The Supreme Court ruling did not address this issue. |
EPA guidance requires field staff to seek formal project-specific approval from Headquarters before asserting jurisdiction over intrastate, non-navigable waters used for industrial purposes by industries in interstate commerce. |
| The Supreme Court ruling did not address this issue. |
EPA guidance instructs field staff that they should "continue to assert jurisdiction over traditional navigable waters (and adjacent wetlands) and, generally speaking, their tributary systems (and adjacent wetlands)." (emphasis added) This statement suggests that some tributaries could be considered outside of the Clean Water Act’s jurisdiction. |
Source: Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States," 68 Fed.Reg. 1991 (January 15, 2003).
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