EPA Dropped Wetlands Cases After High Court Ruling

by: The Associated Press, July 7, 2008

Washington – The Bush administration didn’t pursue hundreds of potential water pollution cases after a 2006 Supreme Court decision that restricted the Environmental Protection Agency’s authority to regulate seasonal streams and wetlands.

From July 2006 through December 2007 there were 304 instances where the EPA found what would have been violations of the Clean Water Act before the court’s ruling, according to a memo by the agency’s enforcement chief.

Officials “chose not to pursue formal enforcement based on the uncertainty about EPA’s jurisdiction,” according to the memo, which was released Monday by two Democratic House committee chairmen.

The EPA also chose to “lower the priority” of 147 other cases because it was unclear whether the intermittent streams, swamps and marshes flowed into navigable waterways.

Chief Justice John Roberts predicted the court’s decision would be confusing, saying “regulated entities will now have to feel their way on a case-by-case basis.”

The confusion primarily surrounds temporary streams and wetlands not large enough to be navigable, but which are among the most prevalent types of waters across the country.

The EPA and the Army Corps of Engineers issued a guidance document in July 2007 saying that said officials must first analyze whether an ephemeral stream or seasonal wetland leads to federal waters before federal water pollution laws can be enforced.

“These intermittent and ephemeral waters are vital to the protection of our nation’s streams and rivers,” wrote Assistant Administrator Granta Nakayama in the March 2008 memo commenting on the agency’s guidance, which he said “impeded our efforts to pursue enforcement.”

Nakayama, in an interview Monday with The Associated Press, said the agency was simply responding to a “changed legal landscape.”

“We need to ensure that the case, the facts of the case, establish federal jurisdiction,” he said.

Reps. Henry Waxman, D-Calif., and James Oberstar, D-Minn., respective chairmen of the House Oversight and Government Reform committee and the Transportation and Infrastructure committee, said the government’s enforcement of clean water laws has been “faltering” since the court’s opinion.

“This sudden reduction in enforcement activity will undermine the implementation of the Clean Water Act and adversely affect EPA’s responsibility to protect the nation’s waters,” the two lawmakers wrote in a letter to EPA Administrator Stephen Johnson.