|
NEW US EPA & Corps Leave Existing Guidance In Place
EPA and the Corps of Engineers
have determined not to alter current federal regulations or definitions of
wetlands. This apparently leaves stating existing guidance to Corp
Districts resulting
from a ruling by the Supreme Court that water fowl migration can not be used to
establish jurisdiction over wetlands that are not navigable. The EPA had been seeking comments
that would have led to
rulemaking changes in light of the US Supreme Court ruling in the Solid
Waste Agency of Northern of Cook County v. US Army Corps of Engineers
(SWANCC). Comments are being sought on the definition of "waters of
the United States" a common phrase used in the Clean Water Act.
West Houston Association Calls for Clear Definition of "Adjacent"
waters
Following is the text of a letter prepared by
our Environment Committee and submitted to the Corps responding to the
definition of "waters of the US":
"The West Houston Association submits the
following comments in response to the Advance Notice of Proposed Rulemaking
on the definition of “waters of the United States”. Since 1979 the
Association, a nonprofit group organized to promote responsible growth with
acceptable infrastructure has actively participated at all levels of
government that have regulatory and statutory authority over environments
around the Houston/Galveston Gulf Coast. We are proud of the record our
developer members have established with the Galveston District, one of the
fastest growing regions of the United States.
Our membership consists of
a significant number of landowners and others within the category of
“potentially regulated entities.” Past experience with the Corp’s 404 permit
program and wetland delineations in the Corp’s Galveston District indicates
to us that a precise definition of “waters of the
United States”
be developed. The regulated community in this geographic area has seen a
wide variety of areas determined to be wetlands such as portions of
abandoned rice fields (isolated wetlands) as well as wetlands that clearly
meet the criteria in the 1987 wetlands manual.
“Marginal” wetland determinations or those
which barely meet the wetlands criteria are difficult to accept by private
sector. Because of this the SWANCC opinion was very much welcomed in this
community. Currently, the Galveston District is using a concept of
“adjacent wetland” which includes areas which meet or marginally meet
wetland criteria as long as these areas are located within the 100-year
floodplain of a creek, bayou, stream or river. Typically, many floodplains
in this area are large in size such that “marginal” wetlands many thousands
of feet from a stream can still be determined to be “adjacent” to the
stream.
We urge the Corps of Engineers to develop a
concept of “adjacent” that is closer to the ordinary meaning of adjacent
which is “lying near or adjoining”.
This meaning is identical to that ascribed to
it by the government when the Riverside Bay View Homes case was being argued
before the Supreme Court.
A review of the court’s
question and answer session of that case clearly indicated the government
specifically addressed “adjacency” because a member of the court asked the
question “What is an adjacent wetland?” The government’s answer indicates
that an adjacent wetland was a wetland that “lies immediately next to or
abuts a navigable water. This is a definition the regulated community can
accept and depend upon for fairness. The CWA refers to navigable waters and
wetlands adjacent thereto (our emphasis). We believe the ordinary
language definition of adjacent is the correct one and should become part of
the Corps definition of Waters of the
U.S."
Legislation
Introduced to Recapture Clean Water Act Jurisdiction
On July 25, 2002, Senator Feingold and Congressmen
Dingle and Oberstar introduced legislation into the Senate and House
respectively to protect isolated wetlands now in jeopardy as a result of a
2001 Supreme Court decision-Solid Waste Agency of Northern Cook County v.
Army Corps of Engineers (SWANCC). The bills, which will be called The Clean
Water Authority Restoration Act of 2002, were introduced to restore the
protection that existed for all waters and wetlands prior to the SWANCC
decision by:
1) Adopting a statutory definition of "waters of
the
United States" based on a longstanding definition of waters in the Corps of
Engineers' regulations (at 33 CFR 328.3).
2) Deleting the term "navigable"
from the Act to clarify that Congress' primary concern in 1972 was to
protect the nation's waters from pollution, rather than just sustain the
navigability of waterways.
3) Including a set of findings
that explain the factual basis for Congressional assertion of constitutional
authority over waters and wetlands, including those that are called
"isolated."
The bills will be posted to http://thomas.loc.gov
In the House the bill will be
H.R. 5194. Additional information is available at
http://www.naiop.org/membercenter/government/wetlands.shtml
|