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In the United States, public policy is generally just that -- public.

Whether it’s Congress or a state legislature passing a law, or the courts deciding on the constitutionality of those laws, seldom do Americans set rules on themselves without some sort of public input, support and accountability.

One possible exception has to do with something near and dear to the hearts of Savannahians: wetlands.

In January 2003, the Bush administration tried to relax the Clean Water Act to allow for more wetlands development. It did so through a joint memo issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers. The memo met such a firestorm of public opposition that the White House had to back off.

“There was a pretty big public outcry over the policy from hundreds of anglers all over the country who were concerned over its effect,” says Maria Weidner of the group Earthwatch.

But that wasn’t the end of it. While the official memo gutting the Clean Water Act was withdrawn, the so-called “policy directive” within the memo was not.

Therefore, federal regulators like the EPA and enforcers like the U.S. Army Corps of Engineers may still be free to enforce -- or more to the point, not enforce -- the Clean Water Act in accordance with the Bush administration’s wishes, without any direct public comment or input whatsoever.

“They began withdrawing the policy this year, but did not withdraw the policy directive,” says Earthwatch’s Weidner. “A policy directive does not fall under the rubric of an administrative rulemaking. It’s not something that is part of administrative process. It's not something that gets finalized. It's not a proposal. There’s no public comment.”

As a result, critics say, the Clean Water Act has been turned so much on its head that, as the directive explicitly states (see sidebar), the U.S. Army Corps of Engineers must literally ask permission from headquarters before it can enforce the Act.

The Corps denies this interpretation, however, saying it only has to ask for such permission in “very rare and specific” cases.

In cooperation with the National Wildlife Federation, the Natural Resources Defense Council, and the Sierra Club, Earthwatch has released a major report outlining the possible threat to U.S. wetlands.

Entitled Reckless Abandon, the report says “The directive made clear that no prior permission is required for EPA and Corps field staff to ignore Clean Water Act protections and allow industrial dischargers, developers, and others to pollute, fill, or destroy these waters.”

Weidner says Reckless Abandon relies almost exclusively on the Corps’ own documents, obtained through the Freedom of Information Act.

“This report was pulled entirely from agency documents we received after Freedom of Information Act requests. This is where the Corps actually said, ‘These waters are not waters of the United States and are not protected by the Clean Water Act,’” she says. “When a determination is made that water is not jurisdictional, barring existence of state rules you're taking a major protection away.”

Corps of Engineers spokesman Billy Birdwell counters, “We believe the report portrays an inaccurate representation of our enforcement program.”

Birdwell says the Corps deals with about 100,000 Clean Water Act issues annually.

“This report focuses on fifteen cases out of the 100,000 we deal with each year,” he says. “And those cases were actually compiled over a couple of years.”

You can download the entire PDF of the Reckless Abandon report at

www.earthjustice.org/news/documents/8-04/CWA_Jurisdiction_8-12-04.pdf/.

Weidner says that the report found that the policy directive is having the same effect that the proposal that was withdrawn would have had.

“Waters that would have been protected are stripped of protection. And it’s not specific to a certain kind of water -- there are critical wetlands, whole rivers, playa lakes in this report. There’s a whole basin in New Mexico that the Corps deems as ‘isolated,’” she says, referring to a June 2003 decision by the Corps that removed the entire Sacramento River from Clean Water Act protection.

But perhaps most damning is the charge in the report that the Corps is removing Clean Water Act protections specifically to help industry, particularly mining.

One such case is nearby in Florida. In March 2003, the Corps released a Final Supplemental Environmental Impact Statement approving a mine expansion by the Potash Corporation of Saskatchewan near the famous Suwanee River. In the process the Corps said 3,997 acres of forested wetlands were not “waters of the United States” and hence were not subject to the Clean Water Act.

“With this decision, the agencies dramatically reduced their calculation of federally protected wetlands — from 5,768 to 1,671 acres — associated with expanding the massive phosphate mining operation,” the report says.

In a case in West Virginia, the Corps originally determined that a strip-mining operation in the Appalachian Mountains by the Beech Fork Company would destroy more than six miles of protected water. Soon after the Bush administration’s new policy directive, the Corps changed course and said the mine would only destroy less than one-third of the stream miles still covered by the Clean Water Act.

Judy Jennings of the local Coastal Group chapter of the Sierra Club says it’s all part of a clear pattern.

“It's all how you use words. They reclassify ‘high-level nuclear waste’ to ‘incidental waste.’ They change ‘debris’ to ‘mountaintop removal.’ They remove the word ‘hazardous’ from mercury regulations,” she says.

“This leads to things like mountaintop mining in Appalachia. Nobody likes it but the mining companies. They can't say ‘We're going to change the big rules,’ because once people understand that they give you a hard time. This is all a giant attempt to change public policy without involving the public.”



The report also highlights a case here in our own backyard, in Effingham County.

Nearly half of a new residential development in Effingham has been stripped of Clean Water Act protection because the Corps says it is “isolated,” and hence out of its jurisdiction.

“A Georgia state official was out there looking for water quality compliance and found that the Corps determined only about 159 of the 270 acres of wetlands as subject to the Clean Water Act,” Jennings says. “Then he found that much of these wetland did indeed appear to be hydrologically connected.”

In its section on the Effingham case, Reckless Abandon warns that “Wetland loss due to rapid development, like that proposed at the site, has been a major factor in the degradation of the lower Savannah River Basin, which provides habitat to abundant wildlife and provides anglers with a warm-water fishery of bass, pickerel, shad, and cat-fish. Unregulated wetland loss like the Corps is allowing in this area will lead to further sediment loading, algal blooms in the river, decreases in groundwater recharge — a pressing issue as drinking water becomes scarcer — habitat destruction, flooding, and stream turbidity.”

Jennings says the Corps appears to consider a dirt road between the two wetlands as sufficient to isolate one of them.

“Alll the wetlands in this situation are within the floodplain of the Polly Creek, which feeds the lower Savannah River,” she says.

“So the Corps is saying that wetlands of the Polly Creek are isolated when the only thing they're separated by is a one-lane dirt road.”

(The Clean Water Act is clear that manmade barriers do not constitute proof of isolation.)

The Corps, while unwilling to go on record with us on the specifics of how it arrived at the ruling, stands by its original determination. The Corps position is that what the state biologist found is immaterial, since he has no authority to make the decision.

“A federal agency, in this case the Savannah District of the Corps of Engineers, has the authority to make jurisdictional wetlands determinations under Section 404 of the Clean Water Act,” says Birdwell.

Jennings says if you want to really start debating connectivity of the two wetlands, there’s a pretty big clue as to who would win.

“There’s actually a fairly large culvert running right under the road,” she laughs.

“You don't have to get too deep into hydrological terminology to understand those two wetlands are joined by that culvert.”



As traditionally interpreted, enforcement of the Clean Water Act in wetlands has to do with three main requirements: That the wetland be isolated, intra-state (i.e., entirely within state borders) and navigable.

Previously, the Corps enforced the Act whenever migratory birds used the wetland as a habitat, but a recent Supreme Court ruling has changed that.

“Before this ruling, the fact that migratory birds used the wetland gave us jurisdiction,” says Birdwell.

While technically the high court ruling applies to a fairly narrow set of circumstances, Reckless Abandon says “the Bush administration has used this narrow court ruling as a pretext to undermine clean water protections for a much broader category of waters.”

As with the Effingham County case, the rub chiefly has to do with the scope of the wetland in question. According to policy, waterways that are within the borders of a single state are not considered “waters of the United States,” and are therefore out of the jurisdiction of a federal agency like the Corps.

In addition, wetlands deemed “isolated” from other bodies of water are also excluded from federal protection.

But how realistic is that?

“There are very, very few waters that are truly isolated,” Maria Weidner says. “It's not an issue of trying to make some obscure connection to another water body. Most of the time it's right there in front of you. This directive even questions whether waters can be protected under the Clean Water Act if they're used for recreation. That's swimming

The Corps’ Billy Birdwell maintains that the report overstates the agency’s need to seek approval on certain aspects of Clean Water Act enforcement.

“We only require approval from headquarters where a Corps district is evaluating the jurisdictional status of an isolated, intra-state or non-navigable waterway based on other commerce factors,” he says.

“This is a very specific and rare occurrence.”



Judy Jennings says that regardless of court interpretations, Savannah needs as much help as it can get on water issues, and the new policy directive isn’t helping matters.

“We're fighting so hard already to keep freshwater in the lower Savannah river. If you want to fight with the upstream dams, they're all 800 pound gorillas. It’s a giant battle,” she says.

“Here we've got freshwater coming from a coastal plain and we can't protect it. That's nuts. We ought to be able to protect what's in our own backyard and we can't even do that.”
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About The Author

Jim Morekis

Jim Morekis

Bio:
A native Savannahian, Jim has been editor-in-chief of Connect Savannah for ten years. The University of Georgia graduate is also a travel writer, authoring regional guides in the Moon handbook series... more

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Connect Today 03.29.2017

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