WASHINGTON – Developers and environmentalists were in rare agreement Tuesday, telling a congressional panel that unclear language in the Clean Water Act has caused disparities in how states define and protect wetlands.
But that was the last thing they agreed on.
While developers want firm definitions of wetlands to help determine which lands they can build on and which they cannot, environmentalists want to make sure those definitions strengthen national wetland protection, not weaken it.
Highway and building contractors told the House Subcommittee on Water Resources and Environment that they want to protect wetlands, but that regulators in certain regions are allowing real wetlands to be taken, while other regulators try to protect waters that amount to nothing but “a roadside ditch on some farmer’s land.”
But environmentalists said they fear that the act’s ambiguities might be the wetlands’ only shield against an “environmentally hostile” government. More explicit definitions might actually loosen wetland regulations, they said.
“There is some ambiguity in the current law, but . . . how are they going to fix it? I just don’t think that they will fix things so they’ll be better for the environment,” said Bill Gerlach, an attorney for the Chesapeake Bay Foundation.
Maryland and other Chesapeake Bay states have their own regulations that often go beyond federal standards, Gerlach said. But he conceded that not all states have such stringent legislation to protect their waters.
About 160 acres of wetlands are destroyed every day, according to the National Wildlife Federation. About 1.5 million acres of wetlands remain in the bay watershed, less than half of the acreage present during colonial times.
But contractors insisted that new definitions will simultaneously help wetlands suffering from misapplications of the law as well as make the construction industry more uniform.
They supported their argument by citing a February report by the General Accounting Office that found “widespread inconsistency” in wetland protection due to the act’s unclear language.
“We’re not fighting to not be regulated, we’re just fighting for a regulatory environment that’s predictable and consistent so that we can make good business decisions,” said Chandler Morse, an environmental policy analyst for the National Association of Homebuilders, in a telephone interview.
The developers’ desire for more explicit regulations are in response to a December rule by the Environmental Protection Agency and U.S. Army Corps of Engineers — the groups with jurisdiction over the issue — that denied further universal wetland definitions and restated that the government should judge wetlands on a case-by-case basis.
Gerlach said he thinks that judging on an individual basis increases the likelihood of wetland protection. A wetland seems more important when put into its local ecological context, he said.
Placing all wetlands into a faceless universal category might minimize the wetlands’ perceived importance, he said.
“The way the current EPA is, I would be wary of any proposals (for new definitions),” he said.
The federal government now has jurisdiction over all navigable waters in the country, and jurisdiction on a case-by-case basis for “non-navigable, isolated, intrastate waters.”
But federal officials currently need to get approval from their headquarters before they assert control over the non-navigable waters. The government also has control over the tributaries of wetlands and wetlands adjacent to jurisdictional waters.
But disputes over how to define the terms “tributary” and “adjacency” has led to various interpretations of the law from state to state.
That is why developers are lobbying for some kind of uniformity.
“Congress can do anything it wants to, but they can be explicit about what they want to do,” said Brian Holmes, the director of Maryland Highway Contractors Association, after testifying at Tuesday’s hearing.
“I think a new approach is needed, and I think it’s really unfair for the (Army) corps to run a regulatory program where two key terms (adjacency and tributaries) . . . have no set definition,” Holmes said.
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