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Release Date: 01/09/2001
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Today the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers are addressing a major regulatory loophole in the Clean Water Act by clarifying the types of activities that can harm wetlands, streams, and other waters, and are subject generally to Clean Water Act regulation. Today’s action will improve protection for tens of thousands of acres of environmentally valuable wetlands and other waters across the United States.

“The Clinton-Gore Administration is committed to protecting America's environment,” said EPA Administrator Carol M. Browner. “Wetlands are essential to preserving clean and healthy water for all Americans. Unfortunately, due to a legal loophole that has been exploited, an additional 20,000 acres of wetlands have been lost in this country over the last two years. The action we take today strengthens the protection of these vital resources for future generations.”

The new wetlands rule is expected to improve protection for tens of thousands of acres of wetlands from destruction each year. In addition to realizing no net loss of wetlands through the Clean Water Act regulatory program, federal environmental and natural resource agencies have already committed to an annual net gain of 100,000 acres of wetlands beginning in 2005 through voluntary and incentive based wetlands restoration programs.

Wetlands are a collective term for marshes, swamps, bogs and similar wet land areas generally located between dry land and bodies of water. They are an invaluable part of the ecosystem, filtering and cleansing the nation's waters, helping to retain flood waters, harboring emerging fish and shellfish populations and supporting a diverse array of wildlife. Destruction of wetlands can increase flooding and runoff potential, harm neighboring property, cause stream and river pollution, and result in the loss of valuable habitat.

Since the late 1700s, over half the nation's wetlands have been lost to development and other activities. These losses are widespread as well--almost half of all states have lost more than 50% of their historic wetlands resources.

Under Section 404 of the Clean Water Act, the Corps makes permit decisions after it completes a careful environmental review of the impacts of proposed discharges, including the potential adverse effects on wetlands. This permit program is designed to avoid and minimize the environmental impact on wetlands, while also requiring off-setting actions, such as restoring other wetlands.

Today’s rule ensures improved environmental protection consistent with Clean Water Act authorities and increases regulatory certainty in a manner in keeping with the recent District of Columbia Circuit court decision. The new rule modifies the definition of "discharge of dredged material" in order to clarify what types of activities EPA and the Corps believe are likely to result in discharges that should be regulated. The Corps and EPA regard the use of mechanized earth moving equipment to conduct landclearing, ditching, channelization, in-stream mining, or other earth-moving activity in waters of the U.S. as resulting in a discharge of dredged material, unless project-specific evidence shows that the activity results in only “incidental fallback.” The rule also provides a definition of what constitutes non-regulable incidental fallback that is consistent with the recent District of Columbia Circuit court decision.

To protect wetlands, EPA and the Corps first clarified in August 1993 that Clean Water Act permits were required for any redeposits of dredged material associated with activities in wetlands and other jurisdictional areas. Referred to as the "Tulloch" rule, that definition was challenged by a number of trade associations and overturned in January l997 by the U.S. District Court for the District of Columbia. Affirmed in June 1998 by the U.S. Court of Appeals, the Court's decision resulted in a loophole in the wetlands regulatory program, leaving certain forms of environmentally destructive activities essentially unchecked, if conducted so as to result in only “incidental fallback” (described by the Court as material that falls back to substantially the same place as the initial removal).

Since the 1998 Court decision, there has been confusion as to what activities are likely to result in discharges regulated under the Clean Water Act. After the Court decision, upwards of 20,000 wetland acres were targeted for ditching, draining, and destruction and approximately 150 miles of streams channelized. Some of these activities involved more than incidental fallback and were conducted without obtaining Clean Water Act permits, and thus environmental safeguards were lacking. This final rule seeks to address these losses in a manner fully consistent with the Court’s decision by clarifying the scope of activities that typically produce discharges subject to environmental review under the Clean Water Act. While today’s action is an important step to protect the Nation’s wetlands, there is no regulatory action that can fully close the loophole in the Clean Water Act that has led to this type of wetlands destruction. The Administration has repeatedly called on Congress to strengthen the Clean Water Act and close this loophole completely.

The final rule to change the definition of dredged materials will be published in the Federal Register soon. Additional information is available on EPA's Office of Water home page at: Click on "What's New" or contact the wetlands helpline at 800-832-7828.

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