"THIS IS ARMAGEDDON." That's how one environmentalist describes the Environmental Protection Agency's new policies governing wetlands, announced at the end of last week. On the contrary, responds Christine Todd Whitman, EPA administrator, the point is to be "as protective of the wetlands as possible." The enormous rhetorical gap between these two interpretations is worth noting, particularly as they concern a notice of proposed rulemaking and not even an actual change in regulatory policy. The extent of this gap illustrates how much confusion has been caused by the Supreme Court's unfortunate decision two years ago to narrow the reach of the Clean Water Act. That highly technical decision held that the act, which refers to "navigable waters," could not be applied to "isolated" wetlands. Because these isolated wetlands -- bogs, swamps, ponds -- are crucial to flood prevention and water filtration (without them, rivers would get dirtier and would flood more quickly), many rightly panicked when it seemed that 20 percent of the nation's wetlands could be affected by the decision.
Little progress has been made since. Different courts have come to different conclusions about how isolated a wetland has to be before it falls outside the reach of the law. Federal officials in different parts of the country have interpreted the ruling differently too. Some within the administration did seem set to leap on the decision as a chance to weaken the Clean Water Act further (and allow developers to drain even more land). Ms. Whitman may have prevented that from happening so far, as she claims. Nevertheless the wording of last week's notice failed to convince everyone of her agency's long-term good intentions.
In fact, there is a better way to clear up the confusion. One piece of legislation is all it would take to remove the reference to "navigability" from the Clean Water Act and reaffirm Congress's original intention, which was to protect all U.S. waters -- swamps included. A handful of senators say they are already building bipartisan support for such legislation (having failed to get anywhere in the last Congress) and will propose it in due course. If Ms. Whitman and the environmentalists are sincere about protecting wetlands, they should focus their joint efforts on persuading Congress to take this issue seriously and to erase all remaining ambiguity on this point.