Federal court ruling puts protection of isolated wetlands at risk A Virginia federal court has caned into question the government's ability to protect isolated wetlands such as prairie potholes and kettle bogs. Without federal protection, many states will not move forward to implement their own programs to protect these wetlands, predicted Bob Zepp, an assistant supervisor with the U.S. Fish and Wildlife Service. In overturning a conviction against a developer who filled a wetland in Maryland, the 4th U.S. Circuit Court of Appeals found that the U.S. Army Corps of Engineers had no authority under the Clean Water Act to regulate wetlands that are not connected to navigable bodies of water. If broadly interpreted, the decision "could lead to the loss of federal protection for perhaps millions of acres of wetlands nationally," said William Sipple, an ecologist with EPA's wetlands division. Sipple is referring to isolated, seasonal wetlands that are not located adjacent to a body of water and are filled only at certain times of die year. These include die prairie potholes of the northern plains, which are a critical breeding and stopover habitat for migratory waterfowl. The interfluve wetlands, distributed along the coastal plain from New Jersey to Texas, provide important flood control. The seasonal playa lakes of the Southwest, another stopover for migratory waterfowl, are also at risk, Sipple said. The isolation that led the court to question protection of these wetlands under the current regulation is what lends them their special features. "They are islands of rare and endemic species that are very important to regional biodiversity," Sipple noted. The Dec. 23 ruling reinterprets a Clean Water Act regulation tiiat authorizes the Corps to regulate U.S. waters. The autiiority is based on die Constitution's commerce clause, which allows federal oversight of interstate commerce. In siding with the developer, the appeals court noted that wetlands that do not flow directly into navigable bodies of water do not af-
Delmarva Bay wetlands, located in central Delaware, are flooded six months each year and provide habitat for endangered plants while recharging a surface water aquifer used for drinking water. (Courtesy U.S. Fish and Wildlife Service)
fect interstate commerce and therefore are not U.S. waters. The ruling means that the Corps can't regulate isolated wetlands in the five states under the court's jurisdiction: Virginia, West Virginia, Maryland, North Carolina, and South Carolina. Maryland is the only one of these states with strong wetlands protection laws,
and Virginia has none. If the ruling is adopted nationally, Zepp said, "The states won't bother to regulate these wetlands. Pennsylvania has said that it won't regulate them if the federal government doesn't. The states could have a race to the bottom." Attorneys believe that other developers will try to pursue wetlands claims using the same defense. "There is no question that developers will try to duplicate this decision in other courts," said Drew Caputo, an attorney with die Natural Resources Defense Council. Virginia Albrecht, an attorney with the Washington, D.C., law firm Beveridge & Diamond, agreed. Meanwhile, the Department of Justice gambled that it could convince the court it can't invalidate the Corps' authority. On Jan. 13, die U.S. Attorney's Office petitioned the S3.me threejudge panel to reconsider its ruling. The petition Wcis dgfjjgcl cind the developer will be retried At the same time EPA plans to issue guidance on wetlands permitting and build a carefully documented case for protection of these wetlancjs —JANET PELLEY
British regulatory agency calls for action to reduce use of endocrine-disrupting chemicals "The writing is on the wall" for industrial endocrine-disrupting chemicals, said the Environment Agency of England and Wales in one of the strongest official statements of concern to be made in Europe. Releasing new evidence of a direct link between environmental exposures to endocrine or hormone disrupters and effects on wildlife, die agency said mat some action was needed and mat industry users should consider "lower toxicity" alternative chemicals. A wide variety of chemicals, both natural and synthetic are known to be capable of interfering with animal endocrine systems International concern is growing but there is still little firm knowledge on which to base policv Last year German Envi-
1 2 8 A • MARCH 1, 1998 / ENVIRONMENTAL SCIENCE & TECHNOLOGY / NEWS
ronment Minister Angela Merkel made a strong plea for more research on the issue but did not call for immediate policy actions. Taking a precautionary approach, the agency stated on Jan. 21 that it was time to act. "We don't know everything, but the more we look, the more we see," said the agency's chief scientist, Jan Pentreath. The message for industry was uncompromising: "You know what you are using. We want you to say now if you really need to use these chemicals. Start thinking about it now." Numerous industry sectors could potentially be affected by any concerted move to replace or phase out endocrine-disrupting chemicals. At the top of the agency's priority list is the water in-
dustry, which is responsible for large releases of natural and synthetic chemicals that mimic or actually are the female sex hormone estrogen. Other sectors include textile processing, plastics manufacturing, pesticide production and use, waste incineration, shipyards, timber processes, metal production, and fuel combustion. Chemicals on the agency's initial priority list of endocrine disrupters include a variety of pesticides, phthalate plasticizers biphenolic resin components such as bisphenol-A organotins such as the antifouling agent tributyltin alkvlphenol ethoxylate surfactants and synthetic steroids such as ethinyl oestradiol which is used in the female contraceptive pill The agency's strong position was influenced by new scientific research linking estrogenic chemicals in English and Irish rivers and "feminization" of a common British freshwater fish, the male roach (Jobling, S. et al. The Oestrogenic Effects in Wiid Fish; Technical Report Wl 19; Environmental Agency of England and Wales: Bristol, U.K., 1998). Project leader John Sumpter of Brunei University described the three-year project as "probably the most tensive study on wild populations worldwide " Sumpter and officials say that the study has shown more widespread effects of estrogenic chemicals than they had expected In some rivers 100% of male roach sampled, downstream of a sewage treatment plant had testes containing Drecursors of eees as well as operm. The environmental group Friends of the Earth (England, Wales, and Northern Ireland) called for a major monitoring program and a national ban on alkylphenol ethoxylates, one of the chemicals implicated, by 2003. The Water Services Association rejected the idea that its members were polluting drinking water supplies. —Reprinted with permission from ENDS Environment Daily, Environmental Data Services, Ltd., London (http://www.ends.co.uk, e-mail
[email protected])
NEWS BRIEFS Uncontrolled forest fires emerged as a major worldwide environmental problem in 1997, according to The Year the World Caught Fire, a report by the World Wide Fund for Nature (WWF). In addition to the Indonesian fires that blanketed parts of Southeast Asia with a dense cloud of smoke for several months, fires destroyed forests in Papua New Guinea, Brazil, Colombia, and several African regions. WWF calls for regional and international actions to address the problem, including independent monitoring of natural resources management and better enforcement of national laws For information contact WWF Forests for Life Campaign; phone (44) 1483 419 266 fax (44) 1483 427 965 Innovative state and local air pollution programs are quietly improving air quality and may serve as models for other areas, concludes a report by the Washington, D.C.-based Environmental Law Institute. Twenty-one case studies are presented in Fresh Air: Innovative State and Local Programs for Improving Air Quality, released in December. Programs include flexible permitting, which incorporates emissions trading in Albuquerque, mobile air-monitoring laboratory in Jacksonville, Fla. Other programs fopollution prevention, financial incentives education and public participation. Th.e VG~ can be ordered by calling (800) 433-5120 The threat of pollution from intensive livestock and poultry farms is a national problem, says Sen. Tom Harkin (D-Iowa) in a recent report issued by the Democratic staff of the Senate Committee on Agriculture, Nutrition, and Forestry. "More and more animals on larger farms means there is not enough cropland in some areas to use all of the manure," says the report, which presents current statistics and policy recommendations. Harkin has introduced a bill (S. 1323) to set
standards for handling animal waste at large operations. The report, Animal Waste Pollution in America: An Emerging National Problem, is available on the World Wide Web (http://www.senate. gov/ ~ agriculture / animalw. htm).
Declines in toxic chemical use in two states were not caused by "toxic use reduction" laws, according to a study by the Chemical Manufacturers Assocation. CMA's analysis of state chemical use data showed that reductions in New Jersey were due largely to changes of products and processes at a single Du Pont Co. facility. The closing of three plants in Massachusetts is cited as the major cause of toxic chemical use declines in the state. Pollution prevention planning programs mandated by these states have been proposed as possible models for nationwide programs The report New Jersev and Massachusetts: Toxic Use Reduction Successes? Models for National Programs? is available on the World Wide Web (http://www cmaha com/infosrjhere/ infosnhere index nress html! The expanding world economy will eventually destroy its natural support system, warns the 1998 edition of the Worldwatch Institute's State of the World report (W W Norton & Co.. New York, 1998). Citing the $244 billion flow of private capital from industrial to developing countries in 1996, the report emphasizes the challenge of converting that investment from resource-intensive, polluting industries to environmentally sustainable activities. The 15th edition of the report reviews wavs of "building a new economy " including revising tax policies
MARCH 1, 1998 / ENVIRONMENTAL SCIENCE & TECHNOLOGY / NEWS • 1 2 9 A
