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As President Bush prepares to deliver his third State of the Union Address, there is little good news to report on the State of America’s Environment. On several fronts, America’s core environmental protections are under attack by polluters and allies in Congress and in the Bush administration. Following is a detailed analysis of the current threats to our environment.

Please contact Laura Etherton, OSPIRG Field Director, at (503) 807-6409 for additional comment.

Legislative Issues

Energy Bill – Senate leadership is expected to continue pushing harmful energy legislation that they were unable to advance past a bipartisan filibuster last session. Among the biggest concerns with the bill are provisions that would shield MTBE producers from product liability lawsuits, force communities to breathe dirty air for longer by delaying important smog control measures, allow the oil and gas industry to violate key requirements of our nation’s clean water laws, and threaten public lands with harmful energy development. The bill would also provide more than $30 billion in subsidies and tax breaks to polluting industries.

Dirty Air Rider – The dirty air rider, snuck in behind closed doors during conference, would drastically weaken clean air protections for some of the most polluted cities in the nation, including Washington DC, Dallas, Atlanta, and Baton Rouge. This provision would allow these cities to delay implementation of health-protecting clean air measures already adopted in cities with similar air pollution problems, including New York City, Los Angeles, Philadelphia, Chicago, Baltimore, and Milwaukee.

Clean Water Exemptions –A provision in the energy bill threatens 30 years of work to clean up the nation's waters. Oil and gas industry lobbyists got a provision slipped into the House version of the Energy bill that could exempt them from Clean Water Act provisions that limit stormwater pollution from construction sites. Such runoff from construction sites can even contain toxic chemicals, such as benzene, toluene, and heavy metals that also pollute our nation's waters, even threatening the safety of drinking water supplies.

Arctic Refuge – The administration and the Alaska delegation remain determined to open the Arctic National Wildlife Refuge to oil and gas drilling. When the budget is released this year, Arctic Refuge drilling revenues could be included in the federal budget, just as they were last year. Drilling proponents may also include the Arctic Refuge in the Senate budget resolution. And as in years past, the Alaska delegation will also attempt to add last-minute legislative "riders" to bills that would threaten Alaska's wild lands, including the Arctic Refuge, and the Tongass National Forest. Sweeping legislation from the Alaska delegation that would undermine current protections for Alaska's public lands could also be introduced this year as well.

Endangered Species Act

Senate Hearings – Senator Crapo (R-ID) is scheduling hearings this winter on the Endangered Species Act’s critical habitat provisions. Legislation is likely.

House Action – Representative Pombo (R-CA), perhaps Congress’ most vociferous opponent of the ESA, has signaled his intention to take on the Act “bit by bit.” Hearings and Pombo-sponsored legislation are expected.

Clear Skies Initiative – The Bush administration’s air pollution plan would weaken public health protections of the current Clean Air Act. The administration plan would hurt public health and help big polluters by delaying and diluting cuts in power plants’ sulfur, nitrogen and mercury pollution compared to timely enforcement of current law. The administration plan would roll back the current law’s public health safeguards to protect local air quality, curb pollution from upwind states, and restore visibility in our national parks. The administration plan would do nothing to curb power plants’ growing emissions of carbon dioxide, the main cause of global warming. The environmental community supports S. 366 which was passed by the Senate EPW Committee in 2002.

Marine Issues – Ocean issues are increasingly on the legislative calendar. Possible action in the 2nd session includes further attacks on the Marine Mammal Protection Act (led by Rep. Pombo chair of the House Resources Committee at the behest of Don Young (AK), there may also be some effort in the Senate Commerce Committee on MMPA reauthorization as well. In addition, the reauthorization of the Magnuson-Stevens Fisheries Act (again, the action is expected to be in the House Resources Committee), and there may well be some hearings, and possibly legislation, in response to the anticipated release in March of the congressionally-chartered U.S. Oceans Commission, whose report is coming on the heels of the Pew-chartered Oceans Commission Report released in 2003.

Appropriations Overview

Budgets Cuts – The annual budget resolution and appropriations bills are expected to make severe cuts to programs that protect natural resources and public health. Given the trend we have seen during the past three years, we expect clean water infrastructure, EPA enforcement, land acquisition and the Land and Water Conservation Fund to be severely under funded.

Anti-environmental riders – We expect continued assaults on laws including the National Environmental Policy Act, and standards protecting national forests (particularly those in Alaska).

Department of Defense – While we have not yet seen proposed language from OMB, the administration is expected to continue pushing for exemptions from environmental laws that Congress didn’t approve last year. In particular, during annual Department of Defense reauthorization, we expect Congress to consider proposals that would weaken the Clean Air Act, Resource Conservation and Recovery Act, and Superfund.

DOD ESA Exemptions – Despite bipartisan opposition, the DOD was successful in securing the first-ever exemptions to the Endangered Species Act. Pro-environment lawmakers are planning to work to lift those exemptions in the coming year.

Transportation Reauthorization and Appropriation – Senate leadership is expected to push a more than $300 billion bill reauthorizing the nation’s surface transportation system early this session. The current bill, reported this fall from the Environment and Public Works Committee, includes assaults on laws such as the Clean Air Act and National Environmental Policy Act. The House version, which has not moved yet, is expected to contain even more anti-environmental measures.

Clean Water Act – Bi-partisan congressional champions of clean water introduced legislation to reaffirm the historic scope of the Clean Water Act. The effort in the House was lead by Congressmen Dingell, Leach, Boehlert and Oberstar and in the Senate by Senators Feingold and Jeffords. The legislation has gained more than 100 co-sponsors in the House and 13 in the Senate.

Administrative Actions

Clear Skies Initiative – The Bush Administration’s air pollution plan would weaken public health protections of the current Clean Air Act. This so-called “Clear Skies Initiative” would delay and dilute cuts in power plants’ sulfur, nitrogen and mercury pollution compared to timely enforcement of current law. The administration’s plan would roll back the current law’s public health safeguards to protect local air quality, curb pollution from upwind states, and restore visibility in our national parks. The administration’s plan would do nothing to curb power plants’ growing emissions of carbon dioxide, the main cause of global warming.

Mercury – Mercury is a potent neurotoxin that is particularly dangerous to pregnant women and children who are exposed by eating contaminated fish. The EPA has authority under the Clean Air Act to dramatically cut emissions of mercury from coal-fired power plants, chlorine production facilities, and iron and steel plants recycling automobiles with mercury components. However, the administration thus far has issued weak rules for chlorine plants, refused to take speedy action to address mercury-contaminated scrap, and has issued a proposal to weaken and delay efforts to clean up mercury emissions from America's coal-fired power plants. The EPA isn't the only agency asleep at the mercury switch; the FDA recently proposed new advice to fish consumers that fails to explain which fish are the most contaminated and should be avoided, the result being that consumers could follow FDA's advice faithfully and still be exposed to unsafe mercury levels.

New Source Review – The New Source Review provisions of the Clean Air Act apply to all of the more than 20,000 power plants, oil refineries, and other major sources of air pollution across the country. The provisions declare that a company cannot change a major air pollution source in a way that would increase emissions significantly without demonstrating that the facility will use modern pollution controls after the change, and that any pollution increase that results notwithstanding the controls will not harm air quality. The EPA began suing the nation’s coal-fired power plant operators in 1999 for boosting their emissions without going through New Source Review. The defendants complained to the Bush administration that they had had no idea that their activities were illegal, and that EPA was really ambushing them with a sudden reinterpretation of the Clean Air Act. But the Justice Department has just uncovered internal industry documents showing that the companies have been lying – that they actually knew all along that they were violating the law. Nevertheless, the Bush administration is still parroting industry’s complaints in an attempt to justify a broad new regulatory exemption that it carved out of New Source Review in 2003. Thankfully, the U.S. Court of Appeals for the D.C. Circuit blocked the new regulatory exemption from taking effect in a Christmas Eve ruling that said the new exemption likely violated the Clean Air Act and would cause irreparable harm to thousands of individuals across the country if allowed to take effect.

Clean Water Act – On December 16, the administration announced it was abandoning plans to rewrite the rules of the Clean Water Act to permanently abandon protection for the majority of the nation’s streams and wetlands. However, a policy directive issued by the administration when the rulemaking was announced remains in effect. The directive to Army Corps and EPA field staff (called a “guidance” by the agencies) tells EPA and Corps staff they should not require Clean Water Act permits for activities that can pollute or destroy many wetlands and seasonal streams unless they first get permission from agency headquarters. No such approval is required for any official’s decision to decline Clean Water Act jurisdiction over these waters. Thus, EPA and Corps officials are being told they have free rein to determine which streams, wetlands, and other waters they think should no longer receive Clean Water Act protections. Those waters will then be open for filling, dredging, or the discharge of toxics, sewage, animal waste, or other pollutants. This one-sided, anti-clean water policy directive must be rescinded if the nation’s waters are to be protected as Congress envisioned when it passed the Clean Water Act in 1972.

Global Warming – The latest figures show that 2003 was the third hottest year on record, while new scientific reports once again affirm the widespread expert consensus that this unprecedented warming is indeed caused by heat-trapping pollution and demonstrate the threat that global warming poses to our health, our economy and our environment. In the face of mounting evidence, the administration continues to raise the specter of scientific uncertainty in an effort to justify its opposition to sensible steps to cut carbon dioxide emissions. The administration's isolated and irresponsible approach to global warming has drawn the ire of even our closest allies. Sir David King, the chief scientific advisor to Prime Minister Tony Blair wrote a stinging critique of U.S. policy in the 9 January issue of Science, noting that "the U.S. government...has refused to countenance any remedial action now or in the future..." Look for increased attention to global warming from the presidential candidates, another expected vote on the McCain-Lieberman global warming bill, and at the G8 economic summit in Sea Island, Georgia.

Energy Efficiency Standards for Heating, Cooling and Transformers – Energy Efficiency standards for three products: commercial cooling and heating equipment, residential furnaces and boilers and electrical transformers could save consumers billions, reduce energy consumption, and help curb global warming and air pollution. The Department of Energy had pledged to propose these standards by the Fall of 2002, but has yet fulfill this pledge

Auto Fuel Economy -- The U.S. National Highway Traffic Safety Administration's (NHTSA) proposed redrafting of fuel economy rules, announced on December 22, is changing the rules of the road on fuel economy in the name of efficiency. The agency notice states it may rewrite miles per gallon standards based on vehicle weight or other attributes, but a weight-based system would encourage heavier SUVs and pick-up trucks. We are already at a 22-year low for average fuel economy, but this system could encourage even more gaming to get vehicles into categories with lower fuel economy requirements. Final comments are due on April 27.

Hydrogen Research and Development – Last year the President announced a hydrogen research initiative to develop cleaner cars. Hydrogen, one of the planet's most common elements, has the potential to drive the next energy revolution. When it is used for power, the only byproducts are pure water and heat. However, since producing hydrogen requires energy, only hydrogen produced from clean energy sources will reduce energy-related pollution. Unfortunately the Bush Administration’s hydrogen program subsidizes fossil and nuclear energy, which will squander billions of dollars and increase pollution.

Environmental Enforcement – Punishing polluters, by fines or referrals for prosecution, has dropped under the Bush administration. Administrative fines since January 2001 are down 28 percent, when adjusted for inflation, from Clinton administration levels. In addition, the monthly average of violation notices against polluters, a key enforcement tool, has dropped 58 percent compared with the Clinton administration's monthly average. Each year, the White House has proposed severely slashing the EPA budget for enforcement of our environmental laws. Fortunately Congress has stepped in to restore most funding. It seems very possible that we will see, again, an effort to further weaken EPA's ability to do its job by draining it of resources.

Superfund – According to a recent EPA Inspector General’s report, the Bush Administration under-funded the Superfund toxic waste cleanup program by at least $174.9 million in fiscal year 2003. Twenty-nine cleanup projects in 17 states were slowed, and only 40 cleanups were completed in 2003, compared to an average of 87 per year in the late 1990’s. Since the Superfund trust fund is bankrupt, and the Bush Administration refuses to reinstate Superfund’s polluter pays fees as part of its federal budget, taxpayer dollars will fund cleanups at all abandoned Superfund sites this year. The year Superfund’s polluter pays fees expired, taxpayers paid for only 18% of program costs.

Superfund Advisory Committee to Publish Report (NACEPT) – The Bush Administration convened a federal advisory committee on Superfund that was charged with recommending potential reforms to the Superfund program. The committee is stacked with representatives from the largest Superfund polluters in the nation and other special interests that have traditionally sought to weaken Superfund’s polluter pays principle and EPA’s ability to protect public health at Superfund sites. The final report will come out later this spring, and the administration will likely move forward with administrative reforms recommended by the committee, despite the pro-environment recommendations of the few public interest representatives on the panel. These regulatory reforms could range from reduced liability for polluters to inadequate cleanup standards.

EPA Retirements – The EPA has seen several of its career enforcement officers and scientists resign recently amid frustration over the administration’s junking of scientific studies that contradict administration policy. Most recently, three EPA officials left after the administration decided to drop enforcement cases against 50 power plants suspected of violating the Clean Air Act.

Pesticides and Endangered Species -- The Bush Administration is pressing forward with an industry-proposed rule change that would exempt EPA pesticide decisions from important protections under the Endangered Species Act. The proposed rule change came after extensive closed-door discussions with chemical industry representatives, and would leave endangered species more vulnerable to the toxic effects of pesticide exposure.

Citizen Right to Know: The EPA has recently released a white paper asking for comments on multiple proposals aimed at reducing industry's burden from reporting emissions to the Toxic Release Inventory Program, the most popular and successful right-to-know program. Many of EPA's proposals undercut the power of the program by removing vital information from the public about toxic chemicals released into our air, water, and onto our land every year. While using burden reduction as a guise to limit reporting, the white paper fails to include options that would make it easier for the public to review the pollution data. A rulemaking period could follow the white paper comment period later this year.

European Toxic Chemical Testing Policy - The Bush Administration has also led the way in working against European reforms of toxics chemicals policy, by working to kill a proposal known as REACH. Under REACH, chemical manufacturers would be required to test chemicals for health impacts before they are put on the European market. After a major fundraising push during 1999 by the leaders of the chemical industry, the EPA, State Department, Commerce Department, and U.S. Trade Representatives have worked to weaken the proposals in Europe on behalf of the U.S. chemical industry, without regard to efforts to protect health in Europe. As a result, this past year the EU released greatly weakened drafts of the proposal, and has now stalled talks and negotiations on the effort until the fall.

Chemical Security - In 2003, the Bush Administration has worked hard to keep the public in the dark about the threat of terrorist attacks on chemical facilities. In 2002, the Bush Administration admitted the lack of security at thousands of chemical facilities across our country was a major problem. However, in 2003 the same administration worked on behalf of the chemical industry to stall efforts to fix this problem with the Chemical Security Act. Instead, the administration backed a bill that does nothing to actually require chemical facilities address the root of the problem. As a result, across the country, there are over 100 facilities that each put over one million people at risk of injury or death. Also in 2003, newspaper reporters and camera crews from 60 Minutes were able to gain access to over 50 chemical facilities -- proving the inadequacies of voluntary industry guidelines currently in place.

Public Lands/Forests

Tongass – The day before Christmas Eve 2003, the Forest Service announced their intention to "temporarily" exempt the Tongass National Forest from Roadless Rule protections. The finalization of the exemption of the Tongass and possibly the Chugach National Forest from the Roadless Rule is scheduled to happen within the coming year.

Roadless Areas in the Lower 48 – In addition to exempting the Tongass from the roadless rule, which protects 58.5 million acres of pristine national forests from most logging and road-building, the Bush administration is expected to weaken the rule in the Lower 48 within the next few months. They have said they plan to allow governors to seek exemptions for forests in their states, thus giving them decision-making power over federal lands owned by all Americans.

National Forest Management Act – The final Bush administration rewrite of NFMA is due at any time. Draft copies of the rules indicate that they represent a dramatic departure from decades of sound forest management, with increased logging and limited public participation in forest management decisions.

Wild Lands for Sale to the Highest Bidder – In February 2004, the Bureau of Land Management (BLM) will place wilderness-quality lands on the chopping block once again with an oil and gas lease sale in eastern Utah. These lands, which include the spectacular Book Cliffs and Desolation Canyon, were previously off-limits to development, and just a few years ago, found to be worthy of wilderness protection by the BLM itself. These wild lands are among the first victims of the Bush administration's "no more wilderness" policy implemented last year. Over the next two years resource management plans will be revised across the country favoring fast-tracked oil and gas development and increased off-road vehicle use.

RS2477 (Disclaimer Rule) – In January 2003, the Interior Department issued a regulation (the "disclaimer rule") that helped revive an expired mining law from the 1800’s to allow often-dubious right-of-way claims across public lands. So far the State of Utah and certain counties have used this law to claim that hiking trails through lands proposed for wilderness designation are actually highways and therefore are beyond the jurisdiction of courts or federal agencies to regulate. This change could open these areas to all manner of development and permanently eliminate the wilderness character of pristine areas.

Grazing – In early December 2003, the Bush administration unveiled proposed grazing regulations that would alter the rules now governing livestock grazing on public lands. The changes would overturn efforts over the past decade to improve rangeland conditions and reduce the impacts of grazing on watersheds, wildlife, and cultural treasures.

Imports of Endangered Species – In October 2003, the administration proposed loosening the rules governing the importation of endangered species and their body parts. After extensive public opposition to the new rules, and requests by members of Congress that the rules be delayed, the administration is now set to re-publish the rules and possibly open a new public comment period.

Non-road diesel engine emissions – On the positive side, the EPA has said that it wants to finalize its proposal to cut emissions from the nation's construction, farm, and other heavy "nonroad" diesel engines this spring. This is, by far, the Bush administration's most positive air quality proposal. If it is finalized and implemented fully, it will eliminate more than 9,600 premature deaths annually. It's not a done deal, however—industry lobbyists are lining up for delays, exemptions and weaker standards, and environmental groups are seeking improvements, especially to clean up locomotive and marine diesel engines. The key questions for journalists to follow this winter and spring: Will EPA finalize this rule on time? Will the final rule be compromised by industry lobbyists? Will EPA add extra provisions?

Pending Judicial Cases

Cheney Energy Task Force – A Supreme Court decision on whether the Cheney Energy Task Force must reveal the details of their meetings with industry officials is expected in early 2004. The case was brought by Sierra Club and Judicial Watch. A similar case brought by NRDC and Judicial Watch, goes before a federal district judge on January 26, 2004.

Mexican Trucking Case Decision – In May of 2003, the Bush Administration finalized regulations that would have opened the U.S. borders to Mexican long-haul truck traffic. The Bush regulations failed to take into account the fact that Mexican trucks, on average, are older and more poorly maintained than the U.S. fleet, and that these trucks will not attain emissions standards that will soon be required of trucks in this country. Various organizations, including NRDC, challenged these regulations and won a ruling on January 16, 2003 by the 9th Circuit Court of Appeals that requires the Bush Administration to prepare a full Environmental Impact Statement and Conformity Analysis under the Clean Air Act prior to opening the borders. Unfortunately, rather than comply, the Bush Administration appealed to the Supreme Court, which agreed to hear the case. If the Court overturns the 9th Circuit decision, the Administration will be able to allow smoke-spewing trucks to travel freely, endangering children's health in border states such as California, Texas, Arizona, and New Mexico.

Coal Bed Methane Challenges – Ranchers, landowners and environmental groups have filed several lawsuits challenging the environmentally-damaging practice of extracting coalbed methane by pumping—and then dumping—hundreds of thousands of gallons of contaminated water from underground. In 2004, courts in Montana and Wyoming will be reviewing the Bureau of Land Management's practice of leasing lands for coalbed methane development without thorough environmental analysis, or any consideration of whether certain lands should be put off-limits to leasing. Among the most egregious projects authorized by the BLM would allow up to 82,000 new oil and gas wells in the Powder River Basin.

New source review DC Circuit – Fourteen states, the District of Columbia, and a coalition of environmental and public health groups have filed several challenges to the Bush administration's revisions to this key Clean Air Act program. The new source review revisions would allow thousands of aging power plants and other industrial facilities nationwide to emit more air pollution, threatening the health of millions of Americans. On December 24, the U.S. Court of Appeals for the DC Circuit granted a stay in one of these challenges, blocking the EPA from implementing a new loophole aimed at permitting some 17,000 power plants, refineries, and other industrial facilities to install replacement equipment without updating pollution controls, even when the replacement increases air pollution.

Yucca Mountain Radiation Release Standards – The current EPA standards for radioactivity in groundwater near Yucca Mountain were written to enable the site to be licensed, not to protect the health of future generations. The EPA arbitrarily gerrymandered the site boundary to meet radiation release standards to compensate for Yucca Mountain's unsuitable geology. This lawsuit challenges the EPA rule, which was written specifically for Yucca Mountain and would allow radiation that leaks from the high-level waste to pollute the aquifer and migrate south to a farming community with the groundwater.

Nuclear Waste Cleanup in the Northwest – In July 2003, the Idaho Federal Court ruled that the Department of Energy must comply with the law and clean up high level nuclear waste in WA, SC, and ID, and not abandon potentially millions of gallons of highly toxic radioactive waste in tanks under a layer of concrete-like material. NRDC will continue to defend this decision in court and in Congress, where DOE is attempting to rewrite the Nuclear Waste Policy Act definition of high level nuclear waste.

Factory Farm Rule Challenge – NRDC, Waterkeeper Alliance, Sierra Club, and the American Littoral Society challenged EPA's water pollution rule for factory farms, large-scale hog, dairy, poultry, beef, and other animal operations. Environmental and industry groups filed opening briefs at the end of October; final briefing will be completed in spring with oral argument in the summer or fall.

Two SCOTUS Decisions to Test Administration’s Federalism – In the first case (NRDC, Sierra Club) that day, heard on January 14, 2004, industry argued (with support from the federal government) that federal law preempts California air pollution regulations. In the second case (Earthjustice), heard that same day, the South Florida Water Management District (with support from the federal government) argued that no Clean Water Act discharge permit is required for the District's pumping of polluted stormwater into the Everglades. These two cases make an interesting juxtaposition on the issue of federalism. In the water pollution case, the U.S. opposes application of Clean Water Act permitting requirements, professing deference to state governments. In the air pollution case, that purported respect for states is strangely absent. Instead of supporting California's air pollution regulations, the U.S. argues that those regulations are preempted by the federal law.

National Petroleum Reserve Alaska – Environmental groups are engaged in ongoing legal challenges to the administration's efforts to open vast portions of the northeast section of the National Petroleum Reserve Alaska (NPRA) to oil and gas development.

Tongass – The Bush administration's move to exempt Alaska's Tongass National Forest from roadless rule protection has prompted a host of lawsuits aimed at protecting old growth groves. Additional challenges to the Tongass Land Management Plan and new timber sales are expected over the coming year.

Roadless Areas – Another in a series of cases over the Clinton-era roadless rule will be decided by the 10th Circuit Court of Appeals in Denver this year. The Bush administration is opposing environmental groups' appeal of a lower court ruling striking down the roadless rule.

Wilderness Study Area (WSA) Supreme Court Case – On March 29, 2004, the U.S. Supreme Court will hear a wilderness case that will have far-reaching implications beyond public lands management. Last year the Bush administration asked the court to overturn a 10th Circuit Court ruling that held citizens' ability to force BLM to protect wilderness-quality lands. If the Bush administration wins this case, which originated in Utah and centers on off-road vehicle abuse in a Wilderness Study Area, the public will not be able to go to court when the BLM fails to preserve the wilderness suitability of WSAs, will not be able to force agencies to comply with the management promises made in its land use plans, and will not be able to force agencies to supplement outdated and inaccurate NEPA analyses as the law requires. The decision will apply to ALL federal agencies, ultimately shielding the executive branch from the law and the requirement to carry out statutory and other duties. Merely through inaction, Congress will be undercut and citizens will be left unable to go to court to enforce the law or seek judiciary review. A decision is expected by July 1st.

Mountaintop Removal Mining – Environmental groups have challenged the administration’s continued use of nationwide general permits to authorized “valley fills” for mountaintop removal mining. Such permits are authorized under the Clean Water Act only for discharges that will have “minimal adverse effect” on the environment, both individually and cumulatively. The destruction of streams, forests and wildlife caused by valley fills far exceeds the type of impacts for which Congress authorized general permits. Plaintiffs in the case are NRDC, Ohio Valley Environmental Coalition and Coal River Mountain Watch. The groups are represented by the Appalachian Center for the Economy and the Environment and Trial Lawyers for Public Justice.

Oil Spills and the Clean Water Act – NRDC and Sierra Club, represented by Earthjustice, have intervened in an oil industry challenge to regulations clarifying the scope of the Clean Water Act as it applies to prevention of oil spills. In July 2002, the EPA updated Clean Water Act rules that had been in place since the early 1970’s, replacing the earlier description of the scope of the Act with language used elsewhere throughout the Clean Water Act rules. The American Petroleum Institute and Marathon Oil sued the EPA, arguing that only “traditionally navigable waters” and their immediately adjacent wetlands are protected under the Clean Water Act. The case is being heard in the Federal District Court for the District of Columbia.