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Great Lakes Article:

Going Backwards
U.S. Plan Could Ease Limits on Wetlands Development

Douglas Jehl
The New York Times

WASHINGTON, Jan. 10 The Bush administration opened the way today for a redefinition of federal rules that could remove obstacles to development on millions of acres of isolated wetlands historically protected under the Clean Water Act.

Inviting public comment on the shaping of new rules, the administration said it was acting in response to a 2001 Supreme Court ruling that limited the scope of the Clean Water Act's jurisdiction over isolated wetlands. But in contrast to the Clinton administration, which interpreted that opinion very narrowly, the Bush administration signaled its willingness to consider a much broader approach that could ultimately remove from federal jurisdiction up to 20 percent of the country's wetlands.

The Environmental Protection Agency and the Army Corps of Engineers said the action would "clarify and reaffirm" the agencies' authority "over a vast majority of the nation's wetlands." But critics, including leading environmental organizations, said the plan could reduce the scope of the Clean Water Act well beyond what the court required. Depending on the outcome of the rule-making process, they said, developers would no longer need to seek federal permits before filling in land on millions of acres of wetlands where their actions have until now been strictly regulated.

In the meantime, until any new rules are made final, the corps and the E.P.A. issued new guidance to their field offices discouraging them from asserting jurisdiction over wetlands unless they lie adjacent to traditional navigable rivers, streams and their tributaries. In cases involving isolated non-navigable waters located within a single state, the guidance said, formal approval from the agency's headquarters would now be required to assert federal jurisdiction.

The administration move could benefit homebuilders and other developers, who have long complained that federal agencies unlawfully extended the reach of the Clean Water Act to include waters and wetlands that should not fall under the jurisdiction of the federal government. Homebuilders' organizations backed the challenge to the rule that was upheld by the Supreme Court in January 2001, in Solid Waste Agency of Northern Cook County v. Corps of Engineers.

But today's move was denounced by some environmentalists and their allies in Congress, including Senator James M. Jeffords, the independent from Vermont, who said in a statement that it would "roll back 30 years of progress" under the Clean Water Act.

At issue is the question of to what extent the act should extend to isolated wetlands. The Supreme Court decision in the 2001 case, involving an isolated pond, invalidated the corps' "migratory bird rule" as the basis for regulating wetlands with no connection to navigable waterways. That rule said that because migratory birds, which use isolated wetlands, are significant to interstate commerce, the federal government may regulate ponds, even if they have no other connection to commerce or federal waters.

But the Supreme Court's decision striking down that rule created confusion among federal and state officials over which waters remain under federal control. In arguing cases since in federal court, the Justice Department has generally interpreted the decision narrowly, saying the only waters that lost federal jurisdiction were those completely isolated from streams and rivers and where the migratory bird rule was the only basis of federal regulation.

Environmentalists agree with the narrow interpretation and have been lobbying the Bush administration to issue a guidance policy directing regional officials to take that view. Developers, property rights advocates and Western lawmakers, however, say that the court's decision invalidates the federal government's jurisdiction over any waters that are not navigable or directly adjacent to navigable waters.

Today's action by the administration did not settle the issue, but it went well beyond strict compliance with the Supreme Court decision.

As a test of which waterways and wetlands might fall under the Clean Water Act, it ruled out those that were completely isolated and whose sole qualification for federal jurisdiction was their use by migratory birds, the one standard the court explicitly rejected.

In addition, however, by inviting 45 days of public comment in preparation for proposing new rules, the administration also opened the way for a broader reinterpretation that could rule out other isolated wetlands from Clean Water Act protections, including those adjacent to waterways that, while non-navigable, have until now been regarded as subject to federal law because of links to recreation and other interstate commerce.

Representative Doug Ose, a California Republican who is chairman of a House subcommittee with oversight over the issue, said today that he hoped that new regulations would "provide clarity and certainty to what is and isn't federal jurisdiction on wetland matters."

But Daniel Rosenberg, a wetlands expert at the Natural Resources Defense Council, an environmental advocacy group, criticized the administration's proposal as "scientifically bankrupt."

"The Clean Water Act has been tremendously successful because its longstanding rules ensure that all water bodies, large or small, are protected," Mr. Rosenberg said. "Once again, the White House has tuned out the science and is only listening to the siren song of developers and mining companies."

At the same time, however, the National Association of Homebuilders, a lobbying group that represents most developers, complained that the administration action was ambiguous and did not resolve the confusion over what was covered under the Clean Water Act.

"With or without today's revised guidance, our position on isolated wetlands regulation could not be more clear," said Gary Garczynski, the organization's president. "The federal government cannot require a permit when a landowner wants to fill an isolated wetland that is located only within one state and has no connection to navigation."

The shape of the new proposal had been the subject of intense, high-level discussions within the administration, a sign of recognition that any action that could be interpreted as a blow to clean water would be politically charged. Today's announcement followed several days of postponements as the proposal was redrafted to emphasize what a senior E.P.A. official, Ben Grumbles, said at a briefing was the administration's commitment to the federal protection of wetlands "to the full extent possible under the Clean Water Act and the recent Supreme Court case."

According to the agency, the country has about 100 million acres of wetlands, and at least 80 percent of them will remain subject to the Clean Water Act because they lie adjacent to traditional navigable waters and their tributaries, under standards that the Bush administration has not opened to review.

The agency said it did not know what portion of the remainder, up to 20 million acres, had qualified solely because of its use by migratory birds, and what portion might still qualify under other standards not struck down by the Supreme Court. But the agency and the corps seemed to raise doubts about those standards as well, saying in their new guidance today that "field staff should seek formal project-specific HQ approval prior to asserting jurisdiction over isolated non-navigable intrastate waters based on other types of interstate commerce links."

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