U.S. Plan Could Ease Limits on Wetlands Development
The New York Times
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.
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
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
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
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.
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.
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.
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.
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.
action by the administration did not settle the issue,
but it went well beyond strict compliance with the Supreme
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.
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.
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."
Daniel Rosenberg, a wetlands expert at the Natural Resources
Defense Council, an environmental advocacy group, criticized
the administration's proposal as "scientifically bankrupt."
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."
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.
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."
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."
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
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."