Administration moves to limit federal protection of wetlands

'01 Supreme Court ruling could lead to removing 20% from U.S. jurisdiction

January 11, 2003|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - The Bush administration opened the way yesterday 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 shaping new rules, the administration said it was responding 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 U.S. wetlands.

The Environmental Protection Agency and the Army Corps of Engineers said the action would "clarify and reaffirm" their 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 had 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 EPA 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, intrastate, non-navigable waters, 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 federal jurisdiction.

Homebuilders' organizations backed the challenge to the rule that was upheld by the Supreme Court in January 2001.

But the move was denounced by some environmentalists and their allies in Congress, including Sen. James M. Jeffords, the independent from Vermont, who said in a statement that it would "roll back 30 years of progress" under the landmark environmental law.

At issue is the question of how far the Clean Water 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 the decision invalidated U.S. jurisdiction over any waters that are not navigable or directly adjacent to navigable waters.

Yesterday's action by the administration did not settle the issue, but it went well beyond strict compliance with the high court's 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 from Clean Water Act protections other isolated wetlands, 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.

Rep. Doug Ose, a California Republican who is chairman of a House subcommittee with oversight over the issue, said he hoped that new regulations "will 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."

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