[BCNnet] NYTimes.com Article: U.S. Plan Could Ease Limits on Wetlands Development

[keedo@merr.com]

This article from NYTimes.com 
has been sent to you by keedo@merr.com.


The "migratory bird rule" that saved 'isolated' wetlands was "the one standard the court explicitly rejected." Besides the economic importance of birds, your Senators and Reps need to learn the link a prairie pot-hole has to drinking water supplies. No depression is isolated from an aquifer and many are already running dry. Karolyn Beebe

keedo@merr.com


U.S. Plan Could Ease Limits on Wetlands Development

January 11, 2003
By DOUGLAS JEHL 




 

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."

http://www.nytimes.com/2003/01/11/politics/11WATE.html?ex=1043390980&ei=1&en=a5dd69c526ed39cc



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