In a Jan. 11 article on new wetlands guidelines, an incorrect first name was given for the National Wildlife Federation's Julie Sibbing. (Published 1/13/03)
As many as 20 million acres of the nation's wetlands may lose federal protection from industrial pollution or unlawful development as a result of new guidelines announced yesterday by the Bush administration.
Officials said the step was necessary to comply with a Supreme Court ruling, but environmentalists said it was part of an industry-backed effort to gut key protections under the 30-year-old Clean Water Act.
Yesterday's announcement stems from a regulatory guidance letter, which was prompted by a 2001 Supreme Court ruling that denied Clean Water Act protection to isolated, nonnavigable ponds and wetlands contained in a single state. The letter was issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers.
Regional offices of the EPA and Army Corps were formally instructed yesterday to withhold clean water protection from those types of isolated wetlands and to seek guidance from headquarters in determining whether to protect other small intrastate streams and waterways that enjoy federal protection.
EPA Administrator Christine Todd Whitman and other officials said the new guidelines "reaffirm federal authority over the vast majority of America's wetlands." The new regulation would shift responsibility from the federal government to the states for protecting as much as 20 percent of the 100 million acres of wetlands in the Lower 48 states, according to official estimates.
"We are committed to protecting America's wetlands and watershed to the full extent under the Clear Water Act and the recent Supreme Court ruling," Whitman, who was out of town, said in a statement. "We are also committed to full public involvement in this process, and we will seek additional information and scientific data for possible rulemaking."
But environmental groups warned that the guidance letter and the planned rule making marked the government's first step toward severely weakening the law and putting at risk hundreds of thousands of miles of small streams, tributaries and wetlands. They claimed the administration was unnecessarily trying to broaden the impact of what at most was a narrowly construed high court ruling.
"This attack on one of this nation's most important environmental laws flies in the face of common sense and American values," said Joan Mulhern, senior legislative counsel for Earthjustice. "The public does not want more dirty water."
Rep. Doug Ose (R-Calif.), chairman of a House Government Reform subcommittee on natural resources, hailed the administration action. He said it will clear up uncertainty for regulators and developers while allowing each state to adopt regulations addressing their respective wetlands.
Sen. James M. Jeffords (I-Vt.), outgoing chairman of the Environment and Public Works Committee, said the administration guidelines "strike at the very heart of the Clean Water Act" at a time when 40 percent of the nation's waterways still do not meet basic clean water standards.
Housing industry representatives who have been pressing the administration for a new rule because of the Supreme Court ruling voiced disappointment that the guidance letter was not more specific in defining the "isolated" streams and wetlands that no longer would be afforded environmental protection. Developers and homebuilders have complained that uncertainty over enforcement policy has delayed construction and resulted in lost job opportunities.
"The wetlands guidance issued today . . . will only perpetuate the confusing disarray of wetlands regulations that currently exists in the field," said Gary Garczynski, president of the National Association of Home Builders. "The regulated community has not received the real guidance that it needs from the agencies regarding objective limits on the extent of the Clean Water Act jurisdiction."
The administration has been wrestling with the enforcement issue for weeks, and there were indications that the EPA and the White House decided to narrow the effect of the new guidelines at the last minute, in response to criticism from environmental groups. "While it leaves a huge open door to interpreting the Clean Water Act jurisdiction, it wasn't exactly like we thought it would be in terms of removing protections from various waterways," said Judy Sibbing of the National Wildlife Federation.
The January 2001 ruling by the Supreme Court involved a challenge to federal clean water jurisdiction over isolated ponds in Illinois. While the ponds served as migratory bird habitats, they were nonnavigable and isolated from the tributary system regulated by the act.
In a 5 to 4 ruling, the court held that the Army Corps had exceeded its authority in asserting its jurisdiction over the ponds based on their use as a habitat for migratory birds. The ruling said the Clean Water Act's intent was to protect navigable waters used in commerce and adjoining wetlands, but not isolated, intrastate, nonnavigable ponds and wetlands.
Yesterday's announcement was the latest in a series of steps by the administration that critics say will loosen federal enforcement of the Clean Water Act or hand responsibility to the states. Administration sources yesterday cited policy initiatives and proposed budget increases aimed at wetlands preservation and restoration.