- WASHINGTON, July 5 - After
a concerted lobbying effort by property developers, mine owners and farm
groups, the Bush administration scaled back proposed guidelines for enforcing
a key Supreme Court ruling governing protected wetlands and streams.
-
- The administration last fall prepared broad new rules
for interpreting the decision, handed down by a divided Supreme Court in
June 2006, that could have brought thousands of small streams and wetlands
under the protection of the Clean Water Act of 1972. The draft guidelines,
for example, would allow the government to protect marsh lands and temporary
ponds that form during heavy rains if they could potentially affect water
quality in a nearby navigable waterway.
-
- But just before the new guidelines were to be issued
last September, they were pulled back in the face of objections from lobbyists
and lawyers for groups concerned that the rules could lead to federal protection
of isolated and insignificant swamps, potholes and ditches.
-
- The Environmental Protection Agency and the Army Corps
of Engineers, charged with enforcing the Clean Water Act, finally issued
new guidelines last month, which environmental and recreational groups
complained were much more narrowly drawn. These groups argue that the final
guidelines will leave thousands of sensitive wetlands and streams unprotected.
-
- The changes in wording between the September and June
versions of the guidelines were subtle, hinging on broad scientific questions
raised by the Supreme Court ruling over the nature of wetlands and natural
drainage systems.
-
- The most nettlesome of these issues was whether regulators
need to show that a wetland is directly connected to a navigable body of
water in deciding if they have jurisdiction to require permits under the
Clean Water Act. The alternate reading, favored by environmental groups,
is that it is enough to prove that a wetland or stream is part of a large
watershed that drains into such waters.
-
- Environmental advocates said the policy adopted in the
June guidance reflected the concerns of developers and polluters and could
have a profound effect on how federal water laws are applied.
-
- "There are definitely waters that will not be protected
because of this latest guidance," said Navis Bermudez, a water policy
analyst at the <http://topics.nytimes.com/top/reference/timestopics/organizations/s/sierra_club/index.html?inline=nyt-org>Sierra
Club. "The final guidance is clearly weaker than what we saw in the
September guidance."
-
- The guidelines are the government's first attempt to
interpret the Supreme Court decision in Rapanos v. United States, in which
the court left a muddled definition of what constituted a protected waterway.
-
- The court divided into two four-member blocs, with Justice
Anthony M. Kennedy's opinion controlling the outcome but leaving government
lawyers and outsiders puzzled as to how to carry out the ruling.
-
- Administration officials involved in drafting the guidelines
said that the rules went through a routine interagency review and that
industry lawyers and lobbyists did not exert improper influence.
-
- The E.P.A. official responsible for enforcing clean water
rules declined to comment on how the rules evolved. That official, Benjamin
H. Grumbles, the agency's assistant administrator for water, said that
the agency "participated in routine discussions with stakeholders,
including environmental groups and members of industry," in drafting
the rules.
-
- Draft guidelines were completed in September and officials
at E.P.A. and the Corps of Engineers prepared a press release outlining
the new rules. But at that point the process halted and the guidelines
moved to the White House, where the Council on Environmental Quality began
a review. Officials at the council described this as a routine part of
the rule-making process.
-
- The draft guidelines, leaked to environmental groups
by someone within the government, allowed officials to look at the impact
of dredging or discharge of pollutants on a wide region or watershed, potentially
putting millions of acres of land adjacent to streams and wetlands off
limits to industry, agriculture and development. Lobbyists for these groups
immediately raised objections.
-
- Virginia S. Albrecht, a prominent Washington lawyer representing
developers, wrote to the White House in September to express concerns about
the breadth of the proposed rules. Among her chief objections was that
the rules as written would allow the government to regulate development
over a wide region even if the impact on a stream or swamp of a proposed
project was highly localized. She also said that projects should be reviewed
on a case-by-case basis to see if they meet the tests set out by the Rapanos
decision.
-
- The National Cattlemen's Beef Association and Alliance
Coal, one of the nation's largest coal producers, also weighed in on the
proposed guidelines, expressing concern that the new rules would affect
temporary drainage ditches and "ephemeral" streams that appear
only after heavy rain.
-
- The Sierra Club, Earth Justice and other environmental
groups concerned about the new rules obtained their communications with
the White House under the Freedom of Information Act.
-
- http://www.nytimes.com/2007/07/05/washington
/06cnd-wetlands.html?_r=1&hp&oref=slogin
|