December 17, 2003

U.S. Won't Narrow Wetlands Protection

By FELICITY BARRINGER

WASHINGTON, Dec. 16 — Making an abrupt change in its approach to the Clean Water Act, the Environmental Protection Agency announced Tuesday that it would jettison plans to remove federal protection from millions of acres of wetlands.

The agency's administrator, Michael O. Leavitt, made the announcement late in the afternoon in a hastily called news conference. The change effectively repudiated an internal draft regulation that proposed withdrawing federal protections from many isolated wetlands and intermittent streams, including many small waterways in the arid West.

"It's our belief that the best approach is to continue reviewing and learning from the data," Mr. Leavitt said, rather than enter into a potentially lengthy legal process by issuing a rule opposed by most state governments.

The legal underpinnings of a regulation narrowing the scope of the Clean Water Act would also have been shaky, he indicated, since recent federal court decisions, including two from the often-conservative United States Court of Appeals for the Fourth Circuit, rejected arguments that in many respects paralleled the lines of argument that the agency had discussed.

Mr. Leavitt emphasized that the impetus for the decision was President Bush's determination to preserve streams and wetlands. "At the root of this is a commitment from the Bush administration to achieve the goal of no net loss of wetlands," he said, adding that these waters "function as nature's kidneys" and "add immense value to economic and aesthetic bounties of this country."

Environmental groups reacted with qualified praise but clear relief, since most had feared that the Bush administration would gain leverage from a 2001 Supreme Court decision that set some new limits on wetlands protection, using it to restrict the Army Corps of Engineers' right to require permits for construction, landfills and other activities that disturb wetlands.

Jim Murphy of the National Wildlife Federation said of the announcement: "It's a win for water resources and wildlife. It's definitely a positive step. How much celebration we can have over them not doing something bad as opposed to doing something good is a question."

Jon Kusler, the associate director of State Wetland Managers, said most state governments strongly opposed the suggested regulatory changes. He said of the states' reaction, "The comments were overwhelmingly against a broad interpretation" of the Supreme Court's 2001 decision that the Clean Water Act did not allow the Corps to require permits for putting a landfill in an abandoned strip mine.

Representatives of the National Association of Home Builders were keenly disappointed at the day's developments. Chandler Morse, a policy analyst for the group, said that without a new rule, confusing and contradictory interpretations of the wetlands regulations would be likely to continue. "I don't think we're going to see any fundamental solutions to the problems we're facing," Mr. Morse said. "And the problems that we're facing, the issues that we'd like to see addressed, are the inconsistency and the unpredictability in the permitting process."

As a regulatory tool, the Clean Water Act along with three decades of legislative, regulatory and legal decisions that have resulted from it form a complex web of sometimes confusing restrictions.

The Clean Water Act is also an important symbol, since it was one of the signal early pieces of environmental legislation. Any major change, particularly one that state governments find threatening to the environment, could carry large political consequences.

A spokeswoman for the E.P.A. said there were 100 million acres of wetlands in the continental United States and 160 million in Alaska.

In conjunction with the original E.P.A. notice that the extent of protected wetlands might be curbed, the agency's Washington headquarters sent a notice to staff members and Army Corps of Engineers offices around the country to check with the central office before asserting jurisdiction over a wetland.

Asked if that guidance to the national staff remained in effect, G. Tracy Mehan III, the assistant administrator, said, "The guidance is still in effect, although we have been engaged with the Army Corps of Engineers to make sure that we track not just caes where we assert jurisdiction but questions of how we decline jurisdiction."

One issue in deciding to revise the regulatory strategy, Mr. Mehan said, was the possibility of unintended consequences of a rule change.

Because various parts of the law and the definitions in them are linked, Mr. Mehan said, "playing around with" the definitions under the wetlands permitting provisions "could affect the whole program," and eventually "extend to the fundamental architecture of the Clean Water Act."