WASHINGTON — The Bush administration made it harder Tuesday for non-permanent streams and nearby wetlands to be protected under the federal Clean Water Act.
The new guidance issued by the Environmental Protection Agency and the Army Corps of Engineers requires that for such waters to be protected there must be a "significant nexus" shown between the intermittent stream or wetland and a traditional waterway.
And the guidance says a determination will be made on a case-by-case basis, analyzing flow and other issues. Environmentalist argued that would negate the broader regional importance of many such waterways in the aggregate on water bodies downstream.
Assistant EPA Administrator Benjamin Grumbles said the new guidance to regional offices and enforcement officials "sends a clear signal we'll use our regulatory tools" to meet President Bush's promise of no net loss of wetlands.
He said it "maintains ... the Bush administration's strong commitment to wetlands conservation."
Creates 'hurdles,' activists complain
Environmentalists said the new rules will put in jeopardy many of the intermittent streams and headwaters that now fall under the Clean Water Act, and result in less protection of wetlands.
"This guidance adds unnecessary and unintended hurdles for agencies and citizens trying to protect our wasters," said Jan Goldman-Carter, an attorney for the National Wildlife Federation, and she called it a "retreat from protecting many important headwaters streams and wetlands."
"This poses the question of whether the tributaries themselves will be protected under the Clean Water Act," added Joan Mulhern of Earth Justice, an environmental advocacy group. The impact of the more stringent guidelines could be broad because nearly 60 percent of the country's stream miles are intermittent, she said.
Under the new guidelines, it will be determined on a case-by-case basis whether such tributaries or adjacent wetlands significantly affect traditionally navigable waterways and, thereby, are subject to the Clean Water Act.
John Paul Woodley Jr., the assistant Army secretary who oversees the Corps of Engineers, said the policy "will foster ... predictability and consistency" in determining whether a permit should be issued to conduct activities in an intermittent tributary or adjacent wetland.
Tied to Supreme Court ruling
Grumbles said the new guidance conforms with a ruling by the Supreme Court a year ago. A divided court said that while the government can block development in a wetland, even miles from a traditional waterway, it can do so only if there is a significant connection shown with the waterway.
While the ruling fell short of what some property rights advocates wanted in limiting the law's reach, it said — in the words of Justice Anthony Kennedy — that there must be a "significant nexus" shown between the wetland and a navigable waterway.
The EPA guidelines meet that test, said Grumbles, requiring an analysis on a case by case basis of water flow and hydrological and ecological factors that would determine the relationship of the tributary to navigable waters downstream.
"This policy does nothing to clarify what waters should be protected. It muddies the water," said environmental advocate Christy Leavitt of U.S. PIRG.
In light of last year's Supreme Court ruling, which was so splintered that there were five separate opinions written by the justices, some members of Congress have sought to clarify the Clean Water Act's reach in protecting wetlands and intermittent streams.
A bill offered by Reps. John Dingell, D-Mich., and James Oberstar, D-Minn., which has 160 sponsors, would make changes in the Clean Water Act to assure that virtually all U.S. waters, including intermittent streams and wetlands, are covered.
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