Will new EPA rules put wetlands at risk?

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. Environmentalists 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."

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 he called it a "retreat from protecting many important headwaters, streams and wetlands."

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.

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.