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July 6, 2007  New York Times
 After Lobbying, Wetlands Rules Are Narrowed  By JOHN M.
BRODER<http://topics.nytimes.com/top/reference/timestopics/people/b/john_m_broder/index.html?inline=nyt-per>

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<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>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<http://topics.nytimes.com/top/reference/timestopics/organizations/e/environmental_protection_agency/index.html?inline=nyt-org>and
the Army
Corps of Engineers<http://topics.nytimes.com/top/reference/timestopics/organizations/a/army_corps_of_engineers/index.html?inline=nyt-org>,
charged with enforcing the Clean Water Act, finally issued new guidelines
last month, which environmental and recreational groups said 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 Sierra
Club<http://topics.nytimes.com/top/reference/timestopics/organizations/s/sierra_club/index.html?inline=nyt-org>.
"The final guidance is clearly weaker than what we saw in the September
guidance."

The guidelines are the government's first effort 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<http://topics.nytimes.com/top/reference/timestopics/people/k/anthony_m_kennedy/index.html?inline=nyt-per>'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. Benjamin H. Grumbles, the E.P.A.'s
assistant administrator for water, said 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 the 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 property
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. Ms. Albrecht also said projects should be reviewed
case by case to see if they met 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.

Ms. Albrecht and Alliance Coal declined to comment. Jeffrey Eisenberg, a
Washington lobbyist for the beef association, said his concern was that the
new rules be clear enough for farmers and ranchers to be able to predict
which lands and waters would be covered.

A White House official involved in the process said that trying to interpret
Justice Kennedy's language was frustrating because his decision was open to
differing interpretations. The process took months, the official said,
because of the complexity and the large number of agencies and interests
involved. He also said there was no significant intervention by Vice
President Dick Cheney<http://topics.nytimes.com/top/reference/timestopics/people/c/dick_cheney/index.html?inline=nyt-per>or
any cabinet officer.

"We hashed it out and I think we ended up with a pretty effective policy,"
said the official, who spoke about internal administration discussions only
on condition of anonymity. "I don't think anybody claimed victory publicly,
and I don't think anybody thinks we're done with this issue either."


-- 
www.michaelbalter.com

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Michael Balter
Contributing Correspondent, Science
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