Industry and environmental groups see signs in the Obama administration's recently released regulatory agenda that U.S. EPA may be preparing at long last to clarify muddled regulations for wetlands and other water resources.
The "Unified Regulatory Agenda and Regulatory Plan," which was released by the White House on Dec. 21, 2012, includes a listing for a proposed rule to establish federal jurisdiction over swamps, marshes, bogs and other wetlands under the Clean Water Act.
For more than six years, regulators and industry have found themselves in a legal quagmire created by two muddled Supreme Court decisions that raise questions about the regulation of isolated wetlands under the 1972 law. Enforcement of federal water pollution laws has dropped in the wake of the rulings, and industry says the uncertainty has sucked up time and money (Greenwire, Feb. 7, 2011).
New rules would determine what wetlands would be protected as filters for pollution, wildlife habitat and storm barriers. The decision would have a significant impact on residential and commercial development, highway construction, agriculture, and oil and gas industries that work in and around wetlands.
When EPA released draft guidance in 2011 to clarify how its current rules should be applied in the wake of the court decisions, the agency described it as an interim step while it worked toward a formal rulemaking.
But as election year politics ramped up, the guidance stalled at the White House Office of Management and Budget shortly after it arrived in February 2012, and environmental groups have since been questioning the administration's commitment to the issue.
"It has been worrisome that it has taken so long to do the guidance, and that has made many of us wonder what is going on," said Ed Hopkins, director of the Sierra Club's environmental quality program.
While the regulatory listing released late last month may simply be a formal statement of what EPA promised back in 2011, Hopkins and other green groups are taking it as a good sign.
"Given the lack of energy that the administration has put into getting the guidance out, I am heartened to see them pledging to do a rulemaking," he said.
Responding to a request for comment, EPA released a statement: "EPA and the Army Corps of Engineers continue to work on a proposed rule."
Industry groups also say a rulemaking is needed to clear up regulatory confusion.
"You can't look at the current regulations and figure out where the federal jurisdiction is," said Don Parrish, senior director for regulatory relations for the American Farm Bureau Federation. "The agency has a pretty big task in front of them, so I guess it's time to rumble."
Parrish predicts that a proposed rule could come in the first three months of this year, since the rulemaking process is likely to be lengthy and the Obama administration is apt to want as much of its second term as possible to work on it.
The big question now is whether the White House will finalize the guidance as an intermediate step, as green groups have advocated, or scrap the document and move straight to the rulemaking, as Republicans and industry want.
"I think that's the real question," said Jan Goldman-Carter, the National Wildlife Federation's wetlands and water resources counsel. "As far as I know, nobody knows for sure what their intentions are there."
Dropping the guidance would leave the George W. Bush administration guidance in place, which environmental groups say is flawed. But industry says issuing the agency's guidance would prejudice the rulemaking process.
Parrish said he expects the guidance to be dropped. While green groups say they have no indication that the White House is moving in that direction, they were sufficiently concerned to write White House Chief of Staff Jacob Lew last month urging against it.
"We fully support initiating a formal rulemaking in the coming months to restore much-needed clarity, certainty and fairness to Clean Water Act programs," wrote 16 environmental groups in the letter urging the administration to take the issue up early this year. "We want to emphasize, however, that we strongly oppose delaying the guidance pending action on the proposed rule, as some have suggested."
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