EPA, Army Corps satisfy no one with new guidance

Environmentalists and industry stakeholders alike are blasting the wetlands guidance memorandum issued this week by U.S. EPA and the Army Corps of Engineers.

The revised guidance defines protected waters as those that are determined to be navigable-in-fact by the courts, are currently being used or have historically been used for commercial navigation, or could realistically be used for commercial navigation in the future.

The document also clarifies what constitutes a protected, adjacent wetland, noting that a wetland must have an unbroken hydrologic connection to jurisdictional waters, be separated from those waters by a berm or similar barrier or be reasonably close to a jurisdictional water (E&ENews PM, Dec. 3).

Neither environmental groups like the National Wildlife Federation nor industry stakeholders like the National Association of Home Builders are happy with it.

The federation slammed the guidance as less protective and more confusing than the June 2007 memo it replaces. Both memos are meant to clarify the Supreme Court's muddled 2006 Rapanos-Carabell decision.


The guidance "is another lose-lose document that will have the effect of making it harder to protect waters, and more time-intensive and costly to administer permit applications," federation attorney Jim Murphy said in a statement. "It will result in more pollution, more administrative delays, and more head scratching."

Environmentalists warn that the revised guidance undermines Clean Water Act protections for a number of wetlands and streams by requiring waters to be commercially navigable to qualify. That means fewer bodies of water will fall under the significant nexus test, which measures the relationship between upstream waters and the closest traditionally navigable water, devised by Justice Anthony Kennedy in the Rapanos decision, the federation said.

The homebuilders, on the other hand, said the guidance's definition of protected waters is too broad.

Susan Asmus, staff vice president for regulatory policy at the National Association of Home Builders, said including waters that are potentially navigable contradicts the intent of the Clean Water Act. She said the law is meant to cover waters that are currently being used for navigation rather than those that are "susceptible" to use.

Despite the criticism, Benjamin Grumbles, EPA's assistant administrator for water, praised the guidance, which he said ensures that the traditional navigable waters test encompasses requirements the agency has looked at over the years.

"We're looking at all the prongs for jurisdiction under the Clean Water Act," Grumbles said. "That includes if it was navigable in the past or is susceptible to commercial navigation in the future." That definition ensures that officials will not solely rely upon the 1899 Rivers and Harbors Act when applying Kennedy's significant nexus test.

The Rapanos guidance is able to cover waters that may not have been covered in the past after the Supreme Court decision, Grumbles added.

Confusion remains

The guidance arrived in the wake of the Supreme Court's refusal this week to reconsider its Rapanos decision.

The court's refusal to reconsider the wetlands protection case leaves it to lower federal courts to continue to try to answer the question over how to interpret the high court's splintered opinion. The justices' 4-1-4 decision on the scope of the Clean Water Act has generated conflicting interpretations from lower courts (Greenwire, Dec. 1).

Environmentalists and industry officials agree that much of the language in the new guidance is still unclear.

Asmus said EPA and the Army Corps still need to better clarify which wetlands and streams will qualify as protected.

"I'm not sure that [EPA and the Army Corps] changed it enough to make it workable in the field," Asmus said. "There are still a lot of uncertainties."

Asmus pointed to EPA's new definition of protected, adjacent wetlands as an example. "They talk about adjacency, and they talk about 'reasonable, close proximity,'" she said. "I don't know what that means."

The National Wildlife Federation also panned the terminology as vague and confusing, calling the adjacency standard "ill-defined."

Yet Grumbles said the guidance does provide clarity.

"The guidance makes clear that an ecological connection is the basis for asserting the Clean Water Act safeguard, and we're proud of that," he said. ""We think it's an additional and important clarification."

The guidance also notes that decisions on protected waters do not have to be made on a case-by-case basis, Grumbles said.

"We will infer an ecological connection for those wetlands that are sufficiently close by looking at the movement of amphibians or fish," he said. "We think that type of ecological connection is an important one ... and we think it will lead to additional protections for wetlands."

Congressional fix?

Meanwhile, the National Wildlife Federation and three other advocacy groups -- American Rivers, Environmental Defense and Ducks Unlimited -- are calling on Congress to pass legislation that would override the memo and the split Rapanos decision.

"The Rapanos decision has caused a bureaucratic nightmare, but it is a Supreme Court decision and EPA has no choice but to obey it, " Jim Tripp, general counsel for Environmental Defense Fund, said in a statement. "Congress, however, can -- and should -- step in to fix the problem."

House Transportation and Infrastructure Chairman James Oberstar (D-Minn.) and Sen. Russ Feingold (D-Wis.) may do just that.

Both lawmakers argue that prior to the court's Rapanos decision and the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers decision, the phrase "navigable waters" had been broadly defined as "waters of the United States, including the territorial seas." They have indicated that during the 111th Congress they will reintroduce legislation aimed at restoring that definition.

Opponents of their legislation say the bill would expand wetland protections beyond the intent of the Clean Water Act and could lead to a spate of lawsuits (E&E Daily, July 8).

While environmentalists call for a legislative fix, the homebuilders indicated they would like to see EPA promulgate a rule on the issue.

"Part of the challenge here is, you've got a Supreme Court who's ruled on something [and] a couple of agencies who don't quite know how to interpret that or are a little afraid to interpret that," Asmus said. "So they interpret it one way, and then everybody comes out of the woodwork and says, 'Hey, wait a minute, I disagree. You didn't interpret this right.' And you're off on a bad foot to begin with."

Click here to view the revised guidance memo.

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