Administration Backs Off Clean Water Act

Acknowledging that a proposed rule change would have reduced safeguards for wetlands and streams, Environmental Protection Agency administrator Michael O. Leavitt announced Tuesday that the administration would drop its effort to revise the 1972 Clean Water Act.

President Bush made the call to abandon the proposed rewrite because of his commitment “to achieve a goal of no net loss of wetlands,” Leavitt said in a conference call with reporters.

The decision came after a majority of states, 218 members of the House of Representatives and many groups representing anglers, hunters and conservationists urged the administration to abandon its rulemaking effort.

But representatives of the construction industry, which had lobbied hard for the rule, were caught off guard by the announcement, and warned that it would have a negative effect on builders across the country.

In January, the EPA, which is responsible for enforcing the Clean Water Act, and the Army Corps of Engineers, which issues permits for filling in wetlands and streams, announced that they were considering proposing a rule that would redefine which streams, lakes and wetlands would be protected by the Clean Water Act.

Their announcement came in response to a 2001 Supreme Court ruling that limited federal jurisdiction over isolated, nonnavigable, intrastate waterways and wetlands that were protected because migratory birds use them.

The EPA received 133,000 comments on its proposed rulemaking, most of them urging the administration not to go forward.

A copy of a draft rule that administration officials were considering, which was given to The Times last month by a senior government official, would have stripped many wetlands and streams of federal protection, opening them to being filled for commercial development and possibly polluted.

State and federal officials estimated that up to 20 million acres of wetlands, or 20% of the wetlands outside of Alaska, could lose protection under such a rule. While praising the decision to drop the rulemaking effort, environmental activists urged the administration to go one step further and rescind a guidance sent to the Corps of Engineers last January.

“They’ve done half the job,” said Joan Mulhern, a lawyer for Earthjustice, an environmental law firm. Environmentalists say that the guidance weakened enforcement of federal protection over some types of streams, lakes and wetlands.

Leavitt said the administration might issue new guidelines.

In the meantime, he said, the courts would continue to provide greater clarity about which wetlands and streams fall under federal protection.

In the majority of the cases, the courts have taken a narrow view of the Supreme Court ruling, finding that even some drainage ditches should be granted federal protection if there is a hydrological connection between them and a navigable waterway, according to EPA officials.

Construction industry officials said that without a new rule that clearly defines which wetlands and streams are no longer protected, the Corps would continue to inconsistently apply the Supreme Court ruling.

But they stressed that the Supreme Court may soon have more to say. It has been asked to hear four cases on the subject.