Paul Quinlan, E&E reporter
Environmentalists and Washington lobbyists for agriculture, mining, homebuilding, road building, electric utilities and manufacturing industries have found something to agree on. It’s time, they say, for the Obama administration to write new Clean Water Act regulation. Both camps say the rulemaking could settle a long-stalled legal argument over what wetlands qualify for federal regulatory oversight. Battles over the issue have intensified in recent years as permitting of wetland projects and enforcement of alleged permit allegations have been bogged down in a legal quagmire created by the Supreme Court’s confusing ruling in a major 2006 wetlands case, Rapanos v. United States.
The heart of the dispute is what constitutes “navigable waters” — where the 1972 Clean Water Act says the government can regulate discharges. The Supreme Court split on how to define federal jurisdiction, leaving regulators, landowners, farmers, developers and conservationists scratching their heads and fighting over technical questions about hydrology, geology, water chemistry and soil science. Developers and farm interests say the technical confusion makes it difficult and very expensive to get federal permits for work that affects wetlands. “It’s unfair to landowners in a way that disadvantages them and gives the agency power and authority over economic decisions,” said Don Parrish, the American Farm Bureau Federation’s senior director of regulatory relations. Environmentalists are also frustrated and say that wetlands — which are supposed to be protected as scrubbers for water pollution, wildlife habitat and sponges for stormwater — are going unprotected. They’re awaiting the release of a Clean Water Act guidance — a document from the Obama White House reinterpreting what the Supreme Court and the George W. Bush administration have said about wetlands regulation. The White House announced on Dec. 20 that it was reviewing the guidance prepared by U.S. EPA. It could be released in coming weeks.
The Obama guidance would replace one prepared by the Bush administration in 2007 and perhaps, advocates say, allow time — perhaps as much as two years — for the writing of a new rule on wetland regulations. Environmentalists who contend the 2007 Bush guidance was heavily influenced by development interests are eager for a do-over by President Obama.
“We are asking for rulemaking; we are also supportive of guidance as a first step,” said Jan Goldman-Carter, the water resources counsel of the National Wildlife Federation. “We just feel that the guidance needs to be secured and reinforced by a rule.” The White House Office of Management has been hearing calls for a rulemaking in the past several weeks. OMB has been visited by lobbyists from both camps — six from environmental and conservation groups and 21 from industry groups — asking for action on wetlands.
“Our message was, we didn’t think guidance on top of guidance was the right approach,” said Parrish, who discussed wetlands in a Jan. 11 visit to OMB. He added that two Supreme Court justices — the conservative Chief Justice John Roberts and liberal Justice Stephen Breyer — have both called for rulemaking.
Rulemaking is complicated
But despite the rare consensus on rulemaking, the Obama administration will find writing a new rule is likely to be messy and politically bruising. Rulemaking could open the administration up to charges of hypocrisy, given Obama’s pledge to reduce regulation and his efforts to woo the business community. The administration and its Democratic allies on Capitol Hill are already battling Republican efforts to hamstring U.S. EPA’s regulatory power. And the effort would overlap with the launch of Obama’s re-election campaign, which would add political fuel to inevitable arguments over cost-benefit analyses, technical discussions and public hearings that are part of any rulemaking.
Environmental interests say rulemaking in the Obama administration has a good chance of going their way. They felt otherwise in 2002, when they forced the Bush administration to abandon its plan to write a rule clarifying the Clean Water Act’s jurisdiction.
While industry doesn’t see the Obama administration as friendly to its interests, trade group representatives see some advantages to working on a rule with Republicans in charge of the House and Congress, overall, concerned about the health of the nation’s economy.
“If you kind of drag them through a rulemaking, everybody gets their say, and then it’s final, so it’s done,” said Glynn Rountree, environmental policy analyst for the National Association of Home Builders, which was among industry groups that lobbied the administration on Jan. 11.
EPA has declined to say whether rulemaking will follow the release of the new wetland guidance. “At this time, our focus is on the Clean Water Act Guidance document that is currently at OMB for review,” EPA said in a prepared statement. “We are committed to a transparent process for developing this guidance that includes the opportunity for public review and comment, and intend to release the draft packages for comment as soon as possible.”
House Republicans have attempted to halt EPA’s effort to produce either guidance or rulemaking on the Clean Water Act by proposing to cut off funding for both efforts in a spending plan (Greenwire, Feb. 14). Parrish said the Farm Bureau supports the Republican plan as a needed “timeout” and a block to the guidance. “We still believe very strongly that a rulemaking is the proper approach here,” he said. “We know for sure that guidance is the wrong way to go.”
‘Significant nexus’
At issue in the effort to determine what constitutes a discharge into “navigable waters” is the test devised by Justice Anthony Kennedy, the swing vote in the Supreme Court’s Rapanos decision. Kennedy wrote that regulators must determine where there’s a “significant nexus” between a wetland and navigable waters. His definition of that nexus is where wetlands “significantly affect the chemical, physical, and biological integrity of other covered waters.”
Environmentalists and allies in Congress have attempted to clarify the Clean Water Act by amending the law to delete the word “navigable.” But those efforts have repeatedly failed on Capitol Hill, leaving only regulatory solutions in the short run.
Maryland Democrat Ben Cardin is considering whether to take up that matter in Senate legislation. “That would be the preferable fix,” said Jim Murphy, an attorney with the National Wildlife Federation. “But the political landscape is what the political landscape is, so I think EPA and the [Army Corps of Engineers] are dealing with that reality.”
Kennedy’s nexus test became the basis of a guidance from George W. Bush’s EPA and Army Corps in 2007 that said the law should apply to navigable waterways, “adjacent” wetlands and tributaries of navigable waterways that flow at least three months a year.
The guidance also applied the law to wetlands that “directly abut” tributaries. Decisions about other areas should be “based on a fact-specific analysis” to determine whether a significant nexus exists, according to the guidance.
Environmental advocates want regulatory wetland determinations to be based on “aggregation,” in which a decision about whether a wetland deserves protection would be based on whether the same decision, when applied to similar wetlands across a watershed, would affect the navigable waterway.
“If you have to prove that one little tributary is affecting the physical, chemical or biological nature of the Mississippi River, that’s kind of hard to do,” said Joan Mulhern, senior legislative counsel for Earthjustice. “The big regulatory environmental issue was whether you could look holistically at waters in a watershed to determine whether there was a significant nexus.”
EPA estimates that the jurisdictional confusion has been a factor in hundreds of Clean Water Act investigations, including more than half of its enforcement docket in 2007. From a peak in the late 1990s, enforcement of the law has plunged by nearly 60 percent, as measured by both the number of cases EPA has initiated and the number of convictions the agency has obtained.
“The current guidance often requires time-consuming case-by-case determinations of Clean Water Act jurisdiction,” EPA said in a statement. “This has delayed permits and has redirected taxpayer money from protecting the environment to answering jurisdictional questions that determine whether water resources can be protected under the Clean Water Act.”
Lawsuit target
New regulation would almost surely ease EPA’s burden, said Jonathan Adler, director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law and an opponent to broad interpretations of the Clean Water Act.
“Under a new regulation, you could have a situation where the agency presumes that significant nexus is there,” Adler said. “Guidance forces them to engage in a much more detailed proof.”
The expenses of disproving that a nexus exists has been equally frustrating to landowners and businesses on the opposite side of these disputes, said Rountree of the homebuilders’ trade group.
“The problem is, you’ve got to do a hell of a lot of research to show if you have a significant nexus,” he said. “You’ve got to do this long, expensive project to figure this out before you do anything else. It makes the whole project much longer in time span and also more involved up front.” However unpalatable the Obama rulemaking may be to industry groups, the regulation would make an easy target for lawsuits, Adler said, whereas a guidance can only be challenged in individual cases where it’s applied. “If the Obama administration is going to assert excessive authority, the industry would rather have that embodied in a clear, final action under a rule,” Adler said, “because if the industry wanted to challenge the administration, they would have this final act to challenge.”
Environmentalists say that despite the substantial political and legal hurdles, the payoff of a strong regulation makes rulemaking a significantly better gambit than new guidance.
“It can’t be as powerful in its ultimate ability to protect waters as a rulemaking can,” the National Wildlife Federation’s Murphy said. “We’re hopeful for strong guidance followed by a rulemaking. It’s the fix that’s needed.”
Photo The River Project