Lobbying preceded shift to weaken guidelines on wetlands protection

WASHINGTON -- 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 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But just before the new guidelines were to be issued last September, they were withdrawn in the face of objections from lobbyists and lawyers for groups concerned that the rules could lead to federal protection of isolated and insignificant swamps,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 and the Army Corps of Engineers, charged with enforcing the Clean Water Act, finally issued new guidelines last month, which environmental and recreational groups complained 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 whether they have jurisdiction to require permits under the Clean Water Act.

The alternate reading, favored by environmental groups, argues that regulators would need to prove only 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 profoundly affect 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.

The guidelines are the government's first attempt 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's opinion controlling the outcome but leaving government lawyers and outsiders puzzled as to how to enforce 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 EPA official responsible for enforcing clean water rules declined to comment on how the rules evolved.

Draft guidelines were completed in September, and officials at the EPA and the Corps of Engineers prepared a news 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.