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Up a creek?
Wetlands next to small streams may be less protected from development.

EPA

Wetlands Regulation Gets Murkier

Even small wetlands can lead to big court battles when they stand in the way of development. Last year, the U.S. Supreme Court told two federal agencies to do a better job of explaining why they have jurisdiction over watery areas so small they may not be "navigable"--a key term in the law. Now, the agencies have issued guidance, but critics say it just confuses the issue and will end up removing protection for many of these areas.

Many wetlands have been protected by the Clean Water Act, which requires landowners to get a permit if they want to fill or otherwise harm them. But the act only covers U.S. waters that are navigable. The Army Corps of Engineers and the Environmental Protection Agency (EPA) have claimed this term gives them jurisdiction--and thus the right to decide what landowners can do--over even the smallest wetlands if they are connected to navigable waters. But last year's Supreme Court decision stated that the two agencies could only regulate these smaller wetlands if they "significantly affect the chemical, physical, and biological integrity of downstream traditional navigable waters" (Science, 30 June 2006, p. 1870).

Now EPA and the Corps are trying to put the decision into practice. The agencies announced yesterday that they will continue to regulate wetlands next to rivers and lakes that host boat traffic. Likewise, they'll still regulate wetlands adjacent to non-navigable tributaries, but only if they are "relatively permanent" and flow for at least 3 months a year. Other wetlands that are more distantly connected to navigable waters will be examined case-by-case to see if they have a significant impact on downstream waters. "This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations" when they consider applications for permits to fill wetlands, said John Paul Woodley Jr., assistant secretary of the Army (Civil Works) at a press teleconference yesterday.

Others are skeptical about the guidance. "It's unworkable," says attorney Pat Parenteau of the Vermont Law School in South Royalton. He doubts that the agencies will know, for example, whether particular streams flow for at least 3 months. Another problem is that the agencies haven't spelled out the thresholds for significant impacts. If a stream removes 3 kilograms of nitrogen a year from runoff, for example, is that enough, asks Parenteau. And in most cases, if agency staff want to know the ecological and hydrological details of a certain stream, they would have to gather the data themselves. "Just the workload will be staggering," Parenteau says.

Environmentalists are greatly concerned about the agencies' plan to consider each small wetland's individual impact on downstream waters. "It's like having to make the case that one capillary in your thumb is vital to your circulatory system," says Jim Murphy, an attorney for the National Wildlife Federation in Reston, Virginia. He fears that the new approach will mean the agencies will allow destruction of many small wetlands. "You'll see all of those waters written off," he says.

What's needed, Murphy, Parenteau, and others say, is for Congress to clarify its definition of U.S. waters. A bill, H.R. 2421, was introduced into the House last month by James Oberstar (D-MN) that would broaden the definition to include all wetlands. A companion is in the works in the Senate, but Parenteau predicts a long, tough road for both bills. "Until congress addresses the problem, we won't see an end to the controversy," he says. The agency will accept public comment on its guidance for 6 months.

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