[Pollinator] Wetlands

[Ladadams@aol.com]

 1. WETLANDS: Agencies urged to delay jurisdiction calls in wake of court 
decision
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David Loos, Greenwire reporter
Federal wetland regulators are being urged by their superiors in Washington 
to delay Clean Water Act jurisdictional decisions in the wake of a split 
Supreme Court decision last month that questioned government regulatory authority 
over wetlands not clearly connected to "navigable waters."
The nation's lead agencies on wetland protection -- the Army Corps of 
Engineers and U.S. EPA -- issued separate guidance memos to their respective field 
offices in the wake of the June 19 ruling. The memos reveal the agencies' 
different approaches to the ruling.
The corps' two-and-a-half page memo urges its regulators to delay making 
determinations for areas "beyond the limits of the traditional navigable waters" 
but allows field offices to decide on permits in navigable waters as defined in 
Section 10 of the Rivers and Harbors Act of 1899.
The corps' memo was derided by environmentalists. "It is startling that the 
corps' initial reaction is to revert to 19th century guidelines like Section 
10," Earthjustice senior legislative counsel Joan Mulhernn said yesterday. 
"Under that limited definition, less than 10 percent of streams and rivers are 
protected."
The corps memo also says the agency would administer Section 404 permit 
authorizations -- which regulate the discharges of dredged or fill material -- over 
the next three weeks. If the corps issues a subsequent guidance, the memo 
says permittees can seek modifications to permits issued this month.
EPA, on the other hand, issued a four-paragraph memo saying all 
jurisdictional determinations "that require taking a position on the scope of 'waters of 
the United States'" be deferred until the agency issues official guidance on the 
court ruling. In the meantime, the memo says, EPA field offices should not 
refer any new regulatory enforcement actions to the Justice Department until the 
new guidelines are clarified.
With five opinions totaling more than 100 pages, the Supreme Court decision 
in the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps 
of Engineers resulted in little consensus regarding the central question: Does 
the Clean Water Act protect wetlands adjacent to small tributaries that flow 
into larger water bodies?
While the plurality of Chief Justice John Roberts and Associate Justices 
Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito agreed in 
principle that EPA and the Army Corps misinterpreted the law when they denied 
permits to two Michigan landowners on wetlands that are not connected to navigable 
waters, as defined by the act. Kennedy disagreed in a concurring opinion that 
called on the corps to consider in each case whether the wetlands at issue 
possess "a significant nexus" with navigable waters.
"Given the confusion created by the differing opinions that the Supreme Court 
justices filed in that case, it will take some time for the Corps and the EPA 
to analyze and reach consensus on what legal guidance is to be derived from 
the decision," wrote Mark Sudol, chief of the corps' regulatory program, in the 
memo. EPA's memo was drafted by officials in the agency's offices of the 
general counsel, enforcement and water.
Army Corps spokesman David Hewitt said the temporary guidance effectively 
maintains the status quo as the agency works to prepare an official response to 
the ruling, saying the agency needs to carefully consider how to proceed. "It 
basically says to keep doing the things that you usually do," he said, noting 
that any final guidance -- which is expected withing a month -- will be drafted 
in conjunction with EPA.
But in light of the two interim guidance memos, environmentalists questioned 
whether the two agencies can work well together. "It's odd," Mulhern said. 
"After saying they wouldn't do anything unilaterally, the first thing they do is 
send out separate documents."
Environmentalists also voiced concern about the decision to delay enforcement 
actions until the the guidelines are clarified. "Why wait when you could 
refer the cases and then decide later if its viable?" said Julie Sibbing of the 
National Wildlife Federation.
Sibbing and Mulhern said there is a growing uneasiness that these initial 
memos could portend what direction the agencies plan to take regarding CWA 
interpretation. "There are some hints that things might change drastically, which 
they shouldn't if they really read the Kennedy opinion," Sibbing said.
Click here to download the internal Army Corps and EPA memos.

Laurie Davies Adams
Executive Director
Coevolution Institute
423 Washington St. 5th
San Francisco, CA 94111
415 362 1137
http://www.coevolution.org/
http://www.pollinator.org/
http://www.nappc.org/


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