By DOUGLAS JEHL
WASHINGTON, April 16 — The Environmental Protection Agency said today that
it would leave in place a Clinton administration rule that would expand
protection for tens of thousands of acres of wetlands across the United States.
The decision is a big defeat for developers, who have contended for years
that the action would impose restrictions far beyond those authorized by
Congress. A challenge to the rule by the National Association of Home Builders
is pending in Federal District Court in Washington.
The rule was to have taken effect on Feb. 17, but had been set aside for 60
days as the Bush administration reviewed last-minute regulations issued by the
Clinton administration.
The E.P.A. has said that the action would close a loophole that in the last
two years permitted the destruction of 20,000 acres of wetlands and the
channeling of 150 miles of streams without environmental review.
Much of that lost 20,000 acres was in North Carolina and Virginia, said Derb
S. Carter Jr., a senior lawyer with the Southern Environmental Law Center, an
advocacy and litigation group in Charlottesville, Va.
The new rules require developers to obtain permits under the Clean Water Act
before carrying out earth- moving activities that have been protected from
regulation. Those activities include many routinely used in construction of
housing developments, like the digging of artificial lakes that many developers
favor and the gouging of streams with manmade channels, a practice used to limit
the presence of wetlands to be governed by environmental restrictions.
"Wetlands" is a collective term that refers to marshes, swamps,
bogs and similar areas, all of which filter and cleanse the nation's water, help
to retain floodwaters and provide natural habitats for many species of fish,
birds and other wildlife.
In announcing the decision today, Christie Whitman, the environmental
agency's chief, said the action reflected a commitment by the Bush
administration "to keeping our waterways clean and safe."
"In addition to serving as habitat for wildlife, wetlands help filter
and protect our country's water supply," she said. "Today's action
will help preserve our wetlands for ourselves and for future generations."
Within an hour after that announcement, the White House took the unusual step
of issuing a statement that declared, in part, that President Bush
"applauds E.P.A. Administrator Whitman's decision to move forward with
regulations to protect our wetlands."
The statement put Mr. Bush on record in support of the decision, but may have
also been intended as a more particular endorsement of Mrs. Whitman, who had
been on the losing end of an internal administration debate last month on the
direction of global-warming policy.
Duane Desiderio, a staff vice president for the homebuilders' association,
expressed disappointment at the wetlands ruling. But Mr. Desiderio predicted
that the courts would uphold the developers' challenge, as they have twice since
1997 in striking down efforts to close the legal loophole. "The government
is like a child that touches a hot stove and burns its hand, but keeps coming
back," he said.
Until now, the Bush administration had sided with industry in reversing
several environmental rules issued by the Clinton administration, including one
that would have toughened the standard for naturally occurring arsenic in
drinking water. Today's ruling brought qualified cheers from environmental
groups.
"It's interesting how we
count the victories these days, in terms of things that they didn't roll back,
as opposed to any kind of progress moving forward," said Joan Mulhern,
legislative counsel for the Earth Justice Legal Defense Fund. "Still, this
is an important victory."
Environmental groups have become increasingly vocal in recent weeks in trying
to portray the new administration as hostile to the environment. With the 31st
anniversary of Earth Day coming on Sunday, they are preparing to intensify their
criticism this week in a national advertising campaign.
The administration faced a deadline of Tuesday for a decision on the wetlands
rule. Some environmentalists suggested that the decision's timing and outcome
might have come in part to minimize negative political fallout surrounding Earth
Day commemorations.
Under the Clean Water Act, discharges into the waters of the United States
require a permit. In 1997, a federal district judge ruled that a 1993 regulation
should not have covered certain discharges even if those involved activities
contributing to the loss of wetlands. That decision was affirmed in June
1998 by the United States Court of Appeals for the District of Columbia Circuit.
The E.P.A. regards the uncertainty about the scope of the decision as having
contributed to the destruction of wetlands. The agency said the action today
would protect wetlands "by moving forward with a rule clarifying what
discharges are subject to environmental review."
Daniel Rosenberg, a staff lawyer with the Natural Resources Defense Council,
said the decision today represented "a victory on its face." But Mr.
Rosenberg added, "The real key is going to be whether they vigorously
defend this rule against the industry challenge and implement it on the ground,
and we are still very concerned about the potential for them to ultimately
weaken the rule based on a sweetheart settlement to industry challenges."