The Bush administration released new guidelines on Wednesday reaffirming its narrow reading of the nation's top clean-water law, signaling that any attempt to revive flagging federal protections for millions of acres of wetlands, streams, and other waterways will have to wait for the next Congress and Barack Obama's administration.
The guidelines, released by the Environmental Protection Agency, are intended to clarify a controversial 2006 Supreme Court decision that weakened the Clean Water Act, the primary protection for federal waters.
The EPA claims that the new rules will help ensure that "America's wetlands, streams, and other waterways are better protected," but critics say they make almost no changes to the policies adopted by the agency last year.
"At best it appears to be an exercise of rearranging the deck chairs on the Titanic," says Joan Mulhern, senior legislative counsel at the nonprofit law firm Earthjustice and a water law expert. "The Clean Water Act is broken, and I think this is just throwing more mud in the water."
The new guidelines are intended to address questions that have wreaked havoc on the enforcement of water regulations since 2006, following the Supreme Court's ruling in Rapanos v. United States, which limited the scope of the Clean Water Act. That decision created vast confusion within the EPA over how to handle hundreds of potential water pollution violations and, critics say, stripped more than 20 million acres of wetlands and more than half of the nation's streams of federal protection.
For the most part, however, the changes that were made in Wednesday's guidelines appear to be limited and technical in nature, and even those changes—often buried in footnotes—are being met with criticism.
In one footnote, for example, the EPA sets out to clarify the meaning of the phrase "traditional navigable waters," which have legal protections. The EPA says its revised definition, which highlights the role of commercial traffic in determining whether or not a waterway is navigable, will add consistency to its enforcement of the law. But many observers say the definition is also restrictive, because it excludes other well-accepted legal tests for showing if a waterway is navigable. "This purports to tease out what counts and doesn't count," says Mulhern, "but they are doing it in a way that makes it more confusing and makes it more limiting."
Minnesota Rep. James Oberstar, who chairs the House Committee on Transportation and Infrastructure, went a step further. "The new guidelines substantially limit the number of waters which will be protected by the Clean Water Act," he said in a statement. "Contrary to the views of the administration, tying clean water protections to commercial navigation has no basis in statute or case law."
Elsewhere, the guidelines preserve policies that critics have fought unsuccessfully to overturn, such as the agency's contention that pollution in an individual stream must be shown to affect the integrity of a larger body of water, like the Mississippi River, in order for the smaller stream to receive protection. "I don't think any of this changes the status quo of what's been happening on the ground," says Melissa Samet, senior director of water resources at American Rivers.
The quickest fix, Oberstar and environmentalists contend, will be a legislative one. He and several Democratic senators have proposed bills the would restore the scope of the Clean Water Act to cover all federal waters, including wetlands and smaller streams that have fallen into question under the Bush administration. President-elect Obama has signaled his support.
Read more about what environmentalists want Obama to do to protect water quality.