TRAVERSE CITY, Mich. – The Bush administration is preparing instructions for regulators puzzling over which wetlands are covered by federal clean water law, a top Environmental Protection Agency official said Wednesday.
But the EPA hasn't decided whether to issue a comprehensive regulation on the issue in the wake of a confusing U.S. Supreme Court ruling in two Michigan wetlands cases, said Benjamin Grumbles, assistant administrator for water.
"Our overarching goal is to continue to protect wetlands under the Clean Water Act to the maximum extent allowable since the decision," Grumbles told The Associated Press in an interview. "Which tools are the best to use is a policy decision we haven't made yet."
The high court took up the Michigan cases in hopes of settling a long-running debate concerning federal jurisdiction over wetlands. But the June 19 decision muddied the waters further.
The justices split three ways, with none of their five written opinions drawing majority support. Several urged Congress or federal agencies to deal with the issue, saying they were best suited to handle its complexities.
Courts have agreed the Clean Water Act requires permits to degrade wetlands alongside navigable waterways such as lakes and rivers. The question is whether the law also applies to tributaries of those waters and their adjacent wetlands — and if so, how far upstream.
The Army Corps of Engineers, which issues the permits, has contended the law's protections extend to virtually all "waters of the United States," including wetlands. Environmentalists agree, while developers and property rights advocates contend government jurisdiction is far more limited.
The key Supreme Court opinion, written by Justice Anthony M. Kennedy, said a permit could be required if there's a "significant nexus" between a wetland and a navigable waterway. The wetland must "significantly affect the chemical, physical, and biological integrity" of nearby navigable waters, he wrote.
After the ruling, the EPA — which oversees the federal wetlands program — instructed regulators to delay action on contentious permit applications while it analyzed the justices' opinions.
The agency soon will issue a "guidance" document that will offer the EPA's interpretation of what the Supreme Court decided, Grumbles said. The agency is working with the Justice Department to determine "how much stature to give certain pieces of the various five opinions," he said.
"We have no doubt that this interim guidance will help add clarity," he said. "We also have no doubt ... it won't be the end of the story either. We'll need to provide more details, and we're still reviewing whether or not to pursue a regulation in addition to the guidance."
Wetlands are valuable because they provide some of the planet's most diverse wildlife habitat. They also control floods and filter out pollutants.
The lower 48 states had over 220 million acres of wetlands in pre-colonial days. The total had shrunk to about 105 million by the late 1990s as wetlands were drained and filled for farming and other development.
Grumbles discussed the Supreme Court ruling Wednesday during the annual meeting of a group representing state wetland regulators. Members said they were anxiously awaiting the federal guidance.
Wetland protection "is a hot button and it always has been and it probably always will be, because you have to balance public and private interests," said Jeanne Christie, executive director of the Association of State Wetland Managers.
Michigan and New Jersey handle federal wetland permitting within their borders. But most other states likely will want a new regulation clarifying where federal jurisdiction applies, said Peg Bostwick, wetland specialist with the Michigan Department of Environmental Quality.
"My concern is that we do rulemaking sufficient to satisfy the Supreme Court but still straightforward enough to be comprehensible to the public," Bostwick said. "That's going to be a real fine line to walk."