Another crack in D.C. at CWA rule

Washington — For too long, some conservation groups have lamented, federal action to restore at least some protection of the nation’s wetlands and streams via the Clean Water Act languished in the federal bureaucracy.

Last week, the Obama administration breathed some life into the matter when a scientific report regarding the CWA was released, and a rule clarifying Clean Water Act jurisdiction was submitted to the Office of Management and Budget for interagency review.

While final rule-making might be a couple years out, the results might put more teeth into waters protection, according to Jimmy Hague, of the Theodore Roosevelt Conservation Partnership, more so than current agency “guidance” does.

Hague, TRCP’s director for the center for water resources, says there’s no timeline on the process.

“We’ve seen delay after delay in this particular case,” he said earlier this week.

No matter the outcome, it’s unlikely a new rule regarding the CWA would completely restore protections lost following a couple of court cases in the past decade. That’s something legislation in past years has attempted to do, at least one effort known better as the Clean Water Restoration Act.

“This won’t restore 100-percent protection … but it will restore some,” said Mike Leahy, conservation director for the Izaak Walton League of America, adding that the Prairie Pothole region likely could see at least partial protections eventually restored.

Legislation, Hague said, would provide stronger protection. “But that’s a real long shot,” he said.

According to a press release from the TRCP, IWLA, and other groups, “Clean water protections for millions of small and intermittently flowing streams and wetlands have been in limbo for more than a decade because of a pair of Supreme Court cases (known as SWANCC in 2001 and Rapanos in 2006) and flawed policies put in place to implement those court rulings. As a result, the viability of many valuable wetlands, lakes, and small streams is threatened, and others are harder to protect.”

Those groups earlier penned a letter to members of the Obama administration asking for movement on the matter. That letter appeared in Outdoor News’  Aug. 23 commentary. Last week, those same groups responded favorably to the announcement of a report released by the Environmental Protection Agency’s Scientific Advisory Board. The EPA also said it was forwarding the CWA rule to the Office of Management and Budget for review.

“We applaud the agencies for finally moving the proposed new rule forward with full public review and comment,” said Ducks Unlimited CEO Dale Hall in a press release. “Because of the confusion introduced by the court decisions, everyone from conservation organizations to development interests to Supreme Court justices have been calling for a rulemaking. This is long overdue.”

DU says in the release that a U.S. Fish and Wildlife Service report for 2004 through 2008, the first assessment following the Supreme Court cases, showed the rate of wetland loss had increased by 140 percent during the 1998 to 2004 period.

“Unless wetland protections are restored and drainage is held in check, the negative impacts to waterfowl populations could be dramatic,” Scott Yaich, DU director of conservation planning and policy, said in a press statement.

TRCP says the EPA’s scientific report, which “synthesizes more than a thousand peer-reviewed scientific articles on the biological, chemical, and hydrological connectivity of waters and the effects that small streams, wetlands, and open waters have on larger downstream waters,” is now open for a 45-day public comment period.

Regarding the proposed rule, the OMB has 90 days to review it.

When a rule eventually is rolled out by the EPA and the U.S. Army Corps of Engineers, Leahy expects the greatest protections will be afforded to wetlands and streams with the “clearest link to downstream waters.”

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