WASHINGTON -- Federal agencies have proposed a new regulatory scheme for wetlands that would decrease the amount of land that can be classified as environmentally sensitive and removed from development.
The new rules are intended to address criticism that the government's current definition of wetlands is too broad, which has led to furious opposition from affected land owners in Maryland and other states.
The proposed new rules have been written into a revised version of the field manual used by federal environmental agencies and by developers to determine whether a piece of property contains wetlands subject to protection and replacement if disturbed.
Environmental Protection Agency Administrator William K. Reilly, who released the new regulatory manual yesterday, said the rules will shrink the area that could be considered wetlands, which is likely to ignite opposition among environmental groups.
The "area subject to our authority" will return to what it was before the existing manual was introduced in 1989, he said in an interview. He said he could not estimate the amount of land involved nationally.
About 400,000 acres in Maryland could be eliminated from state and federal regulation if the government reverts to its pre-1989 strategy.
The state's inventory of non-tidal wetlands in 1989 ballooned from 274,000 acres to more than 1 million acres by some estimates after federal environmental agencies adopted the more liberal wetlands identification guidelines they now are working with.
Scientists say wetlands protect waterways by filtering pollutants from rainfall runoff and ground water. They also help control flooding and provide food and shelter for wildlife.
The public will be given 60 days to comment on the new rules and suggest changes, after they are published in the Federal Register at the end of July.
Reilly said the government also will appoint a blue-ribbon panel to "field test" the manual, which was produced by his agency and several others.
Reilly told a congressional hearing the government probably would begin using the new rules in the fall.
Environmentalists had little to say about the new rules because they hadn't seen them yet. Some groups have been critical of draft provisions in the manual that leaked while it was being written, a process that went on longer than expected and led to speculation that the White House was trying to restrict wetlands regulation.
"It was basically a tug of war, as I interpreted it, between the scientists who were trying to make sure the wetlands that were included were relatively complete and the bureaucrats who were trying to cut back on the regulatory program," said Curtis Bohlen, staff scientist with the Chesapeake Bay Foundation in Annapolis.
Wetlands determinations are based on vegetation, soils and hydrology, the latter referring to the wetness of the land. In one major change, a new rule proposes that for land to be considered wetlands, its surface must be saturated from 10 to 20 consecutive days during the growing season. The current rule specifies seven days in which water must be found at or near the surface.
Reilly said the agencies couldn't decide on a precise number of days of wetness, and will wait for public comments. He said a change from seven days to something between 10 and 20 would knock out 4 million to 10 million acres.
"It's going to make a big difference," Bohlen said of the more stringent wetness requirement.
"I'm very concerned if we define wetlands narrowly, it not only removes those wetlands from the regulatory program, it also removes them from the non-regulatory programs, through the Conservation Reserve, through the [U.S.] Fish and Wildlife Service, through the North American Wildlife Management Plan," which also protect wetlands.
Bohlen said another issue to consider is the impact of the proposed new rules on President Bush's stated goal of no net loss of wetlands, a goal that permits wetlands to be developed so long as they are replaced.
Linda Winter of the National Wildlife Federation said that while she had not seen the new rules, "We're obviously very concerned when Mr. Reilly says it's going to reduce the reach of the program. It's going to include less wetlands than the '89 manual did."
Reilly told a panel of senators the president stands firmly behind his goal of no net loss of wetlands. While it's difficult to create wetlands where none existed, he said, former wetlands can be restored. John Turner, director of the fish and wildlife agency, said 66,000 acres were restored last year.
Reilly made clear he hopes the new rules will make unnecessary the various wetlands bills lawmakers have introduced in response to criticism of the current rules. He said the bill introduced by Rep. James A. Hayes, D-La., the most broadly supported wetlands legislation, does not do enough to protect wetlands.
The Hayes bill would amend the federal Clean Water Act to restrict the definition of wetlands and loosen requirements for replacing those areas deemed of low environmental quality by the bill.
The controversy over wetlands affects millions of acres from Alaska to the East Coast. When the current rules were introduced in 1989, land owners discovered they needed permits to build on land that in some cases appeared bone dry.
Complaints about the difficulty in getting permits led to legislation being introduced and to bureaucratic efforts by the federal and state government to clarify regulations. Reilly downplayed the complaints yesterday, saying that while there are valid concerns about the existing rules, the most "lurid" complaints proved to be exaggerated.
Fewer than 1 percent of wetlands development permits, which must be approved by the Army Corps of Engineers, are denied, he said.
One complaint, outside of his jurisdiction, comes from Sen. Barbara A. Mikulski, D-Md., who this week urged the corps to scale back fee increases recently proposed for wetlands and water permits.
The standard fee for a commercial development permit is to increase from $100 to $2,000. A non-commercial permit is to go up from $10 to $500.
Margaret Ann Reigle, chairman of Fairness to Land Owners Committee, a property rights group based in Cambridge, challenged Reilly's claim that the new manual would substantially reduce the acreage subject to regulation.
"They haven't changed the darn thing in any substance," she said, since EPA first submitted the proposed guide to the Office of Management and Budget for review in May.