| Congressional debate over wetland and stream protection continues Legislation to clarify the scope of the Clean Water Act continues to stir controversy on Capitol Hill. The Clean Water Authority Restoration Act (CWRA; H.R. 2421 and S. 1870) has been described as a “legislative fix” to clarify intent of the 1972 Clean Water Act. The crux of the bill is to amend the 1972 Act to read “waters of the United States” instead of “navigable waters of the United States”. While the Act was interpreted to mean all waters, not just those “navigable in fact” for several decades, Supreme Court rulings in the SWANCC and Rapanos cases have dismissed that interpretation, resulting in confusion over the extent of protection for waters such as wetlands and small streams. While the CWRA has been introduced each congressional session since the SWANCC ruling in 2001, it has gained increased interest and attention since the Democratic takeover of Congress. This April, both Houses of Congress held additional hearings on the bill. Bill proponents say that the administrative guidance issued as a result of the controversial split-decision on Rapanos has led to confusion over the scope of the Act. It will also result in a loss of protection for vulnerable waters, according to Carol Browner, former EPA Administrator. Browner told the Senate Environment and Public Works (EPW) Committee that “under the new guidance, as many as 20 million acres of wetlands and thousands of miles of seasonal streams will be vulnerable to pollution, filling, and destruction.” The bill’s sponsors – Rep. James Oberstar (D-MN) in the House and Sen. Russ Feingold in the Senate (D-WI) – say the bill will merely clarify the original intent of the Clean Water Act. Critics of the bill, such as EPW Ranking Member Sen. James Inhofe (R-OK), say those claims are “grossly misleading” and that the bill will greatly expand both federal regulatory powers and the amount of litigation associated with the Act. Sen. Larry Craig (R-ID) said the bill would result “in a situation where any puddle that can float a legislative brief is now in question.” House Republicans are just as leery of the bill. Rep. John Mica (R-FL) says the bill would result both in a “morass of lawsuits” and a “massive expansion of federal regulatory authority.” Bill proponents downplay states’ rights advocates’ concerns regarding the expansion of federal power. New York Commissioner of Environmental Conservation, Alexander Grannis, pointed out to the Senate committee that 34 states and the District of Columbia filed an amicus curiae brief to the Supreme Court supporting the existing regulatory definition during the Rapanos proceedings. “The position expressed in the states’ amicus brief concerning the scope of the ‘waters of the United States’ protected under the Clean Water Act is essentially identical to that presented in the Clean Water Restoration Act of 2007,” Grannis testified. Sen. Barbara Boxer (D-CA), chair of the Senate Environment and Public Works Committee, believes the judicial branch is to blame for the current confusion over the Act. In her opening statement, Sen. Boxer cited some of the successes of the Act but warned, “due to the intervention of some of the Justices of the United States Supreme Court, much of that progress is in jeopardy.” Oberstar agrees; “We have a regulatory miasma. It was not created by Congress, but it is our job to fix it.” Despite the vocal opposition of some members on the committees with jurisdiction, the bills have garnered support from many members of Congress. The House version of the bill has 176 cosponsors, while the Senate version has 20. Neither bill has been scheduled for mark-up or committee vote at this time, however. Further information:
For the latest status on the Clean Water Authority Restoration Act, visit the following lH.R. 2421 - http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.02421: S. 1870 - http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01870: Information from the
House hearing can be obtained at: Information from the
Senate hearing can be obtained at:
Source: ASLO Aquatic Science Policy Report: March and April 2008 American Society of Limnology and Oceanography - www.aslo.org
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