WETLANDS: Congress preps for regulatory battle (05/05/2009)
Katherine Boyle, E&E reporter
Congress is gearing up for a battle over federal wetland regulation as Democrats and the Obama administration move to clarify two recent Supreme Court decisions they say narrowed Clean Water Act protections for some wetlands.
Senate Environment and Public Works Chairwoman Barbara Boxer (D-Calif.) said yesterday that she wants to move legislation on the matter and is hoping to work with her colleagues to reach a compromise.
The panel is eyeing legislation that would amend the Clean Water Act by replacing the phrase "navigable waters" with "waters of the United States." Controversy over the meaning of "navigable waters" has persisted since CWA was passed in 1972.
Supporters of the bill introduced last month -- S. 787, sponsored by Sen. Russ Feingold (D-Wis.) -- say the measure would restore the original meaning of "waters of the United States," which they claim was eviscerated by the 2006 Rapanos-Carabell and 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers decisions in the high court.
Opponents of the effort, including the committee's ranking member James Inhofe (R-Okla.), have said the legislation would expand wetland protections beyond the intent of the Clean Water Act, lead to a number of lawsuits, and create problems for farmers, developers and other industry stakeholders. Inhofe and other Republican members of the committee have asked Boxer to hold a full committee hearing before marking up the bill.
Boxer said the divide often reflects a lawmaker's particular interests, such as agriculture, and does not always follow party lines. "A lot of the issues fall along regional lines," she said yesterday.
East Coast Democrats on the committee including Sens. Sheldon Whitehouse (D-R.I.) and Frank Lautenberg (D-N.J.) are backing the legislation. In the past, however, Western Sen. Max Baucus (D-Mont.) has avoided endorsing the bill.
House action
On the House side, Rep. John Dingell (D-Mich.) frames the squabble over Congress' intent a bit more simply.
"Congress made it clear that the Clean Water Act covers tributaries of navigable waters, many streams and most wetlands," he said last week. "I know this because I was there."
As Congress was finalizing the law in 1972, Dingell spoke about the Clean Water Act on the House floor. "The conference bill defines the term 'navigable waters' broadly for water quality purposes," he said in his speech. "It means all 'the waters of the United States' in a geographical sense. It does not mean 'navigable waters of the United States' in the technical sense as we sometimes see in some laws."
Today, Dingell affirms that notion. "For whatever reason, the Supreme Court seemed to feel that language was unclear," he said. "The Clean Water Restoration Act [S. 787] would clear up any doubt that remains."
Transportation and Infrastructure Chairman James Oberstar (D-Minn.) is planning to reintroduce a companion bill in the House this session.
White House support
Meanwhile, the Obama administration has made its support for a congressional fix clear.
U.S. EPA Administrator Lisa Jackson has called on Congress to pass legislation that would set clear boundaries for federal wetland regulators.
She said yesterday that staff members in the agency's water office spend half or more of their time working with states on jurisdictional issues for wetlands, describing the time spent "an alarming figure." She said the effort leaves staff with less time to work on actual permits with states.
EPA officials confirmed that the jurisdictional confusion created by Rapanos has been a major drain on resources for the agency in an inspector general report released yesterday.
The Rapanos ruling has affected nearly 500 enforcement cases. In each case, formal enforcement was not pursued due to jurisdictional uncertainty, case priority was lowered because of the confusion, or lack of jurisdiction was cited as an affirmative defense to an enforcement action.
The agency had difficulty crafting a guidance that could help field staff determine jurisdiction, the report notes.
Furthermore, EPA estimates 20 million acres of wetland and isolated waters lost protections in the lower 48 states thanks to the muddled Supreme Court decisions (E&ENews PM, April 14).
Stakeholders
Despite the presidential support, the debate among hunting and fishing groups, environmentalists, and industry stakeholders remains fiery.
The traditionally conservative "hook and bullet" crowd has joined with environmentalists in supporting Feingold's bill.
"The bottom line is virtually all waters of the United States are connected in one way or another," said Scott Yaich, senior director of conservation programs for Ducks Unlimited. "It's really not possible to separate out waters that don't have some impact on ... navigable waters in some form."
Yaich said so-called geographically isolated wetlands often are anything but. "In the case of prairie potholes, the poster children of geographically isolated wetlands, they appear to be isolated ... but at certain water elevations they do have a connection."
He also pointed out that draining wetlands frequently exacerbates the height and frequency of flooding in navigational waters and said contamination can spread from wetlands to navigable waters through groundwater.
The congressional fix should not be a partisan issue, Yaich added, though he acknowledged Democrats have been leading the charge and are the only cosponsors of the Senate bill to date.
"It's become clear the courts are going to be left to vacillate [on Congress' intent] and try to interpret the Supreme Court decision," Yaich said. "Congress just needs to clarify what the intent was and restore the intent through legislation."
Don Parrish, senior director of regulatory relations at the American Farm Bureau, however, has a different take.
"It would be a mistake [to think] Congress did not mean to include the term 'navigable' in the Clean Water Act," he said. "It's there well over 80 times. ... As we read the Clean Water Act, that's the only limiting term we find."
In the past, Parrish said federal agencies overreached in their regulation of wetlands. He said the Rapanos and SWANCC decisions were aimed at putting regulation back on the right course.
"Returning to a time when agencies could broadly use migratory birds to find Clean Water Act jurisdiction is not a very appealing position to be in for farmers and ranchers," Parrish said. He warned that Feingold's bill could spur the regulation of ditches or eroded areas.
"I would hope there's a broad understanding in Congress when you delete the term 'navigable' you're expanding Clean Water Act jurisdiction," he said. "There are no limits to be found in any of the proposals I have seen out there."