House Bill Would Trump Supreme Court Clean Water Act Rulings

WASHINGTON, DC, July 18, 2007 (ENS) - Congressional hearings began Tuesday on what may be the most important Clean Water Act legislation in 30 years.

The House Transportation and Infrastructure Committee scheduled two committee hearings this week on the current state of the Clean Water Act in light of two recent U.S. Supreme Court decisions as well as administrative actions that are jeopardizing federal protections for the majority of the nation's streams, rivers, and wetlands.

Witnesses will address legislation aimed at correcting the problem, known as the Clean Water Restoration Act (HR 2421).

The bipartisan bill reaffirms and clarifies Congress' intent to protect all the streams, wetlands, ponds, and rivers throughout the United States from unregulated pollution.

The legislation is sponsored by Representative James Oberstar, chairman of the Transportation and Infrastructure Committee, and currently has 165 cosponsors.

Congressman James Oberstar of Minnesota heads the House Transportation and Infrastructure Committee. (Photo courtesy Office of Congressman Oberstar.)
The issue turns on the definition of "navigable waters" which are entitled to federal protection.

The two Supreme Court rulings at issue are Solid Waste Agency of Northern Cook County v. Corps of Engineers (SWANCC) in 2001 and Rapanos et ux., et at. v. United States in 2006.

In SWANCC, the Supreme Court ruled that non-navigable, isolated, intrastate waters do not fall under the jurisdiction of the Clean Water Act.

In Rapanos, five of the nine Supreme Court justices agreed to void lower court rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos.

But the court was split over other issues in the case, with the four more conservative justices favoring a more restrictive reading of the term "navigable waters" than the four more liberal justices, and one justice not fully joining either position.

"I have read both the SWANCC and Rapanos decisions," Oberstar said at the opening of Tuesday's hearing, "and I strongly disagree with the Court's invention of a fictional nexus between authority to protect the nation's waters and so-called "traditionally-navigable waters."

John Rapanos' property in Michigan, here shown planted with corn, was deemed to be subject to federal wetlands regulations. (Photo courtesy Mackinac Center for Public Policy)
This October marks the 35th anniversary of the modern Clean Water Act, said Oberstar. "This landmark environmental statute established a national commitment to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. It is the main reason the nation's waterways have shown dramatic improvement in water quality, even as the nation's population has increased by close to 30 percent."

"Yet, even now," he said, "roughly one-third of all waters do not meet the fishable and swimmable standards established over 30 years ago – so there is still work to be accomplished. Unfortunately, this task has been made more difficult by two activist rulings of the United States' Supreme Court that have limited the jurisdictional scope of the Act."

"Today, we begin the debate on restoring the certainty that a few activist members of the Supreme Court have taken away."

"This Committee bears the responsibility for determining the future successes or failure of the Clean Water Act," the chairman said. "Our efforts to correct the Court's unfortunate interpretation literally mean the difference between achieving the fishable and swimmable goals established almost 35 years ago and admitting that waters today are as clean as they will ever be."

House Republican leaders cautioned that the Clean Water Restoration Act, introduced to clarify this issue, may instead dramatically expand federal regulatory authority and muddy the waters of jurisdiction.

"We're all here for the same purpose: to protect our environment and the quality of our nation's waters and wetlands," said Congressman John Mica of Florida, Transportation and Infrastructure Committee Republican Leader.

"However, any expansion of the definition of ‘wetlands', if not carefully crafted, could lead to costly litigation, more red tape and more uncertainty for future efforts to protect the environment."

A pond in Delaware. Whether or not it is considered "navigable" determines its protected status.. (Photo courtesyDNREC)

"I am concerned that these proposals will vastly expand Federal powers over private property, upset the long-standing cooperative relationship that the Federal government and the states have had with regard to water management and water quality, and create even more confusion and uncertainty over application and interpretation of the Act," Mica said.

"I applaud the Chairman for his environmental goals, which we all share, but I am very concerned that this bill represents the largest ever expansion of Federal powers over private property and creates a larger cloud of confusion over application and interpretation," said Congressman Richard Baker, a Louisiana Republican and Water Resources and Environment Subcommittee Ranking Member. "Clarity of existing authority, not an expansion of it, is what is necessary."

Joan Mulhern, senior legislative counsel for Earthjustice, said, "Not since the Clean Water Act was passed in 1972 have protections for the nation's waters been in greater jeopardy from attacks by polluting industries that are seeking to roll back the law. Efforts by polluters in the courts and before federal agencies are trying to effectively repeal the Clean Water Act for up to 60 percent of the nation's streams, creeks, and rivers and tens of millions of acres of wetlands.

"The Clean Water Restoration Act reiterates what Congress originally intended when it passed the Clean Water Act over 30 years ago," Mulhern said, "all our waters deserve protection from pollution that poisons and destroys this important resource."

Copyright Environment News Service (ENS) 2007. All rights reserved.