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Democrats Introduce Controversial Legislation to Broaden EPA’s Clean Water Act Authority

May 16, 2007

We wrote last week that almost a year after the United States Supreme Court’s divided decision in Rapanos v. United States[1],considerable uncertainty remains about the scope of federal wetlands authority under the Clean Water Act (“CWA”).[2] See Supreme Court Passes on Post-Rapanos Opportunities to Clarify “Navigable Waters” Jurisdiction. Rather than wait and see how lower courts and EPA will interpret the Supreme Court’s decision, some members of Congress are trying to legislate the scope of the Clean Water Act. This article summarizes those efforts.

Congressional Action

Over two years ago, Rep. James Oberstar (D – Minn.) introduced a bill titled the “Clean Water Authority Restoration Act” in the United States House of Representatives that did not pass out of committee.[3] However, because the Democrats now control the House and party leadership is now interested in revisiting the issue, Rep. Oberstar, who chairs the House Transportation and Infrastructure Committee has said he will reintroduce the Act this session.[4] A version of the Act is also included in sections 401 and 402 of H.R. 1350, proposed legislation to protect the Great Lakes.[5]

The Act would amend the CWA to “clarify the jurisdiction of the United States over waters of the United States.”[6] If enacted, it would amend the CWA to delete the word “navigable” and, instead, define jurisdiction under the CWA by the phrase “waters of the United States.”[7] That phrase would be defined as:

all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.[8]

The change, if enacted, would mean that federal permits in would be required for actions impacting wetlands, intermittent and ephemeral streams, prairie potholes, and other non-territorial water bodies.

As might be expected, the proposed legislation is highly controversial. Mining, farming, and other industry groups are urging House lawmakers to withhold their support..[9] The Waters Advocacy Coalition, a group which includes the National Association of Home Builders, the National Association of Counties, the National Mining Association, the American Farm Bureau Federation, and the Edison Electric Institute has argued that the proposed bill would “result in an unprecedented increase in federal regulatory authority, imposing significant burdens on all levels of government.”[10] Meanwhile, state and local governments are already regulating many of the water bodies that would fall under federal jurisdiction if Congress amended the CWA as proposed.

Conclusion

The Rapanos decision has created uncertainty about the scope of the federal government’s CWA authority to regulate wetlands, intermittent and ephemeral streams, and other non-territorial water bodies. This uncertainty has left the Corps, EPA, and DOJ struggling with how to proceed on permitting and enforcement and has delayed or complicated the ability of property owners and developers to obtain permits for work in or near wetlands and other related water bodies. Thus far, the federal agencies and Congress have had little, if any, success at resolving this uncertainty. . Anyone anticipating work in or near these water-bodies should now, more than ever, carefully consider possible permit requirements at each level of government: federal, state, and local.

For more information about Marten Law Group’s water quality practice and the post-Rapanos regulatory environment, please contact Jeff Kray.

[1] 126 S.Ct. 2208 (2006). For further analysis of the Rapanos decision, see Long Anticipated Supreme Court Wetlands Decision Leaves Much to be Decided.

[2] 33 U.S.C.A. §§ 1251-1387.

[3] GovTrack.us. H.R. 1356--109th Congress (2005): Clean Water Authority Restoration Act of 2005. Referred to the House Transportation and Infrastructure Committee’s Subcommittee on Water Resources and Environment. A companion bill was introduced in the Senate. GovTrack.us. S. 912--109th Congress (2005): Clean Water Authority Restoration Act of 2005. Referred to the Senate Environment and Public Works Committee.

[4] Wetlands: Industries mount effort to block bill boosting federal regulatory power, Greenwire (April 9, 2007) (subscription required).

[5] GovTrack.us H.R. 1350—110th Congress (2006-2007): Great Lakes Collaboration Implementation Act.

[6] GovTrack.us. H.R. 1356--109th Congress (2005): Clean Water Authority Restoration Act of 2005. Referred to the House Transportation and Infrastructure Committee’s Subcommittee on Water Resources and Environment. A companion bill was introduced in the Senate. GovTrack.us. S. 912--109th Congress (2005): Clean Water Authority Restoration Act of 2005. Referred to the Senate Environment and Public Works Committee.

[7] Id.

[8] Id.

[9] See Wetlands: Industries mount effort to block bill boosting federal regulatory power, Greenwire (April 9, 2007) (subscription required).

[10] Id.

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