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Oberstar’s Clean Water Bill Is Aimed at Ending ‘Confusion’ for Regulators

May 12, 2010
In The News

Oberstar's Clean Water Bill Is Aimed at Ending ‘Confusion' for Regulators
April 21, 2010
Geof Koss, CQ Today

In a bid to overcome deep-seated opposition that stalled past legislative efforts, a House chairman introduced new legislation Wednesday to overcome two recent Supreme Court rulings restricting the scope of federal clean water law.

The draft bill by Transportation and Infrastructure Chairman James L. Oberstar is intended to resolve confusion about the scope of the 1972 Clean Water Act (PL 92-500) that resulted from U.S. Supreme Court decisions in 2001 and 2006 that strictly limited the law's reach to "navigable" waters. The rulings have created uncertainty among water regulators who previously interpreted the law broadly when applying it to small bodies of water, intermittently flowing streams and wetlands.

"Turmoil, confusion and uncertainty are no way to run a program," said Oberstar, D-Minn.

The revised bill, like earlier versions, would delete the term "navigable" from the statute, but unlike past bills, would replace it with the current regulatory definition of "waters of the United States."

That would obviate the need for regulators to develop a host of new rules, Oberstar said, while addressing widespread criticism that earlier versions of the legislation amounted to a vast expansion of the law.

"Simply put, if it was not regulated before 2001, it will not be regulated with the enactment of this legislation," said Oberstar, who helped write the original Clean Water Act as a senior House aide before his 1975 election to Congress.

Cosponsor Vernon J. Ehlers, R-Mich., said the purpose of the bill is "to clarify without a doubt what the Congress intended to do those many years ago."

But the panel's top Republican, John L. Mica of Florida, rejected arguments that the proposal does nothing more than restore the status quo.

"This legislation is the latest version of the same controversial proposals we have seen before to federally regulate virtually every wet or potentially wet area in the United States," Mica said. "This massive federal jurisdiction grab will have significant negative repercussions on the nation's struggling economy."

Mica's criticism was echoed by the ranking GOP member of the Water Resources and Environment Subcommittee, John Boozman of Arizona, and other Republicans.

Rep. Doc Hastings of Washington, the ranking Republican on the Natural Resources Committee, said the bill would bring "nearly every body of water — from irrigation canals, small ponds to seasonal mud-puddles— under the unlimited jurisdiction of the federal government."

Reversing the effect of the Supreme Court rulings has long been a goal of environmentalists and their congressional allies, but past efforts sparked intense lobbying from affected industries and many Republicans.

September Arrival
Oberstar said the House Democratic leadership has committed to allowing him floor time for the bill "whenever we feel ready to bring the bill to the floor," which he hoped would be by September.

The revised bill also differs from earlier incarnations in that it would codify exemptions from the law for converted croplands and waste treatment systems, specify that groundwater supplies are considered separately from "waters of the United States," explicitly state that the authority of the EPA and Army Corps of Engineers before the 2000 ruling is unaffected and remove language related to "activities" that Oberstar blamed for unnecessary confusion about water permits.

The changes failed to satisfy Republican critics, who portrayed the effort as an unjustified expansion of federal authority.

"In the past year, the federal government has taken control over our banks, cars and health care," said Utah Republican Rob Bishop, chairman of the Western Caucus. "Now, they are seeking to gain control over every drop of water, from backyard puddles to the arid playas of the West."

Oberstar said such criticism comes as no surprise.

"Some people have opposed the Clean Water Act for decades," he said.