April 18, 2008
April 18, 2008 - On Wednesday, April 16, chairman of the House Transportation and Infrastructure Committee, James Oberstar (Minn.), held a full committee hearing over legislation that seeks to define the scope of the Clean Water Act (CWA). The Clean Water Restoration Act (HR2421/S1870) attempts to replace the words "navigable waters" with "waters of the United States" in the text of CWA. This change would presumably give the federal government broad authority to regulate almost any body of water but will do little to clarify current legal uncertainty about which waters fall under federal authority.
The original CWA legislation was passed in 1972 under the Nixon Administration. The intent of Congress was to protect the nation's waters by eliminating the discharge of pollutants into the "navigable waters" while protecting the primary responsibilities and rights of the states to eliminate pollution and determine the development and use of land and water resources under local jurisdiction.
Oberstar feels the original intent of the 1972 Congress will be restored with this act in terms of federal jurisdiction over waters. Instead, the bill ignores congressional intent and greatly expands federal jurisdiction far beyond anything Congress imagined at the time of enactment.
Oberstar has advocated for this change because of recent Court decisions that have perplexed oversight for some marginal wetlands and other waters. Two of the witnesses, Environmental Protection Agency Water Chief Ben Grumbles and Army Assistant Secretary for Civil Works John Paul Woodley Jr., expressed several concerns including the definition of which activities would be exempt from jurisdiction, which types of water bodies are covered, the removal of the term navigable from the legislation and mistakes in interpretation from a legal standpoint. Grumbles also said that he thought it would likely expand the agency's jurisdiction, which could result in an increase in litigation.
Oberstar has narrowed the scope several times in hopes of winning over opposing members on the committee. It is still unclear whether Oberstar has enough votes to move the bill out of committee. Sources say that if and when this happens, he'll proceed with a markup. The opposition feels that he will not garner enough support to get something out of committee before the August recess and the following months dedicated to the presidential election.
ASI will continue to monitor this issue as the next few weeks unfold. Staff contact: Dustin Bryant, 202-484-7134