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NOTE: By all accounts, Transportation and Infrastructure Chairman James Oberstar (D-Minn.) will face an uphill battle this year if he tries to move a controversial bill to amend the Clean Water Act. But bill opponents…say striking the word "navigable" from the law would greatly broaden its scope and leave everything from ditches to backyard fishing holes vulnerable to federal regulation. "What we're talking about regulating here is things that are isolated, things that are not very wet, things that only have water in them after a rainfall event," said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation. "How do you determine the difference between that and a ditch? I don't think Congress intended the Clean Water Act in 1972 to regulate every ditch, and the way the legislation is worded, you can't exclude them."
Clean Water Act fix may not be navigable in 2010
Taryn Luntz, E&E / Environmental and Energy reporter 1/21/2010
By all accounts, Transportation and Infrastructure Chairman James Oberstar (D-Minn.) will face an uphill battle this year if he tries to move a controversial bill to amend the Clean Water Act.
Oberstar has yet to introduce his bill, which he says would restore the original intent of the 1972 Clean Water Act after two major Supreme Court decisions last decade.
After insisting as recently as December that he intended to move the bill in 2009, Oberstar now acknowledges it still has far to go. "We're not there yet," he told E&E last week. "We've got a lot of work to do."
The bill would seek to clarify the jurisdiction of the Clean Water Act, which the Supreme Court in 2001 and 2006 determined largely was limited to navigable waters and did not encompass many wetlands and waters that long had been subject to the law.
The Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos-Carabell rulings have spawned a regulatory muddle, with federal, state and local enforcers struggling to interpret which waters are now protected. A U.S. EPA memo obtained by the T&I Committee in 2008 showed the agency had dropped, delayed or softened enforcement in about 500 water cases between June 2006 and December 2007 as a result of jurisdictional uncertainty.
"We're not looking for anything new," said Neil Shader of Ducks Unlimited, a hunting and conservation group that supports the proposed bill. "We're looking for things to go back to the way they were in 2001. Property rights existed then. People could work their land. It was the same thing that had been in place since the Clean Water Act passed in 1972."
But bill opponents, which include a bevy of powerful farm, building and industry groups, say striking the word "navigable" from the law would greatly broaden its scope and leave everything from ditches to backyard fishing holes vulnerable to federal regulation.
"What we're talking about regulating here is things that are isolated, things that are not very wet, things that only have water in them after a rainfall event," said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation. "How do you determine the difference between that and a ditch? I don't think Congress intended the Clean Water Act in 1972 to regulate every ditch, and the way the legislation is worded, you can't exclude them."
Oberstar has introduced a version of the legislation in every Congress since 2002, where it repeatedly has stalled in committee. But with Democrats in control of Capitol Hill and the White House, supporters had hoped this Congress would be its time to shine.
The Senate version of the bill, S. 787, advanced further than ever before when it cleared the Environment and Public Works Committee this summer. The measure passed along party lines after Sen. Max Baucus (D-Mont.) added language to protect existing exemptions for farms on converted wetlands (Greenwire, June 18, 2009).
Oberstar is already facing pushback from moderate and conservative members of his own party, many of whom hail from farm or mining districts.
Farm-state Democrats Debbie Halvorson of Illinois and Brad Ellsworth of Indiana stated their opposition to the proposed bill at a House Small Business Committee hearing in July, and Natural Resources Chairman Nick Rahall (D-W.V.), the second-ranking Democrat on the T&I panel, has expressed reservations in the past.
"I do not doubt the intent of the bill's proponents who say that the pending measure would simply return things back to the way they were prior to the [Supreme Court] decision," Rahall told Oberstar at a 2008 hearing on a version of the bill. "My concern is that by pulling a thread, we may unravel the universe."
Industry opponents of the measure note Oberstar also may struggle to win support from freshman Democrats on his committee, many of whom took over seats from Republicans in rural districts.
"Most of the freshmen are put on the Transportation and Infrastructure Committee to help them with their re-election, especially when you're looking at reauthorizing the surface transportation bill, which brings a lot of money back to their districts," said an industry insider who asked not to be named. "Oberstar hasn't been able to get that or the aviation bill for two years. He doesn't have a lot of chips with his members."
Political observers say farm-state Democrats are loath to incur the rancor of the American Farm Bureau Federation during an election year.
"The biggest concern they have is the Farm Bureau's opposition," said a source from the environmental community who asked not to be named. "We've had folks acknowledge that they think the Farm Bureau is not accurately representing this legislation, but that it doesn't really matter, because if the Farm Bureau opposes them, they have to be concerned."
The Farm Bureau has joined with dozens of agriculture, mining and building interests to form the Waters Advocacy Coalition, a group dedicated to campaigning against the bill. Members include the National Association of Realtors, the National Association of Homebuilders, the National Cattlemen's Beef Association and the National Mining Association, among others.
"They kind of have the bullhorn," Shader said. "They've got a lot of money."
Across the aisle, Republicans are not happy with the proposal either.
Last month, a group of 28 Republican lawmakers from Western states told House and Senate leadership that they "strongly object" to any attempt to move such a bill. "The concern we hear back home is that this legislation would grant the Environmental Protection Agency and the Army Corps of Engineers virtually unlimited regulatory control over all wet areas within a state," the letter from 11 senators and 17 representatives said. "This bill attempts to trump state's rights and pre-empts state and local governments from making local land and water use decisions" (E&E Daily, Dec. 9, 2009).
Industry and environmental groups say one substantive point being hammered out in committee is whether wastewater treatment systems from mining operations should be exempt from the Clean Water Act. The matter is murky now, with conflicting regulations from EPA and the Army Corps of Engineers.
But bill proponents say the Waters Advocacy Coalition is not interested in working out an acceptable version of the bill and accuse it of distorting the intent of the proposed measure and making false and exaggerated claims about its reach.
"Opponents have preferred to use absurd rhetoric and utter fallacies to derail the bill," said T&I Committee spokeswoman Mary Kerr in an e=mail. "One of the most ridiculous criticisms is that the bill would subject the water in bird baths to federal regulation. Not only is this assertion ludicrous on its face, but it is a physical (and probably constitutional) impossibility."
Parrish said the Farm Bureau is willing to negotiate with Oberstar on bill language, but only to a degree.
"We think we're flexible," Parrish said. "Show us a line. There is a line on the landscape, somewhere. We're willing to talk about that boundary and how to make that easier, but we're not willing to automatically say all of those waters are waters of the U.S.
"Neither side has gotten to the point where we can figure out if there's some middle ground there," Parrish added.
Committee talks going slowly
Industry insiders say they met with committee staff to discuss their concerns but that they feel the committee is not seriously engaging them as they craft the bill.
"We're looking at the removal of 'navigable' as a huge change to the Clean Water Act, and therefore there's going to need to be a lot of follow up," said a second industry source. "There hasn't really been a negotiation with the industry."
Kerr disputed the claim, saying the committee repeatedly has reached out to stakeholders.
"We have held literally hours of discussions with the opponents of legislation, including organizations that were formed for the primary purpose of defeating the bill," Kerr said. "We have requested the input of opponents and discussions are ongoing. We continue to attempt to schedule discussions to resolve differences, but too often it is the opponents that have been either unavailable or unwilling to fully engage."
Meanwhile, supporters fret the bill is not moving quickly enough to capitalize on the Democratic Congress.
"We realize the clock is ticking and this legislation needs to be passed," said Jan Goldman-Carter, wetlands and water resources counsel of the National Wildlife Federation. "We're losing wetlands and streams. Ecologically, in terms of enforcement, and also politically, we're running out of time in this Congress."
Kerr said there currently is no target timeline for introducing the bill.
Page Updated: Friday January 22, 2010 02:02 AM Pacific
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