July 2007
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.
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."
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."
"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."
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