Two House committee chairmen are questioning the effectiveness of U.S. EPA's clean water enforcement program in the wake of a Supreme Court case they say improperly narrowed the Clean Water Act's definition of "navigable waters."

Transportation and Infrastructure Chairman James Oberstar (D-Minn.) and Oversight and Government Reform Chairman Henry Waxman (D-Calif.) sent a letter to EPA Administrator Stephen Johnson yesterday asking for more information about the agency's enforcement protocols following the Supreme Court's 2006 Rapanos-Carabell decision.

Internal EPA documents show the Rapanos decision, combined with an EPA-Army Corps of Engineers guidance describing how it should be implemented, has harmed the clean water enforcement program, the congressmen wrote.

They released a March 2008 memo from EPA Assistant Administrator for Enforcement and Compliance Assurance Granta Nakayama to illustrate their point. Regional data shows a significant portion of the Clean Water Act enforcement docket has been adversely affected, the memo concludes.

"The Rapanos decision and the resulting guidance have created uncertainty about EPA's ability to maintain an effective enforcement program with respect to other" Clean Water Act obligations, the memo says.

Between July 2006 and December 2007, EPA decided not to pursue the enforcement of as many as 300 Clean Water Act violations because of the jurisdictional uncertainty created by the Rapanos decision and the guidance, according to the memo.

The congressmen obtained the memo from Greenpeace. Waxman and Oberstar asked EPA for complete and unredacted copies of all documents related to the charges brought up in the Nakayamak memo by July 21. Both noted they plan to continue their oversight of the issue.

Oberstar noted his committee has held hearings on Rapanos and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, but never heard about the memo. "The Bush administration has twice testified how it was responding to the uncertainty created by these decisions, but it never once revealed the full extent to which federal attempts to protect clean water have been undermined," Oberstar said in a statement. "It took the release of an internal EPA document to bring that fact to light."

Oberstar-Feingold

Oberstar is the sponsor of a controversial wetlands protection bill, H.R. 2421, that he says would put the Clean Water Act back on the track it was on prior to the Supreme Court decisions.

The legislation would amend the Clean Water Act by replacing the phrase "navigable waters" with "waters of the United States."

Advocates for the bill say the court cases improperly narrowed the meaning of "navigable water" under the Clean Water Act, noting that it had been broadly defined as "waters of the United States, including the territorial seas." Opponents say it would expands wetland protections beyond the intent of the Clean Water Act and could lead to a spate of lawsuits.

Sen. Russ Feingold (D-Wis.), the sponsor of companion bill S. 1870, also characterizes the legislation as a surgical fix that would restore wetland protections (E&E Daily, April 17).

EPA could not be reached for comment.

Click here to read the letter.

Click here to read the memo.