Fight brewing over bill to cover all U.S. waters under Clean Water Act

Republicans assailed the bill Rep. James Oberstar (D-Minn.) introduced today to ensure Clean Water Act jurisdiction over all U.S. waters as a heavy-handed expansion of the 1972 pollution law that would prolong economic recovery.

The backlash portends a tough fight ahead to bring the bill to the House floor by September, Oberstar's stated goal, much less shepherd it through the Transportation and Infrastructure Committee he chairs.

Despite new provisions in Oberstar's bill that supporters described as significant concessions, Republican leaders of the committee cast the measure as a broad and untimely expansion of the federal regulatory authority, given the still-faltering economy.

"This massive federal jurisdiction grab will have significant negative repercussions on the nation's struggling economy," T&I Committee ranking member John Mica (R-Fla.) said in a statement. "The added confusion, delays, and endless litigation created by this bill will heap new costs on American agriculture, manufacturing, housing and other businesses, and our already grim unemployment picture will worsen."

The bill represents the fifth try in the House to drop the word "navigable" from the Clean Water Act so as to secure pollution protections for all rivers, streams and wetlands, regardless of their size, because of the effect that even those smaller water bodies can have on drinking water and wildlife habitat. Past measures have run into heavy opposition from Republicans and some farm-state and Western Democrats.


Litigation over what waters should be deemed "navigable," and thus under Clean Water Act jurisdiction, has caused a logjam that has forced regulators to delay or drop hundreds of investigations as pollution rates have risen. The confusion stems from two Supreme Court decisions in 2001 and 2006 -- Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States -- whose strict interpretation of the law Oberstar's bill seeks to undo. Subsequent U.S. Army Corps of Engineers and U.S. EPA rulings under the George W. Bush administration further rolled back protections, supporters of the proposed law say.

"The bill is simple: It makes perfectly clear what the Congress intended in 1972," Oberstar told reporters today.

Five Republicans from the House Natural Resources Committee, including ranking member Doc Hastings (R-Wash.) and Water and Power Subcommittee ranking member Tom McClintock (R-Calif.) also sounded off today, saying 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."

Among the changes in Oberstar's bill from pervious attempts to drop the word "navigable" from the law: the deletion of language that suggested any "activities" -- as opposed to just "discharges" -- would be regulated, the exemption of wastewater treatment systems and parameters to allow for new treatment systems, and the exemption for "prior converted croplands" or farmlands converted from wetlands.

Some Democrats and Republicans who have raised concerns about previous iterations of the bill declined to comment, citing their ongoing review of the proposed law. But a Republican legislative aide who asked not to be named called Oberstar's argument that the Clean Water Act was meant to encompass all water bodies "revisionist history" and said language in the bill created a veritable "litigation toolbox" for environmental groups to sue what they deem to be polluting industries.

Despite the concessions, "they giveth, but they taketh a lot away," the GOP aide said. "This thing is pretty open for broad interpretation, still."

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