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Sent: Friday, July 20, 2007 6:53 AM

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Subject: ENS: House Bill Would Trump Supreme Court Clean Water Act
Rulings

House Bill Would Trump Supreme Court Clean
Water Act Rulings

http://www.ens-newswire.com/ens/jul2007/2007-07-18-03.asp

House Bill Would Trump Supreme Court Clean Water
Act Rulings

WASHINGTON, DC, July 18, 2007 (ENS) -
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.

Congressman
James Oberstar of Minnesota heads the House Transportation and Infrastructure
Committee. (Photo courtesy Office of Congressman Oberstar.)

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."

John Rapanos' property in
Michigan, here shown planted with corn, was deemed to be subject to federal
wetlands regulations. (Photo courtesy Mackinac Center for Public Policy)

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."

A
pond in Delaware. Whether or not it is considered "navigable"
determines its protected status.. (Photo courtesyDNREC)

"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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