- The Washington Times - Friday, December 4, 2009

With the deletion of a single word from the Clean Water Act, some leading Democratic lawmakers are angling to greatly expand the federal government’s authority to regulate water pollution.

The Senate Environment and Public Works Committee in June quietly approved legislation dropping the adjective “navigable” to describe the bodies of water covered under the 1972 law, vastly expanding its scope and prompting a lobbying campaign from business groups that fear the small editorial change would cost jobs during economic hard times.

The federal government regulates lakes and rivers large enough for ship traffic, but if the word “navigable” is deleted, the groups say, the government could have the authority to police everything from wetlands and lakes to backyard ponds and roadside ditches.

The law also would open the way to government regulation of 20 million acres of the nation’s so-called isolated wetlands and 59 percent of the nation’s streams that do not flow year-round. These are two types of water that are now largely exempt from federal oversight.

Environmentalists are reacting to Supreme Court decisions in 2001 and 2006 that, they say, have unfairly limited the scope of federal authority. Increased federal regulation, they say, would ensure a cleaner and safer water supply.

“The Supreme Court latched on to the ‘navigable’ language despite the fact that Congress intended to protect waters of the United States, broadly,” said Jon Devine, senior attorney for water programs at the Natural Resources Defense Council, a leading environmental group.

Business groups and some legal analysts disagree.

“I think the change would be a nightmare; the bill would be the most far-reaching legislation in the history of the country,” said Reed Hopper, an attorney for the conservative Pacific Legal Foundation. The group successfully argued the environmental lawsuit Rapanos v. United States before the Supreme Court in 2006. The court limited the federal government’s oversight of U.S. waterways.

Sen. Russ Feingold, the Wisconsin Democrat who authored the bill that would delete the word, said his bill would restore the scope of federal regulation that Congress intended before the court rulings.

“This surgical fix is necessary because the Supreme Court used the word ‘navigable’ to create a more narrow definition for ‘waters of the United States’ than the definition used for over 30 years,” Mr. Feingold said when he introduced his legislation on the Senate floor earlier this year.

The Clean Water Act, whose formal name is the Federal Water Pollution Control Act, is a powerful tool for the Environmental Protection Agency. The act directs the EPA to protect “navigable” waters, such as large lakes for boating and recreational use and their adjacent wetlands.

The pending legislation, called the Clean Water Restoration Act, would change “navigable waters of the United States” to simply “waters of the United States.”

EPA officials declined to comment.

Interest groups opposed to the change have been vocal.

“We understand the importance of water quality, but we have concerns about how far the federal government can reach,” said Don Parrish, director of regulatory relations at the American Farm Bureau Federation, the nation’s largest agriculture lobby.

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