- 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.

The federation, business groups and other powerful lobbies such as the Edison Electric Institute and the National Mining Association have formed the Waters Advocacy Coalition to lead the charge against the legislation.

Coalition officials say that an expansion of federal regulatory powers would increase red tape for developers and drive up business costs. In addition, the group says, the legislation would pre-empt the states’ regulatory authority.

Mr. Hopper said federal pre-emption of state regulations also could draw legal challenges. He said the legislation would infringe on states’ rights and that his foundation would file a lawsuit.

“We would bring suit because it’s beyond constitutional authority [for the federal government] to regulate all waters of the United States,” Mr. Hopper said.

The Feingold legislation also could broaden the EPA’s power to stop construction projects that threaten water quality. The agency, in conjunction with the Army Corps of Engineers, for example, could require more developers who want to dump dirt and waste into nearby waters to obtain permits before construction commences.

A 2002 University of California at Berkeley study found that it took on average 313 days at a cost of $28,915 to obtain a federal permit to dump waste materials into water. It also took on average 788 days at a cost of $271,000 to obtain individual dumping permits, according to the study.

In the House, Transportation and Infrastructure Committee Chairman James L. Oberstar, Minnesota Democrat, hopes to pass similar legislation. Mr. Oberstar’s legislation has not been introduced but is expected to extend the federal governments enforcement of the Clean Water Act to wetlands, streams and ponds.

“Congressman Oberstar has told the committee to prepare to move a bill this year,” said Mary Kerr, a spokeswoman for the committee.

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