April 10
Democrats claim theyīre repairing a Clean Water Act pollution permit muddle. Republicans fear that fix could mean environmental restrictions on a mere puddle. So itīs understandable if regulators remain, well, befuddled.
Boiled down to Seuss-like rhyme, thatīs what unfolded Wednesday during a Senate Environment and Public Works Committee hearing about how the federal government interpreted two splintered 21st century Supreme Court decisions involving the 1972 act.
"Sadly, the guidance fails to clarify the Clean Water Actīs protections for a large proportion of the nationīs wetlands and streams," Carol Browner, EPA administrator under President Clinton, testified about the revamped policy issued last June by the Environmental Protection Agency and the Army Corps of Engineers. "As many as 20 million acres of wetlands and thousands of miles of seasonal streams will be vulnerable to pollution, filling and destruction."
Three other former EPA administrators, one other Democrat and two Republicans, agree with her conclusions, she said. Whatīs officially known as the Federal Water Pollution Control Act instituted a national system requiring individual permits for discharges.
Sen. Russ Feingold, D-Wis., has introduced a measure to change language in the act from "navigable waters of the United States" to "waters of the United States." Rep. James Oberstar, D-Minn., has floated a companion bill in the House. Both say the high court and subsequent federal policy narrowed the actīs original scope -- to preserve the chemical, biological and physical integrity of the nationīs watersheds, tributaries and wetlands -- by focusing solely on navigable waters and adjacent wetlands, and ignoring man-made ditches, isolated wetlands and seasonally wet areas.
"Let me be clear," testified Browner, calling wetlands as the nationīs kidneys. "This legislation is not an expansion of the Clean Water Actīs jurisdiction. It is merely an essential clarification of Congressīs original intent for this landmark law."
Committee members also heard testimony from a Montana rancher, an Ohio county sanitary engineer and two state environmental officials from New York and Arizona.
No matter how many times Browner repeated her assertions, Republicans werenīt buying in.
Sen. Jim Inhofe, the committeeīs ranking Republican, insisted that Feingoldīs bill will neither increase clarity nor reduce lawsuits.
"Increasing federal bureaucracy and requiring property owners to go through a lengthy permitting process for activities that may affect a puddle on their private land hardly constitutes protecting our nationīs water," the Oklahoman said.
Puddles, Browner assured questioners, would not be covered under the measure.
Republican Sens. John Barrasso of Wyoming, David Vitter of Louisiana and Johnny Isakson of Georgia joined Inhofe in slamming "Feingoldīs fix" as a bill that trumps statesī rights and dramatically redefines and expands federal authority. They fear it will harm enterprises such as agriculture, mining, homebuilding and electricity transmission, and delay construction of wells, dams, canals and water pipelines.
"You are telling us that it really means nothing," Sen. Larry Craig said, adding that his interpretation of Feingoldīs bill is that "any puddle ā that can float a legal brief is now in question."
Committee chairwoman Barbara Boxer, D-Calif., countered that evidence shows permit delays are already occurring because of overall murkiness.
"This (Rapanos) case has created massive confusion among judges, the regulated community, EPA and the Army Corps," sad committee chairwoman Barbara Boxer, D-Calif. "But there is much more at stake than confused lawyers, judges, agencies and stakeholders."
Indeed, these jeopardized waterways provide wildlife and drinking water for at least 110 million Americans, according to EPA figures.
A network of 12 conservation organizations, including Trout Unlimited, Earthjustice and the League of Conservation Voters backs Feingoldīs bill. The advocates blame two specific Supreme Court rulings -- Solid Waste Agency of Northern Cook County v. Army Corps of Engineers decided in 2001 and the combined case of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers decided in 2006 -- for prompting the EPA and the Army Corps of Engineers to reconfigure their permitting processes and severely limit protections formerly extended to isolated wetlands, intermittent and ephemeral streams and some headwaters.
"The situation is unacceptable because (regulators in charge of permits) canīt tell what the law covers and what it doesnīt," Earthjustice legislative counsel Joan Mulhern said in a post-hearing interview. She added that at least one frustrated official has stated that flipping a coin is equally effective.
If nothing else, passionate exchanges during the hearing proved correct a Western aphorism shared early on by Barrasso.
"Whiskey is for drinking," quipped the Wyoming Republican. "Water is for fighting over."
E-mail Waste News correspondent Elizabeth McGowan at elizabethherron@hotmail.com
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