30 Apr 2008 Flaws in Clean Water Restoration Act Exposed in Congressional Hearings

From Mike Hardiman comes this roundup of information about recent Congressional hearings on the Clear Water Restoration Act:

Both the United States Senate and House of Representatives recently held hearings on the Oberstar/Feingold Clean Water Restoration Act. These hearings are a clear sign that the environmental community intends to push this controversial legislation to a vote in both houses of Congress sooner rather than later.

The Senate hearing was held on April 9 under the direction of bill co-sponsor Senator Barbara Boxer of California, and the House followed on April 16 with a hearing chaired by the legislation’s House sponsor, Representative James Oberstar from Minnesota.

Contrary to the sponsors’ wishes, the two hearings exposed numerous flaws and very strong opposition to HR2421/S1870, the proposal to dramatically expand the federal government’s role in land use regulation.

Senate Hearing

The Senate hearing, held by the Environment and Public Works Committee, unveiled several issues to which bill sponsors had difficulty responding.

Senator James Inhofe of Oklahoma spoke at length regarding the bill’s removal of the phrase “navigable” from the term “navigable waters.” He claimed it would lead to a dramatic expansion of federal authority over wetlands from navigable waters to nearly anything that is wet.

Both witnesses and Senators supporting the bill denied that it would be an expansion of power, despite the removal of the key modifying word “navigable.” Meanwhile, a witness opposing the bill, rancher Randall Smith, said of removing the word navigable, “it is a dream for litigators” and “it opens up a whole can of worms.”

Supporters stated that the bill’s purpose is only to clear up confusion generated by a recent Supreme Court decision, known as the Rapanos case, while opponents showed that it was actually a considerable expansion of authority.

Bill supporter Senator Sheldon Whitehouse of Rhode Island, a former federal prosecutor and state attorney general, lectured at length witness David Brand, a county engineer from Ohio opposed to the legislation. Whitehouse insisted repeatedly that “we are just picking up where we left off (before the Rapanos decision).”

Brand replied, “No, and repeating that doesn’t make it true.”

An exasperated Whitehouse responded, “Yes, it does make it true.”

Senator David Vitter of Louisiana was opposed to the bill, and stated that he could not think of any kind of water that was not covered by the bill.

Attempting to contradict him, Clinton-era EPA Administrator Carol Browner said puddles were exempt. Vitter asked for a definition of a puddle, and Browner was unable to directly answer the question. Senator Whitehouse unconvincingly chipped in, insisting that “EPA has no interest in chasing puddles.”

Senator John Barrasso of Wyoming asked witnesses how the proposed bill benefits ranchers and farmers. Bill supporters did not address the question, while opponents said it would be harmful.

House Hearing

Representative James Oberstar is both the bill sponsor and chairman of the House Transportation and Infrastructure Committee, which held its own hearing April 15. This marathon session featured twenty-three witnesses and forty-four congressmen questioning them, resulting in an eleven hour hearing that stretched into late evening.

Oberstar accused the Supreme Court of “legislating from the bench” and said his bill only sought to repeal two court rulings on wetlands from recent years which protected private property, the SWANCC and Rapanos decisions.

This was challenged by congressman John Mica of Florida, who said the Oberstar bill would “fundamentally alter the course of water regulation” and produced a display featuring several hundred organizations opposed to the legislation and a pile of petitions several feet high opposing the bill.

Oberstar said his bill would clear up ambiguity that had been created by the Supreme Court. Mica agreed that there would be no ambiguity under the bill, because there would be no restriction on federal control of all water, since any non-federal or private rights would be overridden.

Congressman John Boozman from Arkansas pointed out that the bill proposes to regulate all “activities” near waters, instead of current law, which says only “discharges” into waters are regulated.

Some members were undecided. Congressman Nick Rahall from West Virginia did not take a position for or against the bill, but said “whiskey is for drinking, water is for fighting.” After several witnesses complained about both current law and the proposed legislation, Congressman John Salazar from Colorado told them there must be more than complaints, and asked how to make the bill better.

Witness Virginia Albrecht pointed out another major change proposed in the bill, that federal agencies be given the power to regulate “to the limit of constitutional authority.” Congresswoman Thelma Drake from Virginia agreed that these are “absolute words” which could fundamentally change federal-state relationships.

Attorney Robert Trout testified that “if this bill passes, it will put my kids through college” because of all the new litigation that will be generated.
Witness Linda Runbeck, a former Minnesota state legislator, said the bill negatively impacts private property rights and hurts families because most of their net worth is tied up in the land they own, which may be sharply devalued by the bill. She also brought up the poll commissioned by the National Center for Public Policy Research, which shows that when the bill is described to them, most Americans stating an opinion do not support it.

Overall, a very thorough airing of opinion was had in the two hearings, and the legislation’s many weaknesses were displayed out in the open and for the record. However, the bill’s supporters remain determined first to wipe out gains made by property owners in the Supreme Court, and, second, to expand federal authority beyond current law.