Rapanos Blog

Hearing on Clean Water Restoration Act

On April 16, 2008, the House Committee on Transportation and Infrastructure held hearings on Congressman Obertsar's controversial and misnamed "Clean Water Restoration Act of 2007."   A video of the hearing can be found here.  Some of the most interesting testimony came from agency representatives like this statement by J.P Woodley of the Corps:

"We have several serious concerns with H.R. 2421 as drafted. . First, it appears that the consequence of the legislation will be to extend the jurisdiction beyond those waters determined to be not jurisdictional under the SWANCC and Rapanos decisions. This appears to go beyond the original intent of Congress in establishing the jurisdictional reach of the Clean Water Act, which reflected a careful balance between the legitimate and important Federal interest in protecting water quality and the equally important and long-standing interest of States in managing and allocating land and water resources within their boundaries. HR 2421 also goes beyond any interpretations of jurisdiction advanced by the agencies in the 30 years preceding the SWANCC and Rapanos decisions. For example, it is not clear whether the bill would require any link to interstate commerce for a water to be jurisdictional.

A second concern is that the bill could open up a whole new line of litigation regarding the limits of Congress’s legislative power under the constitution, creating additional uncertainty and unpredictability for the environment, the regulated community, and State and Federal agencies. "

Even the Corps refuses to back Oberstar's claims that HR2421 merely "restores" the original intent of Congress in the 1972 Act to regulate ALL waters in the United States and that the agency has applied a consistent jurisdictional standard for more than 30 years.   

Senate Committee Hearing on CWA Amendments

The U.S. Senate Committee on Environment and Public Works will be holding a hearing on Wednesday, April 9, to consider the controversial SB1870.  Like its House counterpart HR2421, this bill would expand the reach of the Clean Water Act to cover all waters in the United States by redfining "navigable waters" to include ALL intrastate and interstate waters.  Rhetoric in support of this bill is running high with proponents claiming the bill is necssary becasuse the U.S. Supreme Court has limited federal jurisdiction to actual navigable waters and adjacent wetlands through its SWANCC and Rapanos decisions.  This is a patently false assertion.  Neither the Corps nor the EPA has given that interpretation to these cases.  And, as we have pointed out in a previous post, the federal agencies continue to assert authority over virtually all waters.

California Wetland Protection Policy

The California State Water Resources Control Board is considering the adoption of a controversial Wetland and Riparian Area Protection Policy purportedly designed to "fill the gaps" in federal wetland protections left by the Supreme Court in its SWANCC (2001) and Rapanos (2006) decisions.  This is a curious development in light of the fact that the EPA and Corps are still regulating virtually every pond, puddle and ditch in the Nation under the Clean Water Act sec. 404(b) provision.

The federal Rapanos Guidelines are so broad as to encompass any wetland anywhere and public comments suggest the State Water Board's policy goes too far. Nevertheless, the State is pressing forward and will consider adopting the proposed policy at its April 15 meeting.   The draft policy and comments can be read here. 

Wetland Mitigation Regulations Issued

On March 31, 2008, the Corps and EPA issued new regulations establishing performance standards for permit-approved wetland mitigation.  Mitigation may take the form of  compensatory mitigation, mitigation banking, and in-lieu fee programs, with a preference for mitigation banking.   Accoridng to the agencies, these regulatins will provide greater flexibility and consistency in imposing mitigation requirements.