WSW Issue #1723                                    May 25, 2007

CONGRESSIONAL UPDATE/WATER QUALITY

Clean Water Act - Section 404/Wetlands

            On May 22, Rep. James Oberstar (D-MN), Rep. John Dingell (D-MI) and Rep. Vernon Ehlers (D-MI) introduced the Clean Water Restoration Act (CWRA), H.R. 2421, to “reaffirm the original intent of Congress” in enacting the Clean Water Act (CWA) and to “clearly define the waters of the United States.” The bill reasserts CWA jurisdiction where recent Supreme Court decisions have narrowed its reach with regard to wetlands. Since its enactment in 1972, CWA permitting jurisdiction included “navigable waters” which are “the waters of the United States, including the territorial seas.” The new definition replaces “navigable waters” with “waters of the United States” and includes “...all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.”

            This change was prompted by SWANCC v. Corps of Engineers and Rapanos v. United States, recent decisions where the Supreme Court held the federal government lacked authority under Section 404 of the CWA to regulate dredging and filling of isolated ponds and wetlands. In Rapanos, a plurality of the Court determined that CWA permitting authority did not extend to “ordinarily dry channels through which water occasionally or intermittently flows.” Rather, the plurality concluded the CWA only extends to “relatively permanent bodies of water connected to traditional interstate navigable waters,” or to those wetlands where the wetlands are significantly connected on the surface with a body of water where it is “difficult to determine where the water ends and the wetland begins.” Further, the Court said “wetlands may not be considered adjacent to remote waters of the United States based on a mere hydrologic connection.” However, Justice Kennedy, in a concurring opinion, rejected this test and used a “significant nexus” test in determining whether the wetland was subject to CWA jurisdiction. The lack of a majority and Justice Kennedy’s reliance on the “significant nexus” test has left significant uncertainty as to which waters are subject to CWA jurisdiction.

            Citing this confusion and uncertainty, Rep. Dingell said the Supreme Court misinterpreted the intent of the Congress, and H.R. 2421 will clarify which waters are subject to CWA jurisdiction. Rep. Ehlers added, “Congress is obligated to clarify the scope of the Clean Water Act following the regulatory confusion and lawsuits that have arisen out of recent Supreme Court decisions.” Rep. Oberstar said the Supreme Court has “muddied the jurisdictional understanding of the CWA” by focusing on the phrase “navigable waters,” and the bill seeks to “reestablish [a] commonly held understanding of the CWA prior to these rulings.” (T&I Committee, 5-22-07)

            While the bill also includes a savings clause that retains existing CWA exemptions for industries like agriculture, mining and silviculture, it will face strong opposition from industry groups. Susan Asmus, Vice President of the National Associations of Home Builders, said the bill will lead to greater regulatory headaches, as it greatly expands CWA jurisdiction “by virtually saying that every drop of water is in.” Despite its 158 co-sponsors in the House, its fate is uncertain. On the Senate side, one Republican staffer said the bill would have a difficult time achieving a filibuster proof majority as “it does far more than the sponsors claim it does.” Go to http://thomas.loc.gov for a copy of bill.

CONGRESSIONAL UPDATE/WATER RESOURCES

Corps/Water Resources Development Act (WRDA)

            On May 16, the Senate passed H.R. 1495, the Water Resources Development Act of 2007, by a 91-4 vote. Senators Barbara Boxer (D-CA), Max Baucus (D-MT) and James Inhofe (R-OK) are among the eleven Senate conferees named to address differences with the House, which passed the bill 394-25 on April 19 (WSW #1718). WRDA authorizes the Secretary of the Army, acting through the Chief of Engineers, to carry out specified water projects for navigation, environmental restoration, ecosystem restoration, hurricane and storm damage reduction, and flood damage reduction.

            Senator Boxer, Chair of the Environment and Public Works Committee, declared, “This bill meets our communities’ and our nation’s acute and unmet water infrastructure needs...in a fiscally responsible way. One of the lessons of Hurricane Katrina is that we ignore our water infrastructure needs at our nation’s peril.... Some of the communities this bill will protect have waited seven years or more for these projects [since the last WRDA authorization]. This bill will end that wait, but it will also ensure that we avoid the mistakes of the past by making sure future projects receive the serious analysis and careful implementation they deserve.”

            Senator Inhofe added, “In passing WRDA...the Senate meets many of the most critical water resource needs facing our nation today...to increase hurricane and storm damage protection through wetlands preservation and restoration, and creates an inventory of the nation’s levees with assessments of high risk levees in order to protect people and property.” Senator Johnny Isakson (R-GA) said, “The passage of this bi-partisan, fiscally responsible bill is a tremendous step for our nation. It is an investment in safe drinking water. It is an investment in stormwater management. It is an investment in flood control and water resources of the United States of America. [It is a]...long overdue step forward in the investment to protect our water resources, enhance our environmental restoration and spur economic development.”

            H.R. 1495, as passed by the Senate, includes these and other sections, under Title II - General Provisions. Section 2001 requires execution of a written partnership agreement with non-federal project sponsors, which in the case of a state (or political subdivision of a state) may reflect it does not obligate future appropriations inconsistent with constitutional or statutory limitations. It allows credit for non-federal in-kind contributions, including costs of planning, data collection, design, management, mitigation, construction and related services, as well as materials.

            Section 2004 calls for an annual fiscal transparency report to Congress with data on projects currently under construction, signed cost-sharing agreements and completed planning, design and engineering work. It is to include the number of years expected to complete a project, and the estimated annual federal cost to maintain that schedule. It also calls for the number of initiated and active studies, the number completed during the fiscal year, and completed studies for projects not yet authorized. The Corps is also to report on recreation fees and lease payments, hydropower and water storage fees, deposits into the Inland Waterway Trust Fund and the Harbor Maintenance Trust Fund, and other revenues. The report is also to include a list of authorized but unfunded projects with information as to the date of authorization, last allocation date, percent of construction completed, estimated completion cost, and a brief explanation of the reasons for the delay. It further requires a listing of individual permit applications and nationwide permit notifications, as well as the date of application, date each application is determined to be complete, and the date each is granted or denied.

            Section 2005 outlines matters to be addressed in planning, including cost-effectiveness and compliance with federal, state and local laws, regulations and public policies. Process improvements include deadlines for completion of feasibility studies, and adoption of a risk analysis approach to project cost estimates. Benefit cost analyses for flood damage reduction projects is to include calculation of residual risk of flooding upon completion of the project, to human life and safety, and a calculation of any upstream or downstream impacts. Also, the Secretary may establish “centers of specialized planning expertise” to provide technical and managerial assistance, provide peer reviews of new major scientific, engineering or economic methods or analyses, provide support for external peer review panels convened by the Secretary, and carry out other prescribed duties. Corps reports are to include recommendations for alternatives suggested by non-federal interests to promote integrated water resources management, for which they are willing to pay the non-federal cost share.

            Section 2006 would create a cabinet-level Water Resources Planning Coordinating Committee with the chairperson and executive director appointed by the President. It establishes a National Water Resources Planning and Modernization Policy to: (1) reflect national priorities; (2) seek to avoid the unwise use of floodplains; (3) minimize flooding vulnerabilities; (4) protect and restore the functions of natural systems; and (5) mitigate any unavoidable damage to natural systems. The coordinating committee is also to submit an annual report of vulnerabilities to flooding and related storm damage that includes the risk to human life and property, as well as the comparative risks faced by different regions of the United States. The report is to include flood risk reduction priorities, an assessment of the extent to which programs unintentionally encourage development in floodprone areas, and recommendations for improving those programs. Within two years, the coordinating committee is also to propose revisions to the Corps planning principles and guidelines.

            Section 2007 creates, within the Office of the Secretary, a Director of Independent Review to ensure sound project planning. Any project with an estimated cost of more than $40M will be subject to review by an independent panel of experts. Further, the governor of any state within the drainage basin in which a project is located that would be directly affected economically or environmentally as a result of a project may request in writing an independent project review. The head of a federal agency with project review authority may request such a review, or the Secretary of Defense may initiate such a review where there is significant dispute regarding the size, nature, potential safety risks, or effects of the project; or the economic or environmental costs or benefits. Project planning review panels of 5-9 experts would be established with at least one engineer, hydrologist, biologist and economist. Separately, projects would also be subject to an independent safety assurance review.