Oberstar Offer To Narrow Clean Water Bill Fails To Sway Key Critics

Efforts by Rep. James Oberstar (D-MN), the chairman of the House Transportation & Infrastructure (T&I) Committee to narrow his controversial bill defining the scope of the Clean Water Act (CWA) appear to have failed to win over the bill's Republican and conservative Democratic detractors.

At a marathon, 23-witness hearing on H.R. 2421 April 16, Oberstar agreed to narrow and clarify the types of waters and activities covered by the legislation, as recommended by EPA and the U.S. Army Corps of Engineers. In his opening statement, Oberstar said he is open to making “adaptations” to the bill and invited Republicans and the witnesses to “offer constructive proposals.” The bill is “not an inflexible document but a starting point for discussion,” Oberstar said.

But chances for compromise between Oberstar and the bill's critics, including key committee Democrats, seem slim, and it remains unclear whether the T&I chairman still has enough votes to get the bill out of committee. Rep. Nick Rahall (D-WV), chairman of the House Natural Resources Committee and a senior member of the T&I committee, appeared unmoved in his opposition to the bill. At the hearing, Rahall railed against the unintended consequences of adopting the bill, which would expand the law's scope to cover all waters not just “navigable waters.” Rep Rick Larson (D-WA) said in a written statement April 16 that the “consensus” that emerged from the hearing is that the law should remain focused on “navigable waters.”

The committee's ranking Republican, Rep. John Mica (R-FL), said the bill would be “disastrous” for land rights, agriculture and many facets of the economy.

However, Oberstar's willingness to alter the bill appears to have won over a number of other Democrats who previously opposed the bill. Democratic Reps. Peter DeFazio (OR), John Salazar (CO) and Zach Space (OH), all of whom have previously raised concern over the bill, were amenable in the hearing to passing the bill given some clarification. And with alterations, two Republicans appeared willing to consider support for the bill. Rep. Thomas Petri (R-WI) asked advise for improving the legislation, and Rep. Candice Miller (R-MI), while concerned about expanding the scope of the act, iterated her support for maintaining the integrity of the water act overall.

Oberstar's inability to win over the Democratic critics raises questions about the long-term prospects for the bill. John Pawlow, GOP counsel on the committee, said April 14 at a meeting of the National Water Resources Association that he has “serious doubts” Oberstar has the votes to move it out of committee, but that he may still “blindly plow ahead,” or “do some back room arm twisting.”

At the hearing, EPA water chief Ben Grumbles and Army Assistant Secretary for Civil Works John Paul Woodley Jr. both expressed concern that the bill does not clearly define which activities would be exempt from jurisdiction, which could lead to additional litigation. They recommended clarifying the types of waterbodies covered and detailing the legislation's exemptions to match current regulatory exemptions, as to avoid confusion in congressional intent. Grumbles also made clear that he thinks it is a mistake to remove the term “navigable” from the water act -- a key tenant of the bill that Oberstar appeared unwilling to change.

The bill's backers say the legislation is needed to restore the integrity of the water act following recent Supreme Court decisions that muddied regulatory oversight for some marginal wetlands and other waters. But GOP and other critics are arguing that the bill would grant the federal government broad authority to regulate almost any waterbody and will do little to clarify current legal uncertainty about which waters fall under federal authority.

Grumbles, while resisting insistence that the bill would unravel 30 years of CWA precedence, said he thought it would likely expand the agency's jurisdiction, which could result in a spate of litigation. Oberstar repeatedly insisted that he does not want to expand the reach of the CWA to areas it previously did not cover.

Rep. John Boozman (R-AR), ranking member of T&I's water resources and environment subcommittee, asked Grumbles whether the removal of the word “navigable” from the CWA would result in inclusion of groundwater under CWA jurisdiction. Grumbles said, “I don't have a legal conclusion on that . . . [but] if the answer were yes, that would be a significant change in practice.”

Grumbles in his testimony also provided several other areas where the bill could be altered, including adding additional exclusions to the bill's savings clause, as well as clarifying the definition of the word “activities” to demonstrate types of waterbodies and not actions. Examples of exclusions that should be explicitly listed in the bill are “prior converted croplands” and waste treatment, activities that EPA rules currently exempt from regulation, he said. Oberstar said it was not his intent to leave out any currently practiced exclusions.