The Chairman of the House Transportation and Infrastructure Committee, Representative James Oberstar (MN), along with Representatives John Dingell and Vern Ehlers (MI), introduced legislation on April 21 that attempts to restore protection under the Clean Water Act (CWA) for geographically isolated wetlands and intermittent ephemeral streams. Regulation under the CWA was changed in 2001 and 2006 by Supreme Court decisions that limited federal enforcement to navigable waterways. The new bill (H.R. 5088), America's Commitment to the Clean Water Act (ACCWA), would delete the use of "navigable waters" from the CWA. It also more clearly defines "waters of the United States" and codifies regulatory exemptions for prior converted croplands and waste-treatment systems. The bill has received the support of many conservation organizations but has received sharp criticism by ranching and farming groups as well as some western lawmakers, reports the Wildlife Management Institute.

In 1972, Oberstar was a staff assistant to Minnesota Congressman John Blatnik, one of the chief authors of the CWA, and personally worked on the landmark law. "There was never any doubt that the Clean Water Act was to have broad authority," said Oberstar. "There were no limits on the number of streams, lakes or shorelines to be protected; it just said ?the waters of the United States.'? The Supreme Court has greatly limited the scope of the act and greatly confused the application of existing law."

Since the Supreme Court decisions earlier this decade, millions of acres of wetlands have faced the potential of being polluted or drained because they are considered geographically isolated. Guidance issued by the Environmental Protection Agency and Army Corps of Engineers as a result of the Supreme Court decisions has caused confusion among farmers, ranchers, developers, and other landowners and managers over permitting requirements as agencies have struggled to apply the guidance to proposed projects. According to Ducks Unlimited, 98 percent of waters in the United States are not truly navigable as defined by this guidance. The Court's decisions have had particular impact on the critical migratory bird breeding grounds of the prairie pothole region.

"The [Supreme Court] ruling are of particular concern to sportsmen," noted Dingell during the bill introduction. "Wildlife biologists estimate that without Clean Water Act protection, much of the prime breeding habitat for waterfowl in North America could be lost, leading to devastating impacts on waterfowl populations. This could mean drastically shortened hunting seasons?or no season at all."

Conservation organizations have campaigned to restore the CWA to its original intent and lawmakers have responded. ?In Spring 2009, Senators Barbara Boxer (CA) and Russ Feingold (WI) introduced the Clean Water Restoration Act in the Senate (see April 2009 ONB) and the bill was approved by the Senate Environment and Public Works Committee in June 2009. The House companion bill has been long anticipated, but the long-term viability of both bills is in question due to a concerted opposition by agricultural interests.

"It amounts to an unprecedented attack on state water rights and water law by the federal government," claimed Representative Greg Walden (OR). "We already have too many difficulties dealing with federal agencies on water issues in our part of the world. The last thing we need is to cede more jurisdiction to the feds. Oregon has strong water and environmental laws and Oregonians have a greater ability to work positively to resolve issues with state regulators than they'll ever have with federal agencies."

Besides the clarification of isolated wetlands, Oberstar's bill would also codify an exemption from the CWA for farming activities on prior converted croplands (PCC) to provide greater certainty and clarity to the agricultural community. Since 1993, CWA regulations have excluded waters that are also PCC in order to promote consistency between farm programs and environmental protection. The effect of the exclusion has been that farming in PCC does not require a CWA permit while lands are used for agriculture. Currently, this exemption exists only in regulation; it could be changed or repealed at any time.

The ACCWA would define PCC as wetlands that were converted from a non-agricultural use to cropland prior to December 23, 1985, based on U.S. Department of Agriculture regulations, implementing documents and legislative language in the 1985 and 1996 Farm Bills. The lands must be in agricultural use to qualify as PCC, and continue to be in active agricultural use through agricultural production at least every five years after 1985, or the PCC was considered abandoned and the exemption lost. However, exemption from CWA has been interpreted by some to be without qualification and regardless of whether the lands are farmed or developed. By codifying the definition, opponents to the ACCWA fear this perceived latitude in implementation of the PCC exemption will be lost.

"Farm Bureau is deeply concerned that the legislation will overturn the current treatment of prior converted cropland, a regulation that has been in place for nearly two decades," reads the American Farm Bureau Federation statement. "This would effectively give federal control of the development rights of 53 million acres of private land. This extension of federal control over private property rights is dangerous and unprecedented."

Oberstar countered the accusations in an open letter to agricultural interests and to his colleagues in the House of Representatives on April 27. An accompanying factsheet outlines what the bill does and does not do, emphasizing that the bill does not create any new federal jurisdiction over groundwater or diminish states' rights over water quality or quantity. It also does not affect existing permitting exemptions for normal farming and ranching activities, including stock ponds or irrigation ditches.

"Opponents of the bill argue that the federal government should not require a permit for everything you do that might affect a wet area. I agree," wrote Oberstar in his letter to the agricultural community. "The Clean Water Act never required such permits and I do not offer legislation that would do so. Simply put, if it was not regulated before 2001, it will not be regulated with the enactment of the bill."

"The bill has been carefully crafted to ensure that the Clean Water Act is neither expanded nor contracted," Oberstar wrote to House colleagues shortly after the bill was introduced. "I worked extensively with EPA, the Corps, the Natural Resources Conservation Service, and agriculture and resource conservation groups to achieve that result, being purposefully careful to avoid new terms or concepts that could be misinterpreted."

Efforts to amend the CWA have been attempted five times in the House since the Supreme Court rulings. No hearings or votes in the House have been scheduled to date. (jas)