Congress' response to a 2006 U.S. Supreme Court decision involving wetlands regulations has some local officials worried that it could delay the completion of public projects. The split decision in the two cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, left many questions unanswered, such as when certain types of wetlands are subject to federal regulation and how the corps defines “waters of the United States.”
House Transportation and Infrastructure Committee Chairman James Oberstar, D-Minn., and Sen. Russ Feingold, D-Wis., have introduced identical bills in the House and Senate that supporters say would clarify the original intent of the section of the Clean Water Act, which defines “waters of the U.S.,” including wetlands. Opponents say the legislation, if passed, would subject all bodies of— including man-made ditches and gutters — to corps regulation, possibly leading to increased delays in acquiring permits for some projects.
Projects on or connected to wetlands are subject to review by the corps and thebecause of their possible connection to navigable waters. Under the Clean Water Act, which gives the federal government authority to control discharge of pollutants into navigable waters, the projects often require permits, and local governments say applying for those permits can be expensive and time consuming.
Confusion about the Supreme Court decisions already has increased delays in permitting, says Lemhi County, Ill., Commissioner Robert Cope. Four justices said only permanent or “continuously flowing” rivers and streams are subject to Clean Water Act regulations, while five others disagreed, saying that the corps must show a “significant nexus” between a stream, river, or wetland and a navigable water. “As I understand, the corps is not sure about whether they have authority [over some projects], so they're making people go out and see, and that's the problem,” Cope says. “I have heard that if the bill passes, there could be a delay of three to six years. That's our big fear.”
On occasion, local officials say, the federal government considers not only lakes and rivers to be navigable waters, but also their smaller tributaries, including artificial and natural streams, some of which do not contain water year-round. That interpretation can lead to regulation of projects miles away from any navigable waters.
The proposed bills, which eventually will be combined to form the Clean Water Restoration Act, would redefine “waters of the U.S.” by omitting the term “navigable.” “The bill would legislatively set authority of the corps over virtually everything,” Cope says.
The Upper Salmon Basin Model Watershed Project (USBMWP) in Lemhi County undertakes numerous salmon recovery programs that could suffer from additional corps oversight and permitting requirements, Cope says. The USBMWP activities, such as removing culverts and installing fence enclosures for narrow pieces of land that border bodies of water, are funded by the Portland, Ore.-based Bonneville Power Administration (BPA). The BPA only will fund the projects one year in advance, according to Cope. “If it takes longer than that, they take the money back,” he says, adding that the permitting process definitely would exceed that time limit if the water usage bills are approved.
In a July statement on the Senate floor, Feingold said his proposal would not change the EPA and corps' existing regulations or any aspect of the regulatory programs. “In fact, the bill defines waters of the U.S. based on the regulations that have been in place since the early 1970s,” he said.
Ed Rosado, legislative director for the Washington-basedsays he understands Oberstar would like to “move the bill this fall.” Oberstar spokeswoman Mary Kerr says two hearings have been held on the bill and that no more are scheduled at this time. “There is no timeline for the [passage of the] legislation at this point,” she says.
Meredith Preston is the Washington correspondent for American City & County.