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Senators on the committee are in the midst of a protracted battle over whether S. 1870 would preserve wetland protections in the Clean Water Act or expand them. The bill would amend the Clean Water Act so that "waters of the United States" would replace "navigable waters of the United States" wherever that phrase appears (E&E Daily, April 7).

Browner, EPA administrator from 1993 to 2001, said the change would allow EPA to continue to act as it has for more than 30 years in the face of court challenges that would "do serious damage to enforcement of the Clean Water Act and protection of not just tributaries and wetlands but all of the United States' waters."

Committee Chairwoman Barbara Boxer (D-Calif.) said the bill by Rep. James Oberstar (D-Minn.) and Sen. Russ Feingold (D-Wis.) is essential to restoring wetland protections taken away in two Supreme Court cases, Solid Waste Agency of Northern Cook County and Rapanos-Carabell.

Boxer said the court case "has created massive confusion among judges, the regulated community, EPA and the Army Corps" and suggested it could lead to increased litigation as stakeholders attempt to decipher its meaning.

In Rapanos-Carabell, the Supreme Court held that government wetlands regulation should be limited primarily to navigable waterways and adjacent wetlands and should not extend to man-made ditches and other seasonally or intermittently wet areas (E&ENews PM, Nov. 28, 2007).

Ranking member James Inhofe (R-Okla.) rebuffed assertions that the Oberstar-Feingold bill could provide clarity. It "will expand federal jurisdiction authority in a way that pushes the outer limits of Congress' constitutional role," he said. "It will not curtail litigation, but rather increase it, as stakeholders seek legal clarity on what exactly are the outer limits of congressional authority."

Sen. Larry Craig (R-Idaho) said he believed the bill would "put us in a situation where any puddle that can float a legislative brief is now in question.

"Don't think it won't end up in the courts," Craig warned.

Browner said many of the wet areas senators and witnesses expressed concern about would not be affected by the legislation.

"The best definition of a wetland is not whether water is always there," she said, dismissing accusations that the bill would regulate puddles. "You look at the vegetation and habitat."

States' rights

Committee Republicans framed the conflict over Oberstar-Feingold as a states' rights issue.

"The people of Wyoming do not want the federal government to go where this bill wants to go," said Sen. John Barrasso (R-Wyo.). "I'm concerned the legislation would grant to EPA and the Army Corps unlimited regulatory control over all the wet areas in a state."

Barrasso said the bill "trumps states' rights and leads to a more expensive, cumbersome bureaucracy."

Craig agreed, saying the scarcity of water in the West amplifies the need for state control. Decisions should be made in Boise or Sacramento, he said, referencing Boxer's home state.

Fellow Westerner Sen. Max Baucus (D-Mont.) avoided wholeheartedly endorsing the Oberstar-Feingold bill, calling it "one path forward."

Baucus said he looked forward to working with the committee to see if it was "the right path."

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