Letter Opposing the "Clean Water Restoration Act of 2007"

Monday, July 16, 2007 - 8:00pm

July 17, 2007

The Honorable James L. Oberstar
Chairman
Committee on Transportation and Infrastructure
United States House of Representatives
Washington, DC 20515

The Honorable John L. Mica
Ranking Member
Committee on Transportation and Infrastructure
United States House of Representatives
Washington, DC 20515

Dear Chairman Oberstar and Ranking Member Mica:

The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region, opposes H.R. 2421, the "Clean Water Restoration Act of 2007." H.R. 2421 unreasonably extends the scope of federal Clean Water Act (CWA) authority from the "navigable waters of the United States" to, essentially, any area within a state that happens to be wet. The result of such legislation would be massive permitting delays, federal preemption of state and local land and water use decisions, and a de facto unfunded mandate on states.

In Rapanos v. United States, 126 S. Ct. 2208 (2006), the United States Supreme Court rejected the notion that CWA jurisdiction extends to all areas with a "hydrological connection" to navigable waters. Although the ink has barely dried on the decision, H.R. 2421 attempts to skirt Rapanos and broaden CWA jurisdiction. By deleting the term "navigable" from "navigable waters of the United States," H.R. 2421 grants the Environmental Protection Agency and U.S. Army Corps of Engineers an unprecedented level of authority not just over those areas with a "hydrological connection," but over all wet areas within a state, including groundwater, ditches, pipes, streets, municipal storm drains, and gutters. Those agencies would exercise virtually unlimited regulatory authority over waters presently under state jurisdiction.

Such a move would cause major problems. The already-overwhelmed federal permit program would practically crumble under the weight of increased applications. The Chamber's members estimate that it takes two to three years to obtain an individual permit, and that there is a 15,000 to 30,000 permit backlog. The increased federal authority granted by H.R. 2421 will increase such delays exponentially; as a result, businesses that need these permits as a condition to doing business (real estate, electricity transmission, transportation, and mining) will not be able to obtain them.

Moreover, any existing state or local permitting programs will, at best, conflict with or, at worst, be eradicated by H.R. 2421. Land and water use decisions, once the province of state and local governments, will have to be routed through the federal government. Compliance with these new requirements—water quality standards, effluent limitation guidelines, Total Maximum Daily Loads, and expanded workload for state-administered CWA programs—will amount to a de facto unfunded mandate on states.

The Supreme Court recommended that regulatory action consistent with its holding in Rapanos. It did not suggest that Congress circumvent Rapanos through new legislation. H.R. 2421 expands federal CWA authority to waters never intended to be covered by the Act, and could destroy the existing federal-state water regulatory structure. For all the aforementioned reasons, the Chamber opposes H.R. 2421.

Sincerely,

R. Bruce Josten

Cc: Members of the Committee on Transportation and Infrastructure