Both the 102nd and 103rd Congresses tried and failed to reauthorize the Clean Water Act, but the 104th Congress made reauthorization a high priority. The House acted quickly, passing a major overhaul on May 16, 1995. The day before, Senators Lauch Faircloth (R-NC) and J. Bennett Johnston (D-LA) introduced S. 851, rewriting Section 404 of the Clean Water Act, which covers wetlands. Since that time, controversy over the wetlands provisions in both bills have paralyzed efforts to move legislation forward in the Senate. This issue is highly contentious because many wetlands are located on private property, and the concerns of those property owners have found a sympathetic ear in the Republican majority. Since the introduction of S. 851, however, the only action in the Senate has been a series of hearings held by the Committee on Environment and Public Works, chaired by Senator John Chafee (R-RI) and its Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety chaired by Faircloth. The issue was last debated during a hearing of the full committee on March 14, 1996.
Although Chafee made Clean Water Act reauthorization a priority for his committee, he was unable to develop a workable compromise on a comprehensive reform bill that included the wetlands provisions. In a recent letter to the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers, Faircloth indicated that he will not seek wetlands legislation for the remainder of the 1996 legislative session, expressing disappointment over the unlikely reauthorization of the Act.
The Federal Water Pollution Control Act of 1972 is commonly known as the Clean Water Act (PL 92-500). Its purpose was to regulate the discharge of pollutants into the surface waters of the nation. The Act incorporates two major strategies to accomplish its objectives. The first was to establish a large federal grant program for the construction of local sewage treatment plants, and the second was to require all municipal sewage and industrial waste water to be treated before release into the nation's waterways.
The Clean Water Act has been amended several times since 1972, most profoundly in 1977, 1981 and 1987. The most recent reauthorization of the Act became law after Congress overrode President Reagan's veto by votes of 401 - 26 in the House and 86-14 in the Senate. The bill became law on February 4, 1987 (PL 100-4). Since then, authorization for many of its programs have expired, particularly the capacity for states and localities to receive federal funding for clean water projects which lapsed in 1991.
H.R. 961 was introduced by House Transportation and Infrastructure Committee Chairman Bud Shuster (R-PA). Although H.R. 961 addresses many aspects of the Clean Water Act, the wetlands provisions within the bill were the most controversial. Drawing on a proposal by Rep. Jimmy Hayes (R-LA), the bill was intended to completely revamp the federal wetlands protection program, establishing a classification system under which wetlands are categorized into three types. The least valuable wetlands would no longer be federally protected, the next type would receive limited protection, and "Type A" wetlands would be strictly regulated. In addition, the bill would utilize an inundation test which defines wetlands by requiring land to be underwater for 21 consecutive days.
The Senate bill champions a concept known as wetlands mitigation banking, which has been defined as the capacity for developmental interests to purchase, restore, or create wetlands to compensate for permitted wetlands losses. Whereas the sponsors believe their language would uphold property rights and protect land that is not really wetlands, environmental interests state that the sponsors' definition of wetlands is unscientific and would significantly reduce the amount of wetlands protected under federal law.
Several days before the House passed H.R. 961, the National Research Council released a report entitled Wetlands: Characteristics and Boundaries, which had been commissioned by Congress in 1992. The purpose of the report was to provide guidance on the scientific and technical basis for characterization of wetlands. Because the report's definition of wetlands differed from that in both the House and Senate bill, the timing of its release was roundly criticized. Writing in the July 1996 issue of Geotimes, the chairman of the NRC committee that wrote the report, William M. Lewis Jr., cautioned against any attempts to legislate a definition for wetlands: "Nature defines wetlands; it is the role of Congress to decide whether some, all, or no wetlands will be protected." That is a role that the next Congress will no doubt seek to play, taking up where this one left off.
This update is adapted from an article submitted to The Professional Geologist.