Will new legislation change the Clean Water Act so that it is rewritten to give the states more power on wetlands protection decisions, and what is the U.S. Supreme Court going to rule during this current court session that will affect Clean Water Act enforcement?

These two questions have been points of discussion for months, and the regulatory aspects of the Clean Water Act have been a general bone of contention by most agricultural groups for years.

A shift in power to the states from the federal government in enforcement of the Clean Water Act could reduce federal expenditures but put costs onto states that are low on tax revenues and already have unbalanced budgets.

“It is significant from a financial standpoint, is there the money to carry out regulatory programs, is there the money for states’ agencies to carry out their clean water responsibilities? So it's a huge part of the policy discussion,” said Ben Grumbles, former assistant administrator for water at U.S. EPA and the current president of the Clean Water America Alliance, in speaking on E&E TV, an E&E Publishing Service.

Much of the concern about Clean Water Act enforcement pertains to wetlands, which is a huge concern for farmers and ranchers.

“I think over the last decade there's been a lot of discussion—since one of the criticisms for the Federal Wetlands Regulatory Program is that in many respects a local land use statute, and, therefore, if you delegate authority to the governmental entity that's closest to those that are actually being governed; that's a recipe for success. But for years the Congress and others have debated how do you get states to willingly, knowingly assume the most controversial aspect of it— the Clean Water Act Wetlands Permitting Program. And there are some specific ways to do that, and that's one of the things that I think the Congress really needs to focus on because it may be a key to helping to solve this problem,” said Grumbles.

The Supreme Court could give new direction to the discussions in a decision that is expected to be issued as 2012 begins. The case is commonly referred to as the Sackett case and is based on the EPA issuing fines against an Idaho couple that was proceeding to build a home on ground the EPA decided was a wetland area.

In comments made to E&E TV at the end of July, Grumbles said, “The recent agreement by the Court to take up the Sackett case here in the October term coming up is not a conscious signal that they're going to be wading into the policy question of what is and isn't a wetland or what role the EPA or the Corps of Engineers have, but it's a focus on the fairness and the procedural rights of those who may disagree with EPA; it's a pre-enforcement judicial-review type of question.

“And I think a lot of people are concerned that it's going to provide—particularly from the environmental community—as the Supreme Court weighs in on what rights property owners have, to challenge a decision by the EPA and if they (Sacketts) should have gotten a permit before proceeding.

“The environmental groups and others are concerned that it's going to create a grandstand for those to criticize further the EPA permitting programming and galvanize more support behind significant changes on what is and isn't covered and what are the procedural right. I think it's going to be interesting, and there may be some spillover effect even if it just focuses on pre-enforcement judicial review, you know very technical, legal, procedural issues. But there's a reason the Supreme Court took it. Nobody really knows exactly why, and it may be to send some additional language our way to indicate how these agencies really have got to revise their regulations to provide more predictability and certainty to the regulated public.”