This Thursday I will be in Boston to participate in a panel discussion on whether the Congress should enact legislation to "restore" the Clean Water Act in response to the Supreme Court's decisions in SWANCC v. Army Corps of Engineers and Rapanos v. United States. Other panelists will include Reed Hopper of the Pacific Legal Foundation, Patrick Parenteau of the Vermont Law School, and Christopher Kilian of the Conservation Law Foundation. Here's the panel description:

In the 2006 plurality decision in Rapanos v. United States, the Supreme Court limited the scope of the Clean Water Act's protection of "navigable waters" to only include those bodies of water that are "permanent, standing or continuously flowing," and thus did not apply to channels through which water flows only some of the time. A concurring opinion by Justice Kennedy held that Clean Water Act jurisdiction extended only to those wetlands and waters with a "significant nexus" to navigable waters. Substantial litigation and regulatory uncertainty followed in the wake of the Rapanos decision, as courts, regulators, and private landowners sought to identify the statutory limits of federal regulatory authority. In response to Rapanos and the resulting regulatory uncertainty, Representative James Oberstar (D-MN) introduced the Clean Water Restoration Act. According to the Congressman's website, this legislation would "fix the Clean Water Act." The legislation, if enacted, would significantly expand federal regulatory authority over waters and wetlands and would allow the Environmental Protection Agency and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are unconnected to any a major navigable waterway. Is such legislation sound policy? Would the Clean Water Restoration Act provide regulatory uncertainty or enhance environmental protection? Or would it create further regulatory nightmares for private landowners? Is Congress likely to consider this legislation during its current session? If so, is the Obama Administration likely to support it?

I testified at a House Transportation Committee hearing on the proposed "Clean Water Restoration Act" last spring, and blogged on the proposal here and here.