Congress took a big step towards restoring protections for our Nation’s freshwater today when the U.S. Senate’s Environment and Public Works Committee reported out the Clean Water Restoration Act. Jim Murphy, Wetlands and Water Resources Counsel for the National Wildlife Federation, is one of the leaders working on this issue and wrote the following guest post providing all of the details. Jim coordinates NWF’s nationwide litigation and policy advocacy on Clean Water Act and wetlands protection and is a widely recognized expert on these issues.
Today the Senate Environment and Public Works Committee took a big step in ensuring Clean Water Act protections are fully restored to the Nation’s waters. With the key leadership of Senators Barbara Boxer (D-CA), Max Baucus (D-MT), and Amy Klobuchar (D-MN), an amended Clean Water Restoration Act bill was voted out of committee 12-7.
Passage of the Restoration Act is made necessary by two fractured and confusing Supreme Court decisions, the 4-1-4 decision in Rapanos v. United States (2006) and the 5-4 ruling Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers (2001). Combined with Bush Administration guidance documents interpreting these decisions in a cramped manner unfavorable to water protection, the result has been the loss or potential loss of basic CWA protections for tens of millions of acres of wetlands, as well as countless stream miles that include the almost 60 percent of stream miles in lower 48 states that do not flow year round. Additionally, confusion created by SWANCC and Rapanos have led to hundreds of enforcement cases being shelved, weakened requirements for polluters in enforcement cases that have been settled, increased agency workloads with a resulting decline in agency morale, and increased uncertainty and wait times for the regulated community.
The Restoration Act that was voted out of the Senate Environment and Public Works Committee today will fix the problems created by SWANCC and Rapanos by:
- Removing the confusing term “navigable” from the Act;
- Defining the term “waters of the United States” consistent with long-standing Corps and EPA regulations;
- Providing comprehensive findings establishing Congress’s constitutional bases to broadly protect waters; and
- Expressly leaving in place existing statutory and regulatory exemptions for agricultural and other activities.
The bill (S. 787) was originally introduced by Senator Russ Feingold (D-WI), but passage was assured by Senators Boxer, Baucus and Klobuchar, who offered amendments that clarified that existing regulatory exemptions for prior converted croplands and waste treatment systems remained in place, and further clarifying the intent to only restore pre-SWANCC protections, not create new protections. Senator Baucus’s leadership and effort was particularly instrumental in achieving a balanced and effective compromise. Weakening amendments creating all types of exemptions for both waters and activities were offered, but resoundingly defeated.
Passage out of the Senate Environment and Public Works Committee has greatly boosted the bill’s chances of becoming law. Conservationists believe the compromise bill can garner strong bi-partisan support on the Senate floor. Additionally, it is anticipated a companion bill will soon move in the House Transportation and Infrastructure Committee, where Chairman James Oberstar (D-MN) has been an early champion of restoring pre-SWANCC protections to our waters. In the previous Congress, nearly 180 House members co-sponsored a bill substantially identical to the one originally introduced by Senator Feingold this Congressional term.