Since the Supreme Court’s infamously muddled and split decision in Rapanos v. United States created uncertainty for protecting non-navigable streams and wetlands under the Clean Water Act, political efforts have been building to restore protections through the legislation called the Clean Water Restoration Act. After several years of legislative and outreach work, 2009 could be the year of success for the Clean Water Restoration Act. I asked my good friend and former colleague Chris Grubb of the National Wildlife Federation, which is helping lead this effort, to provide the inside scoop:
When it comes to protecting waters and wetlands from polluting activities under the Clean Water Act, it’s a mess out there! That’s the basic sense of a recently released EPA Office of the Inspector General report. The report demonstrates that recent Supreme Court rulings and subsequent agency guidance are having a damaging effect on the agencies’ ability to administer an effective program. In addition to good old fashioned regulatory uncertainty, the report also indicates that:
“An estimated total of 489 enforcement cases (Sections 311, 402, and 404 combined) have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.”
The backstory: In 1972 Congress passed the Clean Water Act with an ambitious goal of restoring and maintaining the biological, physical, and chemical integrity of the nation’s waters and eliminating polluting discharges by 1985. The law generally protects waters from filling and point sources of pollution, requiring a permit for such discharges. While the historic scope of waters protected by the law has been broad, this scope has recently been called into doubt.
The doubt was first created by the Supreme Court’s 2001 decision Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineer, in which the court ruled that intrastate, isolated ponds could not be determined jurisdictional under the Clean Water Act based solely on their use as migratory bird habitat. While this ruling was narrow, it started the confusion. A subsequent Bush Administration guidance interpreted the ruling in a manner that effectively removed basic protections for at least 20 millions acres of waters and wetlands in the lower 48 states.
Then the 2006 consolidated Supreme Court cases – both of which started in Michigan – Rapanos / Carabell vs. United States resulted in a divided Court issuing a confusing 4-4-1 divided ruling that cast doubt on whether non-navigable tributaries and their associated wetlands were protected by the Clean Water Act. While a majority of the Supreme Court could not agree on any governing standard, the effect of the decision has been another damaging agency guidance that sets forth a time consuming case-by-case process to determine jurisdiction over many streams and wetlands. The Rapanos decision has put at risk safeguards for approximately 60% of the nation’s stream miles (exclusive of Alaska) and their neighboring wetlands.
The fix: A group of federal legislators led by Senator Feingold (D-WI) in the Senate and Representatives Oberstar (D-MN), Dingell (D-MI), Ehlers (R-MI), and others in the House have introduced legislation over the past few sessions of Congress called the Clean Water Restoration Act (the 2007 version is available here). The purpose of the legislation is to make clear Congress’s intent that Clean Water Act protections be applied broadly, and to return to pre-SWANCC era protections. Congressman Dingell, who managed debate on the House floor during passage of the Clean Water Act, said the following at the introduction of the bill in the 110th Congress:
“When ruling on the recent challenge to the Clean Water Act, the Supreme Court continued to bungle the clear intent of Congress.... I’m very pleased to join with Congressmen Oberstar and Ehlers to help on this important legislation that will correct the course the Supreme Court set us on and prevent any further mess made of a wonderful law.”
The Clean Water Restoration Act will fix the current mess by removing the term “navigable” from the Clean Water Act, the term that the Supreme Court focused on as the basis for its confusing rulings in SWANCC and Rapanos; define the scope of waters protected based on the historic regulatory scope of the Clean Water Act; and provide foundations for Congress’s ability to protect waters under the Constitution. In the current Congress, the Clean Water Restoration Act has again been introduced in the Senate, and introduction is soon expected in the House.
In the Senate, the legislation is currently awaiting action in the Senate Environment and Public Works Committee, where a mark-up of the bill is imminent. Senators from Great Lakes states – Senators Klobuchar (D-MN), Specter (D-PA), and Voinovich (R-OH) – will have an important role in whether this legislation passes the committee, and are said to be engaged in negotiations with other committee members behind closed doors. This week the Minneapolis Star-Tribune gave Senator Klobuchar a gentle nudge in making sure this important legislation reaches the finish line. The National Wildlife Federation is working to ensure that all three of these Senators support the bill – you can join that effort at www.nwf.org/waters.