Policy and Legislation

Photo: pdphoto.org

The Clean Water Act was passed in 1972 with a very clear purpose: "to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." Since the Act was passed, we have made great progress in cleaning up our waterways. However, since a Supreme Court decision in 2001, polluters have argued that the law no longer protects numerous wetlands, streams, lakes and other waters historically covered by the Act.

In 2003, the Environmental Protection Agency and Army Corps of Engineers issued a policy directive instructing their field staff to stop applying Clean Water Act protections to so-called "isolated" waters. This directive endangered as many as 20 million acres of our remaining wetlands and innumerable small streams.

On May 18, 2006 the U.S. House of Representatives rejected this misguided policy. With a 222-198 vote, the House approved an amendment to the Interior-EPA Appropriations bill to prohibit implementation of the policy. The amendment was successfully offered by Representatives James Oberstar (D-MN), Jim Leach (R-IA), and John Dingell (D-MI).

Since 1972, the Clean Water Act has provided federal safeguards against polluting or destroying the rivers, lakes, streams, ponds, coastal areas, and other waters that Americans rely on for drinking water, fishing, recreation, flood protection, fish and wildlife habitat, and many other uses. Since its passage, we have made enormous progress in reducing the amount of pollution in our waters.

In 2001, the Supreme Court ruled in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers that the federal government could not classify a non-navigable, intrastate, isolated former sand and gravel pit as a "water of the United States" under the Clean Water Act, based solely on its use by migratory birds. This decision was quite narrow, and required no changes to the federal rules identifying the waters protected by the Act.

The 2003 EPA-Corps policy directive, denying protection to "isolated" waters, was an unnecessary expansion of this decision and scientifically as well as legally unsound. Few, if any, water bodies are truly "isolated" from other waters. Even where wetlands, seasonal streams and other waters are not continuously connected to other surface waters, they typically have important connection to groundwater, as well as biological and chemical connections that sustain healthy conditions in other wetlands, lakes, streams and rivers. Many of these so-called "isolated" waters -- such as vernal pools, prairie potholes, playa lakes, and bogs -- provide critical habitat for a wide array of birds and other wildlife species.

Many of these systems contribute to maintaining and protecting drinking water supplies, and provide critical flood water storage. Since 2003, the agencies have issued thousands of decisions declaring that certain wetlands, ponds, streams, and even rivers are no longer "waters of the United States" and could be polluted or destroyed at will. The agencies have reported making thousands of these "no jurisdiction" determinations. By contrast, in only about a dozen cases have field staff applied to headquarters asking that waters be protected from pollution. Waters affected by this policy include a 150-mile-long river in New Mexico, thousands of acres of wetlands in one of Florida's most important watersheds, a sixty-nine-mile-long canal used as a drinking-water supply in California, and an eighty-six-acre lake in Wisconsin that is a popular fishing spot.

On June 19, 2006 the U.S. Supreme Court ruled on two landmark cases, Rapanos v. United States and United States v. Carabell, that together challenged federal Clean Water Act protections over non-navigable streams and rivers that are tributaries to larger lakes, rivers, and coastal waters, as well as to the wetlands that are nearby these streams and smaller rivers. Instead of clearly upholding Clean Water Act protections over these waters that have been in place for the last 33 years, the Supreme Court issued a split 4-1-4 opinion that lacks any single majority opinion and muddies the waters surrounding the question of the Act’s jurisdiction.

The Supreme Court decisions in the Rapanos and Carabell cases further muddied the original intent of the Clean Water Act, which is that all waters of the United States should be protected from harmful pollution. This fractured Supreme Court decision could leave many streams, tributaries, and wetlands without federal protection.

The Clean Water Restoration Act (H.R. 2421) provides the opportunity to reaffirm the historical scope of the Clean Water Act. It would simply adopt the existing twenty-five-year-old regulatory definition of "waters of the United States," providing critically needed protections for waters that are put at risk by any adverse Court ruling. This bipartisan legislation, co-sponsored by 158 Representatives, would head off all the attacks being brought by polluters and developers to weaken the protections for our waters.

This bill were reintroduced in 2007 by Representatives James Oberstar (D-MN), Vernon Ehlers (R-MI) and John Dingell (D-MI).

• Check out the text of the Clean Water Restoration Act (H.R. 2421).