Clean Water Restoration Act Update: December 2008

(National Wildlife Federation)

The momentum is building for passage of the Clean Water Restoration Act – legislation to restore Clean Water Act protections for wetlands, streams, and other waters that are losing those protections in the wake of the 2001 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and 2006 Rapanos v. U.S. Supreme Court decisions.  Just in the last few weeks, the Supreme Court, the Administration, and Congress have given new reasons for Congress to act. 

State associations, environmental groups, and sportsmens’ groups have advised the Obama Administration of the importance of supporting this legislation.  More below….   

OUTLOOK:  New bills are expected to be introduced in both the House and the Senate in early 2009.  With your help, and broad-based support from the Obama Administration, States, environmental groups, sportsmens’ groups, unions, religious organizations and others, early passage of this critical Clean Water legislative fix is well within reach. 

WHAT YOU CAN DO NOW:  While they are back home for the Holidays, urge your congressional representative and senators to move quickly in 2009 to pass legislation to restore Clean Water Act (CWA) protections to the Nation’s wetlands and streams.  Letters to the editor doing the same can also be very helpful as the 111^th Congress convenes in January.  Also, urge your Governor, Attorney General, and Environment, and Fish and Wildlife agency heads to ask your congressional delegation to pass the Clean Water Restoration Act.

UPDATE:  December 16^th, the House Government Oversight Committee and Transportation and Infrastructure Committee released a joint memorandum highlighting the deterioration of CWA enforcement post-Rapanos and reinforcing the case for the Restoration Act.  A letter to President-elect Obama accompanying the memo concludes that “the federal government’s Clean Water Act enforcement program has been decimated over the last two years, imperiling the health and safety of the nation’s waters.” 

The Committees’ investigation was triggered by a March 2008 memo from EPA’s head of enforcement stating that “since July 2006, the Rapanos decision or the Guidance negatively affected approximately 500 enforcement cases.”  The December memo reveals in detail that the post-Rapanos legal uncertainty is undermining CWA enforcement, and causing crippling workloads and low moral in the agencies charged with implementing the Act. The memo finds that hundreds of polluters have been let off the hook because of legal uncertainty regarding what waters the CWA protects. The report also found evidence that industry lobbyists and political appointees successfully weakened protections and overruled sound science. The memo details successful industry efforts to weaken the guidance, as well as industry and political tampering with an important jurisdictional call regarding the Santa Cruz River in Arizona.  See the documents at http://oversight.house.gov/.

Early in December, the Supreme Court refused to hear a case that could have provided some clarification regarding the nation’s clean water protections by clarifying its own very confusing Rapanos decision.  Instead, the Court punted – leaving in place post-Rapanos confusion and uncertainty that is hobbling basic pollution protections for countless stream miles and wetlands.  Even if the Court did take this case, it would have still likely left countless waters at risk of not being  protected from pollution under the Clean Water Act.

The ruling the Supreme Court refused to review, United States v. McWane, effectively overturned a criminal conviction of an industrial pipe manufacturer found guilty of illegally dumping oil, lead, zinc, grease and other pollutants into Avondale Creek in Alabama, a permanently flowing stream that eventually flows into the navigable Black Warrior River. That appeals court ruling found that the government must meet a time consuming case-by-case test to determine whether even permanently flowing streams are protected by the CWA.  The government stated in its brief that if it had been required to follow this test over the previous year it would have required almost 30,000 additional hours of personnel time just to review case files in the states of Florida, Georgia and Alabama. 

One day later, EPA and the Corps of Engineers released “revised” Rapanos guidance that is less protective and more confusing than the original June 2007 guidance it replaces.  The revised Guidance makes three changes from the original Guidance, none of which correct its major flaws.  

Of most concern, the revised Guidance in many cases requires waters to support or be capable of supporting commercial activity to be considered “traditionally navigable.” Currently and under case law, mere navigation or susceptibility to navigation, including recreational navigation, suffices.  

Because an important test in the Rapanos decision – Justice Kennedy’s significant nexus test – measures the relationship between upstream waters and the nearest traditionally navigable water, it is crucial that as many waters be labeled traditionally navigable as the law allows.  By limiting the extent of such waters, the nature of the relationship between upstream waters and traditionally navigable waters will often be more attenuated and thus less likely to support a finding that the upstream water is protected. The result will be fewer wetlands and streams being protected under the Clean Water Act.

These actions by the Supreme Court, the current EPA and Corps, and the Congressional Committees all underscore the need for Congress to undo the regulatory mess triggered by the Court’s splintered Rapanos decision by passing the Clean Water Restoration Act. 

Spring/Summer/Fall 2008:  The Clean Water Restoration Act (HR 2421; S. 1870) garnered 176 bi-partisan co-sponsors in the House and 21 co-sponsors in the Senate, and was the subject of both House and Senate committee hearings.  Transportation and Infrastructure Committee Chairman Oberstar made clear his willingness to craft legislation that will restore CWA protections while addressing opponents’ concerns. 

The Clean Water Restoration Act will restore Clean Water Act protections by:

* Adopting a statutory definition of “waters of the United States” based on the longstanding definition in EPA and Corps regulations.

* Deleting the term “navigable” from the Act to clarify that Congress’ primary concern in 1972 was to protect the nation’s waters from pollution rather than just sustain the navigability of waterways.

* Including a set of findings that explain the factual basis for Congressional assertion of constitutional authority over waters, including those that appear to be hydrologically “isolated.”

* Preserving the Act’s long-standing exemptions for farming, ranching, mining, and forestry activities.

Contact:  Jan Goldman-Carter, Wetlands and Water Resources Council goldmancarterj@nwf.org 202-797-6894