Forty One Years of the Clean Water Act

A clean stream

Courtesy morguefile

For decades, the Clean Water Act protected the Nation’s surface water bodies from unregulated pollution and rescued them from the crisis status they were in during the late 1960s and early 1970s. Now these vital protections are being lost and there is urgent need for Congress to restore full Clean Water Act protections to our waters.

First thirty Years

In 1972, Congress passed an expansive Clean Water Act to protect all “waters of the United States.” For almost 30 years, both the courts and the agencies responsible for administering the Act interpreted it to broadly protect our Nation’s waters.  A remarkable clean up of our waters ensued and the loss of wetlands was slowed.  Much of the success of the enforcement of the Clean Water Act was because of the protections provided for all of the waters of the United States, from small streams to woodland vernal pools, to our largest rivers, lakes, and coastal waters.  Scientists have found that the small headwater streams and wetlands are especially vital parts of the aquatic system, filtering pollutants, storing flood waters, and recharging flow in the larger waterways.


Supreme Court Decisions that have broken Clean Water Act

Two Supreme Court decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States in 2006, misinterpreted the law.  Following these decisions, the Bush administration’s Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) excluded numerous waters from protection leaving many of our waters lacking protections from pollution or destruction.  Progress on improvement of our waters has been hampered by the attack on what kind of water bodies are protected as waters of the United States.


The 2001 SWANCC case ruled that certain isolated, intrastate ponds were not protected.  The second case, Rapanos, 2006, dealt with whether certain wetlands near to tributaries of navigable waters were covered by the law.  There was not a majority decision.  In the end, according to Justice Anthony Kennedy's solo concurring opinion, wetlands need to have a “significant nexus” to traditional navigable waters in order to be protected and there was little guidance as to what such a nexus requires.  Courts and agencies were left to make determinations on a case by case basis. 

 

Insult to Injury: Agency “Guidance”

After each of the court rulings, the Bush administration issued guidances on how to apply the Supreme Court rulings, and in all cases, the guidances made it significantly harder to protect various water bodies.  The SWANCC decision removed protections for non-navigable, “isolated” water bodies (prairie pothole wetlands, playa lakes, and vernal pools, invaluable waters for wildlife habitat, ground water recharge, and flood control).  In 2007, the EPA and Corps released a guidance document on how to implement Rapanos, and this guidance was even more confusing and less protective than the original ruling.  Many intermittent and ephemeral streams and wetlands were left unprotected and a time-consuming and resource-intensive case-by-case process for determining what is protected was created.  Yet another Rapanos guidance revision in 2008  further reduced protections, making it more difficult to determine whether a water is traditionally navigable.    

 

The Threat to Our Waters

The situation is dire.  EPA estimates that 20 percent of more than 100 million acres of wetlands in continental U.S. are geographically isolated and 60 percent of the stream miles do not flow year-round.  Law enforcement has suffered from the legal quagmire created by the Court decisions.  Hundreds of Clean Water Act enforcements have been shelved or downgraded, and dozens of cases have been hung up by the legal wrangling. (See the Courting Disaster publication for documentation of these facts and figures.)

What to do?  The best solution is for Congress to pass a bill that:

      • Removes the confusing term “navigable” from the Act;
      • Makes clear that “waters of the United States” means the waters protected prior to SWANCC; and
      • Explains the facts supporting Congress’s Constitutional authority to protect such waterways.

Since 2007

Legislators have introduced Clean Water Restoration Acts that have never moved.  Rep Oberstar introduced H.R. 2421 in May 2007 and Sen Feingold introduced S. 787 in April, 2009.  Both of the bills replace the term “navigable waters” with “waters of the United States.”  The bills obtained cosponsors and were sent to appropriate committees but were never brought to the floor for a vote.


Opponents of the move to restore the Clean Water Act have introduced “dirty water” bills that have never moved (Sen Paul, S. 2122, 2012, and Sens Barrasso, Heller, Inhofe, S. 2245, 2012).

In April 2011, under the Obama Administration, the EPA and the U.S. Army Corps of Engineers released a draft guidance to clarify protection of waters under the Clean Water Act.  Many public comments were received by the agencies and most were supportive of the guidance.  The Guidance would have provided more predictable and consistent procedures for identifying waters and wetlands protected under the Clean Water Act. The focus was on protection of smaller waters that are so important in filtering pollutants, storing waters, and keeping communities safe from floods.  They wouldn't have extended protection to any waters not historically protected under the CWA and would have been consistent with the law, including Supreme Court decisions.  Sadly, the finalized guidance and further rule makings were never released.

In mid September, 2013, the scene has dramatically changed.  The U.S. Environmental Protection (EPA), through the Scientific Advisory Board (SAB) Review, is seeking input on a new draft science report entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (September, 2013 External Review Draft, EPA/600/R-11/098B).  The purpose of the report is to summarize the current understanding about connectivity of streams and wetlands, the factors that influence them, and the influence of these connected waters on downstream waters.  The final version of this report will serve as a basis for a joint EPA and U.S. Army Corps of Engineers (ACOE) rulemaking aimed at clarifying the confusion about which waters and wetlands remain protected by the Clean Water Act.

Our task at present is to prepare and submit comments on the new draft report.  We are very hopeful that we can finally begin to fix the damage done to the Cleanwater Act by earlier Supreme Court decisions and properly protect all of the Waters of the United States (WOTUS).

Read Courting Disaster: How the Supreme Court has broken the Clean Water Act and why Congress must fix it, April 2009 publication of Earthjustice, Environment America, Clean Water action, National Wildlife Federation, Natural Resources defense Council, Sierra Club, and Southern Environmental Law Center for greater detail.

 

Barbara Benson, PA Chapter Water Co-Chair

Published 2013