The landmark Clean Water Act (CWA) was passed in 1972 intending to protect and clean up all of America’s waterways. Two relatively recent Supreme Court cases have rolled back protection of American waters by narrowing CWA definitions, and the Obama administration would like to restore the act’s original intentions. Senator Russ Feingold (D-WI) has reintroduced legislation to restore CWA called the Clean Water Restoration Act of 2009 (CWRA). Rivers, streams and wetlands that were once protected under CWA would be within the scope of CWRA. There are twenty-three cosponsors for CWRA demonstrating it has broad support.
CWA was considered to apply to all waterways in America, until two Supreme Court cases interpreted the act. The 2001 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and the 2006 Rapanos v. United States Supreme Court cases narrowed CWA by ruling non-navigable, intrastate waters were not protected under the law. This decision has made it difficult to enforce CWA violations by causing confusion as to what waterways are actually protected. Don Young, executive vice president of Ducks Unlimited, explains:
Existing EPA and Army Corps of Engineers guidance make it clear that a legislative solution must be sought to restore protection to America’s wetlands. Many of these wetlands that have lost their protection are critical waterfowl breeding habitats…The loss of protection for geographically isolated wetlands and the confusion over how to interpret the new guidance is detrimental to people and wildlife. Alleviating these problems through the Clean Water Restoration Act eliminates both and will ultimately benefit everyone, from landowners to waterfowlers.
The term “navigable” is particularly troublesome, as it exempts 20 million acres of wetlands and half of all streams from protection because they do not harbor boat traffic. CWRA would change “navigable” requirement to simply “waters of the United States. SPR Environmental Law Blog clarifies:
One proposal is to replace the plainly confusing reference to “navigable waters” in the CWA with the term “waters of the United States,” though any statutory revision would still have to pass muster under the U.S. Constitution by having some relationship to interstate commerce. The change, however, would likely eliminate the need to link waterways and, especially wetlands, with other “navigable” water bodies.
President Obama sent a letter to both the House of Representatives and Senate urging them to restore federal jurisdiction over all wetlands and streams. U.S. Senator Barbara Boxer (D-CA), Chairman of the Senate Committee on Environment and Public Works, explains:
The Obama Administration has provided a clear call for legislation to ensure that the Clean Water Act continues to be an effective tool to keep America’s waters clean and our families healthy. I look forward to working closely with the Administration and my colleagues in the Senate to enact legislation that protects rivers, lakes and wetlands and keeps Americans’ drinking water safe while providing the clear guidance that farmers, businesses, federal agencies, and state and local governments need.
The letter was signed by Nancy Sutley, the Chair of the White House Council on Environmental Quality; Lisa Jackson, the Administrator of the Environmental Protection Agency; Secretary of Agriculture Tom Vilsack; Interior Secretary Ken Salazar; and Acting Assistant Secretary of the Army for Civil Works Terrence Salt.
Without CWRA, we could return to the times of the Cuyahoga River burning and the Great Lakes smelling like cesspools. The Clean Water Act is important legislation that needs restoration. It’s about birds; it’s about clean water; it’s about drinking water. CWA was intended to protect all of America’s waters from pollution, not just those that are navigable.