Clean Water Act: Time for a Refresh?

When I joined the WaterWorld staff in 1994 I began following with interest the Congressional efforts to reauthorize (and rewrite) the Clean Water Act. While there was a great deal of discussion and activity in ‘94 and ‘95, those who wanted to revamp the CWA ran into a political brick wall.

And not much has happened to refresh the CWA since – at least until the Senate Environment and Public Works Committee approved S. 787, also known as the Clean Water Restoration Act.

The bill, which seeks to clarify what waters are covered by the CWA, has a lot of people up in arms. It has been called a “monumental threat” to the rights of property owners. If adopted, opponents fear the legislation would give the Environmental Protection Agency and the Army Corps of Engineers authority over nearly every wet area in the nation, including farm ponds, intermittent streams and ditches.

While their concerns may be real, I feel something must be done to restore (or at least prop up) the Clean Water Act.

Since the passage of the Clean Water Act in 1972, we have made great progress in cleaning up our nation’s waters. But the protection it has offered over the years is being slowly chipped away. That erosion began in 2001 with the Supreme Court’s ruling in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, which held that non-navigable, intrastate waters are not protected by the Clean Water Act solely because they could serve as habitat for migratory birds.

The Rapanos decision in 2006 reinforced the damage and further clouded the understanding of what is covered by the Clean Water Act.

Since then hundreds of CWA enforcement cases have either been dropped or made lower priority because of concerns about whether certain rivers, streams, wetlands and other waters remain protected from pollution by the Act.

The Clean Water Act prohibits the discharge of pollutants into “navigable waters” without a federal permit but doesn’t specifically address pollution of water that doesn’t have a direct, hydraulic connection to navigable waters.

The Clean Water Restoration Act would essentially remove the term “navigable waters” and redefine “Waters of the United States” to include “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams),” plus “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds...” etc., etc. Basically all water in the United States.

No similar legislation has been introduced in the House at this writing, but Rep. James Oberstar (D-MN) is reportedly poised to introduce his own version of the Clean Water Restoration Act. He has proposed similar measures the past two years without success.

Interestingly, in 1994 the Senate Environment and Public Works Committee approved a bill to reauthorize and revise the CWA, but it never made it to a floor vote because legislation in the House was stalled. The next year, the House approved a measure in the 104th Congress, but the Senate failed to act.

This year, with the Democrats in control of both Houses, the rewrite may have a better chance of passage. Pres. Obama has signaled his willingness to sign the measure, which is a major plus for proponents of change.