Restoring clarity to the Clean Water Act

For almost 30 years, the Clean Water Act (officially called the Federal Water Pollution Control Act) was clearly interpreted to include all of this nation’s important surface waters. Even with that clear understanding by the federal and state agencies charged with administering the law, the nation has lost wetlands at a rate of more than 80,000 acres each year. Thousands of miles of headwater streams have been lost.

Now, we are faced with the unprecedented rollback of Clean Water Act (CWA) protections and legal confusion created by two Supreme Court decisions.

The first, Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, was issued in 2001 and appeared to end the protection of isolated wetlands based solely on their use by migratory waterfowl. In that case, the Bush Administration correctly argued that protection of migratory waterfowl habitat was well within the scope of the CWA and appropriately reflected Congress’s authority under the U.S. Constitution’s Commerce Clause.

In the second, its 2006 Rapanos v. United States decision, the Court made a worse hash of the law with an unfocused ruling that lawyers are still struggling to sort out. In a plurality opinion, four of the nine justices ruled — with Justice Antonin Scalia writing the opinion — that wetlands and other waters are not protected unless they are adjacent to navigable water bodies, such as lakes or large rivers, or their tributaries. Their opinion also said that the CWA does not protect intermittent streams.

In a concurring opinion, Justice Anthony Kennedy agreed in part with the four, but argued that they went too far in narrowing the scope of the CWA. Justice Kennedy rejected their reasoning as “inconsistent with the Act’s text, structure and purpose.” Kennedy favored a “significant nexus” standard for giving protection to wetlands that are sufficiently connected to navigable waters.

The remaining four justices published a sharply worded dissent asserting that Congress defined “navigable waters” broadly to mean “the waters of the United States” in order to fulfill the law’s fundamental goal of maintaining the ecological health of the nation’s waters.

These court decisions have caused tremendous confusion as to which waters are protected under the Clean Water Act, and have created a fertile breeding ground for litigation.

It is worth noting that more than 30 states weighed in urging the Supreme Court to uphold broad protections for small streams and their adjacent wetlands.

Absent prompt Congressional action to clarify the language in the Clean Water Act, these rulings, and the resulting regulatory determinations, could leave seasonal streams and up to 80 percent of the nation’s remaining wetlands unprotected by the Act.

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THE LIMITS OF NAVIGABILITY

At the heart of the Supreme Court’s confusion is the use of the word “navigable” in the Clean Water Act.

When the nation was founded, navigability was the primary indicator of whether a waterway was used in interstate commerce, which typically meant the transport of goods by boat. By the time the Clean Water Act was enacted, navigability had little bearing on the role of a waterway in interstate commerce. Water, irrespective of its suitability for navigation, is critical to a host of commercial activities, including industrial processes, agriculture, hunting, fishing and tourism.

Furthermore, navigability is defined differently in each state. Some states limit it to only waters affected by the ebb and flow of the tide, while other states have different tests, such as the width between high water marks.

While the “navigable” anachronism made it into the Act, Congress clearly sought to ensure that it not be construed as limiting the intended scope of the law. In the CWA, Congress further defined “navigable” to include “the waters of the United States.” Additionally, there were clarifying statements made at the time that reflected Congress’ desire for CWA authority to extend well beyond navigable waters.

For almost 30 years, agencies in charge of administering the CWA have operated under regulations that reflected this congressional intent.
Efforts to narrow the law’s scope have been turned back. In 1977, Senator Lloyd Bentsen (D-TX) introduced legislation to limit the scope of the U.S. Army Corps of Engineers’ authority under section 404 of the CWA to navigable waters and their adjacent wetlands. Senator Howard Baker (R-TN), who was instrumental in passage of the Clean Water Act, and others successfully defeated that effort and reaffirmed the law’s broader scope.

Baker pointed out, “The conference bill retains the comprehensive jurisdiction over the Nation’s waters exercised in the 1972 Federal Water Pollution Control Act to control pollution to the fullest constitutional extent.”

There is also a common-sense inference from the stated purpose of the CWA to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” The very nature of water is to flow throughout watersheds and drainages. Even the water from seemingly isolated pools can overflow or seep into channels that connect to other bodies of water.

Dr. Scott Yaich, a wetland scientist and Director of Conservation Operations for Ducks Unlimited, testified before the House Committee on Transportation and Infrastructure in July that “…wetland science clearly demonstrates the linkages that almost always exist between geographically isolated wetlands, remote tributaries, groundwater and navigable waters” and that this “functional” linkage is essential in protecting both the quality and quantity of water.

The same is true with intermittent streams. As Justice Kennedy pointed out, the Scalia opinion “makes little practical sense in a statute concerned with downstream water quality.” He goes on to point out that following Scalia’s reasoning means that “the merest trickle, if continuous, would count as a ’water‘ subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not.”

Many important rivers and streams in the western part of our nation, which are fed by snowpack or very short wet seasons, are dry much of the year — and under the Scalia interpretation could fall outside the scope of the CWA.

The navigability of a water body is not the sole determinant of economic value and is irrelevant to ecological value. Navigability no longer determines a water body’s role in interstate commerce, and navigability is not a factor in the ability of a water body to transport and be harmed by pollution.

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COURTING DISASTER

In 1970, President Richard Nixon’s message to Congress on the state of the environment warned, “Unless we arrest the depredations that have been inflicted so carelessly on our natural systems—which exist in an intricate set of balances—we face the prospect of ecological disaster.”

So far, we have lost over 50 percent of the estimated 221 million acres of wetlands that were present at our nation’s founding. Although the rate of loss has been slowed by the CWA, the loss of wetlands to development still continues at an alarming rate. The SWANCC and Rapanos decisions threaten to rapidly accelerate that loss.

People often think of wetlands primarily in the context of habitat for waterfowl and other wildlife. Wetlands, however, serve many other critical functions that we can ill afford to live without. Chief among these is the ability of wetlands to filter and hold water.

Wetlands loss has degraded watersheds and diminished the land’s ability to absorb and hold water. Today, flood levels that used to come only once every 100 years are now occurring once every 10 years. The quick runoff of storm water is also overwhelming sewage infrastructure and causing the discharge of raw sewage into streams, rivers lakes and oceans.

This effect also has a negative impact on municipal water supplies. Besides the increased potential for contamination, the rapid flushing of storm water through watersheds reduces the ability of rivers, lakes and underground aquifers to maintain adequate water levels.

Our nation now faces daunting and ever escalating costs to mitigate the effects of wetlands loss. Over the past 75 years, there has been a tremendous increase in flood damage and associated costs. Mounting infrastructure needs—ranging from sewer and sewage treatment plant upgrades to dams and levees—portend deepening budget deficits and raise the specter of large tax increases.

Consequently, every fiscal conservative in this nation should make wetlands protection a top priority.

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BACK TO THE FUTURE

The good news is that Congress can easily nullify the impact of the SWANCC and Rapanos decisions by clarifying its intent as to which waters are covered under the CWA. To do that, Congress need only pass legislation that omits the “navigable” anachronism and codifies the regulatory interpretation used by the Corps and the Environmental Protection Agency (EPA) since the 1970s.

Those regulations specifically defined “waters of the United States” to include wetlands, intermittent streams and all other interstate and intrastate waters.

Bipartisan legislation to do just that has been introduced in the House by Representatives Vern Ehlers (MI-3rd), Jim Oberstar (MN-8th) and John Dingell (MI-15th). The bill is called the Clean Water Restoration Act (H.R. 2421) and currently has 169 cosponsors. Companion legislation, S. 1870, has recently been introduced in the Senate with 21 co-sponsors.

The Clean Water Restoration Act (CWRA) will restore the pre-SWANCC/Rapanos status quo and eliminate the confusion created by those court decisions. This legislation is also written to explicitly preserve existing limits on CWA’s scope that prevent its application to irrigation ditches and other temporary, man-made water features that are inherent in agricultural and general construction practices.

Since its introduction, the Clean Water Restoration Act already has gained the endorsement of state officials across the country as well as the Association of State Wetland Managers and the Association of State Floodplain Managers.

Unfortunately there are some interest groups that, for reasons entirely parochial, do not want to see the pre-SWANCC/Rapanos status quo restored. For them, legal confusion and regulatory rollbacks represent additional money-making opportunities.

Groups such as the National Association of Homebuilders, International Council of Shopping Centers, National Mining Association and American Farm Bureau Federation have formed the so-called Waters Advocacy Coalition (WAC) in an effort to derail the Clean Water Restoration Act. Literature distributed by WAC makes a laundry list of false allegations about the legislation.

The reality is that these organizations and their member businesses got along just fine prior to the SWANCC and Rapanos decisions.

I trust that my former colleagues in Congress will see through such short-sighted opportunism and act in the long-term best interest of the nation.
Given the importance of the CWA and the compelling national interest in protecting the nation’s waters along with the flood control benefits provided by its remaining wetlands, passage of Clean Water Restoration Act is—to paraphrase a radio commercial I recently heard—the biggest no-brainer in the history of Congress.