The Clean Water Restoration Act

There is a fight brewing – big surprise – over the Clean Water Restoration Act of 2009 (“CWRA”)(S.787). The stated purpose of the CWRA is to “restore” the authority of the EPA under the Clean Water Act and roll back the clock to the state of the law prior to the U.S. Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006).

According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.

The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.

So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.

As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.