Clean Water Restoration Legislation Set to be Introduced in the House

Rep. James Oberstar (MN-8th) will unveil legislation on Wednesday, April 21 the purpose of which would be to restore the authority of the Clean Water Act that was altered by two Supreme Court decisions handed down in 2001 and 2006 (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers; 2001 and Rapanos v. U.S.; 2006).  The announcement will be made during an 11:00 a.m. news conference tomorrow, entitled “America's Commitment to the Clean Water Act,” webcast link available here  (upper left corner of page). 

Issue Background

In a 2001 Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers case, a consortium of suburban Chicago municipalities had selected as a solid waste disposal site an abandoned sand and gravel pit with excavation trenches that had evolved into permanent and seasonal ponds. Because the operation called for filling some of the ponds, the consortium contacted federal agencies, including the Corps, to determine if a landfill permit was required under Section 404(a) of the CWA (which authorizes the Corps to issue permits allowing the discharge of dredged or fill material into “navigable waters”). The CWA defines “navigable waters” as “the waters of the United States.” And the Corps’ regulations defined “the waters of the United States” to include intrastate waters, “the use, degradation or destruction of which could affect interstate or foreign commerce.” In 1986, the Corps attempted to clarify its jurisdiction, stating, in what became known as the “Migratory Bird Rule,” that Section 404(a) extends to intrastate waters that provide habitat for migratory birds. In determining the SWANCC case, the Supreme Court held that non-navigable, intrastate waters are not protected by the CWA solely on the basis that they serve as migratory bird habitat. In making its finding, the Supreme Court ruled that “nothing approaching a clear statement from Congress that it intended Section 404(a) [of the CWA] to reach an abandoned sand and gravel pit such as the one at issue. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the Migratory Bird Rule would also result in a significant impingement of the States’ traditional and primary power over land and water use.” 

In a second, 2006, Supreme Court case (Rapanos v. U.S.), the Court examined whether the CWA protects non-navigable tributaries and their adjacent wetlands. The result was a split decision. While five justices agreed to void the rulings against the plaintiffs (who desired to fill wetlands for development purposes), four justices argued in favor of a more restrictive reading of the term "navigable waters" than did four other justices (one justice did not fully join either position). Therefore, while the Court did not invalidate the existing rules, the various opinions suggested different tests, suggesting a narrowing of federal jurisdiction and implying that the federal government needed a more substantial link between navigable waters and wetlands than it had been using. At the same time the Court held onto an existing "significant nexus" test.

In an April 30, 2009 USEPA Office of Inspector General’s (OIG) report to Rep. Oberstar, Congressionally Requested Report on Comments Related to Effects of Jurisdictional Uncertainty on Clean Water Act Implementation. Report No. 09-N-0149. April 30, 2009. the OIG observed that that the jurisdictional confusion created by two Supreme Court rulings in 2001 and 2006 had been a drain on resources for the agency, and that the USEPA had had difficulty crafting guidance that could help field staff clarify jurisdiction.

The bill to be introduced on April 21 will be the fifth attempt in the House to restore what the bill's supporters say was the original intent of the 1972 Clean Water Act: to address pollution in all freshwater throughout the United States, regardless of size. Last June the Senate Environment and Public Works Committee approved a companion bill, S. 787, by a 12-7 vote, largely along party lines.