Wednesday, February 16, 2011

Proposed Continuing Resolution Rider Would Block Administration Attempts to Clarify Clean Water Act Jurisdiction

The debate on the Federal funding Continuing Resolution (see text here)  proposed by the House last Friday rolls on in the House this week.  And after GOP leaders made the unusual decision to lift restrictions on proposing changes to the legislation, House Members have proposed dozens of amendments that would totally strip or severely limit Executive Branch environmental programs and initiatives.  One of the sections of the  proposed Continuing Resolution would limit the EPA's ability to restore Clean Water Act protections rolled back during the George W. Bush administration on the heels of two Supreme Court rulings that narrowed the definition of the waterways covered by the Clean Water Act.

The proposed language (Section 1747 of the Bill) would limit the Administration's ability to clarify and restore the interpretation of "waters of the United States" to the meaning originally intended by Congress in the Clean Water Act.  The Section 1747 language states in full that, "None of the funds made available by this division or any other Act may be used by the Environmental Protection Agency to implement, administer, or enforce a change to a rule or guidance document pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.)."

Representatives Paul Tonko (D-NY-21st) and James Moran (D-VA-8th) have introduced amendments that would remove section 1747 from the Continuing Resolution.  Neither amendment has been voted on yet by the House.

In stating in 1972 that the Clean Water Act covers the “waters of the United States,” Congress expressed its intent that the term “waters of the United States” “be given the broadest possible constitutional interpretation.”  The resulting USEPA and Army Corps of Engineers regulations implementing the Act's provisions reflected that congressional intent by covering, among other waters:
  • tributaries of various waters, 
  • adjacent wetlands, and 
  • intrastate waters with linkages to interstate commerce. 
Those agency rules were upheld by the vast majority of courts that examined them, including the Supreme Court, until 2001 and 2006, when two Supreme Court decisions changed the regulatory and legal landscape and cast doubt upon the initial intent of the CWA jurisdiction and on its interpretation by the USEPA and Army Corps (for a full background on the issue, please see our White Paper, entitled, "Interpretations of the Clean Water Act - 'Waters of the United States'" located here).

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