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.

Mississippi River Water Resource News for the Week

As drainage way for much of the country's most productive agricultural land, the sustainability of Mississippi River watershed and its people depends significantly on activities on its farms. The next Farm Bill is slated for 2012, but already, because of its importance and complexity, the House Committee on Agriculture is scheduling public hearings to review U.S. agriculture policy in advance of the 2012 bill. The next hearing in Washington, DC will be on Wednesday, April 21 at 11:00 AM in room 1300 of the Longworth House Office Building. Live audio and video access to all public hearings and business meetings held by the House Agriculture Committee are streamed online here.

On April 13, the Wisconsin Third District Court of Appeals in Wausau, Wisconsin ruled that the public has a right to challenge the Wisconsin Department of Natural Resources’ (WI DNR) permit system if it believes there is a violation of the federal Clean Water Act. The Court also ruled that WI DNR is required to follow federal clean water standards in its wastewater permitting process. The Clean Water Action Council of Northeast Wisconsin and the National Wildlife Federation filed a challenge in 2006, objecting to the DNR’s water pollution permit to Fort James Operating Company. A news article covering the decision can be found here; while the Court decision can be downloaded as a PDF file here.

The Northeast-Midwest Congressional Coalition and Northeast-Midwest Institute welcome Christine Kontra as the Coalition's new Legislative Director. Prior to joining the NEMW Congressional Coalition, Christine worked as a Legislative Assistant to Rep. Steve LaTourette (OH-14), for whom she handled appropriations, environment, defense, national security, veterans and arts issues. In addition, she spent two years working in the Columbus, Ohio, office of Senator George Voinovich, and worked in the communications department of the Moritz College of Law at The Ohio State University. Christine has BA degrees in Political Science and History of Art from The Ohio State University. She is a native of Willoughby, Ohio.

You can contact Christine at Christine.Kontra@mail.house.gov.

Living Lands and Waters will be hosting the first-ever simultaneous, one-day cleanup of the Upper Mississippi River, called the "Great Mississippi River Cleanup," from St. Paul, Minnesota to St. Louis, Missouri on June 19, from 9:00 AM - 1:00 PM. To read more, help their effort by donating and organizing, or to register for the clean up, go here.

Northeast-Midwest Congressional Coalition Selects New Legislative Director

The Northeast-Midwest Congressional Coalition and Northeast-Midwest Institute welcome Christine Kontra as the Coalition's new Legislative Director. Prior to joining the Congressional Coalition, Christine worked as a Legislative Assistant to Rep. Steve LaTourette (OH-14th), for whom she handled appropriations, environment, defense, national security, veterans, and arts issues. In addition, she spent two years working in the Columbus, Ohio, office of Senator George Voinovich, and worked in the communications department of the Moritz College of Law at The Ohio State University. Christine has BA degrees in Political Science and History of Art from The Ohio State University. She is a native of Willoughby, Ohio.

Christine can be contacted at Christine.Kontra@mail.house.gov, and through the Office of Rep. James Oberstar; 2365 Rayburn House Office Building; Washington, DC 20515.

Mississippi River Tourism and Kayaking News

You can register now for Floatzilla-2010, and join in to kayak with others to help break the Guiness Book of World Records kayaking and canoeing record on August 21, 2010 at the first ever Quad Cities Paddlesports Festival. Visit the Floatzilla web site for more information and to register.

And in related news, Illinois and Iowa tourism officials will launch a new "Travel Mississippi River" partnership on April 12 to promote Middle Mississippi tourism. Read more about the initiative here.

Mississippi River Water Resource News for the Week

In the April 9 Federal Register, the USDA Natural Resources Conservation Service (NRCS) announced the availability of a minimum of $25 million in financial assistance that will be made available in fiscal year (FY) 2010 for the Wetlands Reserve Enhancement Program (WREP) throughout the United States to eligible landowners. Under WREP, NRCS enters into agreements with eligible partners to help enhance conservation outcomes on wetlands and adjacent lands. WREP targets and leverages resources to carry out high priority wetland protection, restoration, and enhancement activities and improve wildlife habitat through agreements with States, nongovernmental organizations, and Indian tribes.

On March 7, the U.S. Department of Agriculture announced the availability of approximately $25 million (including about $5 million to be used to address natural resource concerns in the Mississippi River Basin) to fund projects designed to stimulate the development and adoption of innovative conservation approaches and technologies through its Conservation Innovation Grants (CIG) in fiscal year 2010. USDA says in its press release that the Mississippi River Basin "funding will help USDA further advance its recently announced Mississippi River Basin Healthy Watersheds Initiative for 12 Midwest and Southern states." Links to the USDA announcement and to associated links can be found here.

Comments submitted by the public through the April 5 comment submission deadline on the Council on Environmental Quality's (CEQ) Proposed Revisions to the National Objectives, Principles, and Standards for Water and Related Resources are available to view online or to download here. Over 100 comments were submitted by individuals and organizations through the online CEQ portal. Some of that number of submittals includes multiple submissions from the same persons.

The USDA Natural Resources Conservation Service (NRCS) published a Request for Proposals (RFP) in the April 2 Federal Register for approximately $20.7 million in 2010 Agricultural Water Enhancement Program (AWEP) new project funding. The Upper Mississippi River Basin is one of USDA's seven AWEP national priority areas. The AWEP is a "voluntary conservation initiative that provides financial and technical assistance to agricultural producers to implement agricultural water enhancement activities on agricultural land for the purposes of conserving surface and ground water and improving water quality." The purpose of the RFP is to to solicit proposals from potential partners seeking partnership agreements with NRCS to promote the conservation of ground and surface water and the improvement of water quality. The deadline for proposals to be postmarked or hand-delivered is May 17.

The location has been set for the April 15, Washington, DC briefing on existing and proposed Federal programs designed to conserve and restore water and natural resources in the Mississippi River Basin. The briefing will take place from noon to 1:00 PM. In Room 1105; Longworth House Office Building; Independence Avenue at South Capitol Street (see map here). A light lunch will be provided. The briefing is being sponsored by the Northeast-Midwest Institute, in coordination with the Northeast-Midwest Congressional Coalition, Upper Mississippi River Basin Task Force and the National Fish and Wildlife Foundation. Presenters from the U.S. Army Corps of Engineers Rock Island, District, USDA Natural Resources Conservation Service and US EPA Office of Water will discuss such issues as the Environmental Management Program, Mississippi River Healthy Watersheds Initiative, and EPA's proposed new $17 million funding targeted at Mississippi River Basin nonpoint source mitigation, with time set aside for questions and discussion. Please RSVP Mark Gorman at the Northeast-Midwest Institute if you plan to attend (202-464-4015; mgorman@nemw.org).

Des Moines Meeting of the Mississippi River Collaborative

I attended a meeting of the Mississippi River Collaborative last week in Des Moines, Iowa, and had the pleasure not only meeting with some of the Collaborative's representatives, but also viewing a lovely moonrise one evening and sunrise the next morning over the Des Moines River and the Iowa state capitol outside of our hotel window.

Mississippi River Water Resource News for the Week

The Northeast-Midwest Institute, in coordination with the Upper Mississippi River Basin Congressional Task Force and the National Fish and Wildlife Foundation, is sponsoring a Washington, DC briefing on existing and proposed Federal programs designed to conserve and restore water and natural resources in the Mississippi River Basin. Presenters from the U.S. Army Corps of Engineers Rock Island, District, USDA Natural Resources Conservation Service and US EPA Office of Water will discuss such issues as the Environmental Management Program, Mississippi River Healthy Watersheds Initiative, and EPA's proposed new $17 million funding targeted at Mississippi River Basin nonpoint source mitigation, with time set aside for questions and discussion.

The briefing will take place on April 15 from noon to 1:00 PM. The location will be in Room 1105; Longworth House Office Building; Independence Avenue at South Capitol Street. A light lunch will be provided.

If you plan to attend or have any questions please RSVP/contact Mark Gorman (mgorman@nemw.org or 202-464-4015).


The National Science Foundation (NSF) will host a symposium at the NSF facilities in Arlington, VA on the afternoon of Thursday, April 15, 2010 to discuss, among other recent research, the impacts of human activity on the Mississippi River and hypoxia in the Gulf of Mexico. Full details of the symposium can be found here.

On March 29, the Environmental Law and Policy Center, and the Mississippi River Collaborative released a new report, “Cultivating Clean Water,” that examines the effectiveness of state-based regulatory programs to control agricultural-associated water pollution, and that recommends related policy changes. The report authors conclude that a number of states have adopted regulations to control agricultural pollution; however, they note that all states studied fall short on enforcement and monitoring, often the result of limited funding and staff. The Environmental Law and Policy Center media release, along with a link to the full report can be found here.

The latest edition of Delta Dispatches, with the latest news from local and national environmental groups on efforts to restore Coastal Louisiana can be found here.