Senators Move Clean Water Fight Out of Committee

The bill would amend the Clean Water Act to clarify the jurisdiction of the federal government over waters of the United States.

Over time, several U.S. Supreme Court decisions and Bush administration policies have created uncertainty regarding federal protection for some waters, especially headwater streams and so-called isolated wetlands. Headwater streams are the small swales, creeks and streams that are the origin of most rivers.

Committee Chairman Senator Barbara Boxer of California said, "Today the Environment and Public Works Committee took historic steps to restore, in a balanced way, the common-sense Clean Water Act protections that have been in place for decades. We also passed important measures to ensure our families have clean, safe water, to promote conservation of migratory birds, and to protect America's beaches, lakes, rivers, bays and wetlands. I look forward to working with my colleagues on both sides of the aisle as these bills are considered by the full Senate.”

The Clean Water Restoration Act replaces the term "navigable waters" that are subject to the Act with the term "waters of the United States."

Headwater stream in Ohio (Photo courtesy Ohio EPA)

This change in language would bring under federal protection all waters subject to the ebb and flow of the tide, the territorial seas, and 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, and natural ponds to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress.

The bill declares it does not regulate under the Clean Water Act return flows from irrigated agriculture; or uncontaminated stormwater runoff from oil, gas, and mining operations.

It does not impose federal regulation on dredged or fill materials resulting from normal farming, silviculture, and ranching activities, from upland soil and water conservation practices, or on activities regulated by the states under a federally approved water quality program.

Nor does it regulate dredged or fill materials for the maintenance of currently serviceable structures, the construction or maintenance of farm or stock ponds, irrigation ditches and maintenance of drainage ditches, or farm, forest, or temporary roads for moving mining equipment in accordance with best management practices, or the construction of temporary sedimentation basins on construction sites for which discharges do not include placement of fill material into the waters of the United States.

Even so, Senator James Inhofe of Oklahoma, the ranking Republican on the Environment and Public Works Committee today called the bill, "a dagger directed right at America's heartland."

A playa lake on the High Plains in its wet phase (Photo courtesy USFWS)

"I see this bill as a significant part of a hostile agenda aimed squarely at rural America," Inhofe said. "Allowing EPA and the Corps to exercise unlimited regulatory authority over all inter- and intrastate water, or virtually anything that is wet, goes too far and is certainly beyond anything intended by the Clean Water Act. But, that is what S. 787 does."

Inhofe said the bill, "vastly expands federal control of private property, despite assurances contained in S. 787. In fact, the very premise of the bill is to override a state's fundamental right to oversee waters within its borders and to usurp the power of land owners to manage their property as they see fit."

Inhofe listed groups that have expressed concerns with this bill including: The Associated Builders and Contractors, the National Stone, Sand & Gravel Association, the American Forest and Paper Association, the American Farm Bureau Federation, the National Association of Home Builders, the National Association of Realtors, the American Highway Users Alliance, and the American Association of Airport Executives.

Inhofe says he and fellow Republicans intend to fight this bill on the Senate floor.

But environmentalists say this bill is a major step in the right direction after Supreme Court decisions in 2001 and in 2006 and subsequent directives from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have confused which waters are protected under the Clean Water Act and which are not.

Chris DeScherer of the Southern Environmental Law Center said the court and agencies, hinging their rationale on the term “navigable,” have muddied the scope of protections for so-called “isolated” wetlands and headwater streams that are "ephemeral or intermittent."

The McGarity Wetland Preserve along the Alcovy River near Covington, Georgia. (Photo courtesy Odum School of Ecology University of Georgia)

"This bill is critical to protecting drinking water, wildlife habitat, recreation opportunities, and any number of community economies in the South," DeScherer said today.

Virtually all U.S. waters were once protected, but the current approach is to make determinations on a case-by-case basis, which creates uncertainty for all interests, including developers and others in the regulated community as each Corps district is applying its own criteria for determining what waters are and are not covered.

DeScherer says regulating the nation's water resources in this piecemeal fashion disregards the interconnectedness of our watersheds upon which clean, healthy water relies.

The impacts of confusing jurisdiction of the Clean Water Act protections has taken an especially heavy toll in the water-rich South, where clean, plentiful water is directly related to the health of a web of tributaries and wetlands, DeScherer said, adding that, "These smaller waters are considered the first-responders to controlling pollution and floods."

"Although SELC and many others have fought hard to protect these waters, I can't tell you how many wetlands or small streams may have been lost forever because of misinterpretation of the Clean Water Act," he said.

"Our most cherished iconic waterways, Lake Michigan and the Mississippi River, can only be as healthy as the streams and wetlands that feed and clean them," said Max Muller, program director at Environment Illinois.

The U.S. EPA estimates that over half of Illinois streams are headwater or seasonal, the types of streams most in danger. At least 800 polluting facilities located on at-risk streams have their discharges limited by Clean Water Act permits, permits that Muller worries may no longer be required if this legislation is not enacted. He cites EPA data indicating that more than 1.6 million Illinois residents receive drinking water from supplies fed at least in part by these streams.

Other bills approved by the committee today are mainly to reauthorize or continue existing legislation. They include:

• S. 878, Clean Coastal Environment and Public Health Act of 2009 (formerly known as the Beach Protection Act)
• S. 937, Sewage Overflow Community Right-to-Know Act
• S. 690, Neotropical Migratory Bird Conservation Act Reauthorization
• S. 479, Chesapeake Bay Gateways and Watertrails Network Continuing Authorization Act
• S. 933, Contaminated Sediment Remediation Reauthorization Act (Great Lakes Legacy Act)

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