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Water:
The Clean Water Authority Restoration Act

Our Position: support
Bill Number: HR1356
Sponsor: James Oberstar (D-MN)
Legislative Session: 2006

A Supreme Court ruling in 2001 and subsequent federal agency actions have narrowed the scope of wetlands, streams, lakes and other waters protected under the Clean Water Act.  The Clean Water Authority Restoration Act of 2005 (CWARA) would restore the broad scope of protection intended by Congress to achieve the goal of restoring and maintaining the chemical, physical and biological integrity of the nation’s waters.   

Specifically, the legislation would:

1)      Adopt a statutory definition of “waters of the United States” based on the longstanding  definition in Corps regulations (33CFR328.3);

2)      Delete the word “navigable” from the Act to clarify that the Clean Water Act is principally intended to protect the nation’s waters from pollution, and not just maintain navigability;

3)      Include a set of findings that provide the basis for Congress’s assertion of constitutional authority over the nation’s waters, as defined in the Act, including so-called “isolated” waters.

This legislation would restore the regulatory status quo prior to the SWANCC ruling; it does not create “new” protective authority.

Status

Action Needed

Contact

Navis Bermudez
Washington Representative, Clean Water
navis.bermudez@sierraclub.org
202-547-1141

Background

The Supreme Court’s ruling in SWANCC: 

In 2001, the Supreme Court ruled in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers that the federal government's authority under the Clean Water Act did not extend to non-navigable, intrastate, isolated waters based solely on their use by migratory birds.  While the Court’s decision was quite narrow, some industry groups, as well as some Bush administration officials and regulatory staff, have sought to broaden the scope of the ruling, to deny Clean Water Act safeguards to a much greater proportion of the nation’s waters. 

Very few, if any, wetlands are truly “isolated” from other waters.  Even where wetlands, seasonal streams and other waters are not continuously connected to other surface waters, they typically have important connections to groundwater, as well as biological and chemical connections that sustain healthy conditions in other wetlands, lakes, streams and rivers.  Many of these so-called “isolated” waters, such as vernal pools, prairie potholes, playa lakes, and bogs provide critical habitat for a wide array of migrating and resident bird and wildlife species.  Many of these systems contribute to maintaining and protecting drinking water supplies.  

Bush Administration actions:

In January, 2003, the U.S. Environmental Protection Agency and the Army Corps of Engineers issued instructions to agency officials to stop applying Clean Water Act protections to all so-called “isolated” waters.  This policy directive far exceeds the scope of the more narrow SWANCC ruling, denying protection to many waters that still warrant it under existing regulations. The EPA itself estimated that the directive removes Clean Water Act protection from as many as 20 million acres of the nation’s remaining wetlands. This policy also creates confusion about the extent to which streams that do not flow year-around remain protected.

In addition to the guidance, the agencies issued an “Advance Notice of Proposed Rulemaking” (ANPRM), seeking comment on plans to deny protections to an even larger category of non-navigable streams, lakes, ponds and other waters.  

The EPA and the Army Corps received an overwhelming response to their announcement.  The vast majority of the 133,000 comments were highly critical of the guidance and of the agencies’ plans to narrow federal authority even further.  A large majority of state agencies, as well as water and wildlife experts, sportsmen and women, floodplain managers, many conservation organizations and several EPA regional offices wrote in opposition.  Half the members of the U.S. House of Representatives and a number of Senators sent letters to the Bush administration  opposing the rulemaking and calling for the guidance to be rescinded. 

In December, 2003 the Bush administration responded to the widespread opposition to its policy initiatives by canceling the rulemaking.  However, it left in place the overly broad and confusing policy directive.  In portions of the country, vast numbers of wetlands, and even large lakes and seasonal streams, continue to be denied legally warranted Clean Water Act protections.