New Bill Introduced To Fix Clean Water Problems Created by Supreme Court

EPA and state agencies say the House of Representatives must act now to protect drinking water supplies, critical fish and wildlife habitat, and our economy.

Clean water ranks among the most valuable resources in America. Photo by Bonnie King Salem-News.com

(WASHINGTON, D.C.) - Congressman Jim Oberstar (MN) introduced new legislation in the U.S. House of Representatives last week to restore critical Clean Water Act protections for streams, lakes, wetlands, and other important waters. The America’s Commitment to Clean Water Act (H.R. 5088) would reverse two Supreme Court decisions that jeopardize these waters. The bill will help sustain the healthy habitats, robust fish and wildlife populations, and economic benefits that rely on America’s healthy waterways and wetlands. Over the past decade, the U.S. Supreme Court issued two decisions – Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006) – that strike at the heart of the Clean Water Act, which Congress passed into law in 1972 to restore and maintain our nation’s water quality. H.R. 5088 would achieve the core goal of restoring critical Clean Water Act protections while being more tailored and specific than legislation introduced in previous Congresses. The new bill includes

• Statements that reinforce its simple goal: To restore Clean Water Act protections to waters that were protected prior to the Supreme Court’s SWANCC decision.
• A more specific definition of “waters of the United States” that closely follows the definition the Environmental Protection Agency (EPA) and Army Corps of Engineers have successfully used for decades. This definition does not include any reference to “activities affecting” such waters that appeared in previous bills.
• New statutory exemptions for prior converted cropland (drained wetlands) and certain waste treatment systems. The new exemption for prior converted cropland adds to existing exemptions in the law for common farming practices, including plowing, seeding and cultivating
• Direct references to Congress’s long-standing constitutional authority to achieve the Clean Water Act’s fundamental goal of protecting the chemical, physical, and biological integrity of the nation’s waters.

The new legislation also deletes the term “navigable” from the Clean Water Act to clarify that congressional intent was to improve water quality rather than sustain navigation. This change is essential to remedy the Supreme Court’s decisions, which undermine the effectiveness and enforceability of the act by giving greater meaning to the term than Congress intended. What’s at Stake

The impacts of the Supreme Court decisions radiate across the American landscape.Consider what’s at stake:

• Clean Water Act Enforcement: In a February 2010 New York Times article, EPA staff estimated that “more than 1,500 major pollution investigations have been discontinued or shelved in the last four years” due to the SWANCC and Rapanos decisions. One EPA official described the situation as “a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”
• Safe Drinking Water: EPA estimates that more than 117 million Americans receive their drinking water from public water systems supplied in whole or in part by streams most at risk of losing Clean Water Act protection. The court’s Rapanos decision argues that the Clean Water Act applies only to waters that are navigable by boat or closely connected to waters that are. As a result, streams that are narrow, shallow, or flow only part of the year are especially threatened.
• Fish and Wildlife Habitat: Up to 20 million acres of “isolated” wetlands – including prairie potholes across the Dakotas, Minnesota, Montana, and Iowa – are losing Clean Water Act protection. Wetlands are the lifeblood of healthy duck populations, providing essential nesting, migratory, and wintering habitat. The U.S. Fish and Wildlife Service estimates that the Prairie Pothole Region produces 50 percent of the U.S. duck breeding population. These and other wetlands are threatened because they frequently are seasonal and may not support boating or otherwise be “navigable.
• Economic Growth: Fishing, waterfowl hunting, boating, and many other outdoor activities that depend on clean water are not simply traditions or hobbies – they are fundamental components of the nation’s economy, supporting businesses large and small across the country and generating billions in state and local tax revenue. According to the Fish and Wildlife Service, 1.3 million waterfowl hunters generated $2.3 billion in economic activity in 2006. The National Marine Manufacturers Associations states that recreational boating alone had a total economic value of $100 billion in 2007 for everything from manufacturing to spending at dockside restaurants.

House Bill Follows Senate Action

Last June, the Senate Environment and Public Works Committee took a major step toward reversing the Supreme Court decisions by approving legislation similar to Mr. Oberstar’s new bill. Senators Max Baucus (MT), Amy Klobuchar (MN), and Barbara Boxer (CA) co-authored a compromise bill that received widespread support from hunting, angling and conservation organizations; the National Farmers Union; the Association of Fish and Wildlife Agencies, and state environmental protection agencies. House Action Essential

EPA and state agencies are finding it increasingly difficult to enforce the Clean Water Act. The House of Representatives must act now to protect drinking water supplies, critical fish and wildlife habitat, and our economy. Congressman Oberstar has a unique leadership position not only as the sponsor of the bill but as the chairman of the Committee on Transportation and Infrastructure. This committee has jurisdiction over the Clean Water Act, and passage here is a critical step toward consideration by the full House.

Additional Resources

• For details on the history of the Clean Water Act, the Supreme Court cases, and the natural resources and drinking water that are at risk, read “Clean Water at a Crossroads” (PDF) at iwla.org/CWA.
• For EPA data on state and county drinking water supplies that are at risk, visit epa.gov/owow/wetlands/science/surface_drinking_water/index.html.
• For more information about challenges in enforcing the Clean Water Act, see “Rulings Restrict Clean Water Act, Foiling EPA,” New York Times (Feb 28, 2010): nytimes.com/2010/03/01/us/01water.html.