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The Clean Water Restoration Act

In 1972, Congress passed an expansive Clean Water Act to protect all “waters of the United States.” For almost 30 years, both the courts and the agencies responsible for administering the Act interpreted it to broadly protect our Nation’s waters. However, in two recent decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States in 2006, the Supreme Court misinterpreted the law and placed pollution limitations for many vital water bodies in doubt. After the decisions, the Bush administration’s Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) excluded numerous waters from protection and placed unnecessarily high Executive Summary F or decades, the Clean Water Act protected the Nation’s surface water bodies from unregulated pollution and rescued them from the crisis status they were in during the late 1960s and early 1970s. Now these vital protections are being lost. This report details the threat to our Nation’s waters by examining dozens of case studies, and highlights the urgent need for Congress to restore full Clean Water Act protections to our waters. These decisions shattered the fundamental framework of the Clean Water Act. Today, many important waters – large and small – lack critical protections against pollution or destruction. The case studies in this report provide telling examples of how dire the situation is and how urgent it is for Congress to take action. Congress must reverse the damage done by the Supreme Court’s decisions and the agency policies that followed by restoring Clean Water Act protections that were in place prior to 2001. Without such action, a generation’s worth of progress in cleaning up our Nation’s waters may be lost. We cannot afford to return to the days of dirty water. Wastewater must be regulated to ensure all waters of the U.S. remain healthy.

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Clean water depends on the health of all water bodies, from small streams, to woodland vernal pools, to our greatest rivers, lakes, and coastal waters. Science overwhelmingly shows that headwater streams and wetlands are vital parts of the aquatic system. Indeed, small streams and wetlands in the upper reaches of our watersheds often account for the vast majority of the chemical, physical, and biological activity that takes place throughout the water cycle. These waters provide the foundation of the food chain upon which aquatic life depends. They filter pollutants, store flood waters, and recharge flow in our greatest waterways. Just as our circulatory system can not function without its capillaries, the water cycle cannot function without its smaller waters. When Congress passed the Clean Water Act in 1972, our waters were in dire shape. The Cuyahoga River had caught fire several times, Lake Erie was all but devoid of life, oil spills commonly occurred on our coasts, and industrial polluters treated rivers and lakes as open sewers. Although work remains, the Clean Water Act is primarily responsible for the remarkable clean up of our waters and the dramatic slowing of wetland loss. Part of the law’s success comes from its broad scope; many of the law’s pollution control programs apply to every “water of the United States.” This is true of the requirement that industrial facilities and sewage treatment plants use advanced pollution controls on their discharges. It is true of the Act’s provisions requiring certain facilities to prepare oil spill prevention plans. It is true of the program to identify waterways that do not meet state water quality standards and develop a pollution budget to help clean them up. And it is true of the requirement to get a permit before discharging dredged or fill material into waters. Sadly, progress under the law has been undermined by attacks on what kinds of water bodies qualify as protected “waters of the United States.”

Making a Mess

SWANCC and Rapanos In 2001 and 2006, the U.S. Supreme Court dealt a one-two punch to water quality. The first blow came when it decided SWANCC, a 5-4 ruling that certain isolated, intrastate ponds were not protected by the Clean Water Act, even though the Justice Department argued that the Act covers water bodies used as migratory bird habitat. The Supreme Court suggested that Congress’s use of the term “navigable waters” in the Act indicated an intent to restrict protections to waterways somehow related to navigable ones. The court fundamentally ignored the fact that Congress defined “navigable waters” broadly to mean the “waters of the United States,” and the Court similarly brushed aside its own prior decision saying that the word “navigable” was of “limited import.” We cannot survive without clean water. We need it to drink, to grow our crops, and supply our food. Many of us rely on it for the things we enjoy most: swimming, boating, duck hunting, paddling, and fishing. The next generation deserves clean water.

The second blow came five years later in Rapanos, when the court revisited the issue of which waters are covered by the law. Rapanos involved wetlands near to tributaries of traditionally navigable waters. Rather than providing clarity, the Supreme Court created further confusion, failing to reach any majority decision, in several opinions with fundamentally contrary rationales. A four-member plurality would protect only “relatively permanent waters” connected to traditionally navigable water bodies, as well as wetlands with a “continuous surface connection” to other protected waters. In a solo concurring opinion, Justice Anthony Kennedy would require that certain wetlands have a “significant nexus” to traditional navigable waters in order to be protected and gave little guidance as to what such a “nexus” requires, leaving the courts and the agencies to figure that out on a cumbersome case-by-case basis. Insult to Injury: Agency “Guidance” To make matters worse, following both SWANCC and Rapanos, the Bush administration issued new policies instructing field staff how to apply the Supreme Court decisions. These documents made it significantly harder to protect various water bodies, including tributary streams, rivers, and wetlands.

In 2003, following SWANCC, the administration essentially removed protection for non-navigable “isolated” water bodies, including prairie pothole wetlands, playa lakes, and vernal pools that are invaluable for wildlife habitat, groundwater recharge, and flood control. The U.S. House of Representatives specifically voted to reject the use of the agencies’ post-SWANCC policy in 2006, but it remains in effect to this day.

In 2007, the EPA and Corps released a second guidance document purporting to instruct agency officials on how to implement Rapanos. The Rapanos guidance is even more confusing and less protective than Rapanos itself. In addition to the isolated waters written off by the SWANCC guidance, the Rapanos guidance puts intermittent and ephemeral streams and many adjacent wetlands in danger of losing protections, a result not required by either court decision. In particular, the Rapanos guidance strips categorical protections for tributaries of larger waters; presumes certain types of ephemeral streams and waters are no longer protected; creates a binding, unpredictable, and time and resource intensive case-by-case process for determining what is protected; and ignores science to interpret important and relatively protective aspects of Justice Kennedy’s approach in a manner that makes them nearly meaningless.

The agencies revised the Rapanos guidance in December 2008 and made it even less protective, wrongly interpreting long standing case law to make it more difficult to determine whether a water is “traditionally navigable,” a determination that impacts protection of both specific waters and waters in the upper reaches of watersheds. These confusing and unworkable directives put countless water resources at risk. They can be rescinded by the new administration — and should be. However, because Rapanos and SWANCC are interpretations of the Clean Water Act itself, the agencies responsible for administering the Clean Water Act cannot fix the problems created by these damaging decisions. Only Congress can do that.

The Threat to Our Waters

The impact SWANCC, Rapanos, and the agency directives have had on our water resources is alarming. The Environmental Protection Agency estimated that approximately 20 percent of the over 100 million acres of wetlands in the continental U.S. are geographically “isolated,” a troubling statistic when one considers that the agencies stopped protecting isolated, non-navigable intrastate water ways after SWANCC.

1 Additionally, about 60 percent of the stream miles in the continental U.S. do not flow year-round; post-Rapanos interpretations directly threaten those kinds of streams. These waters not only serve as valuable wildlife habitat, store flood water, return water to aquifers, and filter pollutants, but they also provide some or all of the supply for drinking water systems serving roughly 111 million Americans. The legal chaos spawned by SWANCC and Rapanos and the misguided EPA and Corps interpretations of them have also had devastating effects on law enforcement.

In December 2008, Congressman Henry Waxman and Congressman James Oberstar wrote a memorandum to then-President-Elect Obama detailing hundreds of Clean Water Act enforcement cases that the EPA shelved or downgraded, and dozens more where the legal mess forced the government to spend resources arguing about whether a particular waterbody was protected. Some of these cases included significant oil spills. The memorandum also explains how, as a result of the legal confusion, agency regulators are suffering from increased workloads, record backlogs, heightened frustration, and plummeting morale.

The Nation’s waters, and in turn our public health, cannot withstand the current legal situation. After eight years of litigation, the lower courts have failed in their attempts to make sense of the Supreme Court’s handiwork. Fixing the Fractures: The Clean Water Restoration Act The current untenable situation facing our waters simply cannot be mended by the Judicial and Executive branches. It is time for Congress to step up and remedy this problem. Environmental groups are not alone in calling for this congressional action. State governors, hunting and fishing groups, respected scientists, federal regulators, and members of the public from all across the Nation are behind this call. In order to return to the original intent of the Clean Water Act, Congress must:

  • Pass a bill that removes the confusing term “navigable” from the Act;
  • Make clear that “waters of the United States” means the waters protected prior to SWANCC; and
  • Explain the facts supporting Congress’s Constitutional authority to protect such waterways. In previous years, leaders in Congress introduced a bill entitled the Clean Water Restoration Act to achieve these ends. The Restoration Act had broad bi-partisan support in past Congresses, but it is up to this Congress to secure passage of such legislation. About this report In the pages that follow we provide more than 30 case studies from around the U.S. of how the Clean Water Act has been misapplied since 2001. The case studies include several kinds of examples:
  • An administrative agency (EPA or the Corps) limited legal protection for a given waterbody, ruling that it is no longer protected by the Clean Water Act;
  • A court made a determination undercutting Clean Water Act protections for a waterbody; n As a defense in an enforcement action, an alleged polluter raised the issue of whether the water it discharged into is a protected water;
  • District officials at the Corps of Engineers originally determined a water not be protected, forcing headquarters officials at EPA and/or the Corps to step in to overrule the initial decision and protect the waterbody; and
  • A discharger with a permit argued it may pollute waters without federal safeguards in the future. Although hard to document, we also believe many polluters across the country have simply determined that specific waterways lack protection and acted to destroy, degrade or pollute that water without informing federal officials. Further, these are only case studies; we estimate that federal agencies declared over 15,000 water bodies unprotected in the past eight years. Thus, the case studies in this report represent a small fraction of the thousands of waters that have lost federal protections, officially or unofficially, since the Supreme Court’s 2001 decision.

The more then 30 case studies described in this report illustrate the unprecedented risk our waterways now face. These examples demonstrate how recent Supreme Court decisions and agency policies have removed or jeopardized safeguards for many of America’s important waters. Currently, countless small streams, rivers, lakes, and wetlands across the country are being polluted, ditched, piped, and filled because they are not afforded the protections they deserve under the Clean Water Act. These case studies reveal merely the tip of the iceberg.

What makes the current state of affairs particularly pernicious is that much of the destruction to our waters occurs well below the radar of public scrutiny. Unless a neighboring property owner alerts a local watchdog organization about a polluting activity or a concerned citizen questions regulatory officials directly, many waters are likely degraded or destroyed without the general public’s knowledge. To capture the case studies we have included in this document, we dug deep into the agencies’ files, because when a regulator decides that a water is not protected by the Clean Water Act, oftentimes the only individuals to even know are that regulator, the property owner, and an overworked EPA case reviewer. Corps decisions declaring water bodies unprotected are posted only on difficult-to-navigate websites, and sometimes for only a short time; these

The stakes are enormous – inaction jeopardizes safe and sufficient water. We cannot afford to let the current rollbacks and legal confusion erase three decades of progress and return us to the days of widespread dirty water. Currently the law cannot work, as demonstrated by questionable decisions in the field endangering streams, rivers, lakes, and wetlands across this country. Congress must enact the Clean Water Restoration Act now to stop the bleeding and restore basic Clean Water Act protections to our waters.

This legislation restores protections by:

Removing the confusing term “navigable” from the Act;

Making clear that “waters of the United States” means the water bodies protected prior to 2001;

Articulating the Congress’s broad constitutional authority to protect such waters.

Until Congress restores the Clean Water Act, the waters of this country are going to suffer irretrievable harm, the regulated community is going to experience unnecessary delays, and regulatory resources will be stretched to the breaking point. By enacting legislation to restore pre-2001 Clean Water Act protections, Congress would fix all of these problems and re-establish the Clean Water Act as the comprehensive water quality protection statute that Congress passed over a generation ago. Congress must act now to restore the Clean Water Act.