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Legislation Seeks to Cut "Navigable" From Clean Water Act

By: Alfred E. Smith

United States Senator Russ Feingold (D) recently introduced legislation to remove the term "navigable" from the Clean Water Act. Advocates of the bill argue that the amendment would restore the original intent of the Clean Water Act, providing broader clean water protections. The bill is supported by a number of environmental organizations, including the Sierra Club, National Audubon Society, Trout Unlimited, National Wildlife Federation, Natural Resources Defense Council, Association of State Floodplain Managers, Earthjustice, and the Izaak Walton League.

Opponents of the bill caution that the legislation is a dangerous interpretation that would result in regulation for every conceivable body of water. The use of the term "navigable" indicates the Clean Water Act was originally intended to apply only to large water bodies suitable for navigation. The bill is "overreaching" and an "unacceptable approach," said National Association of Homebuilders spokesman Michael Strauss.

The legislation would also clarify which wetlands are protected under the Act. In 2001, the Supreme Court ruled that some isolated wetlands were not under the jurisdiction of the Clean Water Act. (Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers).

To view more information on the proposed legislation, click here.

Alfred E. Smith, II is a Partner in Nossaman's Los Angeles office who specializes in environmental, water and complex commercial litigation. He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil. Alfred is an appointed member of the Association of California Water Agencies’ (ACWA) Legal Affairs Committee. He can be reached at (213) 612-7800 or

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