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Senate Committee Approves Significant Expansion of the Clean Water Act


06/18/09

Currently unregulated property owners with wetlands or any bodies of water may now be compelled to adhere to the Clean Water Act.

Today, the Senate Environment and Public Works Committee, chaired by Senator Barbara Boxer (D. Cal.), approved S.787 to clarify the jurisdictional reach of the Clean Water Act (CWA). The CWA, as enacted in 1972, applied to "navigable" waters. Since 1972, the question of what are "navigable" waters subject to the CWA has been debated all the way to the US Supreme Court. The CWA defines "navigable" waters as "waters of the United States."

Supporters of S.787 say the bill is necessary to overturn two Supreme Court decisions restricting application of the CWA. The first of those decisions, Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159 (2001), overturned the so-called migratory bird rule under which any water that is used, or could be used, by migratory birds is deemed a "navigable" water. The second Supreme Court decision, Rapanos v. United States, 547 U.S. 715 (2006), has generally been interpreted to hold that a water is subject to the CWA if it is, or once was, navigable in the traditional sense of that word or if there is a "significant nexus" between a water and a traditional navigable water.

S.787 as approved by the Committee deletes the word "navigable" from the CWA, thus removing from the CWA any link to the traditional concept of navigability and applying its provisions to any water of the U.S. The Congressional findings and purposes in S.787 make it clear the intent is to reinstate the migratory bird rule and for the CWA to cover all waters to the fullest extent that these waters are subject to the legislative power of the Congress under the Constitution.

The CWA requires property owners obtain permits for any activity that will result in the dredging and filling of, or discharge to, a jurisdictional water, subject to some limited exceptions, particularly for agriculture. The sponsors of S. 787, as amended, assert that it simply returns CWA jurisdiction to that which existed before the 2001 and 2006 Supreme Court decisions. Opponents assert the legislation constitutes a sweeping federal zoning regulation allowing the Corps of Engineers and the Environmental Protection Agency to regulate any area that could host migratory birds by virtue of being wet for as little as a few weeks a year – essentially every area in the U.S.

The bill will now move to the Senate where it is unclear whether the votes exist to stop a likely filibuster. The leadership of the House of Representatives Committee with jurisdiction over the CWA has indicated its intent to seek passage of a bill similar to S.787 but their proposal is still in draft form.

George Mannina is an attorney and lobbyist, who represented the Solid Waste Agency of Northern Cook County in the landmark Supreme Court ruling, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), which redefined the jurisdictional boundaries of the Clean Water Act and removed certain waters from the permitting requirements.  George may be reached at 202.887.1491 or gmannina@nossaman.com.

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