Since the passage of the Clean Water Act in 1972, we have made great progress in cleaning up our nation's waters. But these protections have been rolled back in recent years, and the Clean Water Act, long considered one of the country's most successful environmental laws, is now failing to protect all of America's waters.
The Act safeguards all of the "waters of the United States," with several basic protections built into the law. They include the Act's prohibition on unpermitted point source discharges, an oil spill prevention program, and the impaired waters cleanup program, to name a few. The federal Environmental Protection Agency and Army Corps of Engineers regulations implementing the law have for decades reflected the intent of Congress to protect all of America's waters. They cover, among other things, tributaries of various waters, adjacent wetlands, and intrastate waters with linkages to interstate commerce. These rules had been upheld by the vast majority of courts. But in 2001, a bare majority of the Supreme Court — in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers — held that non-navigable, intrastate waters are not protected by the Clean Water Act solely because they could serve as habitat for migratory birds.
This gave polluters an opening to ramp up a decades-long effort to pressure the EPA and the Corps of Engineers to weaken their rules. The agencies rejected overwhelming support for keeping the rules intact and directed their field staff to stop applying Clean Water Act protections to many waters unless given the go-ahead from headquarters in Washington, DC.
A March 2008 memorandum from the EPA's Office of Enforcement and Compliance Assurance revealed that the nation's waters are being left without full protections under Clean Water Act — and that alleged polluters are being let off the hook.
Hundreds of Clean Water Act enforcement cases have either been dropped completely or made lower priorities due to concerns over the recent Supreme Court decisions questioning whether certain rivers, streams, wetlands and other waters remain protected from pollution by the Clean Water Act. This legal uncertainty has been made worse by the EPA and Army Corps policy "guidance" to field staff that has further undermined clear enforcement of the law.
According to the agency memo: "a significant portion of the Clean Water Act enforcement docket has been adversely affected." Between July 2006 and December 2007, the agency made a conscious decision not to pursue enforcement of more than 300 Clean Water Act violations because of the jurisdictional uncertainty created by the Rapanos decision and the guidance. In another 147 cases, the priority of an enforcement action was lowered due to uncertainty about whether the waters remained within the scope of the Clean Water Act. On top of that, polluters in enforcement actions raised the lack of Clean Water Act jurisdiction as an affirmative defense in 61 other cases. In sum, over 500 enforcement cases were affected during this time period.
In a letter to then-EPA Administrator Stephen Johnson, Chairmen James Oberstar (D-WI) and Henry Waxman (D-CA) said that "This represents a sizable proportion of EPA's approximately 1,000 civil administrative and judicial enforcement cases under sections 311 , 402, and 404 of the Clean Water Act undertaken in FY 2007."
EPA "Guidance" went into effect in 2003, immediately impacting regional EPA and Army Corps of Engineers permitting decisions. The 2004 report, Reckless Abandon: How the Bush Administration is Exposing America's Waters to Harm, documented how entire water basins, streams, wetlands, rivers and lakes across America have been put at risk. Waters losing Clean Water Act protections include headwater, intermittent, and ephemeral streams that supply public drinking water systems that serve more than 110 million Americans — 5,646 public water supply systems.
More than 40% of facilities (14,800) with Clean Water Act National Pollution Discharge Elimination System (NPDES) permits discharge into small or intermittent streams, and several are arguing that because of the Supreme Court decisions they no longer require permits which impose limits on their pollution levels. Dredging or filling streams, and draining and filling wetlands, can cause or exacerbate flooding downstream with significant public safety and economic implications. A single acre of wetland can store 1 to 1.5 million gallons of flood water. Wetlands in the continental United States save an estimated $30 plus billion in annual flood damage repair costs. EPA reports that it cost $1.5 million annually to replace the natural flood control functions of a 5,000 acre tract of drained Minnesota wetlands.
Federal courts are struggling to determine how to implement the Supreme Court's decisions, resulting in conflicting decisions and uncertain standards in different parts of the country. The Court's opinions — especially an irreconcilably split decision in Rapanos — are opaque and full of unnecessary attacks on the scope of the law that go beyond the facts of the particular cases. Consequently, the lower courts have reached widely varying decisions about how to determine whether water bodies are protected.
Only two federal courts of appeal have definitively resolved how to assess the legal status of a given water body after Rapanos. In the First Circuit (after a case called U.S. v. Johnson), the government and citizens may establish that a water body is protected by relying on either test described in the two principal opinions in Rapanos. By contrast, the Eleventh Circuit (in a case called U.S. v. Robison) held that only a "significant nexus" test applies. The government, in a brief that attempted to convince the Supreme Court to reverse the Eleventh Circuit, argued that exclusive dependence on the "significant nexus" approach would raise enormous practical problems. Specifically, the government argued, "its application is likely to vary more widely from judge to judge, and from jury to jury." Moreover, it said that "within the Eleventh Circuit alone, approximately 28,215 additional hours of agency time would have been expended if the Corps of Engineers had been required . . . to make all formal jurisdictional determinations under the ‘significant nexus' standard."
In other regions, the precise legal standard is elusive. In the Seventh and Ninth Circuits, the courts have held that waters qualifying for protection under the "significant nexus" test are covered, but it is unsettled whether the other test may be used. Even worse, a judge of the federal district court in D.C. suggested that waters could be excluded based purely on the "relatively permanent" test (in a case called NRDC v. Kempthorne).
Likewise, some cases have denied protections for a variety of water bodies based on misreadings of Rapanos. These include a wetland exceedingly close to a major interstate navigable river, the Farmington River in Connecticut (evaluated in a case called Simsbury-Avon Preservation Society, LLC v. Metacon Gun Club, Inc.), a roughly nine-acre lake in New York that has been used by boats, (examined in a case called Pine Tree Homeowners' Association, Inc. v. Ashmar Development Co., LLC); and tributary streams in Texas and Hawaii that happened not to flow constantly (addressed in cases called U.S. v. Chevron Pipe Line Co. and Sierra Club, Hawaii Chapter v. Honolulu).
Unfortunately, the public is likely stuck with this indeterminate status until Congress acts to pass legislation to restore the clear legal scope of the Act. The Supreme Court recently ducked the government's request to clarify the applicable standards, notwithstanding one district court judge's assessment of the Rapanos decision: "I will not compare the ‘decision' to making sausage because it would excessively demean sausage makers."
Confusion over Clean Water Act jurisdiction has led to delays in permitting decisions. Under new rules put into place by government regulators, permit applicants must complete a 12-page form. To figure out that form, applicants have to study an 86-page instruction booklet. The Corps of Engineers says that this increases the time it takes to get a permit by up to three months
Passing the Clean Water Restoration Act in 2009 will restore longstanding safeguards for America's water resources and put us back on the path toward protecting all of our drinking water, lakes, rivers and streams.
The Clean Water Restoration Act should adopt a definition of "waters of the United States" based on longstanding EPA and Army Corps of Engineers regulations. The new law should delete the word "navigable" from the Clean Water Act to clarify that the purpose of the law was to protect the nation's waters from pollution, and no just maintain navigability. Congress should also make findings that the law includes so-called "isolated" waters, headwater streams, small rivers, ponds, lakes and wetlands.
The Clean Water Restoration Act of 2009, introduced by U.S. Sen. Russell Feingold, D-WI, would accomplish these important goals and has been endorsed by Clean Water Action.
Paul Schwartz, Clean Water Action National Policy Coordinator
202-895-0420 ext. 105
Darrell Gerber, Clean Water Action Program Coordinator
612-623-3666 ext. 530
Lynn Thorp, National Campaigns Coordinator
202-895-0420 ext. 109
Miranda Wilson, National Communications Coordinator
202-895-0820 ext. 181 or612-627-1521