NACWA Legislative Alert LA07-2

Member Pipeline - Legislative - Alert (LA07-2)

Action Needed by June 15, 2007

To: Members & Affiliates; Legislative Policy and Legal Affairs Committee
From: National Office
Date: June 4, 2007
Subject: Clean Water Restoration Act of 2007 (H.R. 2421)
Reference: LA07-2

print Printer friendly version

The National Office is pleased to provide you with this Legislative Alert, which contains an analysis and overview of the Clean Water Restoration Act of 2007 (H.R. 2421). The bill seeks to clarify the jurisdiction of the Clean Water Act (CWA) and ensure broad protections for isolated, non-navigable waters. Introduced May 22 by Reps. James Oberstar (D-Minn.), chair of the House Transportation and Infrastructure Committee, John Dingell (D-Mich.), chair of the House Energy and Commerce Committee, and Vernon Ehlers (R-Mich.), the bill would remove all references to “navigable waters” from the Clean Water Act and replace them with “waters of the United States,” which would be broadly defined as:

all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams…mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.

A variety of environmental activist groups and some conservation organizations strongly support the bill, viewing it as a mechanism to reverse the effects of recent Supreme Court decisions that essentially removed isolated, non-navigable, intrastate waters from the purview of the CWA and left their regulation and management to the states. A coalition of groups representing homebuilders, counties, commercial developers, mining interests, and some industrial dischargers opposes the bill, asserting that it has sweeping, unintended consequences and would only lead to more litigation over jurisdictional issues under the CWA 402 National Pollutant Discharge Elimination System (NPDES) permit requirements and section 404 wetlands permit programs.

NACWA has not taken a position on the bill to date, preferring instead to obtain comments and perspectives from its members on what, if any, impact the legislation could have on their operations. Oberstar’s staff has sought NACWA’s support, but is open to the Association providing input on issues or concerns with the legislation. Accordingly, please submit any comments to Susan Bruninga, of NACWA’s Government Affairs staff, by June 15 at or by phone at (202) 833-3280.

One of the stated purposes of the CWA is the protection of navigable waters. The Act defines “navigable waters” as “the waters of the United States, including territorial seas,” but does not offer further explanation. Both the U.S. Army Corps of Engineers CWA Section 404 permitting requirements, found at 33 CFR Part 328, and the U.S. Environmental Protection Agency’s (EPA) regulations for the CWA Section 402 permitting program, found at 40 CFR 122.2, expand upon the definition of waters of the U.S. as:

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce…”

This is essentially the same language the bill would insert as the CWA Section 502 definition of “waters of the United States.” H.R. 2421 would not rely on interstate commerce for jurisdiction — likely finding it unreliable post-SWANCC — but would instead employ the broader “legislative power of Congress under the Constitution” language contained in the bill. Also notable is that the EPA and Corps regulations state that waters of the U.S. do not include “[w]aste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States.” H.R. 2421 contains no such language, and it is unclear whether this regulatory exemption, or any other regulatory provisions, would be included.

Supporters Tout Revised Definition as Restoring Congress’ Original Intent
Supporters of the bill say the revised definition is needed to restore Congress’ original intent regarding the reach of the CWA, which they say was blurred by recent Supreme Court rulings. The first was the 5-4 decision handed down in January 2001in Solid Waste Agencies of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineer, which invalidated the “Migratory Bird Rule” as a means of asserting CWA jurisdiction over isolated, non-navigable, intrastate waters. While not technically a regulation — it was actually language in the preamble to the Corps of Engineers rule defining “waters of the United States” — the Migratory Bird Rule asserted that the presence of migratory birds in an isolated, intrastate body of water was a sufficient reason under the Commerce Clause of the U.S. Constitution to assert federal CWA jurisdiction because people cross state lines and spend money to hunt or go bird watching. Other Commerce Clause factors are incorporated in the EPA/Corps regulations to assert CWA jurisdiction, such as, for example, the use of the water body for fishing, shellfishing, or recreation, those justifications were not challenged or invalidated in the SWANCC case.

Following the SWANCC decision, activist organizations expressed deep concern that as many as 20 million acres of isolated waters, such as vernal pools, playa lakes, and other wet areas would be left without federal protections, and many states lacked the resources or statutory mechanisms to fill the gap. Several states responded by enacting legislation ensuring these areas would remain covered under state law while others examined existing authorities to ascertain coverage. California, for example, determined that isolated areas would remain protected under the state’s coastal zone regulations, which essentially cover the whole state. Bills similar to H.R. 2421 were introduced in Congress but went nowhere.

EPA and the Corps also issued guidance insisting on the narrowest possible interpretation of SWANCC, saying that it invalidated only the Migratory Bird Rule and should not be viewed as leaving expansive areas of wetlands and other waters unprotected. Still, confusion reigned as no bright line was drawn.

In 2006, the Supreme Court issued a 5-4 decision in Rapanos v. United States (U.S.) and Carabell v. U.S. Army Corps of Engineers (Legal Alert LA-06-5), again failing to reach consensus on the scope of federal power to regulate wetlands under the CWA.

As it has in the past, the court struggled to provide a clear legal “test” for determining where the CWA’s jurisdiction over wetlands ends and where state authority begins. In these latest cases, the Court said that only those wetlands with a continuous surface connection to waterbodies are “waters of the Unites States” in their own right. The Court also noted that there must be no clear demarcation between “waters” and wetlands or wetlands “adjacent to” such waters for the Corps to assert federal jurisdiction under the CWA. Thus, under the ruling, wetlands adjacent only to intermittent or ephemeral tributaries would not fall within corps jurisdiction and would be regulated by the states.

The joint cases were remanded to the lower courts, with the high court noting that each wetland must be assessed on a case-by-case basis in the future. Because the Rapanos decision does not set forth a particularly clear legal test or analytical framework for the future, Oberstar and others decided congressional action was warranted. Sen. Russ Feingold (D-Wis.) is contemplating the introduction of similarly worded legislation in the Senate.

Member Agency Perspectives Sought
Given the diversity of state laws and local geographic considerations, it is unclear how this legislation, if enacted, would affect NACWA member agencies. As dischargers, clean water agencies must have NPDES permits to discharge to “navigable waters” of the United States. Most, if not all, member agencies discharge to unambiguously jurisdictional waters. However, broadening the scope of jurisdictional waters as H.R. 2421 contemplates may affect:

  • Agencies that discharge to effluent-dominated streams;
  • Agencies that construct wetlands for treatment; or
  • Agencies that need to site a new facility or expand an existing plant.

To that end, your agency’s response to the following questions would be extremely helpful:

  • Does your state currently have a definition of “waters of the State” as broad as H.R. 2421?
  • Does your agency discharge to non-jurisdictional waters today that would become jurisdictional if H.R. 2421 were to become law?
  • Would you support or oppose enactment of H.R. 2421 as written?
  • If you would oppose enactment, what changes to H.R. 2421 would make the legislation acceptable to you?
  • Are you concerned about the impact of H.R. 2421 on the existing EPA regulatory “waste treatment” exemption?
  • Are you concerned with the bill’s departure from traditional “commerce clause” jurisdiction and reliance instead on a broader concept of “legislative power of Congress under the Constitution”?
  • What questions do you have regarding the effects of H.R. 2421?

Once again, NACWA thanks our member agencies for their perspectives on these complex issues. We look forward to your input and thought