On June 18th the Senate Environment and Public Works Committee, on a vote of 12-7, passed the amended version of the Clean Water Restoration Act.  The proposal is seen by some as an attempt to fix a major hole in the Clean Water Act.  Others see it as a major extension of federal regulation.  I see it as a State’s rights issue…

The debate over the bill has centered on whether federal jurisdiction should cover essentially all streams and wetlands. (for a discussion of the jurisdiction issue see the extended entry to this post)  The hardcore supporters or detractors appear to break into two camps:

  1. Farmers who want the independence and flexibility to address irrigation or flooding without the need of federal permits
  2. Without passage the majority of streams and wetlands will be left completely unprotected leading to a complete destruction of water quality even in federally regulated waterways. 

If you think I’m painting the camps too dramatically let me provide some examples.  First from the protection camp (post on Blue Living Ideas).

Without CWRA, we could return to the times of the Cuyahoga River burning and the Great Lakes smelling like cesspools. The Clean Water Act is important legislation that needs restoration. It’s about birds; it’s about clean water; it’s about drinking water. CWA was intended to protect all of America’s waters from pollution, not just those that are navigable.

Now from the farmer’s perspective (post on Drovers).

Under current law, the federal government has jurisdiction over "navigable waters of the United States." However, by removing the word "navigable" from the definition, the CWRA would expand federal regulatory control to unprecedented levels – essentially putting stock tanks, drainage ditches, any puddle or water feature found on family farms and ranches—potentially even ground water—under the regulatory strong-arm of the federal government.

There are of course other perspective, such as the U.S. Chamber’s.  In a letter to the Senate Committee the U.S. Chamber opposes the Clean Water Restoration Act because it fears the expansive language will be used by citizen groups to stop development projects:

It has been well-documented that deletion of the term “navigable” from the definition of “waters of the United States” could lead to the unnecessary expansion of the CWA to certain intrastate waters. The bill does attempt to address this problem by listing the specific types of waters explicitly covered by the CWA and exempting others. However, the Chamber’s primary concern is that, despite the good intentions of the Committee in negotiating a compromise, S.787 as drafted is still subject to manipulation by activist groups whose only goal is to stop development.

Lost in the debate seems to be Republican notions of federalism.  When it comes to environmental protection, States seem to often loose the argument that they can craft better regulations or even be trusted to adopt any regulation at all.

The lack of trust makes groups push hard for federal regulation, which is unfortunate because State crafted water quality regulatory programs should be a much better alternative. Here are some reasons why an expanded Ohio jurisdiction over waterways and wetlands may be preferable to "putting all waters under federal protection." 

  1. Regulations crafted at the local level–  ideally States should be in a better position to address unique water quality issues that may be present in their state.  Rather than one size fits all approach under federal regulations.
  2. One permit instead of two-  If the Clean Water Restoration Act passes, anyone with development projects in the State that impacts a stream or wetland will have to get a 401 water quality certification and a 404 permit.  This means all development projects face distinct regulators who may push for different outcomes to mitigate for impacts. 
  3. Greater Flexibility-  In navigating federal regulations, companies and developers often must deal with the "national consistency" argument.  In other words, "we can’t be flexible in this instance because we have to worry we are setting national precedent."
  4. Navigation of only one regulatory structures-  Water quality regulation is a complex business.  It involves biological and chemical criteria.  Navigating two complex regulatory structures (federal and state) bogs down business.  An efficient regulatory structure can still be protective.

A state water permit program is not only a possibility, it was proposed by Ohio EPA in the fall of 2008 in response to shrinking federal regulation.  The State’s proposal has met with significant resistance which has slowed the rule development process down to a crawl.  However, for the reasons articulated above perhaps its worth reconsidering positions on the proposal.  

Those groups opposing both the Clean Water Restoration Act and Ohio EPA’s proposed Water Quality Permit Program must realize they will not get it both ways.  There is too much support for protecting streams and wetlands to have no regulatory program in place.  Without a strong push for State regulation, the default will be to push for federal regulation.

To fend off federal regulation through adoption of effective state regulation, supporters must address the perception of many that State’s engage in a "race to the bottom" when enacting environmental regulation.  Federal legislation like the Clean Water Restoration Act get pushed because fear by many groups that if regulation is left up to the State’s they will all compete to have the least amount of protections or requirements. 

(Photo: Colin Gregory Palmer/everystockphoto.com)

The Supreme Court got things set in motion by issuing its decisions in SWANCC and Rapanos which significantly narrowed the jurisdiction of U.S. EPA and the Army Corps of Engineers under the Clean Water Act. The decisions were seen at first as limiting jurisdiction over wetlands. However, the same term "navigable water" was used in the Clean Water Act to discuss wetlands or streams that fall within federal regulation.

The Rapanos decision increased regulatory uncertainty. At decision with no clear majority (4-4-1) that includes two separate methods of determining whether waters or wetlands are federally regulated. Under the Plurality test a stream must have permanent flow and be connected to a navigable water. Under Justice Kennedy’s test, the waterway must have a "significant nexus" to a navigable water. Whether such a nexus exists depends upon whether impacts to a waterway would have a impact on the chemical, physical or biological quality of downstream navigable waters.

After the Rapanos decisions was issued, U.S. EPA and the ACOE issued guidance to determine whether waters where federally regulated using the tests established by the Supreme Court. The guidance did not remove the uncertainty. As noted in a prior post, the U.S. EPA Inspector General released a report that indicated tremendous uncertainty persists in applying the law. The uncertainty impacted some 489 enforcement cases across the country. Some have estimated that 60% of the nations waterways have been left unprotected as a result of the narrow federal jurisdiction applicable under the Rapanos tests. 

Lower courts have had difficulty in applying the Rapanos test on a consistent basis.  (Legal Planet: The Environmental Law and Policy Blog- has a good discussion of regarding the inconsistency in application of the two tests under Rapanos.)

In response to all this uncertainty many environmental groups and states have pushed for a Rapanos "fix." A change in the federal Clean Water Act to extend coverage to unprotected waterways. The "fix" has now taken the form of the Clean Water Restoration Act. In reality, the Act proposes a fairly simple fix- delete the term "navigable waters" as a limiting factor on federal jurisdiction over waterways. In its place substitute a new term "Waters of the U.S." 

The amended version of the Clean Water Restoration Act does include two exceptions from coverage from the broad definition of "waters of the U.S.".  Those exemptions include:

  1. Converted Cropland- included in an attempt to appease the agricultural community
  2. Waste Treatment Systems- included to address things like wastewater treatment systems and storm water retention ponds

The amended version also includes statements intended to limit coverage under the new term "waters of the U.S." to only that federal jurisdiciton that existed prior to SWANCC. 

The bill now moves to the full Senate where passage is less than certain even with the new 60 vote majority held by the Democrats.