Since Congress passed the Clean Water Act in 1972, we have made great progress in cleaning up our nation's waters, but that progress is in jeopardy today.
The law historically protected the nation's lakes, rivers, streams and wetlands from unregulated pollution and destruction.
Today, however, many water bodies are being denied the Act's protections against pollution.
Polluters argue that Supreme Court decisions from 2001 (SWANNC) and 2006 (Rapanos) mean that the law's safeguards are only available for "navigable" water bodies (or for waters that are significantly linked to such water bodies). They claim the Act no longer protects numerous wetlands, streams, rivers, lakes and other waters that historically had been covered. Ambiguous federal agency policy directives have helped these attacks.
The Clean Water Restoration Act is needed to restore the longstanding protections originally intended by Congress.
Every day that Congress fails to act, more streams, rivers, wetlands and other waters that have long been protected by the Clean Water Act are being polluted or destroyed.
The Clean Water Act is broken. The new administration, which on the campaign trail was supportive of measures to restore Clean Water Act protections, must immediately announce support for urgent Congressional action to pass legislation to restore the historic protective scope of the Clean Water Act for streams, rivers, wetlands, and other waters.
Why is Action Urgently Needed?
- The Environmental Protection Agency (EPA) dropped enforcement of hundreds of alleged violations of the Clean Water Act, lowered others in priority, and has had to fight frequent attempts by defendants to escape legal responsibility.
- The federal courts are struggling to determine how to implement the Supreme Court's decision.
- Public health and safety are threatened each day this situation continues until Congress fixes the law.
- Water bodies around the country are regularly being declared unprotected by the Army Corps.
- A recent EPA estimate concludes that there have been over 10,000 waters ruled "non-jurisdictional" since 2001 just based on their interpretation of SWANCC alone. More are being left unprotected under Rapanos rationales. For example, waters losing 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.
How Can Legislation Fix the Clean Water Act?
Legislation is needed to restore the traditional scope of protection intended by Congress. Americans need these safeguards to achieve the goal of restoring and maintaining the chemical, physical and biological integrity of the nation's waters.
Specifically, legislation should:
- Adopt a statutory definition of "waters of the United States" based on the longstanding definition in EPA's and the Corps' regulations;
- Delete the word "navigable" from the Act to clarify that the Clean Water Act is principally intended to protect the nation's waters from pollution, and not just maintain navigability;
- Make findings that articulate the basis for Congress's assertion of constitutional authority over the nation's waters, as defined in the Act, including so-called "isolated" waters, headwater streams, small rivers, ponds, lakes and wetlands.
The Clean Water Restoration Act, as introduced in the 110th Congress, accomplished each of these goals. If adopted in the 111th Congress it would restore clear protections to water bodies that had been covered before the SWANCC and Rapanos rulings.