Congress to Hold Largest Hearing Ever on Clean Water Legislation

Protecting clean waters remains a challenge under current misguided court rulings


Joan Mulhern, Earthjustice, (202) 667-4500

Clean water protections are under attack. In response, Congress is currently considering important legislation, the Clean Water Restoration Act, which guarantees that all rivers, lakes, streams, wetlands and other waters remain protected from pollution and destruction. This Wednesday, the Transportation and Infrastructure Committee in the House of Representatives will hold the largest hearing ever on this important bill.

On April 9, the U.S. Senate Environment and Public Works Committee also held a legislative hearing on this bill. The Clean Water Restoration Act clarifies Congress’ intent to protect all waters of the United States. When Congress passed the Clean Water Act more than 35 years ago, it intended to protect all rivers, streams, lakes, wetlands and other waters from pollution and destruction. But muddied rulings by the U.S. Supreme Court and ambiguous guidance documents from federal agencies have created confusion over Clean Water Act protections.

“This is the most important clean water legislation in the last 35 years,” said Joan Mulhern, Senior Legislative Counsel with Earthjustice. “Congress has made the right move to propose the Clean Water Restoration Act. More than 110 million Americans get their drinking water from the same streams and headwaters that could lose their federal Clean Water Act protection. Every day, the Army Corps of Engineers and the EPA are making decisions that remove federal protection for these waters. Without this bill, polluting streams, filling wetlands, and burying waters will be common practice.”

At last week’s Senate hearing, Carol Browner, former EPA administrator, wrote in her testimony that, “I recognized, as did the administrators who preceded me, that Congress intended for the Clean Water Act to cover all of our nation’s interconnected water resources, including watersheds, tributaries, and wetlands.”

On April 16, the Transportation and Infrastructure Committee — the largest committee in the House of Representatives — will hear testimony from more than 20 witnesses on the Clean Water Restoration Act. Already, 175 members of the House of Representatives are cosponsoring the bipartisan Clean Water Restoration Act, and 21 Senators are cosponsoring companion legislation in the Senate (bill numbers H.R.2421 & S.1870)

By EPA’s own estimates, 59% of the nation’s streams are either first order (headwater) streams or are seasonal. These waters supply drinking water to public supplies that serve more than 110 million Americans. It is these tributaries and streams, along with millions of acres of wetlands, that are most at risk of being left open to unregulated pollution and destruction if Congress does not adopt the Clean Water Restoration Act.

During an important Supreme Court case in 2006 commonly referred to as the Rapanos decision, some 34 states and the District of Columbia joined in a “friend of the court” brief supporting the long-standing definition of “waters of the United States” contained in EPA and Army Corps of Engineers regulations since 1975.

A sampling of supporters of the Clean Water Restoration Act include:

  • Gov. Bill Richardson, New Mexico
  • Gov. Brian Schweitzer, Montana
  • Gov. Janet Napolitano, Arizona
  • Gov. Ted Strickland, Ohio
  • Gov. Edward G. Rendell, Pennsylvania
  • Gov. Jim Doyle, Wisconsin
  • New York State Department of Environmental Conservation Commissioner Alexander B. Grannis
  • California State Lands Commission
  • Michigan Department of Environmental Quality
  • Oregon Department of State Lands
  • Maine Department of Environmental Protection
  • Former EPA Administrators Carol Browner (1993-2001), William K. Reilly (1989-1993), William D. Ruckelshaus (1970-73, 1983-85), and Russell E. Train (1973-1977)
  • State Attorneys General of California; Connecticut; Delaware; Maine; Maryland; Massachusetts; New Hampshire; New Jersey; New York; Oregon; Rhode Island; Vermont.

The EPA estimates that approximately 20 million acres of wetlands and 60% of America’s streams nationwide are either “isolated,” “intermittent,” or “start reach” tributaries. These are the waters now most at risk of losing Clean Water Act protection under the legal definition offered by activist justices on the Supreme Court. Specific waters include:

  • 84 miles of perennial streams, 3,900 miles of intermittent waters and 4,000 playa wetlands in New Mexico
  • 22% of wetlands in New York City that could be considered “isolated”
  • 70% of Montana’s 192,000 miles of streams that are “intermittent” headwaters
  • 23% of Minnesota wetlands statewide, including a loss of 92% in the northern glaciated plains
  • 800,000 acres of wetlands in Florida’s panhandle that are considered “isolated,” 2,956 miles of intermittent streams, and 25,909 miles of “non-navigable” ditches and canals
  • 50% of stream length in Ohio that are considered “ephemeral” or “dry”
  • 77,371 acres of so-called “isolated” wetlands in California
  • Over half of all the streams in Tennessee that are currently considered “non-navigable”
  • 1.1 million acres of wetlands in Wisconsin that can be considered “isolated”

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