U.S. Rep. James Oberstar (D-Minn.) has been Congressman for more than 40 years. During his expansive political career he has been a leader in helping to pass laws to protect the nation’s waterways. Recently, Rep. Oberstar introduced America’s Commitment to Clean Water Act (H.R. 5088) to restore protections of the Clean Water Act of 1972 that have been cast in doubt by U.S. Supreme Court decisions.
When the Clean Water Act was enacted, Oberstar was there, working on the bill as a staffer for then- Minnesota Congressman John Blatnik who was chair of the Committee on Public Works and a chief author of the legislation. In 1972 congress passed the bill—overriding a veto by President Nixon, who later signed it into law. The U.S. Army Corps of Engineers and newly formed Environmental Protection Agency (EPA) then wrote regulations to define how the nation would regulate pollution in U.S. waters.
The agencies determined that all wetlands, lakes, and streams of the United States were to be protected under the new historic law. But that interpretation of the law was challenged in court by some of the nation’s biggest polluting industries, including paper mills, mines and land developers.
Two divided U.S. Supreme Court decisions have essentially stripped clean water protections from many U.S. waterways, leaving them vulnerable to pollution and degradation. Known by their abbreviated case names, the SWANCC decision of 2001 and the Rapanos decision of 2006, have limited Clean Water Act protections to only navigable waters (and waters significantly linked to such bodies of water)—as opposed to all wetlands, lakes and streams of the United States.
Only 2 percent of this nation’s waters are truly navigable, according to the advocacy group Clean Water Action. As a result of the high court’s interpretation, at least 20 million acres of wetlands and up to 60 percent of America’s streams have been left vulnerable to pollution and millions of Americans are drinking unprotected water from their faucets.
The rulings, according to a press release from Rep. Oberstar’s office, “cut back on the authority of the Clean Water Act to regulate lakes, rivers, streams and wetlands across the U.S. and created confusion and uncertainty for communities, developers and agricultural interests. They also placed at risk the nation’s ability to restore, protect, and maintain water quality and the water-related environment.”
Rep. Oberstar’s bill restores protections originally granted under the Clean Water Act, resolving the confusion from the Supreme Court decisions. The purpose of the ACCWA is to make the intent of Congress and the definition of waters of the United States known in statute; and Rep. Oberstar knows what the intent of Congress was when the CWA was written since he was instrumental in its drafting.
A statute provides the strongest definition possible – much stronger than agency regulations as it lays out the actual intent of Congress. This designation is more difficult to challenge, but it can still be disputed in the courts.
The ACCWA takes the exact wording in the EPA and Army Corps of Engineers regulations that define what the CWA covers and places it in the bill. This means that the same waters that have been protected and regulated since the law was first implemented in the late 70’s will be protected once again.
Under the ACCWA – and under the long-standing definition set out by the EPA and Army Corps of Engineers – the legislation would put the following definition of “waters of the United States” in statute:
“In general the term waters of the United States includes:”
1. All waters used for interstate or foreign commerce – including all waters subject to the ebb and flow of the tide. (This includes waters that have been used for commerce in the past or could be used in the future.)
2. All intrastate and international waters and all intrastate and international wetlands.
3. All other waters, including: intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie pot holds, wet meadows, playa lakes, or natural ponds, if by using them, altering or destroying them would affect intrastate or foreign commerce, the obligations of the US under a treaty, or the territory or property belonging to the United States.
4. All impoundments of waters otherwise defined as waters of the US under this paragraph;
5. Tributaries of waters identified in 1-5.
6. Territorial seas.
7. Waters, including wetlands, adjacent to waters identified in 1-6.
This definition accepts that waters are part of a hydrologic system. It does not make sense to protect waters in one location and not another, just as it would be foolish to try and protect a tree while allowing its roots to be destroyed.
“There was never any doubt that the Clean Water Act was to have broad authority,” stated Rep. Oberstar. “There were no limits on the number of streams, lakes or shorelines to be protected; it just said ‘the waters of the United States.’ The Supreme Court has greatly limited the scope of the act and greatly confused the application of existing law.”
In the previous Congress, Rep. Oberstar introduced similar legislation called the Clean Water Restoration Act (CWRA) and it had wide support, but it was stalled by then-President Bush with the threat of a veto.
Rep. Oberstar wants the U.S. House of Representatives Transportation and Infrastructure Committee to begin work on the ACCWA before June and, according to a press release on the committee’s Web site, “expects the legislation to win passage with bipartisan support on the House floor. A similar bill is expected to be considered by the full Senate this summer.”