New Bill Would Restore Clean Water Act Protections

Legislation introduced in the United States Senate April 2 would restore critical Clean Water Act protections lost through six years of confusing and contradictory court and government agency decisions.

The Clean Water Restoration Act was introduced by Sen. Russell Feingold, D-WI, and several co-sponsors.

Restoring the ability of the Clean Water Act to protect water resources must top Congress' water agenda. Supreme Court and agency decisions put at risk Clean Water Act protections for headwater, intermittent and ephemeral streams that supply drinking water systems that serve more than 110 million Americans. In total, 59 percent of the nation's waterways and millions of acres of wetlands are currently at risk.

Since the Clean Water Act was passed in 1972, federal, state and county regulators had worked out jurisdictional issues around enforcement based on rules established by federal agencies. That arrangement was upset beginning in 2001 when the Supreme Court issued a set of confusing decisions in contested cases involving Army Corps of Engineers permitting.

Confusion over Clean Water Act jurisdiction has led to delays in permitting decisions. Under new rules put into place by government regulators, permit applicants must complete a 12-page form. To figure out that form, applicants have to study an 86-page instruction booklet. The Corps of Engineers says that this increases the time it takes to get a permit by up to three months. The Clean Water Restoration Act cuts the red tape and eliminates this onerous process, which has been criticized by public officials for adding cost and delay.

Waterways at risk until the Clean Water Restoration Act passes range from most of 53-mile stretch the Los Angeles River basin-declared exempt from Clean Water Act protection by the Corps of Engineers-to Avondale Creek in Birmingham, Alabama, a continuously flowing stream that eventually flows into a large, navigable river.

In the LA River case, the EPA eventually overruled the Corps of Engineers following intense public scrutiny over the controversy. In Alabama, even though a jury found a pipe manufacturer guilty of knowingly discharging oil and other toxins into Avondale Creek and fined the company $5 million, the conviction was later overturned on appeal and the case will have to be retried because the court questioned whether this stream still qualified for Clean Water Act protections after the Supreme Court rulings.

The Supreme Court decisions called into question the scientific relationship between vitally important wetlands and large rivers downstream. Last week more than 160 scientists sent a letter to President Obama urging him to support the Clean Water Restoration Act, which would clarify in law the connection between waterways-connections well understood by scientists.

According to Ducks Unlimited scientists, 96% of the remaining wetlands in the prairie pothole region and the Gulf Coast, and up to 88-90% of the remaining wetlands in the Great Lakes and Mid-Atlantic Coast regions, might no longer be protected by the Clean Water Act. These wetlands provide critical habitats for waterfowl and other wildlife, provide flood control and base flows for rivers, streams and groundwater aquifers, and protect and improve the quality of water that flows downstream to other users. Without these wetlands, property owners and others could face up to $30 billion in annual flood damages in the continental United States and the loss of $122 billion of fish and wildlife-recreation expenditures.

The legislation is cosponsored by Senators Boxer, Cardin, Brown, Cantwell, Carper, Dodd, Durbin, Gillibrand, Kerry, Kohl, Lautenberg, Leahy, Levin, Lieberman, Menendez, Merkley, Reed, Sanders, Schumer, Shaheen, Stabenow, Whitehouse, and Wyden.