Senate, House Consider Clean Water Restoration Act
Berndt, Carolyn, Nation's Cities Weekly
Senate and House committees recently held hearings on companion bills that would amend the Clean Water Act.
The Clean Water Restoration Act, sponsored by Sen. Russ Feingold (D-Wisc.) in the Senate and Rep. James Oberstar (D-Mich.) in the House, is a legislative response to two U.S. Supreme Court cases that called into question federal authority and jurisdiction over certain waters, including wetlands.
The bills, S. 1870 and H.R. 2421, would change the term "navigable waters of the U.S." to "waters of the U.S." wherever that phrase exists in the Clean Water Act.
The Senate Environment and Public Works Committee conducted a hearing on April 9, while the House Transportation and Infrastructure Committee held a heating on April 16. While 20 senators and 175 representatives have signed onto the bills as co-sponsors, debate continues as to whether the bills would preserve wetland protections in the Clean Water Act or expand them.
Statutory language in the Clean Water Act references "navigable waters," which is defined as "waters of the United States, including the territorial seas." The U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) have historically broadly interpreted this definition to mean all waters, including wetlands, based on the water's relation to interstate commerce.
The U.S. Supreme Court's ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) questioned whether the term "navigable" necessitated a nexus between federal authority and traditionally-navigable waters. The court's combined ruling in Rapanos v. United States (2006) and Carabell v. U.S. Army Corps of Engineers (2006) attempted to create a legal test for determining federal authority based on there being a "significant nexus" between the waterbody and traditionally-navigable waters.
The court, however, could not agree on a single test to apply and recommended several. …