Mr. President, in light of recent U.S. Supreme Court decisions, today I am introducing legislation to affirm Federal jurisdiction over the waters of the U.S. as Congress intended when it passed the…
Mr. President, in light of recent U.S. Supreme Court decisions, today I am introducing legislation to affirm Federal jurisdiction over the waters of the U.S. as Congress intended when it passed the Clean Water Act in 1972. I want to thank Senators Lautenberg, Levin, Kerry, Lieberman, Boxer, Menendez, Sanders, Cardin, Durbin, Reed, Dodd, Kohl, Whitehouse, Stabenow, Carper, Wyden, Leahy, Brown, and Schumer for joining me in introducing this important legislation.
For 35 years, the American people have relied upon the Clean Water Act to protect and restore the health of the Nation's waters. The primary goal of the act, to make rivers, streams, wetlands, lakes, and coastal waters safe for fishing, swimming and other recreation, suitable for our drinking water supply, and available for wildlife and fish habitat, has broad public support not only as a worthy endeavor but also as a fundamental expectation of government providing for its citizens. It is our responsibility to ensure that our freshwater resources are able to enhance human health, contribute to the economy, and help the environment.
We have made considerable progress towards ensuring the Nation's waters are drinkable, fishable, and swimmable. However, today, the Clean Water Act, one of our Nation's bedrock environmental laws, faces new and unprecedented challenges.
Two controversial, closely divided U.S. Supreme Court rulings have reduced the jurisdictional scope of the Clean Water Act, undermining decades of clean water protections and disregarding Congress' intent when it originally passed the Clean Water Act.
At the heart of the issue is the statutory definition of ``waters of the United States.'' Though recent court decisions have focused on dredge and fill permits under section 404, this definition is integral to the Federal Government's jurisdiction under the Clean Water Act as a whole. This definition is the linchpin for state water quality standards under section 302 and section 303, national performance standards under section 306, toxic and pretreatment standards under section 307, oil and hazardous substance liability under section 311, aquaculture standards under section 318, State water quality certifications under section 401, and national pollution discharge permitting requirements under section 402.
In the 2001 case Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, SWANCC, in a 5 to 4 decision, the U.S. Supreme Court limited the authority of Federal agencies to extend Clean Water Act protections to commercially nonnavigable, intrastate, ``isolated'' waters based solely on their use by migratory birds. While the Court's decision was narrow, the effect of the decision has been much broader: for example, according to the Environmental Protection Agency, 20 percent of the Nation's wetlands outside Alaska are now at risk of losing Federal protections.
Last June, the U.S. Supreme Court announced a sharply divided decision in the consolidated cases of Rapanos v. United States and Carabell v. Army Corps of Engineers that jeopardizes many more of our Nation's waters. Four justices joined an opinion that said only permanent or ``continuously flowing'' rivers and streams and by implication, the wetlands next to them are protected by the Clean Water Act, ignoring the act's text and purpose. This line of reasoning would leave more than half of our Nation's waters without Federal protections. To put these bodies of water into perspective, according to the Environmental Protection Agency, 110 million Americans get their drinking water from sources that include the very intermittent and ephemeral bodies of water that the four justices said were not protected by the Clean Water Act.
Fortunately, five Justices rejected this radical rewrite of the act. However, Justice Kennedy, who provided the fifth vote to send the cases back to the lower courts, offered an entirely different test; one requiring EPA and the corps to show a ``significant nexus'' between a stream, river, or wetland and a navigable water in order for the stream, river, or wetland to be protected. At best, this test is confusing, will be resource-intensive to implement, and is likely to result in many waters Congress always included under the Clean Water Act being left unprotected from pollution.
Fortunately, an unprecedented array of local, State, regional, and national officials, professional organizations, and public interest groups from across the country and the political spectrum have joined in the defense of the Clean Water Act. The unparalleled collection of interested parties includes the attorneys general of 33 States plus the District of Columbia; four former Administrators of the Environmental Protection Agency, Russell Train, Douglas Costle, William Reilly, and Carol Browner; 9 current and former members of the U.S. Senate and U.S. House of Representatives who were directly involved in the passage of the 1972 act and its reaffirmation in 1977; the Association of State Wetlands Managers, the Association of State Floodplain Managers, the Association of State and Interstate Water Pollution Control Administrators, and the Association of Fish and Wildlife Agencies; numerous hunting, fishing, wildlife and outdoor recreation organizations and businesses, including Ducks Unlimited, the
National Wildlife Federation, Trout Unlimited, the American Sportsfishing Association, Bass Pro Shops, the Orvis Company, and the Wildlife Management Institute, among others; and a number of local, regional, and national environmental groups. All of these interests filed briefs in the most recent Supreme Court case, expressing strong support of the Clean Water Act's core safeguard: the requirement to obtain a permit before discharging pollutants into waters of the U.S.
With such strong support for the Clean Water Act, which is grounded in the language, history, and purpose of the law itself, I hope that my colleagues will join me in reaffirming Federal protections for streams, headwaters, tributaries, and wetlands that have long been covered by the act.
The issue before us is simple: Does Congress support restoring historic clean water protections as they existed for nearly 30 years prior to the Supreme Court cases? If so, Congress must act. In 1972, Congress established protections for all ``waters of the United States'' and I am pleased to lead the charge in the Senate to reaffirm those protections.
The Clean Water Restoration Act would reestablish protection for all waters historically covered by the Clean Water Act, prior to the SWANCC and Rapanos decisions. The bill could not be more straight-forward. It makes it clear that the Clean Water Act has always covered a myriad of interstate and intrastate waters, by codifying the regulatory definition of ``waters of the United States'' that has been in use since the 1970s. In fact, 30 years ago this month, the Environmental Protection Agency finalized the act's regulations, properly establishing the scope of waters needing to be protected by the Clean Water Act in order to meet the national objective. The Clean Water Restoration Act would codify the regulations the federal agencies have used to enforce the Clean Water Act for over 30 years. This is necessary to prevent the judicial branch from re-defining ``navigable waters'' as something other than the ``waters of the United States.''
The bill's ``findings'' make it clear that Congress' primary concern in 1972 was to protect the Nation's waters from pollution rather than just sustain the navigability of waterways, and it reinforces that original intent. It also asserts Congress' constitutional authority, which extends beyond the Commerce Clause to the Property Clause, Treaty Clause, and Necessary and Proper Clause, to protect the Nation's waters.
While the Clean Water Restoration Act is critical to preventing the courts from rewriting the law and thus further reducing the protections afforded to our Nation's waters under the Clean Water Act, the bill is remarkably simple and does not do many things.
The bill does not prohibit development or other activities that discharge pollutants into waters. Complying with the Clean Water Act requires following a process that seeks to evaluate proposed activities and minimize impacts by ensuring certain pollution standards or environmental criteria are met. The vast majority of permit requests are granted, and most are granted through expedited ``general'' permits rather than individual permits that require site-specific determinations.
The bill does not change the existing permitting process. Rather, the bill will provide much-needed clarity. The Supreme Court decisions have caused a lot of confusion, and the Corps of Engineers nationally has around 20,000 jurisdictional determinations pending. The regulated community, as well as state and federal agencies, will once again have a clear understanding that Clean Water Act protections extend to the same waters covered by the act for over thirty years.
The bill does not change the EPA and Corps' existing regulations or any aspect of the regulatory programs, in fact, as stated above, the bill defines waters of the U.S. based on the regulations that have been in place since the early 1970s.
The bill does not change the activities that are regulated. This means it does not change or overrule current exemptions related to farming, forestry, ranching, and infrastructure maintenance that have been in place since 1977. Activities such as plowing, seeding, cultivating, and harvesting; and constructing and maintaining farm or stock ponds, irrigation ditches, and farm or forest roads have been exempted from permitting requirements and will remain so under this bill.
The bill does not create duplicative State and Federal permitting processes. The Clean Water Act created an important Federal-State partnership, and States can choose to assume from the Corps the dredge and fill permitting program, Section 404, or the EPA's NPDES permitting program for point sources, Section 402.
The bill does not preempt state and local authority under the Clean Water Act. However, without the bill many State programs are in jeopardy because many States developed their own clean water laws so that they hinge entirely on the Federal Clean Water Act, and do not have separate state programs to fully address any voids left by the removal of Federal clean water protections. Also, some states prohibit their state laws from being any more protective than the Federal law. This means that if the Federal Clean Water Act's protections are curtailed, then the State's protections are also reduced.
Statements that this bill would ``expand the scope of the Clean Water Act'' are disingenuous at best. For over 30 years, all ``waters of the United States'' have been regulated and Congress should not stand by while the courts and certain special interests roll back the critical protections afforded by the Clean Water Act.
Congress must provide the needed leadership to clarify the intent of the Clean Water Act. Such action must ensure that all waters of the U.S., waters that are valuable for drinking, fishing, swimming, and a host of other economically vital uses, not just navigability, remain protected. After decades of progress, now is not the time to turn back the clock. I hope my colleagues will join me in reaffirming an important clean water pledge to the America people.
I ask unanimous consent that the text of the bill be printed in the Record.