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Monday, January 10, 2011

Legislative Approaches to Defining “Waters of the United States”

Claudia Copeland
Specialist in Resources and Environmental Policy

In the 111th Congress, legislation was introduced that sought to clarify the scope of the Clean Water Act (CWA) in the wake of Supreme Court decisions in 2001 and 2006 that interpreted the law’s jurisdiction more narrowly than prior case law. The Court’s narrow interpretation involved jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters. The two cases are Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States.

Bills to nullify the Court’s rulings have been introduced repeatedly since the 107
th Congress, but none had advanced until the 111th Congress. In June 2009, a Senate committee approved S. 787, the Clean Water Restoration Act. Companion legislation in the House, H.R. 5088 (America’s Commitment to Clean Water Act), was introduced in April 2010. No further legislative action occurred on either bill.

Under current law, the key CWA phrase which sets the act’s reach is the phrase “navigable waters,” defined to mean “the waters of the United States, including the territorial seas.” Proponents of the current legislation contend that the Court misread Congress’s intent when it enacted the CWA, and consequently the Court’s ruling unduly restricted the scope of the act’s water quality protections. Both S. 787 and H.R. 5088 would have replaced the phrase “navigable waters” in the CWA with “waters of the United States” and would have installed a definition of “waters of the United States,” not found in the law now. The bills differed in how they would define the phrase. The Senate committee bill included a definition drawn from one paragraph of existing federal regulatory text, while H.R. 5088 included a longer definition based on the same regulatory language, but with some modifications. Both bills also included provisions affirming the constitutional basis for the act’s jurisdiction. These provisions were intended to address the concern that the Court’s rulings, while decided on statutory grounds, raised related questions about the outer limits of Congress’s power to regulate waters with little or no connection to traditional navigable waters under the Commerce Clause of the Constitution.

Proponents of the legislation, including many states and environmental advocacy groups, contended that the Court’s ruling in these cases, and subsequent regulatory guidance by federal agencies, have unsettled several decades’ worth of case law, misreading or ignoring congressional intent, and thus reinterpreting and narrowing the jurisdictional scope of the act. Supporters said that the intention was to return to the CWA regulatory jurisdiction that prevailed before the Court’s rulings. On the other hand, critics, including many industry groups and development and home builder organizations, contended that the legislation would greatly expand federal regulatory jurisdiction of the CWA beyond interpretations that existed before the two Supreme Court rulings, not simply reaffirm congressional intent. They were concerned that the legislation, were it enacted, had the potential to be interpreted far more broadly than what was previously understood to be jurisdictional—thus causing more uncertainty, rather than clarifying the issue.

Between proponents and critics, there was wide disagreement whether the new statutory definition proposed in either bill, coupled with other changes, would achieve the objective of clarity and certainty that has been broadly desired. In light of the differing views on the issues, future prospects for similar legislation in the 112
th Congress are highly uncertain. The legal and policy questions associated with the SWANCC and Rapanos cases—concerning the outer geographic limits of CWA jurisdiction and consequences of restricting that scope—have challenged regulators, landowners and developers, and policymakers for more than 35 years.

Date of Report: December 29, 2010
Number of Pages: 18
Order Number: R41225
Price: $29.95

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