Clarifying the Clean Water Act

The Clean Water Act (CWA) was enacted in 1972 to restore and protect our nation’s waters.  The CWA provides the statutory basis for protection of navigable waters. The term “navigable” has caused significant confusion and litigation in recent years. A bill currently being considered in Congress attempts to dispel this controversy.

Originally navigable waters were defined as: (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as; (2) interstate waters; (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and (4) intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.

However, in 2002 the EPA revised the definition of navigable waters during promulgation of a new rule to include all waters that “could affect interstate or foreign commerce,” tributaries to those waters and adjacent wetlands. This regulatory shift was soon met with legal challenges causing confusion about the scope of the CWA. The rule was vacated in 2008 when the Supreme Court found it to be arbitrary and without a valid legal explanation. The Court concluded that the CWA provides some federal jurisdiction but also limits federal regulation over non-navigable waters.

In April 2009, Senator Russ Feingold (D) of Wisconsin reintroduced the Clean Water Restoration Act, which first appeared in Congress in 2007. The bill attempts to clarify federal jurisdiction over streams, lakes, and wetlands of all sizes. On June 18, 2009 the bill received a favorable recommendation from the Committee on Environment and Public Works and will now be considered by the Senate.

Below is a summary of the proposed changes to the CWA written by the Congressional Research Service, a non-partisan arm of the Library of Congress. The summary and full text of the bill can be found at www.govtrack.us.

Clean Water Restoration Act - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to replace the term "navigable waters" that are subject to such Act with the term "waters of the United States," defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution.

Declares that nothing in such Act affects the authority of the Secretary of the Army or the Administrator of the Environmental Protection Agency (EPA) under the provisions of the Clean Water Act related to discharges:

(1) composed entirely of return flows from irrigated agriculture;
(2) of stormwater runoff from certain oil, gas, and mining operations composed entirely of flows from precipitation runoff conveyances, which are not contaminated by or in contact with specified materials;
(3) of dredged or fill materials resulting from normal farming, silviculture, and ranching activities, from upland soil and water conservation practices, or from activities with respect to which a state has an approved water quality regulatory program; or
(4) of dredged or fill materials for the maintenance of currently serviceable structures, the construction or maintenance of farm or stock ponds, irrigation ditches and maintenance of drainage ditches, or farm, forest, or temporary roads for moving mining equipment in accordance with best management practices, or the construction of temporary sedimentation basins on construction sites for which discharges do not include placement of fill material into the waters of the United States.

Amanda Sappington
Missouri Department of Natural Resources

Back to the Water Line

Brought to you by the Lakes of Missouri Volunteer Program