PROTECTING THE CLEAN WATER ACT
Background: The Clean Water Act
The Clean Water Act (CWA) is landmark environmental protection legislation passed in 1972 that applies to all waters of the United States. It sets standards, defines permit requirements, and establishes enforcement powers and penalties. Pollutants, industrial wastewater discharge, and sewage treatment are all regulated under the Act's provisions.
The Clean Water Act was written to broadly apply to the nation's waters, including wetlands. However, the statute used the term "navigable waters," which has led to questions, challenges, and lawsuits regarding the Act's protections. Certain industries are continuing to pressure for increased development at the expense of protections for the environment.
Supreme Court rulings have ignored the original intent of
the bill. In 2006 the court issued a splintered decision in
two cases (known as the Rapanos and Carabell cases) that made
it harder to determine which bodies of water could qualify
for CWA protection. The impact of this decision and others
highlighted the need for revisions of the Act. The Clean Water Restoration Act, now pending before Congress, is intended
to clarify that the Act applies to all the nation's waters,
including wetlands.
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SUPREME COURT DECISIONS
Threats to the Clean Water Act on the Rise
The Clean Water Act is increasingly under threat from lawsuits
by developers and efforts to weaken the federal government's
regulatory and enforcement authority under CWA.
Key Cases:
Rapanos v. United States & Carabell v. Army Corps of Engineers
The Supreme Court in 2006 issued a splintered decision in
two cases (known as the Rapanos and Carabell cases) that made
it harder to determine which bodies of water could qualify
for CWA protection. While the cases concerned the filling
of wetlands adjacent to non-navigable tributaries, the ruling
has impacts for all federal CWA programs, including permitting
programs limiting the discharge of sewage and toxic chemicals.
Read
Audubon's statement on these cases.
In Rapanos and Carabell, Audubon joined in a 'friend of the
court' brief urging the court to provide maximum protection
for waterways, and briefed news media on the importance of
the case.
The June 19, 2006, 4-1-4 split decision in Rapanos and Carabell,
created confusion as to the protection of potentially 50 percent
of America's waters historically protected under the Clean
Water Act. The consolidated cases focused on the words of
the Clean Water Act, limiting the scope of the act to "navigable
waters," which are defined as "waters of the United States."
Justice Kennedy, who provided the deciding vote, would limit
"waters of the United States" to cover wetlands only if they
have a "significant nexus" to traditionally navigable waters.
The plurality opinion, written by Justice Scalia, would limit
"waters of the United States" to cover waters only if they
are relatively permanent, standing, or continuously flowing,
and wetlands only if they have a continuous surface connection
to traditionally navigable waters. Although the differences
in these opinions may seem slight, Justice Scalia's
approach, if followed, would lead to up to a 50 percent loss
in federally protected waters, and the burden of
satisfying Justice Kennedy's requirement of a "significant
nexus'' can drastically curtail important, needed protections
for waters, including wetlands.
The U.S. Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers are the federal agencies responsible
for implementing the Clean Water Act. In June 2007, the EPA
and the Army Corps of Engineers issued guidance in light of
the Supreme Court decisions. The guidance fails to clarify
CWA protections of a large proportion of the nation's streams
and some 20 percent of its remaining wetlands from pollution
and destruction. Read Audubon's statement on the EPA guidance here.
Download our fact
sheet for more information on 2006 Supreme Court cases
and briefings regarding the Clean Water Act (560
kb PDF).
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CLEAN WATER RESTORATION
ACT
Legislation supported by Audubon, the Clean Water Restoration Act of 2007 (HR 2421 and SR 870), would restore the traditional scope of protections intended by Congress and confirm Congressional intent to restore the regulatory status quo prior to the Supreme Court rulings. Specifically, the legislation would:
- Adopt a statutory definition of "waters of the United States" based on the longstanding definition in EPA's (40 CFR 122.2) and the Corps' regulations (33 CFR 328.3);
- Delete the word "navigable" from the Act to clarify that the Clean Water Act is principally intended to protect the nation's waters from pollution, and not just maintain navigability;
- Make findings that provide the basis for Congress's assertion of constitutional authority over the nation's waters, as defined in the Act, including so-called "isolated" waters, headwater streams, small rivers, ponds, lakes and wetlands.
Download our CWRA fact sheet
for more information on 2006 Supreme Court cases and briefings
regarding the Clean Water Act (38
kb PDF).
For full text of the bill go to http://thomas.loc.gov/cgi-bin/thomas
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