Q’s and A’s
From U.S. Senator Russ Feingold
On the Clean Water Restoration Act, S. 1870
What is the purpose of the S. 1870? The Clean Water Restoration Act would reaffirm
the original intent of the Clean Water Act of 1972 to protect the nation’s waters from
pollution and not just sustain the navigability of waterways. It is a surgical fix necessary to
restore critical clean water protections that existing for over thirty years, prior to several
recent Supreme Court decisions.
It accomplishes this by:

Adopting a statutory definition of “waters of the United States” based on the
longstanding definition in U.S. EPA regulations (40 CFR § 122.2) and U.S. Army
Corps regulations (33 CFR § 328.3);

Clarifying that the Clean Water Act is principally intended to protect the nation’s waters
from pollution rather than just to sustain the navigability of waterways; and

Asserting Congress’s constitutional authority to protect the nation’s waters.
What does the Clean Water Act do? The Clean Water Act was enacted in 1972 to
clean up and protect our nation’s waters. The purpose of the law is to “restore and
maintain the chemical, physical, and biological integrity of the nation’s waters” by
reducing, and ultimately eliminating, the discharge of pollutants into our nation’s lakes,
rivers, streams, wetlands, and other waters.
For decades, the Clean Water Act has provided protections for the myriad waters that
enhance and contribute to human health and well-being, the economy, and the
environment. These waters all play valuable roles, such as providing natural flood control,
improving water quality, and supplying nursery areas for economically valuable species of
fish and habitats for many wildlife species, including waterfowl.
What does S. 1870 NOT do? While the bill is critical to prevent 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 change the EPA and Corps’ existing regulations, and does not
change/expand the class of waters that have historically been regulated—in fact, as
stated above, the bill defines waters of the U.S. based on the regulations that have
been in place since the 1970s.

The bill does not change the regulation of activities, and only addresses the federal
government’s jurisdiction over types of waters. The current exemptions related to
farming, forestry, and infrastructure maintenance are not affected.

The bill does not preempt state and local authority under the Clean Water Act, rather
the Clean Water Act created an important federal-state partnership allowing states to
choose to administer a water quality certification program (Section 401), to assume
from the Corps the dredge and fill permitting program (Section 404), and to assume
the EPA’s NPDES permitting program for point sources (Section 402). The federal
law serves as the foundation for most state laws, which largely hinge on the federal
Clean Water Act and do not fully address any voids left by the removal of federal clean
water protections. In fact, 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.

The bill does not prohibit development or other activities that discharge pollutants into
waters. Since 1972, complying with the Clean Water Act has involved evaluating
proposed activities and minimizing impacts by ensuring certain pollution standards or
environmental criteria are met.

The bill does not change the permitting processes that have been place for decades.
However, in regard to Section 404 (dredge and fill permits), this bill would restore the
more streamlined process that existed prior to the 2006 Supreme Court ruling. Now
the Corps, before even evaluating a permitting application, must first complete a
“jurisdictional determination” and demonstrate that a water body is covered by the Act.
This resource intensive requirement has drastically complicated the permitting
process.
Why is this bill needed? 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 original Congressional intent.
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 §302 and
§303, national performance standards under §306, toxic and pretreatment standards
under §307, oil and hazardous substance liability under §311, aquaculture standards
under §318, state water quality certifications under §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 non-navigable,
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.
In June 2006, 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.
In both of these Supreme Court cases, the Administration argued for maintaining
jurisdiction over “waters of the United States.” In the most recent case, friends of the
court briefs in support of the federal government’s position were submitted from entities as
varied as 33 state Attorney Generals, the Association of State and Interstate Water
Pollution Control Administrators, the Association of State Wetland Managers, the
Association of Fish and Wildlife Agencies, the Association of State Floodplain Managers,
sportsman groups such as Ducks Unlimited, Trout Unlimited, and the National Wildlife
Federation, and numerous national environmental and public health groups.
What is at Stake? The protection of our nation’s waters is too important to leave up to
court interpretations. Enactment of the Clean Water Restoration Act will reaffirm
Congress’ commitment made more than thirty years ago to clean up and protect our
nation’s waters. Congress made this commitment once, and Congress needs to make
this commitment again.
Without this commitment, critical CWA protections are in jeopardy for the following waters
(based on EPA estimates):

53 to 59 percent of the total length of U.S. streams (excluding Alaska);

Surface waters that provide drinking water to an estimated 110 million people;

At least 20 million acres of so-called “isolated” wetlands in the lower 48 states that are
critical for water quality improvement, flood storage, migratory bird and other wildlife
habitat, and fish and shellfish nursery grounds; and

Larger lakes, rivers, and coastal waters, which themselves will still have CWA
protections, but will receive pollution from upstream, unprotected sources.
What is Congress’ Constitutional Authority to Regulate Waters of the U.S.?
Protecting streams, wetlands, and other waters not only furthers congressional intent
embodied in the Clean Water Act, but also is well within Congress' constitutional powers,
including those under the Commerce Clause, Property Clause, Treaty Clause, and
Necessary and Proper Clause. In fact, protecting these waters is necessary to achieve
many goals embodied in the Act itself, which the Supreme Court has previously
recognized as legitimate grounds for exercise of Congress' Commerce Clause power.
Important economic reasons for Congress to protect these waters include:

Minimizing the cost of treating drinking water;

Avoiding unequal regulatory approaches that would give unregulated upstream
dischargers an unfair advantage over their downstream competitors;

Maintaining uniform national standards to prevent any destructive competition
between states to relax water quality standards (a “race to the bottom”);

Protecting downstream waters from harm from pollution or destruction of headwater
streams and wetlands; and

Safeguarding economic interests such as public water supplies, fisheries, and
recreation.
For additional information, please contact Kelly Reed in the office of
U.S. Senator Russ Feingold at (202) 224-5323.