Monday, January 30th, 2023
Monday, January 30th, 2023

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Sportsmen Since 1967

U.S. House pitches latest shot at CWA update

Washington – A bill intended to restore the intent of the
original Clean Water Act of 1972 – an act whose scope has been
questioned following recent Supreme Court cases – was introduced
last month in the House by Democrat Jim Oberstar, of Minnesota, who
offered a similar bill three years ago.

While the measure has been applauded by environmental groups for
its steps to limit pollution and improve fish and wildlife habitat,
Republicans in Congress have questioned broadening federal control
of waters.

But proponents say the “America’s Commitment to Clean Water Act”
would re-establish the intent of the original act; it “would help
sustain the healthy habitat, robust fish and wildlife populations,
and range of economic benefits that rely on America’s waterways and
wetlands and would reverse recent Supreme Court decisions that
jeopardize the nation’s water resources,” according to a press
release from the Theodore Roosevelt Conservation Partnership.

“What it really does is restore the protections of the Clean
Water Act (prior to) the court decision,” said Tom Franklin, TRCP
director of policy and government relations.

A year ago, Democratic Sen. Russ Feingold, of Wisconsin,
introduced a similar bill – the Clean Water Restoration Act – to
restore waters protections that existed prior to the court
decision. Franklin said that bill has been passed out of the Senate
Environment and Public Works Committee, but has advanced no
further.

Regarding last month’s announcement, co-sponsor John Dingell,
D-Mich., said in a press release: “Today we have revamped the bill
a bit to address some of the concerns of our critics. First and
foremost, we make clear that we are only reaffirming the definition
of waters prior to actions taken by the Supreme Court in the SWANCC
and Rapanos decisions.”

SWANCC refers to a 2001 Supreme Court decision involving the
Solid Waste Agency of Northern Cook County (Ill.). It said the U.S.
Army Corps of Engineers couldn’t regulate “non-navigable, isolated,
intrastate waters based solely on use by migratory birds.”

The Rapanos decision in 2006 furthered weakened the Clean Water
Act, conservationists argued. Oberstar said the court decisions
“handcuffed” the Clean Water Act.

The legislation removes the term “navigable” from the Clean
Water Act, as the congressional intent of the measure is to protect
U.S. waters from pollution, rather than to sustain navigation,
conservation groups say.

“The word ‘navigable’ did not make a whole lot of sense, if the
purpose (of the CWA) is to protect wetlands,” Franklin said.

According to the TRCP, the bill represents a new approach to
addressing threats posed by the Supreme Court’s SWANCC and Rapanos
decisions by including:

  • provisions that reinforce that the bill’s purpose simply is to
    restore Clean Water Act protections to waters protected prior to
    the SWANCC decision;
  • a more specific definition of “waters of the United States”
    that closely follows the definition the EPA and Army Corps of
    Engineers have used for decades;
  • new exemptions for prior converted cropland and certain waste
    treatment systems;
  • specific references to Congress’s constitutional authority to
    conserve and restore the nation’s waters.

The America’s Commitment to Clean Water Act isn’t without
critics. In a press statement, Rep. Doc Hastings, R-Washington,
said: “When Congress passed the Clean Water Act in 1972 the intent
was clear: the federal government, working with the states, should
ensure that our water quality is protected for future
generations.

“Although this is a laudable goal, over time the Clean Water Act
has been the subject of much abuse by those who would use it for
their own special interests, including the suppression of private
property rights and economic development,” the press release
said.

Other groups also have signed on with support for the bill,
however, including the National Wildlife Federation, Trout
Unlimited, and the Izaak Walton League of America.

Scott Kovarovics, conservation director for the Izaak Walton
League, called the CWA revision “a balanced, common-sense solution
that the House should quickly approve.”

In many cases, the federal Clean Water Act serves to fill in
gaps in state wetlands protection.

Still, key wildlife areas, including the Prairie Pothole Region
of the Dakotas and Montana, are susceptible to development and
agricultural use, according to groups like Ducks Unlimited, which a
year ago said about 20 million acres of geographically isolated
wetlands were at risk of pollution and destruction.

How much has been lost since 2006, however, is unclear.
Officials from DU say the Army Corps of Engineers frequently
receives calls from landowners and developers asking whether the
Corps’ CWA jurisdiction applies. There’s also a segment that
believes that – due to the court decisions – the Corps no longer
has jurisdiction, and doesn’t call to make that determination.

“My guess would be that there is more and more of that going on,
but there is almost no way to get the data without detailed,
landscape-level GIS-type analyses,” said Scott Yaich, DU senior
scientist, in an e-mail. “We can find anecdotal evidence of losses,
but can’t easily generate systematic data.”

Dingell was an author of the original Clean Water Act
legislation in 1972.

“I don’t have to remind anybody … what it was like previous to
the landmark legislation,” he said in a press release. “Rivers were
catching on fire, and in my own backyard, fishermen dubbed Lake
Erie the Dead Sea.”

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