On Monday the New York Times ran an interesting article as a part of their Toxic Waters series. The article titled “Rulings Restrict Clean Water Act, Foiling E.P.A.” reported on the difficulties regulators are having implementing the intent of the 1972 Clean Water Act. The difficulties stem from the Supreme Court’s decision in 2008 questioning the definition of “navigable waters” in Rapanos v United States and Carabell v United States Corp of Engineers. The court was split (4-1-4) on whether the wetlands in question were under the jurisdiction of the Clean Water Act since they were not directly adjacent to a navigable waterway.
The Clean Water Restoration Act (text here) introduced into Congress last year by Senator Russ Fiengold, D-Wisconsin and Rep. Jim Oberstar, D-Minnesota seeks to clarify this definition. Clarifying the definitions of the EPA’s jurisdiction would facilitate the implementation of the Clean Water Act and allow regulators to make decisions. The bill has passed the Senate Environmental and Public Works Committee, but has been placed on hold by Senator Mike Crapo, R-Idaho.
I am curious about the timing of the NYT article and wonder if there will be any action on the Clean Water Restoration Act in the near future. Obviously, the decision could have a profound impact on the EPA’s jurisdiction.
For more information I came across this analysis of Rapanos v United States and Carabell v United States Corp of Engineers from the Harvard Environmental Law Review. You can also find the EPA’s current clarifications on “Waters of the United States” on their website here.