Clarifying EPA’s Jurisdiction Under The Clean Water Act

3 03 2010

Supreme Court Building
Credit: istockphoto.com/diademimages

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.

-Brian Phelps


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Green Infrastructure for Clean Water Act of 2009

16 12 2009

Photo Credit: istockphoto/ericfoltz

On December 4th, Representatives Donna F. Edwards (D-MD), Russ Carnahan (D-MO), and Steve Driehaus (D-OH) introduced the Green Infrastructure for Clean Water Act of 2009 to Congress. The legislation is expected to be referred to the House Transportation and Infrastructure Water Resources & Environment Subcommittee, as well as the House Science and Technology Committee on which Edwards and Carnahan serve. The bill seeks to establish five research centers across the country. One of the centers will be designated as the national electronic clearinghouse that would develop, operate, and maintain an on-line resource for green infrastructure information. Each of center would be required to do the following (excerpt from bill):

(A) conduct research on green infrastructure that is relevant to the geographic region in which the center is located, including stormwater and sewer overflow reduction, other approaches to water resource enhancement, and other environmental, economic, and social benefits;

(B) develop manuals and set industry standards on best management practices relating to State, local, and commercial green infrastructure for use by State and local governments and the private sector;

(C) provide information about research conducted under subparagraph (A) and manuals produced under subparagraph (B) to the national electronic clearinghouse center for publication on the Web site created pursuant to subsection (C) to inform the Federal Government and State and local governments and the private sector about green infrastructure;

(D) provide technical assistance to State and local governments to assist with green infrastructure projects;

(E) collaborate with institutions of higher education and private and public organizations in the geographic region in which the center is located on green infrastructure research and technical assistance projects;

(F) assist institutions of higher education, secondary schools, and vocational schools to develop green infrastructure curricula;

(G) provide training about green infrastructure to institutions of higher education and professional schools;

(H) evaluate regulatory and policy issues about green infrastructure; and

(I) coordinate with the other centers to avoid duplication of efforts.

In addition, the bill would create a $300 million grant program that could be used for planning, development, and implementation. As much as $100 million could be given to selected planning and development initiatives and a total of $200 million would be designated for implementation projects. The cap for individual projects would be $200,000 for planning and development projects and $3 million for implementation.

As this bill progresses, we will keep you up-to-date.

-Brian Phelps


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