There has been heated lobbying on Capitol Hill in anticipation of the markup of the Clean Water Restoration Act (S 787). The NAA/NMHC-opposed bill seeks to clarify federal jurisdiction over navigable waters in the wake of a series of Supreme Court decisions ruling that the federal government lacked authority to regulate as wetlands certain properties that are not connected to navigable waters (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and (Rapanos v. United States, 2006 WL 1667087 (U.S.)).
As participants in the Waters Advocacy Coalition, NAA/NMHC have expressed concern regarding S 787’s approach of declaring all waters “waters of the United States” and thus subject to jurisdiction under the Clean Water Act (CWA). The current scope of federal jurisdiction is bounded by the definition of navigable waters. Moving beyond this construct will create an excessively burdensome federal regulatory system that will not improve water quality but will undermine state regulatory programs. The proposed legislation also would expand federal oversight to include routine operations such as roadside ditch and culvert maintenance at communities.
There is general consensus that some clarification is required because of the widespread confusion that persists over CWA jurisdiction. Last month, the EPA’s Inspector General released a report to Congress that found that the ability of the Army Corps and EPA to regulate water quality has been hamstrung by confusing and conflicting interpretations by the courts and has effectively eliminated Clean Water Act protection for broad categories of waters, including prairie potholes and headwater streams, in some EPA regions.
NAA/NMHC support a re-worked CWA, which affirms the distinction between state and federally controlled waters and supports the primary role of states to determine land and water use policy within their jurisdictions. NAA/NMHC continue to oppose the “blunt force” approach adopted by S 787.