Posted by Matt Dempsey

Background Information on S. 787: the Feingold Clean Water Restoration Act of 2009

The Clean Water Act (CWA) was adopted in 1972, giving EPA and the Army Corps of Engineers the charge to Aprotect and maintain the chemical, physical, and biological integrity of the Nation=s waters.@  Until 2001, these agencies broadened the interpretation of what they considered to be within the scope of their jurisdiction, going from rivers, lakes, and streams to isolated wetlands and other features, using various justifications.  The Supreme Court’s SWANCC (2001) and Rapanos (2006) decisions limited federal jurisdiction over non-navigable waters.  The Clean Water Restoration Act (CWRA) is supposed to reaffirm Congress’ intent in adopting the CWA, restore federal jurisdiction to its pre-2001 status, extend federal jurisdiction over water to its logical conclusion, and eliminate alleged confusion caused by the Supreme Court’s jurisdictional tests.   

Specifically, S. 787: Would: 

- strike the term Anavigable waters@ wherever it appears, replacing it instead with “waters of the United States” 

- erase the distinction between federal and state jurisdiction over waters 

- impose federal regulation over anything that impounds water (including private lakes, ditches, and dry streambeds that occasionally get wet)   

- expand regulation from the current focus on “discharges” to the broader “activities affecting…waters,” including the possible regulation of air pollutants  

- allow federal control to the limits of “the legislative power of Congress under the Constitution,” not just to the limits of the Commerce Clause 

CWA states that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” S. 787’s expansion of jurisdiction would affect local planning and zoning, storm water management, economic development, the issuance of permits, farming, and private property rights.   

A coalition mobilized to stop the CWRA includes groups representing mining, forestry, home builders, road and construction firms, and property rights groups, along with the Farm Bureau and the National Association of Counties.