Dirty Waters: Cleaning up the Clean Water Act

By Alex Silva of Portland, Oregon. Alex is the preservation associate for Environment Oregon, a statewide, citizen-based environmental advocacy organization working to protect Oregon's air, water & open places.

In 1972, National Geographic ran a cover-story about Oregon’s Willamette River and the citizen-led effort to clean up the long-polluted waterway. Serving as inspiration, the article was quickly followed that same year with the passage of the Clean Water Act (CWA), one of our nation’s environmental law legacies.

This weekend marks the 37th anniversary of the CWA – more than 30 years of consistent interpretation and protection of Oregon’s waters for healthy habitats, safe drinking water, and strong communities. Originally meant “to protect and maintain the chemical, physical, and biological integrity of the Nation's waters,” the CWA went a long way in cleaning up our waters and mitigating toxic pollution. Unfortunately, two Supreme Court decisions in the past decade have muddied the waters.

After almost 30 years of service, the Supreme Court tainted the CWA’s purpose in 2001 when it ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) that the CWA doesn’t protect isolated wetlands simply because they are migratory bird habitat. Then, in 2006, the Supreme Court’s fractured decision in Rapanos v. U.S. (Rapanos) eliminated CWA protection for seasonal streams and water bodies without “adjacency” or a “substantial nexus” to navigable waters, and left lower courts and agencies in confusion when interpreting the case’s multiple opinions.

As a result, 53% of Oregon’s streams and rivers are no longer protected by the CWA and all waters downstream from unprotected waters are also under threat. According to an investigative report by the New York Times, the interpretive nightmare left for courts and agencies has resulted in gross under enforcement of clean water violations. In the last five years, there were more than 500,000 reported violations and yet fewer than 3% resulted in fines or significant punishment.

Fortunately, Congress is considering legislation that would restore the CWA to its original purpose and return protections to Oregon’s waters. Co-sponsored by Oregon Senators Jeff Merkley and Ron Wyden, the Clean Water Restoration Act (CWRA, S.787) will clean up the muddled water regulations produced in the last decade. Having passed through the Senate’s Environment and Public Works Committee this June, the new legislation is now awaiting a Senate floor vote.

Meanwhile, the House Committee on Transportation and Infrastructure, which the bill will have to pass through, is hearing the issue this morning (Thursday, Oct. 15). We are hopeful Congressman Peter DeFazio, who sits on the committee, will support the House version of the CWRA, which is being drafted by Congressman Jim Oberstar.

It won’t be easy to restore the CWA to its original intent and more than 30 years of consistent interpretation. Opponents, led by the far-right Heritage Foundation, Pacific Legal Foundation, and American Farm Bureau, would have people believe the CWRA is a federal “land-grab” regulating every sidewalk puddle, water-logged roadside ditch, and – absurdly – desert. The intent of the CWRA, however, is merely to restore the CWA to its original purpose. The Senate Committee made this even more abundantly clear with the Baucus-Klobuchar-Boxer amendment, which specifically provides that the CWRA only restores the Clean Water Act to its pre-2001 application and maintains longstanding exclusions for agricultural and forestry practices.

37 years ago the Willamette was in rough shape due to toxic industrial pollution and served as a national touchstone to pass federal clean water protections. Although much remains to be done, those same protections helped eliminate most of the toxic point-source pollution in the Willamette and around the country. So as we celebrate the 37th anniversaries of the CWA and the Willamette’s National Geographic debut this weekend, let’s give the Willamette the gift it and we deserve: the restoration of the Clean Water Act.

Comments

  • Kurt Chapman (unverified)
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    The constitutional underpinning for the CWA is, and always has been, "navigable waterways. That is because without the nexus of interstate commerce (presumably from the 19th century mode of transporting goods and people), there is no constitutional nexus for federal takeover of state water. The Supreme Court decisions cited relied on this understanding of the Constitution in arriving at their decisions.

  • riverat (unverified)
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    Well, other US Supreme Court decisions navigable waters include pretty much anything you can float a boat on including a kayak.

    If the CWA gives the EPA the authority to control pollution in navigable waters it has to include authority to regulate the sources of that pollution or it's useless. If a tributary that isn't covered by the CWA directly is a source of pollution then the CWA has to be able to regulate the sources of that pollution to be effective.

  • Lord Beaverbrook (unverified)
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    And the condition of the Willamette?

  • Gordie (unverified)
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    Yes, S 787 changes the original language from "navigable waters" to "waters of the United States." It then lists them as follows:

    (A) all waters which are subject to the ebb and flow of the tide;

    (B) all interstate waters, including interstate wetlands;

    (C) all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds;

    (D) all impoundments of waters of the United States;

    (E) tributaries of the aforementioned waters;

    (F) the territorial seas; and

    (G) wetlands adjacent to the aforementioned waters;

    While the bill says it's "to reaffirm the original intent of Congress," that's obviously not the case. It's clearly an expansion of federal supervision...that indeed may be worthy of supporting. Why make potential supporters suspicious by pretending otherwise?

  • Kurt Chapman (unverified)
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    Those powers not specifically granted to the federal government remain the purview of the states...

  • alyans (unverified)
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    nice sharing..thanks..

  • Lord Beaverbrook (unverified)
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    Posted by: Kurt Chapman | Oct 15, 2009 2:40:16 AM

    Those powers not specifically granted to the federal government remain the purview of the states...

    That was before the sentiment became popular that anything that has an effect on any other state is intrastate commerce, which is the Feds to regulate. As dead as the idea that what is granted to either is the domain of the individual. We can still legislate over what isn't consequential.

  • Lord Beaverbrook (unverified)
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    <h2>should have been "isn't granted", obviously</h2>
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