A Commissioner brought up the issue of the Clean Water Restoration Act of 2007 at a recent St. Louis County Board Meeting. The following information describes the act and clarifies issues surrounding it.

Marcus Hall, Public Works Director and County Engineer of St. Louis County testified before the Transportation and Infrastructure Committee of the United States House of Representatives, and advocated for the Clean Water Restoration Act of 2007. In his testimony he makes clear that Minnesota's guidelines are tough, that he values wetlands and wants a great transportation system. He asks that there be clarification in the administration of the law. You may read his testimony here ....... Marcus Hall's Testimony

The Clean Water Restoration Act of 2007
Myth –v- Fact

Congressman Jim Oberstar is introducing legislation to fix the Clean Water Act after it was damaged by two U.S. Supreme Court rulings.  The pair of rulings issued in 2001 and 2006 question the ability of the Environmental Protection Agency and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are not part of a major “navigable” waterway. 

Opponents of this legislation have begun a misinformation campaign.  It’s time to set the record straight.

Myth:  “If this bill becomes law, it would be the most far-reaching expansion of the Clean Water Act in more than three decades and could extend federal jurisdiction to everything from ditches and gutters to groundwater.”

And

“The new definition of "waters of the United States" would include everything from swimming pools and hot tubs to stock watering ponds on private property.”

Fact: The two examples cited above show how desperate industry groups are to weaken the protections of the Clean Water Act.   Many states, like Minnesota, have wetlands and water protection laws that are tougher than the federal Clean Water Act.  In those states the Clean Water Restoration Act of 2007 (CWRA) will have no regulatory impact.

This purpose of the CWRA is to return the Clean Water Act to the authority it had before the SWANCC and Raponos Supreme Court Decisions.  This is stated clearly in first sentence of the bill:

“The purposes of this Act are as follows: (1) To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States.”  Source: HR 2421 Clean Water Restoration Act of 2007.

Prior to the SWANCC and Raponos rulings the Clean Water Act (CWA) did apply to all waters of the United States even when the term “navigable waters” was used.  This is clearly stated in the Definitions section of the law:   “SEC. 502 (7) The term ‘‘navigable waters’’ means the waters of the United States, including the territorial seas.”

The Clean Water Act was established law with nearly 35 years of regulatory guidance when the U.S. Supreme Court ruled on the Raponos case.  CWRA would nullify the impacts of the SWANCC and Raponos Supreme Court Rulings and restore the regulatory guidance that has worked well for the past three and a half decades.

Myth:  The bill would only create more paperwork for developers.  For counties and local governments it ensures more unfunded mandates and preemptions, without necessarily ensuring clean water.

Fact:  In actuality, the two U.S. Supreme Court decisions increase the time it will take to obtain wetlands permits, because The Army Corps of Engineers will now have to determine if it does or does not have the jurisdiction before it can even begin the permitting process.  This will be accomplished by filling out a 12 page form with the assistance of an 85 page instruction book.  The Army Corps of Engineers estimates that jurisdictional determination will take up to six months.  CWRA resolves all jurisdictional issues and allows for a more streamlined permitting process.

On June 6th the Bush Administration issued new regulatory guidance to the EPA and the Army Corps of Engineers that takes the two Supreme Court Decisions into account.  Within a day industry sources began criticizing the new guidelines as being complex and vague.  This reality was recognized by the pro-industry publication Inside EPA.
“A key state source adds that EPA could face a host of pitfalls in implementing the significant nexus test because it is complicated and vague. The source says the guidelines are "going to add a layer of complexity" to the permitting process and if the agency or state regulators are "challenged on their decisions, it’s going to be very difficult" to defend them should permit applicants try to cast doubt on the significance of a wetland's connection to jurisdictional waters.”  Inside EPA, June 8, 2007

Myth:  CWRA is unconstitutional because of the Commerce Clause of the U.S Constitution.  The federal government should only regulate larger interstate waters, leaving smaller waters to the states.

Fact:  Water flows downhill and, in many cases, across state lines.  Hydrologists will tell you that there are actually very few “isolated waters” that are not connected to larger watersheds. The two Supreme Court rulings ignore this basic principle of hydrology.  Contamination that starts in a remote rural area can work its way into a larger watershed and impact people hundreds of miles away. 

The best example of this is the Ogallala aquifer.  It supplies water to eight states from Nebraska to the Texas panhandle, but it is subterranean and therefore not connected to any “navigable waters”. The Ogallala is refilled by water that filters in from numerous wetlands that also are not connected to any navigable waterways.  The two Supreme Court rulings could leave the wetlands that filter and recharge the Ogallala unprotected by the Clean Water Act.

Myth: CWRA will impose new, onerous regulations on farmers, ranchers, mining and timber companies.

Fact:  The Clean Water Act exempts normal farming and ranching activities from regulation.  It also contains exemptions for many industries including mining and timber.  [Federal Water Pollution Control Act, Sec. 404 (f) (1)]  CWRA restates these exemptions to make it perfectly clear that new regulations are not to be enacted in these vital areas of our economy.

Fact: In the last century the United States has lost half of its wetlands.  Halting the loss of more wetlands is one of the top environmental priorities of the Bush Administration.

Fact: Thirty states have no laws on the book to protect freshwater wetlands and streams.

Fact: Five states have no water pollution law at all.

For decades, the Clean Water Act has protected thousands of waters, including wetlands, that protect our lives and livelihoods, support our nation’s economic well being, and sustain our environment.  Over its thirty-five year history, the Clean Water Act has been critical in the restoration of water quality and drinking water supplies; the protection of water-related habitat essential to waterfowl, wildlife, and fisheries.  As evident from the aftermath of the 1993 Midwest flooding and from Hurricanes Katrina and Rita, the protection of wetlands for flood storage and as natural barriers to potential storm surges is critical for public safety and the protection of public and private property from flooding.

CWRA keeps this critical law working for the American people and protects our environment for generations to come.

Clean Water Restoration Act of 2007

This legislation, which is needed to protect the nation’s waters from pollution, has been introduced in the 110th Congress by our own Congressman Jim Oberstar. It has also been recently reintroduced in the Senate by Senator Russ Feingold.

The bill would reaffirm the historical jurisdiction of the 1972 Clean Water Act ensuring all ʺwaters of the United Statesʺ retain the Clean Water Act protection they had for more than thirty‐four years. We need your leadership on this issue as Executive of a state known for vast and beautiful lakes and rivers.

This bill does not create new protective authority, but simply restores the regulatory status quo. It is needed because decisions by the Supreme Court over the past few years (Rapanos/Carabell 2006; SWANCC 2001) and administrative actions by the Environmental Protection Agency and Army Corps of Engineers have muddied the waters regarding the jurisdiction of the Clean Water Act. These actions have violated the legislative intent of the law making the Clean Water Restoration Act critically important.

Waters most at risk of losing federal protections include small and seasonal streams and rivers, and nearby wetlands. According to the US EPA, 59 percent of the nation’s streams and rivers, measured in miles, fall into this category of waters. Source water protection areas containing these small or intermittent streams and rivers provide water to public drinking water supplies serving more than 110 million Americans. Wetlands provide important functions in our watersheds, from reducing flooding to offering habitat to ducks and other wildlife. Wetlands are also critical in the fight to mitigate global warming impacts since they are natural carbon sinks, where carbon is stored rather than released into the atmosphere, and offer regulation of droughts.

The regulatory uncertainty created by the administrative ruling is having real economic impacts in Minnesota. It creates a greater burden on state agencies to determine, in conjunction with the Army Corps of Engineers, whether or not a project falls under the Clean Water Act. This leads to increased administrative costs as well as increased project costs. Marcus Hall, Director of Public Works for St. Louis County, recently testified before the House Transportation and Infrastructure Committee that changes to the Clean Water Act could add as much as $2 million per year to the costs for maintenance and construction of the county’s roads.

Great strides toward cleaning up and restoring our nation’s lakes, rivers and streams have been made in the thirty‐four year history of the Clean Water Act, but there is much work still to do. Today, over forty‐five percent of the rivers and lakes in the United States are still too polluted to be safe for fishing, swimming, our drinking water supply, wildlife habitat and other uses.
The Clean Water Authority Restoration Act (CWARA) will return us—in Minnesota and throughout the country— to the path of cleaning and protecting the nation’s waters.