Running head: FINAL PAPER 1

Final Paper

Dr. Maser

ESM 222

Trevor Lee

Portland State University

FINAL PAPER 2

An Editorial (2012) from the New York Times described how Environmental Protection

Agency proposed a badly needed policy to encourage the Army Corps of Engineers duty under

the Clean Water Act to protect all bodies of water from harmful pollution. The 1972 Clean Water

Act is to protect “the waters of the United States” from pollution and restore the damage of

natural resources, which is under pressure of court rulings and protections are at risk. The Clean

Water Restoration Act of 2009 has been weakened and misunderstood by two rulings, the first in

2001 (SWACC) and the second (Rapanos). Due to these two rulings, the CWA only protects the

“navigable” bodies of water, as many as 10,000 bodies of waters are not protected by the EPA.

All bodies of water in America is needed to be protected like rivers, lakes and estuaries, they are

all interrelated as a whole system for our future generations of healthy environment and

economy.

Background information

The Clean Water Act was weakened. The Clean Water Restoration Act was passed over

President Nixon’s veto in 1972. Its purpose is to prohibit “point and non-point” discharge into

US water bodies. It restores and maintains the chemical, biological integrity of US waters. It also

provides clean, safe drinking water, fishing, swimming and eliminates all uncontrolled

pollutants. The CWA focuses on point source pollutants, control of effluent from industries,

water qualities and standards, controlled by permits from the EPA, national pollution discharge

elimination system (NPDESC), and streams exceeding state standards (TMDL). This Act

protects all the “waters of the United States” and the law prohibits unpermitted point-source

pollution by businesses, oil spill prevention program and the impaired water cleanup program.

The federal Environmental Protection Agency (EPA) and Army Corps of engineers, regulates

and implement the law successfully until recently. The CWA covers tributaries of various water,

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wetland and intrastate waters with linkages to interstate commerce. However, in 2001 a Supreme

Court case called Solid Waste Agency of Northern Cook County v U.S. Army Corps of

Engineers-challenged that non-navigable intrastate waters are not protected by the CWA, just

because they could serve as habitat for migratory birds. The “waters of the United States” are

segregated by the CWA.

Congress created controversy. According to an article named, “Restoring America’s

Clean Water Legacy” written by the NRDC (2008), the Congress decision was a messy split. The

Court did not invalidate the existing rules, but the various opinions suggested different tests.

Justice Kennedy would require the agencies to show a physical, biological, or chemical linkage

—an important connection between a water body and an actually navigable one to protect it.

Four other justices would require most water bodies to be continuously flowing or standing, and

would require wetlands to have a continuous surface connection to such waters (NRDC, 2008).

The confusion allows businesses and polluters an opportunity to pressure EPA and Army Corps

of Engineers to weaken the rules. So the agency rejected overwhelming support to keeping the

law intact and stopped applying the CWA protections to many waters, unless they have

permission from Congress. The confusion of the Supreme Court’s decisions impacted the Corps

and tried to protect the “navigable waters”, while ignoring small streams, millions of acres of

wetlands, nation’s drinking water and aquatic ecosystem.

The rational argument from the opponents stated that the water on particular properties in

disagreement do not connect with the interstate bodies of water and therefore should be

eliminated from the federal regulation of the CWA. Federal courts are struggling to determine on

how to implement the Supreme Court’s decision. Uncertain standards in different areas of the

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country and at the same time, the lower courts have various opinions and decisions on how to

determine what water bodies are protected.

Difference between “navigable” and non-“navigable” bodies of water

“Navigable waters” are bodies of water like a river, canal or lake that is deep, wide and

slow enough for a vessel/ship to pass through. Navigability depends on the context. A small river

can be navigable by a small boat, kayak, but unnavigable by a cruise ship or commerce. Water

bodies may be unnavigable due to ice, rocks, installation of locks, bridges, high water speed and

low water depth. According to US EPA (2008), on November 26, 2008, the Federal Register

published EPA’s final rule to amend the Clean Water Act which defines “navigable waters”. The

EPA announced the revisions to the definition of “navigable waters” along with an issue from

the United States District Court for the District of British Columbia. The term “navigable

waters” from the United States is described as 1) all “navigable waters of the United States, as

defined in judicial decisions prior to the passage of the 1972 Amendment of the Federal Water

Pollution Act. 2) Interstate waters, 3) intrastate waters, rivers, and streams, which are used by

travelers for recreational purposes and 4) intrastate lakes, rivers and streams where fish are taken

and sold in interstate commerce. CWA defines navigable waters.

How “navigable waters is used and separated from the CWA

Numerous federal and states define navigability for various purposes from jurisdiction to

pollution control, also from property boundaries to licensing dams. These numerous definitions

and jurisdiction statues have created law specific to the context of navigability. Navigable waters

of the United States is defined in 33 CFR 329 as waters that are subject to the flow of the tide

that are used for transportation, interstate or foreign commerce. Section 10 of the Rivers and

Harbors Act of 1899 (33 U.S.C. 403) was approved on March 3rd, 1899, which prohibits

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unauthorized obstruction of “navigable waters”. This statute requires a permit from the US Army

Corps of Engineers for any construction, excavations or discharge of waste material into water

bodies.

Impact of SWANCC of 2001 and Rapanos of 2006

These two measures weakened and misinterpreted protection of the nation’s rivers, lakes,

streams, wetlands from unregulated pollution and destructions. The EPA only protects the

“navigable” bodies of water. According to NRDC (2008), Supreme Court misinterpreted the law

and placed pollution limitations for many vital water bodies in doubt. After the decisions, the

Bush administration’s Environmental Protection Agency (EPA) and Army Corps of Engineers

(Corps) excluded numerous waters from protection and placed unnecessarily high hurdles to

protecting others. Due to uncertainty about whether the waters remained within the scope of the

Clean Water Act. On top of that, polluters in enforcement actions raised the lack of Clean Water

Act jurisdiction as an affirmative defense in 61 other cases. In sum, over 500 enforcement cases

were affected during this time period. For decades, the Clean Water Act protected the nation’s

surface water bodies from unregulated pollution and rescued them from the crisis status they

were in during the late 1960s and early 1970s. Now these vital protections are being lost. The

threat of our Nation’s waters examines case studies, and highlights the urgent needs for Congress

to restore full Clean Water Act protections to our waters.

Impact of “non-navigable waters” being unprotected from pollution

According to an article named, “Overview: Clean Water Restoration Act of 2009” by the

Clean Water Action (Schwartz, 2012, it described how the EPA estimated about a third of the

nation’s water are still unhealthy, 117 millions of American get some of the drinking water from

unprotected resources. Hundreds of Clean Water Act enforcement cases have either been

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dropped completely or made lower priorities due to concerns over the recent Supreme Court

decisions questioning whether certain rivers, streams, wetlands and other waters remain

protected from pollution by the Clean Water Act. Congress has been unwilling to clarify the

CWA. The EPA and United States Army Corps of Engineer are left to draft new rules to clarify

which water ways are protected.

Economic impacts of “navigable waters”

According to Hurst (2010), the Idaho House condemned parts of the federal Clean Water

Restoration Act. The legislation pending in Congress would have “drastic” negative effects on

the state and its economy. If the Clean Water Act was replaced by the words “navigable waters”

with the “waters of the United States”, the regulation will harm the farming industry. Water

bodies like ditches, irrigation canals and underground waters by the farmers could be subjected

to regulation by the EPA. In a letter to the Senate Environment and Public Works Chair Barbara

Boxer, the American Farm Bureau said the proposed CWA law would “extend to all water

bodies”. Agricultural operations are subjected to a civil lawsuit that is not possible. If non-

navigable waters are used, businesses and farms could be subjected to civil lawsuits from

organizations or individuals who don’t like the way the business or farm is operating. The

Heritage Foundation claimed the law could be used to stop a tremendous amount of economic

activity. According to a New York Times article called, “Oil Industry Threatens Obama Admin

Over Clean Water Act Guidance for Wetlands” by Paul Quinlan (2011), both industry and

environmentalist groups have different perspectives. Environmental groups are interested in new

water protection regulation that would protect the CWA. Industry groups want the EPA to avoid

creating regulations and begin working on the rulemaking process. The rulemaking process

involves the industry group to create a case that strengthens federal regulations in more

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economic issues. The industry groups do not want the EPA to make any regulations, which they

could undoubtedly litigate and begin on the rulemaking process. This process will create higher

costs and economic drag than benefits to the environment.

Group proposal

The CWA should use the definition of “waters of America”: based on EPA and Army

Corps of Engineering regulations. The new law should eliminate the phrase “navigable waters”

from the CWA to enforce the purpose of the law is to protect all bodies of water. The main

function is to protect the nation’s health, protect all water bodies from pollution and not just to

maintain “navigable waters” healthy, Congress should also make judgments that the law include

isolated waters, streams, headwaters, rivers, lakes and wetlands. The issue of the CWA to clarify

the “waters of the United States”. The group is interested to protect all bodies of waters from

pollution and destruction, exclude the term “navigable” bodies of water. The CWA is to keep

“the bodies of water”, streams and wetlands that affect the quality of water for drinking,

swimming, farming, industry and tourists, etc. The choice of a healthy environment and

economy is crucial to the United States. We are totally blessed with an abundance of natural

resources. The demand for water, food, energy production and manufactures, creates pollution,

contaminants and climate change. We must focus on the CWA to provide a better environment

for our future generations.

It is important to protect the well-being of our water bodies, preserve renewable and non-

renewable natural resources, and provide a clean and livable environment. We need to safeguard

what we have now on Earth for ourselves and the next generations.

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References

Editorial (2012) “Where are the Clean Water Rules?” The New York Times The Opinion Pages

pg. 1-3 Retrieved from: http://www.nytimes.com/2012/06/21/opinion/where-are-the-clean-water-act-rules.html

Group Proposal

Hurst, Dustin (2010) “House condemns parts of federal Clean Water Restoration Act”

Retrieved from: http://www.idahoreporter.com/2010/house-condemns-parts-of-federal-clean-water-restoration-act/

NRDC (2008) “Restoring America’s Clean Water Legacy” Natural Resources Defense Council

Pg. 1-2 Retrieved from: http://www.nrdc.org/legislation/factsheets/leg_07020201A.pdf

Quinlan, Paul (2011) “Oil Industry Threatens Obama Admin Over Clean Water Act Guidance for

Wetlands “The New York Times” Business Day Energy and Environment

Retrieved from: http://www.nytimes.com/gwire/2011/04/15/15greenwire-oil-industry-threatens-obama-admin-over-clean-96759.html?pagewanted=all

Reilly, Williams (2011) “Keep the Clean Water Act Strong” The New York Times The Opinion Page pg. 1-4

Retrieved from: http://www.nytimes.com/2011/11/29/opinion/keep-the-clean-water-act-strong.html

Schwartz, Paul (2012) “Overview: Clean Water Restoration Act of 2009” Clean Water Action

Retrieved from: http://www.cleanwateraction.org/mediakit/overview-clean-water-restoration-act-2009

US EPA (2011) “Revisions to the Regulatory Definition of “Navigable Waters” United State

Environmental Protection Agency Retrieved from: http://www.epa.gov/osweroe1/content/spcc/spcc_nov08waters.htm