Change in Definition of Clean Water Act May Impact Local Governments

by Leslie Wollack

Lawmakers in the House and Senate are poised to introduce legislation that would respond to two recent Supreme Court decisions by expanding the scope of federal regulation of “waters of the United States.”

Decisions over the Clean Water Act in Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers have led to great confusion over when local governments and others must get a wetlands permit.

House Transportation and Infrastructure Committee Chair James Oberstar (D-Minn.) and Sen. Russ Feingold (D-Wis.) intend to offer legislation soon that would clarify the jurisdictional scope of the Clean Water Act and eliminate the word “navigable”, replacing it with a new definition of the term “waters of the United States.”

Opponents of the proposed change argue that this would significantly expand the reach of the Clean Water Act and result in costly and time consuming litigation and great expense for local governments.

The proposed legislation is expected to expand the regulatory authority of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to include all “intrastate waters” — essentially all wet areas within a state including impoundments, groundwater, ditches, pipes, streets, gutters and desert features.

Many are concerned that this broad expansion of the CWA’s jurisdiction would unnecessarily burden state and local governments, even the federal government, and the regulated community. “The Clean Water Authority Restoration Act of 2007” will be introduced shortly by Rep. Oberstar to “reaffirm the traditional scope and clear purpose of the Clean Water Act, and provide certainty to the regulated community.”