The Bureau of National Affairs is reporting that President Obama is supporting Congressional efforts to clarify Federal Clean Water Act (CWA) jurisdiction. The Democratic Congress is seeking to clarify, and likely broaden, the scope of the CWA in the face to two relatively recent U.S. Supreme Court decisions, including the 2006 Rapanos decision, Rapanos v. United States, 547 U.S. 715 (2006), that narrowed the universe of waterways and wetlands that had previously been thought subject to federal jurisdiction.
One proposal is to replace the plainly confusing reference to “navigable waters” in the CWA with the term “waters of the United States,” though any statutory revision would still have to pass muster under the U.S. Constitution by having some relationship to interstate commerce. The change, however, would likely eliminate the need to link waterways and, especially wetlands, with other “navigable” water bodies.
The Obama Administration’s letter to the key Congressional committees urged Congress to consider a number of general principles, including a goal of broadly protecting the nation’s waters and making the definition of covered waters predictable. There can be no arguing with either goal, especially the second one, because the recent Supreme Court decisions have been inconsistently interpreted by federal courts of appeals and have essentially paralyzed the U.S. Army Corps of Engineers, the agency charged with regulation of activities in regulated wetlands, as it seeks to develop coherent regulations identifying regulations subject to CWA jurisdiction.