Yesterday, the Senate Environment and Public Works Committee passed legislation clarifying the scope of the Clean Water Act, restoring federal jurisdiction over wetlands regardless of their connection to navigable waterways. The bill would overturn two recent Supreme Court decisions, Solid Waste Agency of North Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”), which had limited federal wetlands protections and sown conflicts among lower federal courts.
Section 404 of the Clean Water Act regulates the discharge of dredged or fill material into “navigable waters,” defined as “the waters of the United States, including the territorial seas.” The Environmental Protection Agency and Army Corps of Engineers, which issues wetlands fill permits, had historically interpreted “navigable waters” to cover a broad range of lakes, rivers, streams, and wetlands that were not navigable in fact – limited by the constraints of the Constitution’s Commerce Clause. In SWANCC, however, the Supreme Court suggested that the Clean Water Act covers only those wetlands with a “significant nexus” to waters that were actually navigable, rejecting the Army Corps’ more expansive interpretation. A divided Supreme Court further muddied the waters in Rapanos, with the plurality opinion limiting Clean Water Act jurisdiction to wetlands with a surface connection to navigable waterways or seasonal tributaries, and a key concurrence by Justice Kennedy retaining SWANCC’s significant nexus test.
Appellate courts have struggled to reconcile Rapanos’s multiple standards, and earlier this year the Obama administration called on Congress to clarify the Clean Water Act’s scope. The Environment and Public Works Committee responded with a bill that replaces the phase “navigable waters” with “waters of the United States” and “reaffirms Federal Jurisdiction over all waters of the United States, as the [Clean Water Act] was applied and interpreted” prior to SWANCC and Rapanos.” An amendment by Sen. Max Baucus (D-MT) at yesterday’s mark-up excludes “prior converted cropland” and “waste treatment systems,” including agricultural waste ponds and lagoons.
While the bill passed out of the Senate Committee 12-7, Sens. Jim Inhofe (R-OK) and Mike Crapo (R-ID) have already announced their plans to put a hold on it, meaning 60 votes would be needed to bring the legislation to a floor vote.
