Muddy Waters The Push for Better Clean Water Protection

In these first months of the Obama administration, many issues loom large on the national radar. There’s the economic crisis, the need for health care reform and concerns about energy and climate change, to name just three. But there’s also the issue of clean water. The U.S. has lost more than half its wetlands since the nation’s founding, and countless miles of rivers and streams are polluted or otherwise impaired.

Since 1972, the U.S. waterways have been protected under the Clean Water Act (CWA). But under the Bush administration, critical changes took place that undermined federal authority to regulate those waters, threatening both public health and the environment. To reverse that tide, the last Congress—the 110th—saw the introduction of the Clean Water Restoration Act (CWRA), legislation designed to use Congressional power to reestablish the original authority and intent of the CWA. Representative James Oberstar (D-MN) and Senator Russell Feingold (D-WI) introduced the legislation in the House and Senate, respectively, but the CWRA sat mired in committee and never made it to an official vote.

It will be a critical issue facing the 111th Congress. The fact that reaffirmation of the original CWA is needed in the first place is a good indicator that clean water regulation has run amok. It hasn’t always been so. Congress has traditionally reaffirmed the authority of the 1972 CWA, including in significant amendments in 1977 and 1987. But the last eight years have left lasting damage.

“A conspiracy would be a strong word,” says Alex Matthiessen, president of Riverkeeper. “But there was a shift in Washington’s political climate. All three branches of federal government had turned decidedly rightward. It was a constellation of events. Congress sat in the hands of Republicans for six of those eight years. The Supreme Court saw the appointment of new, conservative judges. And we had a Bush administration that was openly hostile toward environmental regulations.” Consider it the perfect storm for decreased clean water regulation.

Left Out to Dry

Water protection was dealt a serious blow by a pair of Supreme Court decisions: SWANCC vs. United States in 2001, and Rapanos vs. United States in 2006. Both cases reinterpret how the federal government determines where it does and does not have authority to regulate. The primary consequence is that anywhere from 53% to more than 60% of the nation’s waterways may lose CWA protection, including some of the most vital—wetlands, tributaries, headwaters and other small bodies of water. “These smaller waterways play critical roles for our nation’s water,” says Melissa Samet, senior director of water resources for American Rivers. “They provide flood protection, clean drinking water, wildlife habitat and offset water treatment costs.”

But the government’s hands are tied. An internal memo of the Environmental Protection Agency from March 2008 found that the agency failed to pursue 304 cases of CWA violations between July 2006 and March 2008 because of “jurisdictional uncertainty” caused by the Supreme Court decisions, and that a total of 500 CWA cases have been negatively affected by the rulings.

CWRA could bring federal authority back. But some very vocal critics are trying to make sure the new legislation dies. They don’t fit neatly into one stakeholder group, though industry, developers and private-property rights groups are well-represented among their ranks. They include the National Center for Public Policy Research, a self-described “conservative think thank” that eschews government regulation in favor of a philosophy the Center calls “free-market environmentalism.”

“We believe we’re far more likely to protect natural resources and environmental values using property rights, ownership, markets and prices,” says RJ Smith, Senior Fellow for the Center. “People who own things have a strong incentive to take care of them.”

Water, like air, falls under the auspices of the “tragedy of the commons.” No one owns it, and so no one has a direct incentive to protect or conserve it, and each individual has motivation to exploit it for maximum personal benefit at the expense of others. It’s the federal government that must act as the de facto owner of the water, regulating its use in the collective interest of the public good and the health of the environment.

Critics like the National Center are hanging their anti-CWRA argument not on privatization, however, but rather on the term “navigable waters,” which is used throughout the original CWA. It’s an outdated term from earlier legislation that allows CWRA opponents to convince everyone from hunters to farmers that the CWRA is a gross expansion of the CWA’s original authority, ballooning jurisdiction from navigable waters to all waters of the U.S. In fact, the 1972 CWA explicitly defines navigable waters as “waters of the United States.” In turn, the CWRA does indeed restore authority as intended (by removing the confusing “navigable” term and inserting an explicit list of covered waters).

On the other side, a coalition of more than 300 organizations endorses the CWRA. These include not only the Sierra Club, EarthJustice, National Audubon Society and Natural Re-sources Defense Council, but also prominent members of the “rod and rifle” contingent—Ducks Unlimited, Trout Unlimited the Izaak Walton League of America. Perhaps the best indicator of public support for the CWRA is to look to the past, to the last major amendment to the CWA, passed in 1987. That legislation overrode a presidential veto and passed by an overwhelming 401-26 majority in the House and an 86-14 majority in the Senate. The bill had 167 cosponsors in the House. By comparison, the CWRA of 2007 had 176 cosponsors.

With Obama in the White House and Democrats in control of Congress, expectations are high that the CWRA will become law. Clean water was an important piece of the Obama-Biden platform. And Obama hasn’t wasted any time filling high-level offices with strongly pro-environment personnel. Colorado Democrat Ken Salazar, the new Interior Secretary, received a 100% rating from the League of Conservation Voters. Lisa Jackson, named to the head of the EPA, earned a reputation as a regulator as the former head of the New Jersey Department of Environmental Protection (see “What Garden State?”, page 36, for more on Jackson’s appointment). “Obama is a president who understands the importance of environmental issues,” says Matthiessen. “He’s a straight shooter and pragmatist, and can sort through the disingenuous white noise of the critics and explain to the American people the link between environmental health and our economic health.”