Comments on: Clean Water Restoration Act Gains Detractors

By: Matt McClanahan

Matt McClanahan — Mon, 19 Sep 2011 20:54:07 +0000

While the CWRA could seem somewhat “radical” in its statements, I do not believe it says it will attempt to cover everything from roadside ditches or puddles, as the Farm Bureau individual wrote. I usually don’t find radical, interpolated statements to be of any real worth or consideration. The real issue is that, in the wake of cases such as Rapanos and SWANCC, the Clean Water Act is losing its ability to regulate the cleanliness of our nation’s waters because the legal framework is now unclear and unstable. For example, in SWANCC, federal agencies, i.e. the ACE and EPA, do have jurisdiction over traditional navigable waters such as large rivers and waterways, but not over isolated, non-navigable ones such as emergent wetlands, prairie potholes, etc. that are vital sources of other economic activity, i.e., the many billion dollars that are generated by waterfowl hunting and birdwatching, as well as fishing, both private and commercial. Wetlands provide great economic benefits that are largely unrealized, for whatever reasons. SWANCC eliminated the ability of the government to have a hand in keeping these areas from being developed, esp. if they were trying to protect it for purposes in the Migratory Bird Rule. Furthermore, the Rapanos case eliminated the clear boundary of who can say a non-navigable tributary or adjacent wetland is jurisdictional, when it produced 2-3 different, complex opinions on the matter. The agencies must determine whether or not the water body actually does in fact affect a navigable body of water (“significant nexus analysis”). Because of these complications, many cases have now been either lost in courts or have simply been dismissed because they require a “significant nexus assessment” which can take a lot of time and resources from federal agencies and, ultimately, American taxpayers. The goal of CWRA is, in my opinion, not to tell American’s what they can and cannot do with their water, but to help Americans enjoy cleaner, better water. Currently America is losing over half of its wetlands, areas critical to help mitigate floods and storm surges, remove toxins from the environment, and provide habitat for fish and wildlife (which are a valuable commodity for both sportsmen, commercial trappers, fishermen, etc.). There will undoubtedly need to be some more discussions as to the wording of this act to help dissuage the contention about its reach, but I think it is overall trying to clear up the confusion as to what is considered a US jurisdictional water and how to keep those waters clean. After all, it is nice to wake up and see the rivers you played and fished in as a kid free of trash, debris and pollutants. many Americans want to conserve and protect nature and the ecosystem services it affords us. Many ask: why pass a federal law to protect our waters from pollution? I ask: why not pass one to help make our water cleaner, our economy healthy, and our ecosystems healthy? After all, healthy ecosystems make healthy people. I am not saying that farmers, miners and the very people that provide our foods are evil or anything less than good folks, I am just saying that many of us are not aware of the impacts our activities have on the health of other people and the environment that provides us many services. I would hope that many look at this Act as a potential way to help us watch after it. Perhaps incentives and easement programs would be more appropriate than simply stating control over something, that or being more clear and definite about what kind of regulations are going to be put on national water, whatever their definition may be.

By: Dan Puroclean

Dan Puroclean — Thu, 04 Mar 2010 01:56:52 +0000

It may be trite, but there is tremendous truth to the saying “the devil is in the detail.” And I can assure you by and large most lawyers (particularly the great minds) probably spend most of their time obsessing over the fine print.

In the context of the CWRA it may seem silly to be arguing over what it means for water to be “navigable” or not, when the real issue is keeping our water clean. But that particular fine print, and how it is interpreted, has a profound effect on the power of the federal government over the waters of the United States. And thus that fine print has an enormous impact on the lives of the people who are affected by those waters.

The things lawyers obsess about often seem unimportant – and perhaps sometimes they are – but far more often we obsess over them because they have enormous implications to how real people live their lives.

By: Adam

Adam — Thu, 24 Sep 2009 13:27:45 +0000

Who wrote this article and what are his/her credentials

By: Taylor Houston

Taylor Houston — Wed, 19 Aug 2009 16:36:32 +0000

Thank you for your article on the CWRA. Here’s how it works: The trust agency for the CWRA (currently USACE & EPA under current CWA) would issue guidance on what would be determined jurisdictional under the new CWRA, and current methods for delineation would be employed in the field. Tying a wetland to a navigable water body would not be a component of the jurisdictional determination, but could be a factor. Important to differentiate stream beds (bounded by ordinary high water marks) and wetlands (boundary determined in the field using delineation techniques). In practice, you’d probably see more isolated wetlands regulated, but under current Significant Nexus Test guidance for streambeds, I doubt that more streams would be regulated under a CWRA because the current SNT guidance is easily broadly applicable. In summary, as far as extent of regulation, you’d see a jurisdictional determinations resembling pre-SWANCC decision (which removed jurisdiction for isolated wetlands) for wetlands and streambed jurisdictions similar to what we have now post Rapanos decision (which provided for the SNT).

By: Just Blaze

Just Blaze — Mon, 29 Jun 2009 19:50:11 +0000

Just wait until some greens don’t like the puddles in your driveway. lawsuits for everyone!!!!

By: John Rumpler

John Rumpler — Thu, 18 Jun 2009 18:12:20 +0000

John Rumpler is Senior Attorney for Environment America, a network of environmental advocacy organizations in 27 states.

By: John Rumpler

John Rumpler — Thu, 18 Jun 2009 18:10:26 +0000

From the Great Lakes to Puget Sound, from the Mississippi River to the Everglades, and from Chesapeake Bay to the Colorado – we can only protect the great waters of America if we safeguard the countless streams that feed them and the millions of acres of wetlands that help keep them clean. Perhaps that is why today, the Senate EPW committee rejected the spurious arguments of the powerful polluters cited in your article, and instead voted to restore protections vital to America’s great waters. As its name indicates, the Clean Water Restoration Act does no more than restore the original scope of the Clean Water Act that our nation adopted some 37 years ago – to protect all the waters of the United States.