Proposed S.787 (CWRA) erases navigable water limitation

Water rights are traditionally states rights, with federal control over harbors and deeper water necessary to commerce. To protect water quality we had the Federal Water Pollution Control Act of 1948.

Congress declared that the act's purpose was "to provide a comprehensive program for preventing, abating, and controlling water pollution," and that it was congressional policy "to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution." [emphasis added] The act gave individual states most of the responsibility for abating water pollution and encouraged interstate agreements. In addition to preserving states' control of their waterways, the act limited federal authority for the most part to preparing pollution abatement plans and providing support to the states.

Although the act did declare pollution of interstate waters a public nuisance subject to abatement, this applied only when water pollution endangered "the health or welfare of persons in a State other than that in which the discharge originates." When this situation occurred, the Surgeon General of the United States was authorized to bring an abatement action, but only after a cumbersome process and with the permission of the state where the pollution originated. This provision gave the states virtually unlimited power to override a federal action to prevent water pollution. Not surprisingly, in the following twenty years there were essentially no enforcement actions filed under the act.

The lack of enforcement was eliminated as an issue when the act was amended in 1972, producing what we now call the Federal Clean Water Act. In order to make the act enforceable, the amendments eliminated the primary responsibilities and rights of the States in controlling water pollution, essentially transferring an essential element of water rights to the Feds. Congress has delegated much of the responsibilities for CWA implementation, obscuring this transfer of States water rights.

Enter S.787, the Clean Water Restoration Act. Ostensibly offered to restore, consolidate, and clarify the jurisdiction confused by the courts, in reality it proposes to dramatically increase CWA jurisdiction.:

The CWRA proposes to eliminate the word “navigable” from the definition of “waters of the U. S.” within the Clean Water Act (CWA), essentially placing all bodies of water or “perceived” bodies of water under federal jurisdiction — even those waters traditionally under state authority.

The bill goes on to include “activities affecting these waters.” While the intent may be to limit direct and non-direct pollution sources going into major waterways, it could be interpreted quite differently to allow the federal regulation of any and all activities that “affect” waters. It is possible that a non-direct source 10’s to 100’s of miles away could be regulated, even though there is no direct hydrological connection. This definition does not exist anywhere in current law or regulation.

I understand. Navigable waters seems irrelevant to the definition of Waters of the US applied in the field. Those of us suffering through the federal wetland permitting process see tenuous connection between Federal waters and navigable waters. At times it seems to make little sense. Thus, eliminating "navigable waters" is understandable in that it is consistent with the overreaching stance being applied by EPA and DOD-ACE. What churns in the stomach is that the CWA helps define Congressional intent as to the definition of Waters of the US, and expanding the definition will affect activities well outside the CWA. The navigable waters limit goes back millennia to Roman law. The lack of historic precedent for what the CWRA proposes is unbalancing at best. In this setting, groundwater could become Waters of the US:

Currently, ground water and surface waters are regulated very differently. Some waters are considered ‘of the United States’ and some are not. This bill, in affect, is trying extend the definition of United States water.

The new writing means that environmentalist can challenge ANY WATER in the U.S. Unless there is a de-minimus definition to it, still allowing state primacy, then there is no stopping all water being controlled.

There is a change of definition to control. This is not regulation- it is about CONTROL. Water is EVERYTHING: a power grab right through the drinking fountain, with a dancing raindrop as the poster child.

After all, since currently intermittent streams (if they have perennial characteristics for a few months of the year) are administered as waters of the US if they discharge to navigable waters, it is not much of a intellectual stretch to see the groundwater connected to the intermittent streams connected to the navigable water as jurisdictional. I already have had folks make this pitch to me. If the term "navigable waters" is eliminated from the definition of Waters of the US in the CWA, it seems certain to me that there will be a strong play to embrace groundwater as within the jurisdiction of the CWA. I am adding septic systems, agriculture, and highway stormwater infiltration galleries to the list of activities that could potentially be regulated if the term “navigable” is removed from the definition of the Clean Water Act:

Ditches, pipes, streets, gutters, manmade ponds, drainage features, desert washes and ... rain gutters beside homes.