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EPA eliminates Clean Water Act protection for many non-navigable waters and wetlands

By Kenneth Barbalace
[Thursday, June 07, 2007]
As a result of U.S. Environmental Protection Agency rule changes to the enforcement of the Clean Water Act, it now only automatically applies to permanent navigable waters and the wetlands attached to these waters. Intermittent and non-navigable waters and their wetlands may or may not be protected depending upon other criteria including whether or not they are attached to navigable waterways. These changes were the result of a Supreme Court ruling last year that ruled in the words Justice Anthony Kennedy that there must be a "significant nexus" between a wetland and/or waters and a navigable waterway. The cause of the navigable water requirement in the Supreme Court's ruling is the wording of the Clean Water Act itself, which under Title I Section 101(a)(1) states:
it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.

In fact the Clean Water Act uses the phrase "navigable waters" some 81 times. It was this phrase that caused a massive split within the Supreme Court with the justices writing no less than five separate opinions.

As a result of the Supreme Court's ruling and the EPA's subsequent rule changes, it is estimated that around 60% of streams and 20% of wetlands could be in jeopardy of not being protected under the Clean Water Act. To rectify this problem, there is a bill (H.R. 2421) working its way through the U.S. House of Representatives, which has 157 cosponsors. This bill would essentially eliminate the word "navigable" from the Clean Water Act, thereby ensuring that virtually all U.S. waters are protected. Although some Senators (including Democratic Senator Russ Feingold) have expressed concern on this issue, I could not at this time find a Senate companion bill to H.R. 2421.

One would hope that some Senators will quickly cosponsor companion legislation to H.R. 2421 and that the bills are quickly passed into law so that the Clean Water Act can more clearly protect non-navigable waters and wetlands.

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Anonymous said...

I saw a similar comment this morning about the new limitations to applicability of the CWA. I'm trying to figure out whether EPA and the states are taking it seriously, and if so, when are the new rules coming out as to what EPA is going to regulate, and how.

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