News Analysis: Lawmakers seeking Clean Water Act reform; Obama promises help

Editor’s Note: This is the first of three parts. Part 2 will run Wednesday; Part 3 on Friday.

The federal Water Pollution Control Amendments of 1972 have gone from being a powerful tool created by the Nixon administration to prevent and enforce anti-pollution laws at the state and federal level to an excuse to avoid enforcement by cities and counties across the West—including Pima County.

Better known as the Clean Water Act, it gives legal authority to control pollution discharges regulated by the Environmental Protection Agency, state and regional agencies, as well as to oversee the U.S. Army Corps of Engineers job of issuing permits to keep waters flowing.

The breakdown of the act is a result of United States v. Rapanos, a Supreme Court decision in June 2006 that addressed the Clean Water Act’s ability to protect wetlands that had uncertain connections to bodies of water. The court case addressed the corps’ authority under Section 404 of the Clean Water Act to regulate wetlands.

The Rapanos decision resulted in a strange split reflective of the politics of the court. Four members of the court wanted the old authority of the act to apply; four wanted a restrictive interpretation that said that the water had to be flowing for the act to regulate. Justice Anthony Kennedy insisted that there needed to be a “significant nexus” between a streambed and “a navigable water of the United States.”

Suddenly, every potential streambed in the country required an analysis of whether it was connected to another that could have or has had water craft on it before it could be protected from pollution or disruption.

What turmoil this stirred in the West, where the sunsets are magnificent, but very little water is perennial, and many tributaries to sometimes-peripheral streams are dry. Who knows if the Supremes were thinking about our arid ecology as they pondered how to regulate the country’s waterways.

In 1975, the 9th Circuit Court of Appeals decided that the old Phelps Dodge smelter in Douglas couldn’t discharge pollution into a nearby arroyo under the act. It was the first of many precedents for the act’s broad authority prior to 2006. (An earlier 2001 Supreme Court case did halt protection of isolated waterways for migrating birds, the first step in reducing authority.)

Most attorneys—both for and against stronger federal enforcement—as well as the EPA’s enforcement division, concluded that the Rapanos decision applies to all aspects of the Clean Water Act, not just the corps’ Section 404 authority.

In fact, EPA headquarters, according to an internal memo from March released by U.S. Rep. Henry Waxman (D-Calif.), has ceased seriously pursuing enforcement of the Clean Water Act at least half the time.

Reform of the act

Congressional efforts are under way to restore the act to its original strength before the Bush Supreme Court left us with thousands of weird decisions to be made such as: “Is the Santa Cruz River navigable?”

This is a question that we should not have to see answered in order to get pollution controlled or diversions into the river regulated.

The Clean Water Restoration Act (HR 2421 and SB 8) is sitting quietly in committee in the House and Senate, introduced by Rep. James Oberstar (D-Minn.) and Sen. Russell Feingold (D-Wis).

The 176 co-sponsors (including Democrat Arizona Congressman Raul Grijalva) have set out to restore to the Clean Water Act the authority that Congress had accepted pre-Rapanos.

The Oberstar-Feingold act may need to be worded differently before it can pass through both chambers to be signed by another regulatory-minded president.

Rep. Gabrielle Giffords (D-Ariz.) has not signed on to the bill, although she says she sees it’s mission as critical. She says she is committed to responding to Oberstar’s request, following the April hearing, “to move beyond the rhetoric and address the legitimate concerns about protecting our nation’s waters.” But her concern, shared by some moderates and conservatives, is that Oberstar-Feingold may grant the act too much authority over private property.

Gov. Janet Napolitano is a strong supporter of Oberstar-Feingold. Water Quality Director Joan Card of the Arizona Department of Environmental Quality, testified on her behalf at an April hearing held by Oberstar that 96 percent of the state watercourses may be in danger of being poorly regulated under the post-Rapano Clean Water Act, a figure also cited by EPA Region 9.

Obama-McCain Priorities?

In response to a query as to whether he would make restoration of the authority of the act a priority in his administration, Democratic presidential candidate Barack Obama’s chief spokesperson, Shannon Gilson, replied, “A variety of court rulings have left about half of the nation’s streams, rivers and over 20 million acres of wetlands less protected than the federal Clean Water Act intended. These decisions also create uncertainty and less predictability for municipalities, businesses and the public.

“Accordingly, waters of the United States should be defined in a way that reflects the vital role that streams and wetlands play in buffering property from the effects of flooding, enhancing water quality, ensuring safe drinking water, and providing important habitat,” said Gilson, adding that if elected, Obama “will support and sign into law legislation that effectively restores the historical scope of the Clean Water Act and thereby advances environmental protection, community values and public health objectives.”

Several futile attempts were made to obtain comments from Arizona Republican Sen. John McCain on how he would address Clean Water Act problems if elected president.

Dick Kamp is environmental liaison for Wick Communications Co.