With all the recent rancor over which waters the Clean Water Act applies to, I thought I would share some historical perspective. The Federal Water Pollution Control Act, first passed in 1948, was our first “Clean Water Act,” so cleaning up our waters has been in the public spot light for more than 6.5 decades. The law most referred to when we speak of clean water in the United States is the Federal Water Pollution Control Act Amendments of 1972. Major amendments also were enacted in the Clean Water Act of 1977 and the Water Quality Act of 1987.
I cannot speak to the intent of Congress in the 1948 law, but I can address the intent of the amendments in 1972. The Cuyahoga River fire of 1969 (yes, the river actually was burning), near Cleveland, incited action on a national level. People of the U.S. were fed up with pollution, draining, channelizing and using all the clean water and wetlands for industrial use.
I have had the good fortune of knowing Jim Banks and Jim Range. These two esteemed lawyers in the Washington, D.C., area were the principal authors of the 1972 Clean Water Act Amendments. They were both strong Republicans working for Republican lobby firms when I talked with them. When they wrote the act, they worked as congressional staffers. I served on a board with Range before his untimely passing, and I have had lunch with Banks at a conference on the intent of Congress concerning the Clean Water Act.
The stated object of the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, is to “restore and maintain the chemical, physical and biological integrity of the nation’s waters by preventing point and nonpoint pollution sources, providing assistance to publicly owned treatment works for the improvement of wastewater treatment, and maintaining the integrity of wetlands.”
Seems pretty straightforward. Then came the CWA, Supreme Court decisions of Solid Waste Agency of Northern Cook County and Rapanos, which turned a simple intent on its ear. We got words such as “navigable” and “waters of the United States,” which both are in statute, and “significant nexus,” which was in a ruling. The 1972 law always had been interpreted as including intermittent streams, playa lakes, prairie potholes, sloughs and wetlands as “waters of the United States,” therefore protected. But in Rapanos, a plurality (not a majority) of the Supreme Court said that you had to demonstrate a “significant nexus” to “navigable” water to be protected under the act.
I asked Range and Banks about the use of the word “navigable” and the phrase “waters of the United States.” They both are lawyers, but what I could glean from their comments is they thought they had the right language to protect “all” of the waters of America.
Since the decisions by the Supreme Court, there has been regulatory chaos. The EPA is trying to issue new rules to get everyone on the same page and clear up the misunderstandings of the law, but a well-funded attack from developers, industry and some ag groups are trying to derail the process. They are calling it “government regulatory expansion” and “government overreach.” I would say it is the government trying to make sense of a law, after an activist court changed the intent of Congress. A plurality means one justice did not think either side was right and got four other justices to go along with them grudgingly.
“Restore and maintain the chemical, physical and biological integrity of the nation's waters by preventing point and nonpoint pollution sources ... and maintaining the integrity of wetlands.” The “integrity of the nation’s waters,” “preventing point and nonpoint pollution sources” and “maintaining the integrity of wetlands.” How much more concise would Congress have to be for the Supreme Court and the detractors of the new rule-making to get this right?
Clean water, lakes, rivers and wetlands that recharge our ground water should be a gift and a right from our generation to our children and their children. We should support the original intent of the law.
Chuck Clayton, Huron, is president of Prairie Pothole Consulting and past president of South Dakota Wildlife Federation, S.D. Izaak Walton League of America and National IWLA. My Voice columns should be 500 to 700 words. Submissions should include a portrait-type photograph of the author. Authors also should include their full name, age, occupation and relevant organizational memberships. Send columns to Argus Leader, Box 5034, Sioux Falls, SD 57117-5034, fax them to 605-331-2294 or email them to email@example.com.