CLEAN WATER AUTHORITY RESTORATION ACT HIGHLIGHTED ANEW IN LIGHT OF SUPREME COURT RAPANOS DECISION

     In a July 3, 2006 editorial, The New York Times highlights legislation currently pending in the US Senate and House that would effectively overturn the Supreme Court's decision in United States v. Rapanos (see Post of June 19, 2006) and make plain that federal jurisdiction extends to all surface waters, even minor ones.  The Senate version, known as the "Clean Water Authority Restoration Act of 2005", was introduced by Senator Russell Feingold (D-Wisconsin) and is SB 912.IS.  The bill provides, among other things, that "waters of the United States" shall no ponger mean just "navigable waters" but shall instead mean

all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'.

     The fuull text of the bill can be found by going to the Congressional legislative search engine and puting in the name or number of the bill.

     The companion House Bill is HR 1356.IH.

     By deleting reference to "navigable" waters, the legislation would side with the liberal wing of the Court in removing the central issue in Rapanos-i.e., did his relatively isolated wetlands nevertheless impact on such waters.

     The legislation is still in Committee in both the Senate and House.