By
Sierra Club San
Francisco Group Executive Committee member
As the 19th
century faded into the 20th, a realization began to dawn on American sailors and
shippers: So much junk was being tossed into our rivers that commercial
navigation was being threatened and so our nation’s first water pollution act
was specifically aimed at protecting navigation in water bodies that could be
used by boats.
The Rivers and
Harbors Act of 1899 became the first federal environmental law ever written.
Congress created it to protect our “navigable” rivers and streams from refuse
and debris.
When the Clean
Water Act was written in 1972 (the Federal Water Pollution Control Amendments
of 1972) it was clear to a majority
of legislators that the Act had to extend to all waters of the nation, not just
our larger streams and rivers, if we were to restore the health of our nation’s
waters. After all, many small streams make up the large ones.
So a debate
took place over how to define the waters that would be regulated by the Act. As
a final compromise, the Act contains two definitions of those waters. First, it
states, the Act will regulate all “navigable waters” and then if defines
“navigable waters” as “waters of the
Muddying The Waters
Looking back at
the Congressional Record of that debate, it is clear that the legislators added
that latter definition to mean that the federal government should indeed
regulate all the waters of the
But big
business and industrial agriculture resented these regulations and constantly
sought to restrict federal jurisdiction. Finally, with the help of an
increasingly conservative Supreme Court they succeeded. Two federal Supreme
Court decisions, ignoring the Congressional record and 30 years of tradition
(talk about an activist court) have so confused the jurisdictional issue that
the Army corps has now essentially decided to regress to
Now, all of our
small streams and creeks, the headwaters of our rivers no longer are protected.
Nor are our wetlands that are not immediately adjacent to a navigable waterway.
And this is disastrous not only because these waters do so much to clean our
water, provide flood control, and serve as wildlife and fisheries habitat,
among other benefits. It also leaves these waterways unprotected from the
discharge of pollutants.
Because there
is only one definition of water in the Clean Water Act, if a body of water no
longer is protected under the Act then a polluter can now dump chemicals into a
small stream with impunity. It can fill a wetland with toxic soils with no need
to get a permit or face threat of punishment under the Act! In fact, a
Congressional committee has just revealed that the EPA has refused to take action
on over 400 pollution cases because they were no longer sure if there was
federal jurisdiction over the polluted waters.
Let’s Turn This Boat Around!
All it takes to
correct this problem is for Congress to remove the word “navigable waters” from
the Clean Water Act – and a piece of legislation that does just that is
currently moving through Congress. Two measures, House Resolution 2421 and
Senate Bill S. 1870, would solve this problem by removing the words “navigable
waters” from the Act and replacing them with a definition of “waters of the
As you might
expect, big business, industrial agriculture, water polluters and wetland and
stream destroyers are all up in arms to defeat this legislation and they are a
potent enemy.
Please look up your Congressman or Congresswoman
and let them know that you want him or her to sign on to the Clean Water
Restoration Act (CWRA) HR 2421.
Senator Barbara Boxer has already signed on to
the Senate bill but amazingly Senator Dianne Feinstein
has not! Please inform Senator Feinstein that it is essential that she sign on
to S. 1870.
Let them know
that you want clean water and want to protect our wetlands and streams. You can
use this letter to kick-start your own efforts.
Sample letter:
_________________________________________________________________________________________________
Dear Senator
Feinstein:
It is essential
to the health to
Recent Supreme
Court decisions such as Rapanos
have resulted in the Army Corps of Engineers and the US EPA refusing to protect
most of our nation’s isolated wetlands and small streams. We can’t afford to
lose these critical natural resources.
Please sign on
to S. 1870 the Clean Water Restoration Act. This simple bill will allow the
federal government to protect all the waters of our
Thank you,
[your name and address]
__________________________________________________________________________________________________