The CWA is under attack by the federal government

Editorial: 50 years later, the Clean Water Act is under assault

In the wake of the Supreme Court decisions (PDFs) invalidating the Clean Water Act (CWA), the federal government, in typical fashion, is working to revive the law by proposing a regulatory scheme to regulate “navigable waters” through the states and to allow states to sue over CWA violations. The effort, as it is currently proposed, is called the Waters of the United States Rule.

This effort is an attempt to rewrite the CWA as it existed in 1973, before the Supreme Court invalidated most portions of the 1972 law. It would return CWA waters to the status that was in effect until 2013, when the Supreme Court invalidated parts of the CWA.

This is important. It is likely that the Supreme Court rulings will allow states to revive CWA compliance by allowing states to issue permits to discharge polluted water into “state waters”.

The Clean Water Act, as it currently stands, is under attack. While these two recent Supreme Court decisions may be a setback for states, they are not necessarily a death blow to the CWA.

This is because the federal government, in its attempt to return regulation of federal waters to what it was in 1972, is not actually returning regulation of federal waters to the status it had in 1972. Instead, what the government is proposing is that the CWA be rewritten to re-introduce “navigable” waters back into the regulatory scheme. This allows the federal government to regulate non-navigable waters using permits as is currently happening in the states, under the guise that “navigable waters” are still regulated by the CWA.

The waters we are talking about are the waters that are considered “outside” the CWA’s boundaries, like the water on the Great Lakes, and the waters that are considered “waters of the U.S.”, such as the water that is in Lake Superior.

The most interesting aspect of the Waters of the United States Rule, however, is that it is about not “regulating” water at all. After all, the CWA makes very clear that it is only to regulate “navigable waters”.

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