By Claire Moser
July 13, 2009

The Senate Environment and Public Works (EPW) committee approved the Clean Water Restoration Act (S. 787) on June 18, including a major amendment from Senators Max Baucus (MT), Amy Klobuchar (MN), and EPW Chair Senator Barbara Boxer (CA). The bill amends the Clean Water Act to replace the words “navigable waters” with the term “waters of the United States.” The bill’s intention is to help clarify and restore the intent of the Clean Water Act to the period before two Supreme Court Decisions, SWANCC and Rapanos in 2001 and 2006, caused uncertainty. The term “waters of the U.S” is intended to mean all waters subject to ebb and flow of the tide, 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 territorial seas.

Boxer addressed concerns of the scope of the regulation in this act with the Baucus-Klobuchar-Boxer Amendment saying that it was not the intentions of the bill to expand the Clean Water Act to regulate excessively. The amendment includes language to protect existing exemptions for sewer facilities and some agricultural operations. Ranking Minority Member Senator James Inhofe (OK) remained steadfast in his belief that the bill is unfixable and that it is directed right at America’s heartland. Although he was sure the Act would pass the EPW committee, he remained confident it would not pass on the Senate floor. The Baucus-Klobuchar-Boxer amendment passed with a voice vote.

Republican opposition focused on removing the word “navigable” arguing it would broaden the scope of the Clean Water Act creating room for burdensome regulations on farmers and other stakeholders. Senator David Vitter (LA) suggested two amendments dealing with disaster recovery and mosquito control (pesticides), both of which failed. Senator John Barrasso (WY) proposed seven amendments to exempt streams, mud flats, prairie potholes, wet meadows, natural ponds, agricultural areas, livestock production areas, and ground waters from EPA regulation. None of these amendments passed. Barrasso expressed concern regarding EPA seizing control of Wyoming’s water areas when the state is already doing a lot to protect its environment, especially with the Wyoming Environmental Quality Act. Senators Mike Crapo (ID) and Christopher “Kit” Bond (MO) also spoke out against the bill believing it that it would replace all state and local planning efforts allowing the regulation far beyond its jurisdiction.

Although none of the seven Republicans supported the bill, it passed with votes from all 12 Democrats.