Today, the Senate Environment and Public Works Committee approved the Clean Water Restoration Act, a landmark bill that will reinstate Clean Water Act protections against umpermitted dumping of pollution, filling, or destruction for a host of water bodies jeopardized by a pair of Supreme Court decisions. It was quite an interesting morning; the meeting at which the Committee debated the bill and proposed amendments can be seen here.
This debate often becomes esoteric, as you'll see from the video. We lawyers tend to talk about the role of the word "navigable" in the statute, the legislative history surrounding the consideration of the law in 1972 and 1977, and the extent to which the Constitution authorizes Congress to enact a strong pollution control program for a wide range of water bodies. But the meeting this morning - called a "mark-up" by Capitol Hill experts - was a great reminder of why we've been working on this so hard for so long. And the person who reminded me was one of the staunchest opponents of the bill there - Senator Barrasso of Wyoming.
Senator Barrasso offered a series of amendments seeking to exclude a variety of water bodies from the bill, including natural lakes, streams, and wetlands. As he offered his amendments, he held up pictures of a number of the features in question, as if to ask whether such a thing ought to be protected by the federal law, and each time, I thought to myself, "heck, yes." Excluding water bodies from the federal law is equivalent to saying that it would be acceptable to destroy those waters or pollute them with untreated sewage or industrial waste. Dropping water bodies from the Clean Water Act does not guarantee they will be polluted, but it is tantamount to saying that they are not important enough to warrant uniform minimum pollution prevention standards to keep them from such a fate.
As I've written before, because of the Supreme Court's decisions, government officials had declared thousands of bodies of waters - including lakes, streams, and wetlands - outside the purview of the Clean Water Act. As a result, the people who rely on those water bodies cannot depend on the Act's safeguards against unregulated industrial pollution and destruction. The Environmental Protection Agency acknowledges that these decisions have undermined the agency's enforcement of the Act. The Obama administration recently told Congress that "[i]t is essential that the Clean Water Act provide broad protection of the Nation's waters, consistent with full Congressional authority under the Constitution."
To address this crisis, Senator Russ Feingold and 24 other Senators sponsored the Clean Water Restoration Act, which the Committee considered today. The Committee ultimately approved a substitute amendment to the bill championed by Senators Baucus, Klobuchar, and Boxer that adds two exemptions from the law sought by farmers and by wastewater treatment plant operators. It also removes provisions that opponents of comprehensive clean water protections had wrongly suggested expanded the scope of the law, and it specifically directs federal agencies to implement the new law consistent with the historic practice prior to the Supreme Court's decisions.
We are very grateful that the Committee has taken this critical step. Congress cannot fix the Clean Water Act soon enough, and today's action reflects the urgency and importance of the problem. While the bill is definitely a compromise, Senators Baucus, Klobuchar, and Boxer deserve great credit for maintaining the core purpose of the legislation: returning protection to imperiled waters and charting a path forward that responds directly to claims made about the legislation. We also owe thanks to the Senators who joined them in moving the bill onward and opposing the radical amendments offered by Senator Barasso -- Senators Carper, Lautenberg, Cardin, Sanders, Whitehouse, Tom Udall, Merkley, Gillibrand, and Specter.