Conservation movers and shakers from across the country say U.S. Supreme Court rulings have muddied the Clean Water Act, threatening 787,000 acres of wetlands in Tennessee that should be protected under federal law.
It's a complicated scenario which basically revolves around the legal definition of the phrase "navigable waterways." Two Supreme Court rulings known as SWANCC (2001) and the Rapanos Decision (2006) left state and federal regulators, as well as landowners and manufacturers, befuddled regarding "navigable waterways," and which waters are protected by the Clean Water Act, and which waters are not. Many have interpreted the rulings to mean that if a water body such as a marsh or wetland is not "directly connected" to a clearly navigable waterway (such as the Tennessee River), then it is not subject to protection under the existing Clean Water Act.
Mike Butler of the Tennessee Wildlife Federation said, "Different agencies have differing answers to the same question. That's what is feeding this situation that some describe as a big mess."
The National Wildlife Federation, Trout Unlimited and Ducks Unlimited recently completed a specific study of five cases examples in Tennessee which best illustrate the confusion.
Wednesday morning (Jan. 27) Jim Murphy, National Wildlife Federation; Mike Butler, Tennessee Wildlife Federation; George Lane, Tennesee Trout Unlimited Council; John McFadden, report author; and Scott Yaich, Ducks Unlimited held a telephone news conference to discuss the issue.
They're hoping to build support for passage of S.787 - Clean Water Restoration Act. They say passage of the bill will clarify the confusion created by the SWANCC and Rapanos decisions. The bill was passed by the Committee on Environment and Public Works June 18, 2009.
Supporters are still waiting on a companion bill in the House. These days with health care and the economy, the U.S. House and Senate have bigger fish to fry, but Murphy said optimistically on Wednesday that "if everything went perfectly, we'd like to see passage of the bill this spring."
Murphy said there is bipartisan support for the measure. Meanwhile he also says the National Wildlife Federation is actively involved in multiple lawsuits across the country that have arisen due to the confusion. He said there is one case in Alabama where a manufacturer is dumping toxins into a stream which ultimately feeds into the Black River. The manufacturer believes it can dump there because the particular body of water is not directly connected to a "navigable waterway."
That phrase is the primary confusion factor. Bill 787 would "amend the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to replace the term "navigable waters" that are subject to such Act with the term "waters of the United States..."
Butler wrote in the report, "In Tennessee, we are very fortunate to have a strong state water quality act, which provides an additional level of protection to these waters. However, as is the case in every state in the Union, Tennessee's ability and willingness to adequately protect its streams and wetlands can and are often influenced by local and state politics. Clearly restoring Clean Water Act protections for wetlands and other waters will bring strength and resolve to the state's efforts, and will once again provide needed protections for the nation’s water resources."