Legislation introduced in the House of Representatives on February 28 seeks to end the debate about the scope of federal Clean Water Act protections by revising the statute to narrow the definition of “navigable waters” that are subject to federal oversight.
Sponsored by Rep. Mac Thornberry (R-Tex.), the “Federal Regulatory Certainty for Water Act” (H.R. 1261) would redefine “navigable waters” as waters that are either “navigable-in-fact” or those that have permanent or continuously flowing bodies of water that form streams, rivers, lakes and oceans “that are connected to waters that are navigable-in-fact.” The bill would specifically exclude from CWA coverage waters “that do not physically abut” navigable-in-fact waters, as well as wetlands and natural or man-made structures or channels through which water flows only intermittently.
In a statement Rep. Thornberry said the bill will “help protect the personal property and water rights that are so fundamental to the American way of life, a family’s business, and many people’s livelihoods.”
H.R. 1261 was introduced as President Trump signed an executive order directing EPA and the U.S. Army Corps of Engineers to publish a new proposed rule on the scope of the Clean Water Act that would “rescind or revise” the Obama Administration’s Clean Water Rule. The order directs EPA and the Corps to consider using a definition of “navigable waters” articulated by Justice Antonin Scalia in a 2006 Supreme Court opinion that found Clean Water Act protections to extend to “relatively permanent standing or continuously flowing bodies of water” as well as some rivers with seasonal flows. Rep. Thornberry’s definition would be even stricter than Scalia’s opinion, as H.R. 1261 would limit CWA protections only to continuous flows to navigable waters.
House Republican leaders have not signaled any intention to schedule a vote on H.R. 1261, and in the near term it may be more likely for Congress to step back and give the Trump administration an opportunity to implement its executive order before taking action on new legislation relating to the scope of the Clean Water Act.