In what has already been a major year for the Clean Water Act, there’s now another attempt to redefine its scope.
On October 17, the Clean Water Act of 2023 was introduced by ranking member of the House Committee on Transportation and Infrastructure Rick Larsen (D-WA), ranking member of the Subcommittee on Water Resources and Environment Grace Napolitano (D-CA), Rep. Don Beyer (D-VA), Rep. Melanie Stansbury (D-NM) and 114 House Democrats.
The proposed bill — H.R. 5983 — comes on the heels of the U.S. Supreme Court’s May 2023 decision in Sackett v. EPA. In that case, the Supreme Court ruled in favor of the Sacketts and held that only wetlands and permanent bodies of water with a “continuous surface connection” to “traditional navigable waters” are covered by the Clean Water Act. Ranking Democratic members of the House have called the decision “misguided” and intend for the Clean Water Act of 2023 to “restore historic, bipartisan protections to the estimated 50% percent of wetlands and 70% of streams lost” through the Sackett decision.
The bill, if enacted, would remove the term “navigable waters,” replacing it with “protected water resources.” This new definition will include:
- All waters affected by the tide and territorial seas.
- All interstate and intrastate waters and their tributaries.
- Lakes, rivers, and streams including those that are intermittent or ephemeral.
- Wetlands and all bodies of water impounded from the aforementioned sources.
As defined in the proposed bill, “protected water resources” has a far-more encompassing scope than what is currently in place, which was limited by the Sackett case. Rep. Stansbury, joining the other representatives who introduced the Clean Water Act of 2023, provided that “the legislation undoes the damage from the Supreme Court’s Sackett decision by reinstating the historic and bipartisan, federal-state partnership that has protected our rivers, streams, and wetlands for over 50 years; by establishing a clear, level playing field for businesses and industries to thrive while protecting critical natural resources; and ensuring clean water for families and communities.”
Given the current challenges in the House, H.R. 5983 is certain to be a subject of significant debate. If the many attempts to expand and restrict the Clean Water Act just this year are any indication, the Clean Water Act of 2023 is unlikely to be the last time the scope of the Clean Water Act will be challenged.