One Step Closer to a Legislative Fix to Rapanos?

Particularly this week, one needs to make a conscious effort to remember that it is not “all climate, all the time” on the environmental front. While climate change is obviously the President’s top priority at the moment, the administration did take the time this week to send letters to congressional leaders voicing the its support for amendments to the Clean Water Act to eliminate uncertainty concerning the Act’s scope following the Supreme Court decision in Rapanos

While the administration has not provided suggested statutory revisions, the letters state that: “It is essential that the Clean Water Act provide broad protection of the nation’s waters, consistent with full congressional authority under the Constitution.” This suggests that the administration might look kindly on the simple fix proposed under the Clean Water Restoration Act, , S. 787, which would basically just substitute “waters of the United States” for “navigable waters of the United States” wherever it appears in the Act.

There is no doubt that such legislation would reduce uncertainty regarding the scope of the CWA, which is unambiguously a good thing.  Whether there is a way to reduce uncertainty without expanding the scope of the Act’s jurisdiction to the full scope permitted under the Constitution, and whether such an expansion would be wise policy, are questions that neither the administration nor congressional Democrats appear to be asking at this point.

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