Congress passed the Clean Water Act in 1972. It has always been clear that the original intention was to provide authority to EPA over people or companies who discharge pollutants into our waters.

The arguments at the time were that they did not want to allow a government agency to control every puddle or raindrop. There had to be ways to define boundaries but still let regulations protect our drinking water. In the end, the authors decided to avoid all responsibility and put an ambiguous phrase into the rules that remains undefined to this day. That is the phrase "navigable waters."

The agency took a broad interpretation of the words and wrote that any water that could possibly enter a major waterway is considered navigable water and therefore falls under their jurisdiction. However, it was quickly argued by industry that the definition had to be better described.

There was some question whether EPA might be overstepping their authority and perhaps the Army Corps of Engineers should be consulted. But while trying to find good lines of demarcation over which agency should control what aspects, it was discovered that this was not working either. In the meantime, EPA continued to require permits and controls over most aqueous discharges.

Decisions by the Supreme Court in 2001 in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, and in 2006 in Rapanos v. United States have caused great distress at EPA. The court suggested that waterways that were entirely encompassed within a single state, creeks that go dry for periods and lakes that are not connected with larger water bodies might not be navigable, and therefore not covered by the Clean Water Act.

This has caused a great deal of indecision at most levels of enforcement. Lower-level enforcement and permit writers wonder if they have authority, and some industries have decided that they no longer have to follow the regulations.

Upper-level officials are taking the stand that the original intent was quite clear and they, in fact, have authority to require permits. Legislators have held long discussions about rewording the questionable sections to fix the problem, but Senate Bill S 787 and House Bill HR 2421 have languished for a few years as lobbyists for and against the action have managed to stall any action and kept them in committees.

Congress caused this mess and it is far past time for them to stand up and complete the Clean Water Restoration Act so the regulators and industry can move on. PE