After 10 years of court cases, rule changes and several attempts to regulate different water rights, the Environmental Protection Agency (EPA) announced that it is close to expanding its power to regulate water under the Clean Water Act.

The White House released a statement on April 28 saying the EPA would prevent the dumping of mining waste and industrial pollutants into waters that feed swimming holes and drinking water supplies by expanding the waterways that it oversees. Once these proposals are made into policy, they would extend stricter pollution controls over millions of acres of wetlands and tens of thousands of miles of tributaries and streams.

The wetlands and tributaries aspect of this policy is noteworthy because it will include waterways that flow into the Chesapeake Bay under the EPA’s regulatory umbrella. The Washington Post quoted Sen. Ben Cardin (D-Md.) who chairs the Water and Wildlife Subcommittee of the Senate Environment and Public Works Committee, saying that he and a dozen other senators “told the president, protecting this incredible network of waters is the first step in restoring them to health.”


The federal government has the authority to regulate “navigable waterways.” The definition of a “navigable” waterway is a long story that involves the U.S. constitution, “the waters of the United States clause,” not to mention the commerce clause, mining regulations and bird migration concerns. In 2003 and 2008, the Supreme Court ruled in favor of limiting the scope of what waterways are subject to pollution protections. This newly proposed policy would be implemented through the EPA and under the rules of the Clean Water Act.

What to watch for

It would take a large political mobilization (see Congressional Review Act of 1996) to keep this policy proposal from becoming law, and it is likely to fuel some political maneuvering. The EPA has been a frequent target of Congress lately. Federal departments like Interior and EPA, which have embarked on policies to regulate more acres of public lands and carbon emissions, have divided Congress — but not always following strict party lines. West Virginia Democrat Jay Rockefeller is one of a handful of Democrats who joined Sen. Lisa Murkowski’s (R-Alaska.) attempt to cut of the EPA’s power to regulate greenhouse gases. Another West Virginian, Democratic Sen. Joe Manchin, is also sympathetic to the cause. EPA Administrator Lisa P. Jackson has said that “this is not some massive increase, as far as we can tell,” it is likely that this policy proposal will be put under the political microscope. 

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