Jon Devine
March 20, 2007
Jon Devine is a staff member on the Clean Water Project at the Natural Resources Defense Council.
Just the other day, my seven-year-old son explained that it was important to protect small creeks from pollution because the bad stuff can travel downstream. That observation might seem like common sense, but there’s a debate going on in Washington now that would make my child scratch his head. Polluting industries are trying to convince the Bush administration and Congress that the Clean Water Act should not keep certain water bodies clean.
At the same time, leaders in Congress are reintroducing a bill that would define protected “waters of the United States” based on the decades-old definition in the Corps’ and EPA’s regulations. The Clean Water Authority Restoration was introduced in prior Congresses, and enjoyed bipartisan support. This Congress it stands a better chance of passing, and just in time.
The Clean Water Act has long kept all of the “waters of the United States” safe from unregulated direct discharges, oil spills, and unrestricted destruction and filling. States must also develop cleanup plans for any “waters of the United States” that are impaired by pollution. In expanding the law in 1972 to cover the “waters of the United States,” Congress made clear that it intended that the law “be given the broadest possible constitutional interpretation.”
Congress understood a basic truth—water moves in cycles between different water bodies, and because they each serve important roles, protecting the whole aquatic system makes sense. We know, for example, that small and seasonal creeks, brooks, and streams make up over half the river miles in the nation outside of Alaska and contribute to the drinking water of roughly 111 million Americans. Wetlands purify water, reduce the risk of flooding, and provide important wildlife habitat.
The EPA and Army Corps regulations implementing the law have for decades reflected Congressional intent and scientific reality. The statutes cover, among other things, tributary streams, adjacent wetlands, and a variety of other intrastate waters. These rules had been enforced by the vast majority of courts that examined them, including the Supreme Court.
But the simple fact is that it sometimes costs industrial operations money to prevent water pollution, so even though they had been largely unsuccessful in attacking the law's scope, polluters did not stop trying to use the courts to cut back on the kinds of water bodies that the law protects.
In 2001, their persistence paid off when the Supreme Court—in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (or “SWANCC”)—held that non-navigable, intrastate waters could not be classified as “waters of the United States” solely based on the government’s “Migratory Bird Rule,” which protected aquatic habitat used by migrating birds.
Despite this relatively narrow holding, language in the SWANCC opinion gave polluters an opening to pressure the EPA and the Corps to consider changing their rules. In response to this scheme, the agencies were inundated by more than 130,000 comments, including ones from dozens of states, overwhelmingly demanding that the rules be kept intact. This public outcry succeeded when the agencies cancelled the rulemaking process. However, EPA and the corps kept in place a policy document directing the agencies’ field staff to stop applying Clean Water Act protections to many waters unless they first receive permission from headquarters in Washington, D.C. In practice, the field staff have gotten the implicit message—don’t ask for permission to protect—and thousands of water bodies have been declared unprotected since the policy took effect. An estimated 20 million acres of wetlands are at risk of losing Clean Water Act safeguards nationwide because of the policy.
Polluters also seized on SWANCC in the courts, saying that it the law was intended to protect only waters that are actually navigable. Though again this claim was largely rejected by the lower courts, those opposed to Clean Water Act protections were able to convince the Supreme Court to hear another case just last year—Rapanos v. U.S.—which examined whether the law protects non-navigable tributaries and their adjacent wetlands.
The result was a messy split decision: The Court did not invalidate the existing rules, but the various opinions suggested different tests. Justice Kennedy would require the agencies to show a physical, biological, or chemical linkage—a “significant nexus”—between a water body and an actually navigable one to protect it. Four other justices would protect only “relatively permanent, standing or flowing bodies of water,” and would require wetlands to have a continuous surface connection to such waters to be protected.
Today, there is significant uncertainty about what water bodies remain protected. Polluters are urging the agencies to write off whole categories of water bodies because of the rulings, even though there was no such directive from the Court and even though as a matter of science, tributaries, and wetlands surely have a “significant nexus” to the traditional navigable waters in their watersheds. Even if we avoid the worst rollbacks, even having to show that water bodies have a “significant nexus” to actually navigable waters will likely be confusing, time consuming, and expensive to implement in practice.
Numerous suits are pending that address the extent to which the law can protect certain tributaries and wetlands, and it seems inevitable that many more will follow as long as the law remains this unclear. Court decisions thus far have dealt with the new decision inconsistently. One court even held that the Act didn’t apply to an oil spill into a small discontinuous stream. And at least one group is even trying to convince the agencies to deny protection to a host of waters based on the opinion of four Supreme Court justices that was rejected by a majority of the Court.
Fortunately, there’s a solution. Congress can reaffirm what the Clean Water Act was meant to protect by passing a bill that would define protected “waters of the United States” based on the decades-old definition in the Corps’ and EPA’s regulations. A bill called the Clean Water Authority Restoration Act aims to do that. The bill has been introduced in prior Congresses, and has enjoyed bipartisan support. It will be introduced soon in the new Congress. I hope the House and Senate will quickly pass it—I’d hate to try to explain to my son why our political leaders ignored the facts that were so apparent to him.
March 20, 2007
Jon Devine is a staff member on the Clean Water Project at the Natural Resources Defense Council.
Just the other day, my seven-year-old son explained that it was important to protect small creeks from pollution because the bad stuff can travel downstream. That observation might seem like common sense, but there’s a debate going on in Washington now that would make my child scratch his head. Polluting industries are trying to convince the Bush administration and Congress that the Clean Water Act should not keep certain water bodies clean.
At the same time, leaders in Congress are reintroducing a bill that would define protected “waters of the United States” based on the decades-old definition in the Corps’ and EPA’s regulations. The Clean Water Authority Restoration was introduced in prior Congresses, and enjoyed bipartisan support. This Congress it stands a better chance of passing, and just in time.
The Clean Water Act has long kept all of the “waters of the United States” safe from unregulated direct discharges, oil spills, and unrestricted destruction and filling. States must also develop cleanup plans for any “waters of the United States” that are impaired by pollution. In expanding the law in 1972 to cover the “waters of the United States,” Congress made clear that it intended that the law “be given the broadest possible constitutional interpretation.”
Congress understood a basic truth—water moves in cycles between different water bodies, and because they each serve important roles, protecting the whole aquatic system makes sense. We know, for example, that small and seasonal creeks, brooks, and streams make up over half the river miles in the nation outside of Alaska and contribute to the drinking water of roughly 111 million Americans. Wetlands purify water, reduce the risk of flooding, and provide important wildlife habitat.
The EPA and Army Corps regulations implementing the law have for decades reflected Congressional intent and scientific reality. The statutes cover, among other things, tributary streams, adjacent wetlands, and a variety of other intrastate waters. These rules had been enforced by the vast majority of courts that examined them, including the Supreme Court.
But the simple fact is that it sometimes costs industrial operations money to prevent water pollution, so even though they had been largely unsuccessful in attacking the law's scope, polluters did not stop trying to use the courts to cut back on the kinds of water bodies that the law protects.
In 2001, their persistence paid off when the Supreme Court—in a case called Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (or “SWANCC”)—held that non-navigable, intrastate waters could not be classified as “waters of the United States” solely based on the government’s “Migratory Bird Rule,” which protected aquatic habitat used by migrating birds.
Despite this relatively narrow holding, language in the SWANCC opinion gave polluters an opening to pressure the EPA and the Corps to consider changing their rules. In response to this scheme, the agencies were inundated by more than 130,000 comments, including ones from dozens of states, overwhelmingly demanding that the rules be kept intact. This public outcry succeeded when the agencies cancelled the rulemaking process. However, EPA and the corps kept in place a policy document directing the agencies’ field staff to stop applying Clean Water Act protections to many waters unless they first receive permission from headquarters in Washington, D.C. In practice, the field staff have gotten the implicit message—don’t ask for permission to protect—and thousands of water bodies have been declared unprotected since the policy took effect. An estimated 20 million acres of wetlands are at risk of losing Clean Water Act safeguards nationwide because of the policy.
Polluters also seized on SWANCC in the courts, saying that it the law was intended to protect only waters that are actually navigable. Though again this claim was largely rejected by the lower courts, those opposed to Clean Water Act protections were able to convince the Supreme Court to hear another case just last year—Rapanos v. U.S.—which examined whether the law protects non-navigable tributaries and their adjacent wetlands.
The result was a messy split decision: The Court did not invalidate the existing rules, but the various opinions suggested different tests. Justice Kennedy would require the agencies to show a physical, biological, or chemical linkage—a “significant nexus”—between a water body and an actually navigable one to protect it. Four other justices would protect only “relatively permanent, standing or flowing bodies of water,” and would require wetlands to have a continuous surface connection to such waters to be protected.
Today, there is significant uncertainty about what water bodies remain protected. Polluters are urging the agencies to write off whole categories of water bodies because of the rulings, even though there was no such directive from the Court and even though as a matter of science, tributaries, and wetlands surely have a “significant nexus” to the traditional navigable waters in their watersheds. Even if we avoid the worst rollbacks, even having to show that water bodies have a “significant nexus” to actually navigable waters will likely be confusing, time consuming, and expensive to implement in practice.
Numerous suits are pending that address the extent to which the law can protect certain tributaries and wetlands, and it seems inevitable that many more will follow as long as the law remains this unclear. Court decisions thus far have dealt with the new decision inconsistently. One court even held that the Act didn’t apply to an oil spill into a small discontinuous stream. And at least one group is even trying to convince the agencies to deny protection to a host of waters based on the opinion of four Supreme Court justices that was rejected by a majority of the Court.
Fortunately, there’s a solution. Congress can reaffirm what the Clean Water Act was meant to protect by passing a bill that would define protected “waters of the United States” based on the decades-old definition in the Corps’ and EPA’s regulations. A bill called the Clean Water Authority Restoration Act aims to do that. The bill has been introduced in prior Congresses, and has enjoyed bipartisan support. It will be introduced soon in the new Congress. I hope the House and Senate will quickly pass it—I’d hate to try to explain to my son why our political leaders ignored the facts that were so apparent to him.
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