Protecting All Waters

The New York Times | Editorial

Friday 07 March 2008

Half of the waters in the United States are at risk of pollution or destructive development because of a wrongheaded Supreme Court decision in 2006. The decision narrowed the scope of the Clean Water Act, weakened the law's safeguards and thoroughly confused the federal agencies responsible for enforcing it.

Before things get any worse, Congress should approve the Clean Water Restoration Act. The bill would reaffirm the broad federal protections that Congress intended when it passed the law in 1972.

The 2006 ruling involved a Michigan landowner who had been barred from developing wetlands that had no visible connection to other bodies of water. Pouncing on minor ambiguities, four conservative justices ruled that the Clean Water Act protected only navigable, permanent or continuous flowing waters and adjacent wetlands. Four liberal justices, reflecting the traditional view of the law, said it protected all waters, including isolated wetlands and small, intermittent streams.

Splitting the difference, Justice Anthony Kennedy ruled that remote wetlands and isolated streams deserved protection only if regulators could show a "significant nexus" - a physical or biological connection - to a navigable body of water somewhere downstream. Justice Kennedy's test has effectively become the law of the land, with unfortunate results.

In one celebrated case in Alabama, a company that knowingly polluted an otherwise pristine creek was let off the hook because, the court ruled, no "significant nexus" between the stream and a navigable river downstream had been established. Other industries have used the Kennedy opinion as a legal shield, claiming that they are only polluting isolated waters.

Meanwhile, harried regulators at the Environmental Protection Agency and the Army Corps of Engineers are mired in laborious and expensive (and in some cases speculative) efforts to determine whether a water body is "significantly" connected to a navigable one downstream and therefore protected by law.

Congress could cut through all this by removing any ambiguities and restoring the law's original scope to include all the waters of the United States - large or small, permanent or seasonal, navigable or not. That would restore order to an increasingly chaotic and ineffective regulatory system while protecting the physical and biological integrity of America's waters.

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