Get the Facts
For decades, the Clean Water Act protected the Nation's surface water bodies from unregulated pollution and rescued them from the crisis status they were in during the late 1960s and early 1970s. Now these vital protections are being lost.
Today, many water bodies are being denied the Act's protections against pollution. Polluters argue that Supreme Court decisions from 2001 and 2006 mean that the law's safeguards are only available for "navigable" water bodies (or for waters that are significantly linked to such water bodies). They claim the Act no longer protects numerous wetlands, streams, rivers, lakes and other waters that historically had been covered. Ambiguous federal agency policy directives have helped these attacks. Only congressional action can restore the longstanding protections originally intended by the Clean Water Act.
What Did the Supreme Court Decide?
In 2001, in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, the Court rejected the government's interpretation that the Clean Water Act covered an "isolated" Illinois water body. The Corps had argued that waters serving as migratory bird habitat could be protected under the law, but the Court held that Congress did not clearly express to safeguard such water bodies.
In 2006, the Supreme Court decided Rapanos v. U.S. – a case in which a variety of industry groups argued that the law does not fully protect non-navigable tributaries and their adjacent wetlands. The result was a messy split decision; its various opinions suggested different tests and have led to significant debate about what the law now requires. Justice Kennedy, who provided the swing vote, would require the agencies to show a physical, biological, or chemical linkage—a "significant nexus"—between a water body and a traditionally navigable one to protect it. Four other justices took the radical view that the law protects "only those relatively permanent, standing or continuously flowing bodies of water" and only those wetlands with a "continuous surface connection" to protected waters. These five justices only agreed on one point: that the case should be sent back to the lower courts. They did not hold that the existing rules were invalid.
The Supreme Court's recent opinions on the scope of the Clean Water Act did not limit Congress's authority over any kind of water bodies, meaning that Congress can re-establish that the Act protects a wide range of aquatic resources in order to maintain water quality.
Have the Army Corps and EPA Fully Protected Water Bodies Consistent with the Court's Decisions?
No. After both SWANCC and Rapanos, the Bush administration issued policy directives that, if followed, would curtail Clean Water Act protections more than the Court required.
In January 2003, the Environmental Protection Agency and the Army Corps of Engineers directed their field staff to stop applying Clean Water Act protections to virtually all so-called "isolated" waters without prior permission from agency headquarters in Washington, D.C. This policy directive far exceeds the scope of the SWANCC ruling, effectively denying protection to many waters that still warrant it under existing regulations. The agencies received highly critical comments on this policy and a related rulemaking effort from a large majority of state agencies, as well as water and wildlife experts, sportsmen and women, floodplain managers, public health officials, conservation organizations and several EPA regional offices. In 2006, the House of Representatives – in a strong, bipartisan fashion – voted to halt this misguided policy. Yet the policy is in place today.
In June 2007, the agencies issued "guidance" for their field staff on the Rapanos case. The "guidance" erroneously indicates that tributary streams which do not flow all year will not be uniformly protected, even though tributaries to various protected water bodies have long been covered by the law, and even though the Supreme Court’s decision did not require such a result. Moreover, the "guidance" read the Court’s ruling too broadly by largely ignoring parts of the decision that would allow the government to protect water bodies when they collectively are important to water quality.
Why is Legislation the Best Solution?
Legislation is needed to restore the traditional scope of protection intended by Congress. Americans need these safeguards to achieve the goal of restoring and maintaining the chemical, physical and biological integrity of the nation's waters.
Specifically, legislation should:
- Adopt a statutory definition of "waters of the United States" based on the longstanding definition in EPA's and the Corps' regulations;
- Delete the word "navigable" from the Act to clarify that the Clean Water Act is principally intended to protect the nation's waters from pollution, and not just maintain navigability;
- Make findings that articulate the basis for Congress's assertion of constitutional authority over the nation's waters, as defined in the Act, including so-called "isolated" waters, headwater streams, small rivers, ponds, lakes and wetlands.
