The Supreme Court and Our Nation's Water
Interview with Sierra Club Water Expert
What is the Clean Water Act?
Navis Bermudez: The Clean Water Act is commonly regarded as one of our country's most successful environmental laws. Passed in 1972, the expressed goal of the Clean Water Act was to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." Today, many people have come to expect clean drinking water and clean lakes and rivers in which to recreate, but merely 30 years ago, our nation's waters were in serious trouble: Boston Harbor was little more than a cesspool; Lake Erie was declared biologically dead; and cities that lined the Potomac, Hudson, and Delaware simply dumped their raw sewage directly into the water. And when the Cuyahoga River actually caught on fire- a testament to how polluted the river was- that was when people started to demand action to make our waters safe. The end result was the Clean Water Act, which has dramatically improved the condition of our lakes and streams.
Thanks to the Clean Water Act, today about 60% of our rivers and 55% of our lakes are safe for swimming and fishing compared to just 36% in 1970. Unfortunately the progress we have made in cleaning our waters during the last three decades is now at risk.
Recently, the scope of the Clean Water Act was brought into question when the Supreme Court chose to hear two cases together. What were these cases about?
NB: The cases, Rapanos v. U.S. and Carabell v. Army Corps of Engineers, challenged the scope of the Clean Water Act. On the theory that what gets dumped upstream eventually ends up downstream, the Clean Water Act traditionally has been broadly interpreted to provide protection not only for lakes and rivers but also for the tributaries and wetlands that feed into them. However, Rapanos and Carabell challenged that interpretation arguing that the Clean Water Act only applied to "navigable" waters, those you can float a boat on. The narrow definition that Rapanos and Carabell advocated would exclude from protections waters flowing into the drinking water sources serving 110 million people, as well as millions of wetland acres and more than 50% of the nation's streams, leaving them open to development and pollution.
What did the Supreme Court decide, and why have both sides declared victory in this fight?
NB: Five of the nine Supreme Court justices rejected a narrow interpretation of the Clean Water Act. They recognized the incredible importance of protecting our nation's wetlands and other waters. However, instead of ruling against Rapanos and Carabell, the Court decided to send the cases back to the lower, local courts. Although five of the justices were in general agreement that wetlands and tributaries should be protected under the Clean Water Act, there was not a consensus on the scope of the Clean Water Act for non-navigable waterways and wetlands. So while Rapanos and Carabell did not win their case to restrict the Clean Water Act, the Court did not actually uphold the broad interpretation traditionally applied- allowing both sides to declare victory.
NB: Excuse the pun, but as a whole this ruling has only muddied the waters. Now the lower courts have to feel their way on a case-by-case basis, which means that the scope of the Clean Water Act will continue to be challenged and without clear legal precedent to follow, it's possible that many of our nation's wetlands and tributaries will be lost through challenges in the lower courts.
How will all of this affect me?
NB: Well, this ruling means that the wetlands, small streams and tributaries that clean and feed your drinking water sources could be polluted, filled-in or paved over without any federal restrictions or limits. Polluted water can not only threaten public health through contact with bacteria, toxics and other industrial discharges that would no longer be regulated under the Clean Water Act, but also increase what you pay for water, since the costs of cleaning out those harmful pollutants will be passed on to you. If your drinking water comes from a source that is recharged by wetlands and small stream systems that are no longer protected by federal anti-pollution safeguards, you could face dirtier water and wildlife may lose important habitat.
So the Supreme Court has spoken and the EPA has weighed in, now what? Is there anything that can be done to protect our waters?
NB: The best solution is for Congress to pass the Clean Water Authority Restoration Act, which is legislation that extends protections to all of our nation's waters, including the so-called isolated wetlands, streams, ponds and other water bodies that were disputed in the Supreme Court cases. I would urge everyone to write their representatives and ask them to support this legislation that would protect the waterways that play such an integral role in our environment and the health of our communities. You can also write a letter to the editor of your local paper to let your community know of the threats faced by the Clean Water Act.
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