Fixing the Broken Clean Water Act
The Clean Water Act, despite being one of our nation’s most potent environmental protection laws for three decades, has an Achilles’ heel—a one-word weakness that the U.S. Supreme Court has expanded into an enormous loophole. In decisions handed down in 2001 and 2006, the Supreme Court seized on that word—"navigable"—to make rulings that neither friend…
The Clean Water Act, despite being one of our nation’s most potent environmental protection laws for three decades, has an Achilles’ heel—a one-word weakness that the U.S. Supreme Court has expanded into an enormous loophole.
In decisions handed down in 2001 and 2006, the Supreme Court seized on that word—"navigable"—to make rulings that neither friend nor foe of the Act could predict, and none of us can live with. Effectively, the Supreme Court broke the Clean Water Act by saying Congress meant that the Act’s protections apply only to "navigable" waters when it passed the Act to eliminate water pollution back in 1972. Therefore, only an act of Congress can mend this potentially fatal injury.
Fortunately, just such a bill is before Congress, called the "Clean Water Restoration Act." Introduced under an unfriendly administration, this proposed law is much more likely to be passed now. It will eliminate the word "navigable" from the Clean Water Act and replace it with the more familiar legal phrase, "waters of the United States," so that all waters—not just those that are navigable—are protected.
For more than 30 years we relied on this remarkable law to stop and reverse decades of unrestrained industrial and agricultural pollution of our waterways. As a success story, the Clean Water Act is almost without equal. We have seen abundant life return to the Great Lakes, the number of rivers and lakes made safe for fishing, drinking and swimming has more than doubled, our rivers no longer catch on fire, and our coastal waters are measurably freer of chemical pollutants.
Earthjustice has effectively wielded this law many times over the years. From protecting drinking water in Florida threatened by toxic algae blooms caused by uncontrolled discharges, and efforts to control urban pollution in the San Francisco Bay and Puget Sound, to actions to end raw sewage discharges in the Anacostia and Potamac rivers in our nation’;s capitol, we have used the law to make communities’ waters safer and cleaner.
Despite the successes, however, today our waterways are in jeopardy as never before since the Clean Water Act was adopted. As many as 60 percent of streams and rivers, and 20 percent of wetlands, might lose Clean Water Act safeguards because of the court rulings and subsequent actions by the Environmental Protection Agency. Polluters argue that the Act no longer protects numerous wetlands, streams, rivers, lakes and other waters that historically were covered.
And the government has been listening to those arguments. Since the 2006 Supreme Court ruling, the EPA stopped enforcing hundreds of alleged violations of the Clean Water Act, downgraded others in priority, and has faced frequent attempts by polluters to escape legal responsibility. An EPA memo last year revealed that the Bush administration failed to pursue 300-plus water pollution cases as a direct response to the 2006 Supreme Court ruling.
The Army Corps of Engineers, meanwhile, is leaving water bodies across the country unprotected. Since 2001, we estimate that over 10,000 wetlands, streams, ponds, rivers, and other waters were polluted or filled and destroyed without federal limits.
Waters at risk from the two decisions are abundant, and the consequences of their pollution, severe. These undefended waterways, according to the EPA, include headwaters, intermittent streams, and ephemeral streams in the watersheds that supply drinking water for more than 110 million Americans.
The Clean Water Restoration Act will restore the traditional scope of protection intended by Congress in the 1970s when the Clean Water Act was assembled. Through it, Americans will again have the safeguards they need to achieve the goal of restoring and maintaining the chemical, physical and biological integrity of the nation’s waters.
In just a few days, Earthjustice will launch a campaign to get public support for the Clean Water Restoration Act. The ability of citizens and of the government to enforce our clean water laws depends on it. I urge you, when the opportunity comes, to immediately contact your congressional representative and tell him or her to support this vital piece of legislation.
Trip Van Noppen served as Earthjustice’s president from 2008 until he retired in 2018. A North Carolina native, Trip said of his experience: “Serving as the steward of Earthjustice for the last decade has been the greatest honor of my life.”