Statement of Bruce Duthu, Trustee of Earthjustice and Professor of Law at Vermont Law School

On Clean Water Act legislation introduction


Joan Mulhern

On behalf of Earthjustice, I applaud Senator Feingold, Representative Oberstar, and Representative Dingell for introducing this important legislation to restore Clean Water Act protections for wetlands, streams and other waterways across the country that have been placed at risk because of the US Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers.

The Clean Water Act is one of this country’s most popular and successful environmental laws. Poll after poll has shown that the public rates clean water as one of their top environmental concerns. While our nation faces many obstacles before we can achieve the Act’s goal of making all waters clean and safe for swimming, fishing, wildlife habitat, drinking water supply and other uses, the history of the Act for the past 30 years has demonstrated steady progress toward this objective.

But in January 2001, a 5 to 4 majority of the US Supreme Court’s upset three decades of common understanding of the scope of the Clean Water Act’s jurisdiction and threatened our continued progress towards safeguarding all of the nation’s waters.

As Justice Stevens stated in his dissent in the SWANCC case: “The [Clean Water] Act proclaimed the ambitious goal of ending water pollution by 1985. The Court’s past interpretations of the [Act] have been fully consistent with that goal. Although Congress’ vision of zero pollution remains unfulfilled, its pursuit has unquestionably retarded the destruction of the aquatic environment. Our Nation’s waters no longer burn. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water.”

While the holding of the case was narrow – limiting the ability of federal agencies to impose protections solely because a water is used as habitat for migratory birds – in its discussion, the majority questioned whether Congress intended the Clean Water Act to provide broad protections for isolated ponds, streams, wetlands and other waters, as has been commonly understood for the last 30 years. This has led many private developers and some federal regulators to argue for a radical reinterpretation of decades of clean water law and to challenge federal protection of certain non-navigable, isolated, waters in the courts.

To date, most lower court judges have limited the SWANCC case to its narrow holding and are continuing to enforce the Clean Water Act. However, in some cases courts have ruled the other way, further underscoring the need for Congress to re-establish the original scope of the law.

For example, on the same day, March 8, two federal courts reviewing similar facts came to contrary conclusions about whether certain wetlands are still protected after SWANCC. In US v. Newdunn Associates, a Virginia federal district judge found no jurisdiction over 38 acres of forested wetlands into which the defendants were discharging pollutants, even though the wetlands were connected to two navigable waters through a series of ditches, drains, and culverts. However, in US v. Lamplight Equestrian Center, an Illinois court found that 8 acres of wetlands were sufficiently connected to navigable water through a drainage ditch that led into a delta area that emptied into a stream that was a tributary of the Fox River, an interstate water.

The SWANCC majority invited this kind of line drawing based on degrees of navigability and proximity, but it has nothing to do with how the hydrologic system works, nor is it not what Congress intended when it adopted the Clean Water Act in 1972. The law, reflecting the ecological reality of water systems, was aimed at reducing pollution and protecting the integrity of all waters, including wetlands, small streams and isolated ponds that are not navigable but are nonetheless vital to the health of the entire natural system.

Again, Justice Steven’s dissent explains this clearly: “[T]he interests served by the statute embrace the protection of ‘significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites’ for various species of aquatic wildlife. . . . For wetlands and ‘isolated’ inland lakes, that interest is equally powerful, regardless of the proximity of the swamp or the water to a navigable stream. Nothing in the text, the stated purposes, or the legislative history of the [Clean Water Act] supports the conclusion that in 1972 Congress contemplated — much less commanded — the odd jurisdictional line that the Court has drawn . . . .”

Earthjustice believes it is sound policy for our environmental laws to be consistent with ecological reality. If they are not, the laws will not achieve the goal of protecting natural resources. A narrowly construed, artificial category like “navigability” has no relation to the Clean Water Act’s goal of reducing water pollution.

Therefore, it is imperative that Congress re-establish the common understanding of the Clean Water Act’s scope – the understanding that the law’s Congressional enactors held when it was adopted in 1972, and as was reflected in regulations, practice, and judicial interpretations for 30 years until the SWANCC decision. This bill, the “Clean Water Act Restoration Act,” will restore the Clean Water Act’s longstanding protection for the nation’s waters.

Earthjustice thanks Representative Dingell, Representative Oberstar, and Senator Feingold for introducing this important legislation. Their leadership on this issue is critical for the future of the nation’s waterways and the health of the people and wildlife that depend on clean water for survival.

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