Washington, D.C. —

Continued federal anti-pollution safeguards for the majority of the nation’s streams, rivers, ponds and wetlands are now at issue in two Clean Water Act cases before the U.S.  Supreme Court. The court will hear the oral arguments in these cases, Rapanos v. United States and United States v. Carabell, on February 21st.

While the petitioners in these two cases may publicly mischaracterize what is at stake as being “only” about filling certain wetlands with dirt, in fact they (and the industry groups supporting them) are asking the court to invalidate Clean Water Act jurisdiction over all waters other than “traditional navigable waters” and streams or wetlands directly touching or abutting those waterbodies.  Stripping away long-standing Clean Water Act protection for these tributaries, streams, ponds, smaller rivers, canals and wetlands would open the way for unregulated water pollution on a massive scale, affecting not only these resources but also threatening the health and safety of larger rivers, lakes, and coastal waters downstream due to increased flows of toxic waste, sewage, nutrients, sediment and floodwater.

Earthjustice urges you to consider reading about these cases and the full implications for the future of protections against pollution for all of the nation’s waters under the Clean Water Act. 

The Clean Water Act and the Court: What’s At Stake?

In what are undoubtedly the most significant Clean Water Act cases to come before the U.S. Supreme Court since the law was enacted over 33 years ago, the petitioners, John Rapanos and June Carabell, are challenging federal jurisdiction over wetlands on their properties that they wanted to fill and destroy for a shopping mall and condominium complex, respectively.  In both cases, the lower courts said the Clean Water Act protected these waters from unregulated pollution and destruction.  On appeal to the Supreme Court, Rapanos is arguing that the Act does not – and Congress constitutionally cannot – protect any waters other than those capable of supporting commercial shipping (“traditional navigable waters”) and streams or wetlands directly touching or abutting such waters.   

If adopted by the Court, such a radical and sweeping reinterpretation of the historic understanding of the Clean Water Act’s scope – and, indeed, even federal water laws that predate that Act – would directly contravene the letter and purpose of the Act, overturn recent Supreme Court precedent, and undo decades of progress in cleaning up and preserving the nation’s waters.  This ridiculously narrow interpretation of the law would exempt all but a small percentage of U.S. waterways from federal protection.  In addition, because the key definitional phrase “waters of the U.S.” applies to the entire Clean Water Act, all of the law’s restrictions on water pollution discharges would be affected, not “only” the dredge and fill (section 404) program.

Underscoring what is at risk, the U.S. Environmental Protection Agency issued a letter on January 9th showing that almost 60 percent of all streams in the country could lose federal protections, if, as polluters are asking, the Supreme Court cuts “non-navigable” tributaries and wetlands out of the Clean Water Act.  This includes waters that are the source of public drinking water supplies to 110 million people in the United States.[1]

In a “friend of the Court” brief submitted by a bipartisan group of nine Members of Congress who participated in the passage of the Clean Water Act, these lawmakers explained that:

Congress intended to embrace the broadest possible definition of “navigable waters” when it defined that term as “waters of the United States.” In particular, Congress intended that term to embrace both tributaries as well as wetlands that are adjacent to traditionally navigable waterways and wetlands that are adjacent to any tributaries connected to those waterways.[2]

As further explained in another brief submitted by a bipartisan group of four former U.S. EPA Administrators: 

These cases are about much more than two isolated disputes over the U.S. Army Corps of Engineers’ (“Corps”) wetlands jurisdiction. Petitioners’ arguments to exclude non-navigable waters and their adjacent wetlands from federal regulation strike at the very heart of the nation’s water pollution control programs.[3]

Who Is Defending the Clean Water Act Before the Court?

While often at odds with environmental and conservation groups, the Bush administration is vigorously defending the scope of the Clean Water Act against these industry challenges.

In addition, weighing in on the side of the Clean Water Act are the Attorneys General of 33 states and the District of Columbia, the national associations of state wetlands managers, state floodplain managers, state and interstate water pollution control administrators, and the international association of fish and wildlife agencies, plus the City of New York and the Environmental Law Institute.  Fourteen prominent hunting, fishing, wildlife and outdoor recreation organizations and businesses also submitted a brief to the Court, along with the Western Organization of Resource Councils and 19 other organizations representing, among others, many farmers and ranchers whose economic well-being depends upon the streams, wetlands, playa lakes, and other waters that comprise most of the aquatic resources of the West.  Earthjustice submitted a brief representing the interests of eight environmental and public health groups and their millions of members across the country.

[1]  See www.earthjustice.org/backgrounder/documents/CWA/epa_letter_1-9-06.pdf

[2]  See http://www.earthjustice.org/library/legal_docs/congressional-members-friend-of-the-court-brief-in-clean-water-act-case-before-us-supreme-court.pdf

[3]  See http://www.earthjustice.org/library/legal_docs/former-epa-administrators-brief-in-us-supreme-court-clean-water-act-case.pdf