New Report: Across America, Waters in Crisis

How the Supreme Court has broken the Clean Water Act and why Congress must fix it


Raviya Ismail, Earthjustice, (202) 667-4500, ext. 237

For decades, the Clean Water Act has broadly protected America’s lakes, rivers, streams, and drinking water sources from unregulated pollution and destruction, rescuing them from the dire straits they were in during the late 1960s and early 1970s. But because of a concerted effort by polluters and developers, and muddied rulings from the U.S. Supreme Court, up to 60 percent (at least 15,000 important waters) have lost these vital protections and countless other waters (including more than 50 percent of our streams and 20 million acres of wetlands) are at risk of losing protections.

Today, Clean Water Action, Earthjustice, Environment America, National Wildlife Federation, Natural Resources Defense Council, Sierra Club and Southern Environmental Law Center are releasing a new report entitled “Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress Must Fix It,” which details the threats to America’s waters and highlights the urgent need for Congress to act immediately and restore full Clean Water Act protections to our waters.

Supreme Court decisions in 2001 and 2006, and subsequent agency policies by the U.S. Environmental Protection Agency and the Army Corps of Engineers put in place in 2003 and 2007, shattered the fundamental framework of the Clean Water Act. Today, many important waters — large and small — are being stripped of critical protections against pollution and destruction. These waters not only serve as valuable wildlife habitat, store flood water, return water to aquifers, and filter pollutants, but they also provide some or all of the supply for drinking water systems serving roughly 111 million Americans. The floodgates are now open for polluters to use the chaotic legal state to thwart enforcement and clean up efforts, and actively pollute the waters where we fish, swim, boat, and drink.

“Courting Disaster” details more than 30 cases which demonstrate that without immediate action in Congress, a generation of progress in cleaning up our nation’s waters may be lost. We cannot afford to return to the days of dirty water. These telling examples include numerous instances where:

  • an administrative agency (EPA or Corps) limited legal protection for a given water body, ruling that it is no longer protected by the Clean Water Act;
  • a court made a determination undercutting Clean Water Act protections for a water body;
  • as a defense in an enforcement action, an alleged polluter raised the issue of whether the water they discharged into is a protected water;
  • the Corps of Engineers originally determined a water not be protected, forcing EPA to step in to overrule the Corps and protect the water body; and
  • a discharger with a permit argued it could pollute waters without federal safeguards in the future.

“These examples from across America make clear the urgent need for Congress to pass the Clean Water Restoration Act — every day that passes puts at risk America’s streams, wetlands, and our sources of clean water,” said Jim Murphy, wetlands & water resources counsel, National Wildlife Federation. “Robust wetlands, rivers, and streams are essential to help people and wildlife survive the impacts of global warming that include more intense storms, droughts and habitat loss.”

“Since 2003, drinking water sources for 111 million Americans have been put at risk because of policies that give free reign to polluters,” said Paul Schwartz, national policy coordinator, Clean Water Action. “This report shows that action by Congress is overdue.”

“The Clean Water Act was created to broadly protect our nation’s waters, including the many streams, ponds, and wetlands that provide recreation, fishing, wildlife habitat, and our drinking water,” said Dalal Aboulhosn, clean water representative, Sierra Club. “Congress needs to step up now and reaffirm the Clean Water Act as it was originally intended before more of our waters are lost.”

“The Clean Water Act is broken,” said Joan Mulhern, senior legislative counsel, Earthjustice. “Every week that goes that Congress does not pass legislation to fix it, dozens of streams and wetlands — like those in this report — are lost to pollution and destruction. President Obama said during the campaign that he supports this legislation. There is no reason to wait any longer to address this dire problem.”

The cases in “Courting Disaster” provide telling examples of how critical it is for Congress to reverse the damage done from the Supreme Court’s decisions by restoring longstanding Clean Water Act protections. The Clean Water Restoration Act would accomplish this. This Act was introduced in the Senate two weeks ago. A similar bill should soon be introduced in the House.

Read the report (pdf)

Additional Resources

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