A Clear, Clean Water Act

Clean water policy is in a terrible muddle, and the country has the Supreme Court to thank for it.

The 1972 Clean Water Act was written to protect all the waters and wetlands of the United States. Two unfortunate Supreme Court decisions narrowed its scope, weakened its safeguards and thoroughly confused the federal agencies responsible for enforcing it. As a result, thousands of miles of streams and millions of acres of wetlands have been exposed to development.

The remedy lies in a Senate bill called the Clean Water Restoration Act, which would reassert the broad reach of the 1972 law. Similar legislation has been languishing for years, and if this version has any hope, it will need a strong push from the White House.

The good news is that Lisa Jackson, President Obama’s new head of the Environmental Protection Agency, cares about clean water issues and isn’t afraid of a fight. She has already moved to restrict pollution from coal mining operations in Appalachia and is promising to crack down on polluted runoff from animal feedlots.

Without endorsing any particular bill, Ms. Jackson agreed last week that the system that has long protected America’s waterways from unregulated development and pollution is paralyzed — and will remain paralyzed unless Congress fixes it. An internal E.P.A. report furnished to Congress last year revealed that the agency had dropped or delayed more than 400 cases involving suspected violations of the law — nearly half the agency’s entire docket. The reason in every instance was that regulators did not know whether the streams and wetlands in question were covered by the law.

Until the two Supreme Court rulings, the Clean Water Act had been broadly interpreted by courts and by federal regulators to shield all the waters of the United States — seasonal streams and remote wetlands as well as large navigable rivers and lakes — from pollution and unregulated development. The assumption was that even the smallest waters have some hydrological connection to larger watersheds and therefore deserve protection. The Supreme Court, however, exploiting ambiguities in the law, effectively decreed that only navigable, permanent water bodies deserve protection.

As a result, at least 20 million acres of wetlands and as much as 60 percent of the nation’s small streams have been left unprotected, while effectively shutting down enforcement actions against developers who have been disturbing or plan to disturb these waters without a permit.

The Clean Water Restoration Act would establish, once and for all, that federal protections apply to all waters, as Congress intended in 1972. Now a new Congress and a new White House must ensure that it becomes law.

This editorial appeared in the New York Times on April 17, 2009.