May 27, 2007 Editorial
New York Times

Cleaning Up the Clean Water Act

A series of murky Supreme Court decisions have left the agencies responsible for enforcing the Clean Water Act in a state of confused paralysis, exposing millions of acres of wetlands and thousands of miles of streams to illegal and destructive development. Companion bills in the House and Senate would solve this problem by reaffirming the broad protections intended by Congress when it passed the law nearly 35 years ago. These bills deserve prompt passage.

Two factors have caused the confusion — ambiguity in the law itself, and a Supreme Court looking for any excuse to narrow the regulatory reach of the federal government.

There is little doubt that Congress originally intended to extend federal protection to all the waters of the United States, from small streams and wetlands to large rivers. But because the word “navigable” pops up in the act from time to time, developers and other opponents of the law have argued that it should apply only to large, clearly navigable waters or streams immediately adjacent to such waters — thus excluding most of the waters of the United States from federal jurisdiction.

A Supreme Court decision last June left the matter more tangled than ever. One result is that for nearly a year the agency responsible for carrying out the law — the Environmental Protection Agency — has not been able to issue guidance to its field staff, opening the way to the pollution of waters that should have been protected.

The bills before Congress would resolve the issue in favor of the broadest possible protection by removing the word “navigable” from the law and by specifying in detail the waters — large rivers, tiny streams, ponds, lakes and wetlands — to be protected. All of which, of course, makes perfect hydrological and ecological sense. The destruction or pollution of any part of an aquatic system affects the integrity of the whole system.

(Revised May 2007)