This is the first of a two-part series.
In our age of instant gratification, we forget the importance of clean water. We turn the tap and the water flows. We know it will be there and it won’t make us sick. It’s a good life we live in the developed world.
But we can’t lose sight of clean water’s significance.
Our government seems to take it for granted, allowing complacency and political gamesmanship to dilute the most important water-protection legislation in our nation’s history.
This year marks the 40th anniversary of the Clean Water Act, but unless the Obama administration and congressional leaders push for substantive change in how the federal government administers and interprets the act, our nation stands to lose considerable access to clean water and its myriad benefits, from our own health to the health of fish and wildlife populations.
Since its passage in 1972, the Clean Water Act has used various rules to protect waterways and safeguard the nation’s water supply. For the past decade, however, the scope of the Clean Water Act and the federal government’s reach in enforcing it have come into question as the result of a pair of ambiguous U.S. Supreme Court decisions. Not to be outdone by the judiciary, the legislative and executive branches, through a toxic combination of ill-advised action and paralyzing inaction, have exacerbated the uncertainty surrounding the act.
The result is that 2 million miles of streams and 20 million acres of wetlands are at risk of losing the protections that have cleaned up the nation’s waterways for the past four decades.
The consequences could be disastrous – less clean water to drink, less flood control, less fish and wildlife habitat.
For the first three decades of the Clean Water Act, virtually all of the country’s natural waterways and wetlands were protected. That changed in 2001 with the Supreme Court’s decision in Solid Waste Agencies of Northern Cook County vs. U.S. Army Corps of Engineers, which has come to be known as the SWANCC ruling.
Prior to the court’s SWANCC decision, the Corps of Engineers and Environmental Protection Agency, as the federal agencies that implement Clean Water Act provisions, took a broad interpretation of the act’s protections for “waters of the United States” based on the U.S. Constitution’s commerce clause (Article 1, Section 8). If the water had any possible connection to interstate commerce, it fell within the scope of the Clean Water Act.
Beginning in 1986, the Corps’ regulations stated that “waters of the United States” included, among other things, intrastate waters used by birds protected by migratory bird treaties. Based on what was known as the “Migratory Bird Rule,” the Corps denied a permit to SWANCC to build a landfill on property that contained seasonal and permanent ponds used by more than 100 bird species. Although trial and appellate courts sided with the Corps, the Supreme Court invalidated the Migratory Bird Rule and said the Corps had exceeded its jurisdiction by interpreting the Clean Water Act’s reach to include isolated, inland, non-navigable waters.
With one bang of the chief justice’s gavel, bodies of water that had been protected by the Clean Water Act for nearly 30 years suddenly were unprotected.
The George W. Bush administration made matters worse in 2003, launching a full frontal assault on the Clean Water Act and its ability to preserve and protect our nation’s water. In a major departure from every administration’s policies since 1972, the Bush administration attempted to gut the Clean Water Act through guidelines published in the Federal Register, directing field staff of the EPA and Corps of Engineers to stop protecting millions of acres of wetlands, streams and other waters.
The Bush administration also announced it would take steps to codify the guidelines through federal rulemaking procedures, but it eventually backed off in response to overwhelming public opposition to the proposed rules.