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A Close Call for the Clean Water Act

Posted on: Friday, 23 June 2006, 06:00 CDT

The following editorial appeared in the San Jose Mercury News on Thursday, June 22:

The most alarming aspect of Monday's U.S. Supreme Court decision on the Clean Water Act is that four justices were ready to put one of the nation's most successful environmental laws through the paper shredder. As the first environmental case of the Roberts court, it gives us plenty of reason to worry that longstanding protections to our water, air, endangered species and public lands could be in jeopardy.

Only moderate Justice Anthony Kennedy stood in the way of a decision that would have put at risk 150,000 miles of California's protected streams and would have endangered waterways that provide drinking water to one in three Americans.

Kennedy agreed with the four conservative justices that two developers, including one who filled in protected wetlands in Michigan without a permit, were entitled to have their cases reviewed by lower courts. But he strongly rejected an opinion signed by the same four justices that would have created an entirely new, unscientific definition of what is and what is not a protected wetland.

Congress must now clarify Kennedy's ruling by passing the Clean Water Authority Restoration Act, which has been introduced in both houses and enjoys bipartisan support. The bill would make clear that the protections of the Clean Water Act are meant to be broad, just as Congress intended when it passed the landmark law in 1972, and just as the law has been interpreted by federal agencies under Republican and Democratic administrations alike.

The Clean Water Act protects from pollution the ``waters of the United States.'' That includes rivers and lakes, as well as wetlands that are adjacent to them. The Michigan developers argued that the wetlands on their property were excluded because they were connected to major rivers not directly, but rather through a drainage system and intermediate tributaries.

It doesn't take a hydrologist to understand that a pollutant dumped into those wetlands will flow into the tributaries and eventually into the river. And to believe the law excludes those wetlands is to believe polluting major rivers and lakes is perfectly OK _ you just have to do it from a distance.

Congress passed the Clean Water Act after the heavily polluted Cuyahoga River near Cleveland caught fire. At the time it passed, between 60 percent and 70 percent of the nation's lakes, rivers and coastal waters were deemed to be unsafe for fishing and swimming. Thirty years later, only 39 percent of rivers, 45 percent of lakes and 51 percent of estuaries remained unsafe, according to the Environmental Protection Agency.

That represents a significant improvement in the quality of life of millions of Americans. The cleanup of America's waters, however, remains a work in progress that must be allowed to continue. A return to wholesale pollution of rivers and streams is in no one's interest.

___

(c) 2006, San Jose Mercury News (San Jose, Calif.).

Visit Mercury Center, the World Wide Web site of the Mercury News, at http://www.bayarea.com/mld/mercurynews

Distributed by Knight Ridder/Tribune Information Services.

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Source: San Jose Mercury News

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