When Congress passed the Clean Water Act in 1972, lawmakers clearly hoped to clean up polluted rivers and lakes, not promote the travel of boats.
Yet two Supreme Court rulings this decade, and the ensuing interpretations of those rulings by the Bush administration, have sabotaged the law’s intent.
Presently, Congress is considering the so-called “Clean Water Restoration Act” to repair the damage done over the last decade, and we wish them godspeed.
After the high court’s rulings in 2001 and 2006, the Clean Water Act has been narrowed to protect only “navigable waters,” leaving wetlands, isolated waters such as ponds and other habitat for waterfowl, and the intermittent creeks and streams that run throughout Colorado’s mountains without federal oversight and protection.
Another result of the court’s decisions (in Solid Waste Agency of Northern Cook County vs. United States Army Corps of Engineers and Rapanos vs. United States) has been great confusion about regulation and protections of the country’s waters.
More than 76,000 miles of Colorado streams, or 73 percent of the state’s waterways, are at risk due to the new, looser regulatory climate, according to The Post’s Mark Jaffe. Nationwide, 2 million miles of waterways and 20 million acres of wetlands could be affected.
The 1972 act sought to “protect and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Responding to a lawsuit, the Supreme Court in 2001 found that some intrastate ponds weren’t protected because the CWA refers to “navigable waters.” In 2006, the court curtailed protections of wetlands by saying regulations must apply to “relatively permanent waters” that connect to navigable waterways.
Those definitions miss the point. Wetlands are critical to the health of our waters and wildlife. Besides assisting with flood storage and recharging groundwater, wetlands serve as habitat for waterfowl. Intermittent streams provide drinking water and irrigation.
The Clean Water Restoration Act merely seeks to restore the original act back to its long-understood role in protecting our nation’s waters.
It would override the high court rulings, remove the confusing “navigable waters” language and define “waters of the United States” as “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes and natural ponds, all tributaries of any of the above waters, and all impoundments of the foregoing.”
Opponents of the restoration act say that it would create a new federal power that would hurt farmers and developers. Supporters say their desire is simply to return to the pre-2001 days of the CWA’s definition.
Congress is well within its right to seek to clarify the intent of the CWA, and to the extent it honors that intent, we think the change is reasonable.
The original Clean Water Act appreciably reduced pollutions from our waters yet never stopped progress. It has served us well, and it should be allowed continue to do so.
