Congress Must Step In to Uphold Clean Water Act Protections for All Waters, Says NRDC

WASHINGTON (June 19, 2006) -- Five U.S. Supreme Court justices rejected an attempt by the court's conservative wing to dramatically roll back Clean Water Act protections for millions of stream miles and countless acres of wetlands. Four dissenting justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- would have upheld more than 30 years of legal protection for all of the nation's waters. Justice Anthony Kennedy, whose opinion provided the deciding vote in the cases, stated outright that the opinion written by Justice Antonin Scalia "is inconsistent with the [Clean Water] Act's text, structure, and purpose."

The 5-4 decision voided lower court rulings against two Michigan developers who wanted to fill in wetlands -- sending the cases back to the lower courts for reconsideration -- but did not reach a consensus on the scope of Clean Water Act protections for non-navigable waterways and wetlands.

The fallout from the decision likely hinges on Justice Kennedy's opinion, according to the Natural Resources Defense Council (NRDC). Justice Kennedy recognized that wetlands can be protected based on the functions they provide, including "pollutant trapping, flood control and runoff storage." But he also stated that such functions should be determined for now by federal agencies on a case-by-case basis. Such a requirement is impractical because agencies would be bogged down with thousands of determinations every year, said NRDC.

"The court's decision today muddies the water for applying the law and should prompt Congress to reaffirm that the 34-year-old statute protects all of the nation's waters, because all of those waters are connected," Jon Devine, an NRDC senior attorney, said. "That means passing the Clean Water Authority Restoration Act."

In the consolidated cases, Rapanos v. United States and Carabell v. Army Corps of Engineers, Justice Scalia wrote that protection of "waters of the United States" includes only those that are "relatively permanent, standing or continuously flowing" -- oceans, streams, rivers and lakes. Justice Scalia was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Justice Kennedy also voted with Justice Scalia to invalidate the lower court decisions, but he wrote a separate opinion rejecting Justice Scalia's reasoning.

"Justice Scalia's position would leave millions of miles of intermittent and ephemeral streams and millions of acres of wetlands vulnerable to dredging, filling and waste dumping without Clean Water Act protections," Devine said. "That would undermine efforts to control pollution and floods, and threaten wildlife habitat and public drinking water supplies."

State data compiled by the Environmental Protection Agency conservatively estimates that more than half of the nation's river miles are small, intermittent or ephemeral streams. In many Western states, the percentage of streams that run intermittently is much higher. In Colorado, for example, 78,000 of the 108,000 stream miles run dry at some point in the year, according to Colorado state data.

"Ignoring basic eighth grade biology and the court's own prior decisions, Justice Scalia today based his opinion on a selective reading of Webster's Dictionary," said Devine. "Fortunately, a majority of the court did not agree."

Although wetlands and other waters that do not have a direct surface connection to navigable waters are often called "isolated" waters, such a designation is nonsensical from a scientific perspective, Devine said. So-called "isolated" waters, including wetlands, ponds and streams that do not run year-round, are connected to the larger aquatic ecosystem via subsurface or overflow hydrological connections, and are critical for protecting the integrity of waters, habitat and wildlife further downstream.