This morning the Supreme Court will hear arguments in two of the most important Clean Water Act cases in the law's 34-year history. Based on the arguments presented today, the court will rule whether the law protects all the waters of the United States-or only those waters suitable for commercial vessels and the wetlands and streams immediately adjacent to those waters.
An unprecedented array of state attorneys general, former Environmental Protection Agency administrators, members of Congress, environmental advocates and hunting and fishing groups have sided with the Bush administration to support continued protections for our nation's wetlands, streams, tributaries and rivers.
"The nation's worst polluters want free rein to poison our precious streams and rivers," said Earthjustice attorney Howard Fox, who wrote a "friend of the court" brief on behalf of American Rivers, Environmental Defense, National Audubon Society, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, Tip of the Mitt Watershed Council and Waterkeeper Alliance. "If the polluters have their way, it will be legal to dump cyanide and raw sewage upstream of drinking water intakes. That makes no sense."
The petitioners are developers who want to destroy wetlands in Michigan to construct a condominium development (in Carabell v. United States) and a shopping mall (in Rapanos v. United States). They are asking the Supreme Court to overturn two appeals court decisions that are overwhelmingly consistent with existing Clean Water Act case law. If they prevail, nearly 60 percent of the total length of U.S. streams (excluding Alaska), surface waters that provide drinking water for more than 110 million Americans, and more than 20 million acres of wetlands in the lower 48 states could be excluded from Clean Water Act protections.
"The wrongheaded argument before the court today ignores the fact that if we allow polluters to dump sewage, oil and other toxic waste into small wetlands and streams, they ultimately will flow into our lakes, rivers and coastal waters," said Jon Devine, an NRDC senior attorney.
Briefs supporting continued Clean Water Act protections were filed by 34 attorneys general (from 33 states and the District of Columbia), the Pennsylvania Department of Environmental Protection and the International Association of Fish and Wildlife Agencies; four former Environmental Protection Agency administrators; nine members of Congress who helped pass the 1972 Clean Water Act; more than a dozen outdoor recreation organizations and businesses; and more than 30 local and national environmental, conservation and public health organizations (For copies of all the briefs, see www.eswr.com/1105/rapanos.)
"The Clean Water Act has worked for over 30 years because it protects all waters of the United States," said Navis Bermudez, Washington Representative for Sierra Club. "America's clean drinking water sources depend on the clean, healthy surface waters that risk losing protection today."
If the Supreme Court rules that the Clean Water Act protects only those waterways suitable for commercial navigation (and immediately adjacent wetlands and streams), it would be difficult for many states to protect their waters from pollution. Many states defer to the federal regulations provided by the Clean Water Act. Therefore, should industry polluters win a favorable judgment from the Supreme Court, many states would be forced to develop new legislation or even constitutional amendments just to guarantee safe water supplies, swimming and fishing opportunities, and healthy ecosystems.
"Streams and wetlands are the lifeblood of America's waterways," said Christy Leavitt, PIRG Clean Water Advocate. "To clean up treasured waters like the Great Lakes and Chesapeake Bay, these source waters must remain protected by the Clean Water Act."