In 1965, President Lyndon Johnson told a room full of governors and government officials that he found the dirty river flowing a mile from the Capitol building “disgraceful.” Now the Potomac River runs much cleaner, thanks to the Clean Water Act of 1972—an adjective Johnson used as an apt description today for the failures of the Supreme Court and Congress to protect the nation’s waterways.
After a half century of painstaking restoration under the Clean Water Act, streams and wetlands across the country are once again at risk of being polluted and utterly destroyed as a result of a Supreme Court decision Thursday.
The Environmental Protection Agency has long interpreted the Clean Water Act as protecting most of the country’s wetlands from pollution. But the court has now significantly limited the scope of the law, concluding that it prevents the agency from regulating pollution discharges into wetlands unless they have “continuous surface contact” with bodies of water that, using “ordinary language,” the court has described as streams, oceans, rivers, and lakes.
At least half of the country’s wetlands could lose protection under the ruling, which provides a narrower definition of “protected water” than the Trump administration sought.
Justice Brett Kavanaugh, who gave a concurring opinion in the ruling, acknowledged its impact, writing that it would have “significant ramifications for water quality and flood control throughout the United States.”
It is the latest sign that many Washington decision-makers have lost touch with the increasingly fragile state of the natural systems that provide drinking water, protection from floods and critical habitat for people and wildlife in every state. In March, the Senate joined the House of Representatives in trying to roll back clean water regulations put in place by the Biden administration, even though they were less comprehensive than the Clean Water Act protections before President Donald Trump weakened them. (President Biden has vetoed that measure.) Congress also long failed to clarify wording in the Clean Water Act that caused confusion among justices and brought the law before the Supreme Court.
Now it’s up to Congress to defend the vision of the Clean Water Act, which was penned by Sen. Howard Baker, a Tennessee Republican, in 1972 in a debate on the Senate floor.
“As I have spoken with thousands of Tennesseans,” he said, “I have found that the kind of natural environment we bequeath to our children and grandchildren is of paramount importance.” “If we cannot swim in our lakes and rivers, if we cannot breathe the air God has given us, what other comforts can life offer us?”
We still haven’t made this vision a reality. Although the nation has come a long way — rivers were already on fire before the Clean Water Act because they were so polluting — nearly 50 percent of the nation’s rivers, streams, and lakes are still considered “broken,” according to reports submitted to the state. EPA audited last year by the Environmental Integrity Project.
This is not the time to hold back. Will Congress step up and undo the damage done by the Court by revising the law to achieve its stated goal of “restoring and preserving the chemical, physical, and biological integrity of the nation’s waters”? Will you take a proactive look at laws facing legal challenges to address potential issues? Or will lawmakers continue to allow what Justice Elena Kagan has called “the court’s self-appointment as the national decision-maker on environmental policy”?
The protections that the court takes away are vital. It’s a simple science. Water flows downhill, and you cannot protect the major rivers, lakes, and streams unless you also protect the headwaters that feed them. These sources are often wetlands and small streams. We must protect the whole system to protect downstream communities and the environment.
Unlike some choirs boisterous by polluting interests, activities such as farming were not harmed or unduly restricted by powerful protections. Long-term exemptions were established for routine farming and ranching activities such as plowing, harvesting, and maintenance of ditches, ponds, and farm roads. Both the law and the applicable rules exempt pollution from agricultural runoff as well as from storage ponds and irrigated wetlands.
By contrast, a weak Clean Water Act is a threat to agriculture and other commercial interests. Agriculture depends on a stable, non-toxic water supply and isolation from flood threats. Stripping basic protections from irrigation supplies and opening up critical flood-absorbing wetlands to development harms farmers.
Moreover, with the twin threats of increasing weather variability and rapid development, the nation is already knee-deep in an era of increasing drought and severe floods, exacerbated by the loss of wetlands.
An acre of wetland can store up to 1.5 million gallons of floodwater, reducing flooding downstream and creating resilience to drought. Hurricane Harvey in 2017 was supposed to be a warning to Washington about the critical role wetlands will play as our cities grow and the climate warms. It wasn’t just hurricane winds and storm surge that brought destruction to Greater Houston. With grass and concrete replaced by wetlands, record rains had nowhere to go except inside homes and businesses. It caused one of the most costly disasters in US history.
Americans continue to show overwhelming support for strong protections for clean water. A national poll last year found that more than four out of five adults want the Environmental Protection Agency to continue taking the lead in protecting clean water.
The Supreme Court’s decision last week was not the first time it has reinstated the government’s power to protect the environment. Last summer, the court limited the EPA’s power under the Clean Air Act, another landmark law, to regulate carbon emissions from power plants.
Congress needs to listen to the American people and to science. Lawmakers should remember what Johnson saw that day as he stared down a rotten Potomac. They need to prevent the Supreme Court’s retraction of environmentalism from calling it what it is: disgraceful.
Jim Murphy is the Director of Legal Advocacy for the National Wildlife Federation. He has worked on Clean Water Act cases for more than two decades and has represented environmental organizations before the US Supreme Court and federal circuit courts.
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