Will Congress Clear The Water?

The U.S. Supreme Court's decision last week on the Clean Water Act is drawing calls for Congress to clarify exactly which waterways are covered by that law.

The high court's ruling could open the door to uncontrolled releases of industrial pollution into some waterways, legal analysts say. These discharges might affect intermittent streams and rivers−those that do not flow year-round−that are common in the arid West, as well as some wetlands and constructed waterways such as drainage ditches.

In its decision, the court provided discordant views on what waterways and wetlands are protected by the Clean Water Act.

An opinion by Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr., argued for narrowing the scope of that statute to exclude "dry channels through which water occasionally or intermittently flows." These four justices also agreed to send two legal cases related to wetlands development back to an appeals court for further consideration. The appeals court had found that development of the wetlands in question was regulated under the Clean Water Act.

Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter signed onto an opinion by Justice John Paul Stephens that argued that Congress has "implicitly approved" the reach of the clean water law as implemented by regulatory agencies for the past 30 years. They backed the appeals court decisions in the two wetlands cases.

In a solo opinion, Justice Anthony M. Kennedy sided with the Scalia-led plurality on sending the two cases back to the appeals court. But Kennedy called Scalia's views on the clean water law's jurisdiction "inconsistent with the act's text, structure, and purpose." Kennedy said the Clean Water Act can reasonably be interpreted to cover the paths of intermittent streams.

The court's mixed message demonstrates that Congress needs to explain exactly what sort of waterways it intended to protect under the Clean Water Act, say environmental activists and some legal analysts. Otherwise, there is likely to be a lot of litigation, they predict. Though the case before the Supreme Court addressed wetlands regulation, the splintered opinions on the Clean Water Act's jurisdiction will also affect regulations on effluent discharge and the cleanup of polluted waterways, they emphasize.

To clear up the situation, Congress needs to "affirm that the Clean Water Act applies everywhere to keep poison out of our drinking water supplies and all other waters of the U.S.," says Joan Mulhern, senior legislative counsel at Earthjustice, a nonprofit legal group that represents environmental organizations in court.

Some federal lawmakers agree that congressional action is needed. One is Sen. James M. Jeffords (I-Vt.), ranking minority member of the Senate Environment & Public Works Committee. He says: "This decision provides a clear signal to Congress: We must legislate to retain the intent of the Clean Water Act and to provide broad protection for our nation's waters."

Bills to clarify the jurisdiction of the Clean Water Act have been pending for more than a year in the House (H.R. 1356) and Senate (S. 912). Chances are slim that Congress this year will take up the legislation, which was introduced by Democrats.