Will Congress Clear The Water?

The U.S. Supreme Court's June 19 decision in a case centered 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 industrial discharges of pollution in some waterways, legal analysts say. Such 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 ruling, the high court provided fractured views on what waterways and wetlands are protected by the Clean Water Act.

The 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 the act and for sending two cases related to wetlands development back to an appeals court. 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 separate 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 "inconsistent with the act's text, structure, and purpose."

The court's mixed message demonstrates that Congress needs to explain exactly what sort of waterways it intends 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 scope 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."