June 20, 2006
FOR IMMEDIATE RELEASE
Contact: Melinda Kassen, 303-579-5453
Steve Moyer, 703-284-9406
Supreme Court Delivers a Muddy Decision on Clean Water Act Jurisdiction
Arlington, Va. – Yesterday the U.S. Supreme Court rendered a confusing decision that may expose thousands of miles of streams to harmful activities. The Court reversed a lower court ruling that was supported by most states, conservationists and the Bush Administration.
“The Supreme Court did not change the law, did not provide any clear guidance and did not resolve any issues,” said Melinda Kassen, Director of Trout Unlimited’s (TU) Western Water Project. “The only certainty is that this will be back to the Court unless Congress acts.”
The Supreme Court considered the level of protection afforded to streams and wetlands under the Clean Water Act. The Court addressed two Michigan cases, Carabell v. United States and United States v. Rapanos, both of which involved developers wanting to fill in wetlands adjacent to small tributaries that flow into larger water bodies.
Four justices issued a plurality opinion that would significantly narrow the scope of the Clean Water Act to protect only permanently flowing lakes, rivers and streams, and wetlands with continual surface flows. Four other Justices dissented and voted to uphold the Appeals Court decision, which was based on a broad, protective regulation that the federal government has used for 30 years.
Justice Kennedy wrote separately. He disagreed with most of the plurality’s key points, but still voted to return the case to the lower court. Kennedy argued that the Clean Water Act protects all wetlands and smaller streams with a “significant nexus” to larger, navigable rivers. Justice Kennedy voted to return the case to the Court of Appeals to consider whether a “significant nexus” existed. Thus, a 5 Justice majority voted to send the case back, and that will now happen.
“The very goals of the Clean Water Act, to maintain and restore the chemical, physical and biological integrity of the Nation’s waters, require broad protection under the law for the nations streams, rivers, lakes and wetlands,” said Kassen. “The plurality decision indicates a fundamental misunderstanding of the importance of small streams and wetlands, especially in the drier parts of the country.”
The plurality interpretation, if adopted by federal agencies and lower courts, could result in an alarming degradation of water quality and fish habitat. In Colorado, for example, only 28,000 of the state’s 107,000 miles of streams are perennial, meaning that the vast majority don’t contain water all year around and could be dropped from Clean Water Act protection.
Steve Moyer, the Vice President of Government Affairs for TU, urged Congress to “step into the breach and pass an amendment to the Clean Water Act that resolves this issue to provide the broadest possible coverage and protection for the nation’s waters.”