On June 22, 1969, a 30-minute fire on the surface of Cuyahoga River caused over $50,000 dollars of damage in Cleveland Ohio. Truthfully, this is just one of a dozen times rampant pollution in this watershed led to fires. However, the booming economy from manufacturing along the river banks led city and state officials to ignore the issue. At that time, protection of our nation’s waters fell solely to the states, as outlined in the Water Quality Act of 1965. While the Cuyahoga river fire of ‘69 was a small drop in a dirty river, it was one of many tragedies that awoke the modern environmental movement which led to the formation of the Environmental Protection Agency (EPA) in January of 1970 as well as the drafting of the Clean Water Act (CWA) shortly after.
The Clean Water Act was enacted on October 22nd, 1972. It founded the National Pollutant Discharge Elimination System (NPDES) permit program, which prohibited point-source pollution into United States waterways without a permit. Within this permitting process, it also developed national water quality criteria recommendations for pollutants in surface waters. These Total Maximum Daily Loads (TMDLs) are a hallmark of water quality activists, like Anacostia Riverkeeper, who fight to ensure that these levels are kept low, and that they are being enforced.
In order for the Federal Government to oversee environmental issues, it must find a basis for such protections from the constitution. The constitution lists powers given to various branches of the federal government, and if a power is not listed (either implicitly or indirectly) those powers are retained by the states and local authorities.
While the word “environment” does not appear in the constitution a single time, various clauses of the constitution have been used to extend federal powers to environmental issues. Like many environmental laws, the Clean Water Act’s power comes in the form of the Commerce Clause. The Commerce Clause (Article I, Section 8) grants Congress the power to regulate intra- and inter-state commerce. Using this clause, the EPA is able to regulate navigable waters within the United States- protecting these waters from pollutants that might harm its economic interests. This is a broad and sweeping term that gives EPA wide-reaching powers to evolve with science as we discover ever more vast pollution threats facing our nation’s waters.
The legal controversy surrounding the Clean Water Act hinges upon a single word: navigable. The United States Code 33 CFR 329.4 defines navigable waters as “those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate”. However, it is acknowledged that this definition is vague and up to interpretation. Does navigable mean it must be large enough for a modern cargo ship? Or is a more historical interpretation accurate; a canoe traveling between towns?
Historically, the Clean Water Act has interpreted the term liberally, as point-pollution of contaminants into a small wetland beside a large waterway is ecologically similar to dumping the contaminants into the river itself. However, this definition has been brought before the courts several times since the passage of the Clean Water Act. In the 2006 case Rapanos et al. v. United States, the Supreme Court found that the EPA could rule against the filling of drainage ditches in Michigan, as these ditches have “significant nexus” to navigable waters that were under EPA rule. In Army Corps of Engineers v. Hawkes Co, the 2016 ruling held up this significant nexus precedent in halting the creation of a peat mine in Minnesota, which was 120 miles away from the closest navigable water. Similarly, Catskill Mountains Chapter of Trout Unlimited v. U.S. EPA in 2017 found that EPA should protect against sediments and pollution sourced from wetlands in the Catskill Mountains north of New York City, as these wetlands eventually transfer into waterways that feed into the city’s drinking water reservoirs, and therefore were protected under the Clean Water Act.
On May 25th, 2023 the Supreme court ruled on Sackett v EPA, and reversed the legal precedent reached in Rapanos by siding with Michael and Chantell Sackett. The Sacketts were filling wetlands on their property in Idaho in order to make room to construct a new home but the project was halted by the EPA, as the wetlands filled were protected under the Clean Water Act as these waters were adjacent to the navigable waters of Priest Lake- the “significant nexus” as described in Rapanos, separated by only a man-made berm. In his majority opinion, Justice Samuel Alito stated that the significant nexus precedent was “inconsistent” with the meaning of the law as it was written, and that the Clean Water Act’s protection extends only to “wetlands with a continuous surface connection” to navigable waters in the United States. This decision limits EPA’s ability to protect wetlands essential to watershed ecosystem health that are not directly connected or adjacent to navigable waters, regardless of non-continuous (including seasonal) or non-surface (including groundwater) connections. In a concurring opinion, Justice Brett Kavanaugh warned the courts that removing these protections would have “significant repercussions for water quality and flood control” if other protections aren’t enacted, specifically citing how destruction of the Chesapeake’s wetlands would lead to irreversible damage to the bay.
EPA administrator Micheal S. Regan stated that they will continue to fight for “all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water”. While this decision limited how the Clean Water Act can be used to protect wetlands even when adjacent and likely connected ecologically to navigable waters, new laws or fiscal protections can be passed that could resume protection for wetlands that do not fall under this new, narrow reading of the Clean Water Act. Water lovers can start taking action to advocate for stronger wetland laws by writing to their local representatives to advocate for tightening state and county wetland protections to fill these gaps. States have the ability to enact their own wetland protections, such as 21 DCMR § 2602, which strengthened DC’s protections of its wetlands in the face of losing their protection under the 2020 “Waters of the US” rule. Finally, to best advocate for water in the Anacostia and beyond, follow Anacostia Riverkeeper and join in on our cleanup and monitoring efforts in your local watershed!
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