Safeguarding the Nation's Waters

By Preston T. Robertson,

FWF Vice President for Conservation & General Counsel

Originally printed in the Tamba Bay Tribune (tbo.com), September 6, 2007

Water flows downhill.

From that basic law of gravity, it follows that anything dumped into a water source, including pollutants, will eventually wend its way downstream through the interconnectedness of Florida's wetlands, tributaries, streams, rivers, ponds and aquifers.

For this reason, Congress passed the 1972 Clean Water Act to set a national standard protecting all the nation's waters. For more than three decades, the agencies charged with enforcing those safeguards have viewed the aquatic system as a whole, realizing that the capillaries connect to the bloodstream.

The wisdom of this holistic approach was dramatically shown in a Tampa area legal case in the 1990s. A company that was supposed to be safely processing dangerous oil waste was found to be dumping the waste so that it eventually flowed into Tampa Bay. The polluter tried to get off the hook by arguing such actions were not prohibited by the Clean Water Act. Thankfully, the judge found the act's meaning clear: Unless you protect what flows into the bay, you can't protect the bay. The polluter was held accountable and the bay was protected from further harm.

Recently, due to two confusing Supreme Court decisions, the extent of the act's jurisdiction is no longer so certain.

In one contentious case with no majority outcome, the muddled result is that, for the present at least, questions of Clean Water Act jurisdiction over many wetlands will likely have to be thrashed out on a case-by-case basis. This decision also places federal protection of many headwater streams in doubt. Another split decision also muddied the waters over Clean Water Act protection for so-called isolated wetlands and streams. The result of these decisions is certain: more litigation and less environmental protection.

It is also likely that the chief federal enforcement agencies, the Environmental Protection Agency and the Army Corps of Engineers, will attempt to write new wetlands and stream jurisdiction rules based on interpreting the tea leaves contained in the opinions. Recent guidance issued by these agencies indicates that such an effort would sever safeguards for vital waters.

The threat to Florida is alarming. Florida has more wetlands than any state in the lower 48. Historically, Florida has also lost more wetlands, about 9.3 million acres, than any other state in the nation. Even so, these losses have slowed dramatically due to the Clean Water Act protections over the last 35 years. Additionally, the Environmental Protection Agency estimates that approximately one million Floridians get their drinking water from areas that contain streams at risk of losing federal pollution protection.

The risk is dire, but the solution is obvious.

Many of Congress' staunchest defenders of environmental protection, both Republican and Democrat, including Hillsborough Rep. Kathy Castor, have introduced legislation confirming that Congress meant what it said in 1972: The Clean Water Act applies to all the nation's waters and not just some. The protections are a national standard, not a patchwork. This bipartisan bill, the Clean Water Restoration Act of 2007, known as H.R. 2421, deserves the support of all of Florida's representatives.

Passage of this legislation to end the confusion caused by the Supreme Court is the most decisive tool available. There is no good reason why this cannot be done before Congress adjourns.

Please contact your US Representative and voice support for HR2421.