We mentioned in this issue that the United States Supreme Court might be accused of activism in a number of areas. In two previous decisions involving the Clean Water Act, the conservative majority of the High Court has nearly erased 30 years of Clean Water Act precedent and severely hampered any efforts to regulate waste water disposal.  Historically, the Clean Water Act was all that stood in the way of businesses dumping their pollution into public waterways.  However, according to regulators and the Environmental Protection Agency (EPA), the Supreme Court has left uncertain which waterways are protected by the Clean Water Act in two cases:  Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (2001) and Rapanos v. United States (2006). As such, businesses are now declaring they (and their dumping operations) are excluded from oversight under the Clean Water Act.

The concern over the Supreme Court’s rulings focuses on the language within the Clean Water Act that limited enforcement to “the discharge of pollutants into the navigable waters” of the United States.  For decades, “navigable waters” was broadly interpreted by regulators to include many large wetlands and streams that connected to major rivers.  However, the new decisions from the Supreme Court have suggested waterways that are entirely within one state, creeks that sometimes run dry, and lakes unconnected to larger water systems, may not be “navigable waters” and are therefore not covered by the Act – even though pollution from such waterways can make its way into sources of drinking water.

The immediate effects on the rulings have been devastating to water conservation efforts.  About 117 million Americans get their drinking water from sources fed by waters that are vulnerable to exclusion from the Clean Water Act.  EPA personnel estimate more than 1,500 major pollution investigations have been discontinued or shelved in the last four years, and nearly 45% of major polluters might be either outside regulatory reach or in areas where proving jurisdiction is too difficult.  In dry states, major polluters might be completely excluded from Clean Water oversight.

Even as the number of facilities violating the Clean Water Act has steadily increased, EPA judicial actions against major polluters have fallen by almost half since the Supreme Court’s rulings.  EPA officials and regulators are in agreement that the rulings could have a lasting effect on the environment.  In fact, the EPA is shutting down its Clean Water programs in some states.