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Water Sentinels:
Clean Water Policy Issues

For decades, the Clean Water Act protected the nation's surface water bodies from unregulated pollution and rescued them from the crisis status they were in during the late 1960s and early 1970s. Now these vital protections are being lost.

Today, many water bodies are being denied the Act's protections against pollution. Polluters argue that Supreme Court decisions from 2001 and 2006 mean that the law's safeguards apply only to "navigable" water bodies (or for waters that are significantly linked to such water bodies). They claim the Act no longer protects numerous wetlands, streams, rivers, lakes, and other waters that historically had been covered. Ambiguous federal agency policy directives have helped these attacks. Only congressional action can completely restore the long-standing protections originally intended by the Clean Water Act.

What did the Supreme Court decide?

In 2001, in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, the Court rejected the government's interpretation that the Clean Water Act covered an "isolated" Illinois water body. The Corps had argued that waters serving as migratory bird habitat could be protected under the law, but the Court held that Congress did not clearly express to safeguard such water bodies.

In 2006, the Supreme Court decided Rapanos v. U.S., a case in which a variety of industry groups argued that the law does not fully protect non-navigable tributaries and their adjacent wetlands. The result was a messy split decision; its various opinions suggested different tests and have led to significant debate about what the law now requires. Justice Kennedy, who provided the swing vote, would require the agencies to show a physical, biological, or chemical linkage -- a "significant nexus" -- between a water body and a traditionally navigable one to protect it.

Four other justices took the radical view that the law protects "only those relatively permanent, standing or continuously flowing bodies of water" and only those wetlands with a "continuous surface connection" to protected waters. These five justices only agreed on one point: that the case should be sent back to the lower courts. They did not hold that the existing rules were invalid.

The Supreme Court's recent opinions on the scope of the Clean Water Act did not limit Congress's authority over any kind of water bodies, meaning that Congress can reestablish that the Act protects a wide range of aquatic resources in order to maintain water quality.

Have the Army Corps and the EPA fully protected water bodies consistent with the Court's decisions?

No. After both SWANCC and Rapanos, the Bush administration issued policy directives that, if followed, would curtail Clean Water Act protections more than the Court required.

In January 2003, the Environmental Protection Agency and the Army Corps of Engineers directed their field staff to stop applying Clean Water Act protections to virtually all so-called "isolated" waters without prior permission from agency headquarters in Washington, D.C. This policy directive far exceeded the scope of the SWANCC ruling, effectively denying protection to many waters that still warranted it under existing regulations.

The agencies received highly critical comments on this policy and a related rulemaking effort from a large majority of state agencies, as well as from water and wildlife experts, sportsmen and women, floodplain managers, public health officials, conservation organizations and several EPA regional offices. In 2006, the House of Representatives -- in a strong, bipartisan fashion -- voted to halt this misguided policy. Yet the policy is in place today.

In June 2007, the agencies issued "guidance" for their field staff on the Rapanos case. The "guidance" erroneously indicated that tributary streams which do not flow all year will not be uniformly protected, even though tributaries to various protected water bodies have long been covered by the law, and even though the Supreme Court's decision did not require such a result. Moreover, the "guidance" read the Court's ruling too broadly by largely ignoring parts of the decision that would allow the government to protect water bodies when they collectively are important to water quality.

What is at stake?

  • An estimated 53 to 59 percent of America's stream miles outside of Alaska are seasonal waters or headwater streams (or both), representing over 1.8 million river miles. Depending on whose interpretation of current law prevails, many of these streams could be at risk of losing protection, or at least be harder to protect in practice.
  • These small streams contribute to the public drinking water supplies of over 117 million people.
  • Based on available geographic information, over 14,000 industrial and municipal facilities have permits that limit their pollution discharges into these streams and rivers. Some opponents of comprehensive Clean Water Act protections have relied on the Court's decisions to argue that they do not need such permits to discharge to these types of waterways.
  • The EPA and the Army Corps of Engineers acknowledge that they have not been enforcing requirements of their Clean Water Act regulations for numerous so-called "isolated" water bodies. There are roughly 20 million acres of "isolated" wetlands in the continental U.S.
  • Approximately 40 percent of the EPA's clean water enforcement docket has been dropped or adversely affected because of the Supreme Court's decisions and subsequent agency guidance; until Congress acts, polluters in many watersheds will not be held accountable for fouling or destroying streams, wetlands, lakes, and other waters.

With the future federal protection of small streams and wetlands in question, the Sierra Club and American Rivers asked eleven scientists to summarize the services wetlands and small streams provide society and the consequences of degrading these waters in the report Where Rivers Are Born: The Scientific Imperative for Defending Small Streams and Wetlands. Read the full report and see why small streams are important to our water quality.

How is this affecting my community?

In the last decade, since the Supreme Court decisions, we have seen many negative affects in our communities that have the potential to destroy and pollute our waters.

Not in My Backyard
Every state is being affected by a muddled Clean Water Act. Find out how your specific state is being affected.

Drinking Water Sources at Risk
The drinking water sources of more than 117 million Americans could be at risk because of the Environmental Protection Agency's policy to withhold Clean Water Act protections from headwater and seasonal streams. Our report, Keeping Our Nation's Public Drinking Water Sources Safe: Why Americans' Drinking Water Sources are at Risk, based on EPA data, provides state-by-state information on drinking water supplies which rely, at least in part, on these small streams.

Enforcement of the Clean Water Act Means Polluters are Not Held Accountable
Without effective enforcement, our nation's most important laws for protecting public health, community welfare, and our natural resources will not achieve their goals. Polluters are not held accountable for breaking a law if that law is unclear. Read more about how an unclear Clean Water Act is letting polluters off the hook and leaving our waters a mess./p>

Waters Losing Protection
Two reports from the Sierra Club in conjunction with other environmental organizations have found that many waters, from small streams to large lakes, are losing protections they once enjoyed under the Clean Water Act. These reports detail the threat to our nation's waters by examining dozens of case studies and highlight the urgent need for Congress to restore full Clean Water Act protections to our waters.

The Clean Water Act and Climate Disruption
Unfortunately, past and current carbon pollutions emissions are virtually guaranteed to harm many communities. We should take steps now to limit the effects of climate disruption by bolstering our natural defenses -- headwater and seasonal streams and wetlands. Learn more about how clarifying the Clean Water Act can help our communities.

What is being done in Washington, D.C., to fix this?

Ultimately Congress needs to restore the scope of the Clean Water Act as it existed before the court decisions to ensure the historically broad protections of our waters. Until Congress acts, some waters that provide important benefits to people and wildlife are likely to remain unprotected. Unfortunately, the current Congress is very unlikely to restore the historic scope of the Clean Water Act.

However, the Obama administration announced a proposal to help secure clean water and protect American's drinking water sources. The guidance on the scope of Clean Water Act protections comes after years of confusion stemming from misguided policies initiated by the previous administration that put millions of acres of wetlands and a majority of the nation's stream miles at risk of pollution and destruction.

The proposed clean water protection policy will go a long way to helping make clean water a reality for families across the country. The move to clarify protections for small streams and wetlands will be especially beneficial, as these important waters provide drinking water to 117 million Americans. More information about this proposed guidance.

Further reading

More information about the Clean Water Act:

Restoring the Clean Water Act
Since Congress passed the Clean Water Act in 1972, we have made great progress in cleaning up our nation's waters, but that progress is in jeopardy today.

These Days, How Does Anyone Know What Water Is a Water of the U.S.?
EPA Report Shows How Rapanos Has Hampered, Confused, and Complicated the Agency's Clean Water Act Implementation and Enforcement.

Keep Our Nation's Public Drinking Water Sources Safe
We all need safe and healthy drinking water. And the best way to protect our drinking water is to protect its sources -- surface water and groundwater supplies -- from pollution.

In Support of Restoring the Clean Water Act
Past EPA Officials Agree: Reestablishing the Clean Water Act to its fullest protections prior to 2001 is critical to protect our nation's waters.

Who Supports Clean Water in My State?
More than 800 organizations -- representing the conservation community, family farmers, fishers, surfers, boaters, faith communities, environmental justice advocates, labor unions, and civic associations -- have called on Congress to clarify the Clean Water Act to reaffirm the historical scope of the 1972.

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