WASHINGTON – Congress will soon have to clarify what the 1972 Clean Water Act protects after a recent Supreme Court decision muddied the definition of the country’s “navigable waters,” witnesses and lawmakers concluded at a Senate hearing Tuesday.
The court’s plurality holding has left environmental regulators and Justice Department attorneys with two “apples and oranges” standards to apply on a case-by-case basis,said John C. Cruden,deputy assistant attorney general for the environment and natural resources.
“The only thing I’m confident about in this opinion is that we are going to litigate it – and a lot,” Cruden said.
The decision came from two cases challenging that the government bans on the dumping and filling in the Clean Water Act did not apply to four Michigan wetlands near ditches and drains that flow into waters traditionally protected under the act. The act bars the pollution of “navigable waters” and their tributaries and adjacent land,and it is there that the five justices who found the federal government had overstepped its bounds splintered into a plurality.
Justice Antonin Scalia and three other justices held that the act applied only to waters that usually flow continuously. Justice Anthony Kennedy,in a narrow concurrence that is the most likely to be applied,favored protecting anything that has a “significant nexus” with a navigable waterway – even those that are dry for part of the year.
The ruling was so divisive that when Justice Clarence Thomas dissented from the Hamdan v. Rumsfeld military tribunal decision a week later,he jabbed that the majority,the same five justices that warded off Scalia’s test,believed “a storm drain is a tributary of the waters of the United States.”
At Tuesday’s hearing,Sen. Hillary Rodham Clinton,D-N.Y.,labeled the Clean Water Act “one of the nation’s greatest environmental success stories” — one that dodged a bullet when Kennedy opted not join the majority.
“It was a close call,” Clinton said. “That would have been a devastating result.”
The mixed signals sent by the ruling,however,concerned senators,as witnesses described the case-by-case determinations of which rule would be used.
Sen. Lisa Murkowski,R-Alaska,said the ruling shows that the Clean Water Act’s protections should have been clarified long ago. “One size doesn’t necessarily fit all,” she said.
Some were put off by the language. Sen. James Inhofe,R-Okla.,said the court’s splintered decision did not do enough to protect property rights and prodded Environmental Protection Agency and Justice Department witnesses to give him a terse definition of what Kennedy’s phrase “significant nexus” means.
After hearing three drawn-out technical definitions,Inhofe interjected,“Wouldn’t it be a good idea at some point to have a definition drawn out so you don’t have to think,you know?”
Others were concerned about the decision’s aftershocks. Sen. Jim Jeffords,I-Vt.,said he was concerned the Bush administration would be too broad in carrying out the decision. In a letter to the president,he said protections for “millions of acres of wetlands” have been removed under Bush’s guidance.
Jeffords and Democrats on the committee supported legislation by Sen. Russ Feingold,D-Wis.,that would change the phrase “navigable waters” to “waters of the United States” to allow for clarified,broader protections under the Clean Water Act.
But EPA Assistant Director Benjamin H. Grumbles claimed,“This administration is for wetlands.” He cited a 2004 push by Bush in which the United States has restored,created and protected nearly 1.8 million acres of wetlands.
Emory University law Professor William W. Buzbee advocated a law reaffirming the standards in place before the court ruling. He said he feared the decision or new jurisdictional standards set by Congress could deter the Army Corps of Engineers from acting when a wetland is in danger because the agency is afraid of being sued.
“I hope that’s not where this law is going to go,” Buzbee said.