Congress must act now to protect all the nation's waters

The Baltimore Sun

Water flows downhill.

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

For this reason, Congress passed the Clean Water Act of 1972 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 benefits to the nation from this far-sighted legislation have been incalculable. But last year, the Supreme Court threw it all into confusion.

In a contentiously split decision, the court required that questions of Clean Water Act jurisdiction over many wetlands will have to be thrashed out on a case-by-case basis in the lower courts, at least for now.

The decision also placed federal protection of important headwater streams in doubt.

A 2001 decision further muddied the waters over Clean Water Act protection for isolated wetlands and streams.

One result of these decisions is certain: The lawyers will have a field day. It is also likely that the chief enforcement agencies, the Environmental Protection Agency and the Army Corps of Engineers, will attempt to write new wetlands jurisdiction rules based on interpreting the tea leaves contained in the various justices' voluminous opinions. That will mean more litigation.

The solution is obvious.

Some of Congress' staunchest defenders of the Clean Water Act, including Reps. James L. Oberstar of Minnesota and John D. Dingell of Michigan, 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. Passage of this legislation to end the confusion caused by the court is the most decisive tool available, and there is no good reason it cannot be done before Congress adjourns.

The administration is fully aware that President Bush's commitment to a legacy of a net gain in wetlands cannot be achieved if the traditional scope of the Clean Water Act's safeguards is eroded.

The Clean Water Restoration Act reaffirms the traditional scope and clear purpose of the Clean Water Act. Unless the legislation becomes law, 20 million acres of the nation's wetlands are at risk of losing Clean Water Act protections. Also, some 60 percent of stream miles that do not flow year-round could lose protection.

These waters are the lifeblood of our country's diverse water system. Healthy streams, wetlands and lakes mean healthy people and abundant wildlife. Weakening protections for these waters puts us all at risk.

The waters in danger of losing protection help replenish water supplies, filter out pollution, work as buffers against storms and floods, and provide habitat for fish, birds and other wildlife.

Global warming will mean increasingly intense storms, droughts and habitat loss. Having healthy wetlands, rivers and streams will be essential in helping people and wildlife survive these threats.

The matter is vital. The confusion should be set aside. Congress and the president should act to clearly restate the principle that the Clean Water Act applies to all the nation's waters, great and small.

Larry Schweiger is president and CEO of the National Wildlife Federation. He can be contacted via his blog,

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