Two Supreme Court rulings have left landowners, regulators, and lower courts confused over what waterways are protected by the Clean Water Act. (Photo courtesy of Abby Batchelder CC-2.0)
The nation started cleaning up lakes and rivers in 1972 after passing the Clean Water Act. But two U-S Supreme Court rulings have left some waterways unprotected from pollution. Mark Brush visited one couple who says a lake they used was polluted and the government has let them down:
Transcript
The nation started cleaning up lakes and rivers in 1972 after passing the Clean Water Act. But two U-S Supreme Court rulings have left some waterways unprotected from pollution. Mark Brush visited one couple who says a lake they used was polluted and the government has let them down:
Sheila Fitzgibbons and her husband Richard Ellison were looking for a good spot to open up a scuba diving business. They found Cedar Lake in Michigan. Unlike the other lakes they looked at, this was crystal clear water.
“Ours always stayed clean and it took care of itself and aquatic plants were very healthy. We had a lot of nice fish in here – healthy fish that only go into clear water.”
They said they could take six scuba diving students underwater at a time – and have no problem keeping track of them because the water was so clear.
But that all changed in the spring of 2004. Richard Ellison was in the lake on a dive:
“We were with our students down on the bottom, doing skills and stuff with them, and all of the sudden it sort of looked like a big cloud come over, you know. And the next thing you know, it just turned dark and it was just all muddy. It looked like we were swimming in chocolate milk.”
Ellison and Fitzgibbons say the lake was never the same after that. They blamed the local government’s new storm drain. They said it dumped dirty water right into the lake. Local officials said it wasn’t their new drain, but a big rainstorm that was to blame.
Fitzgibbons and Ellison sued in federal court. They said the new drain violated the Clean Water Act. The local government argued, among other things, that the lake was not protected by the Clean Water Act. The case was dismissed – and Fitzgibbons and Ellison closed their dive shop.
Just what can or cannot be protected by the Clean Water Act used to be an easy question to answer. But two Supreme Court rulings – one in 2001 and one in 2006 – muddied the waters.
After the rulings, it wasn’t clear whether a lot of isolated lakes, wetlands and streams still were protected by the Clean Water Act.
Some developers and farmers saw the court rulings as a big win. They felt the government had been exercising too much power over waterways, limiting what they could build or do on their own property.
Jan Goldman-Carter is a lawyer with the National Wildlife Federation. She says the people who enforce the nation’s water protection laws were left scratching their heads after the rulings:
“The confusion generated by these decisions has wrapped up the agencies, the courts, and even landowners and local governments with really not knowing when a water is protected or not. And that’s had the effect of actually, kind of, unraveling the fabric of the Clean Water Act, which really is our primary protection of our nation’s water supplies.”
Goldman Carter says – polluters are getting the signal. In many places – no one is watching:
“When the polluters recognize that basically the enforcers are not out there, and no one’s really in a position to deter their activities, it’s a lot cheaper for them to pollute than to follow the law.”
The New York Times recently reported that judgments against major polluters have fallen by almost half since the Supreme Court rulings.
In 2008 EPA officials said the rulings kept them from pursuing hundreds of water pollution enforcement cases. We asked for an interview with the EPA officials, but they would only answer questions by e-mail. They agreed the Supreme Court decisions do limit their ability to protect water quality.
The EPA is now calling on Congress to pass a new law. It’s called The Clean Water Restoration Act. The bill’s sponsors say they want to put back what was taken away by the Supreme Court.
The bill was introduced a year ago. It’s been stalled in Congress ever since.
For The Environment Report, I’m Mark Brush.