Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress Must Fix It

Released by: Earthjustice, Environment America, Clean Water Action, National Wildlife Federation, Natural Resources Defense Council, Sierra Club, and Southern Environmental Law Center

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. This report details the threat to our Nation’s waters by examining dozens of case studies, and highlights the urgent need for Congress to restore full Clean Water Act protections to our waters.

In 1972, Congress passed an expansive Clean Water Act to protect all “waters of the United States.” For almost 30 years, both the courts and the agencies responsible for administering the Act interpreted it to broadly protect our Nation’s waters. However, in two recent decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States in 2006, the Supreme Court misinterpreted the law and placed pollution limitations for many vital water bodies in doubt. After the decisions, the Bush administration’s Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) excluded numerous waters from protection and placed unnecessarily high hurdles to protecting others.

These decisions shattered the fundamental framework of the Clean Water Act. Today, many important waters – large and small – lack critical protections against pollution or destruction. The case studies in this report provide telling examples of how dire the situation is and how urgent it is for Congress to take action.

Congress must reverse the damage done by the Supreme Court’s decisions and the agency policies that followed by restoring Clean Water Act protections that were in place prior to 2001. Without such action, a generation’s worth of progress in cleaning up our Nation’s waters may be lost. We cannot afford to return to the days of dirty water.