Bay Crossings Article

A Watershed Moment for the Clean Water Act

By 
Sejal Choksi
From the September 2009 edition of Bay Crossings

San Francisco Baykeeper was founded on the principle that the San Francisco Bay and its connected rivers, creeks, and wetlands belong to the communities that depend on them—and must be protected accordingly. Fortunately, we have the Clean Water Act to help us do just that. When Congress passed the Clean Water Act in 1972, our nation’s lakes, rivers, and estuaries were severely polluted. Industrial facilities discharged chemicals into rivers and lakes with little regulation, and grossly inadequate wastewater treatment practices led to frequent sewage spills. The Clean Water Act was passed to protect America’s wetlands and restore the chemical, physical and biological integrity of our waters so that they would once more be ”fishable and swimmable.”  Now, the Act is about to receive a much-needed update that will help renew our nation’s commitment to clean and healthy water.

Baykeeper is part of an international network of 189 ‘Waterkeepers,’ each of whom serve as environmental stewards of their local waterbodies. Waterkeepers hold government agencies responsible for implementing the provisions of the Clean Water Act and when necessary, take direct legal action to enforce the protections provided by the Act. San Francisco Baykeeper and our Waterkeeper allies are able to hold polluters accountable for violating the Act because of the citizen suit provision of the Clean Water Act, which grants individuals the right to bring a lawsuit when a waterbody is polluted. In essence, people and groups that are impacted by water pollution can defend their right to clean water by making sure polluters face consequences for their illegal activities.

The citizen suit provision has made the Clean Water Act a very effective tool to reduce pollution in our nation’s waterways. For nearly thirty years, environmental groups have used the Act to safeguard the "waters of the United States," including tributaries of various waters and adjacent wetlands, on behalf of the public.

But the federal agencies charged with implementing the Act—the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers—have often failed to interpret the law in a manner that protects all of the nation’s waters. Agency rollbacks of the Clean Water Act have been upheld by courts in recent years, and as a result, the regulations no longer protect all of our waters and wetlands. In 2001, a narrow majority of the Supreme Court—in a case called Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers—held that certain waters previously protected as bird habitat were in fact not protected by the Clean Water Act. The protection of remote wetlands and small seasonal streams was further eroded by a subsequent Supreme Court holding in Rapanos vs. United States. These Supreme Court decisions were compounded by weak environmental policy directives from the Bush Administration and by pressure from private industry representatives to further dilute environmental protections. By 2004, there was confusion about what was protected under the Clean Water Act, and the federal agencies charged with implementing the law dropped or downgraded hundreds of Clean Water Act enforcement cases. As a result, what was once one of our country’s most successful environmental laws was reigned in significantly.

This year, however, the U.S. Senate introduced the Clean Water Restoration Act. The Clean Water Restoration Act (S. 787) seeks to re-establish the Clean Water Act’s scope of protection by redefining which bodies of water are subject to federal protections. The Restoration Act would remove the ambiguous language that only protects “navigable waters”—as left up to agency interpretation—and instead adopt a broader definition of “waters of the US,” which would include remote wetlands and small seasonal streams, rivers, ponds and lakes. The bill also seeks to reaffirm the principle that all—not just some—waters of the United States should be protected for the benefit of the communities that use and enjoy them.

Baykeeper has worked for twenty years to achieve the underlying goal of the Clean Water Act—to protect and restore treasured waterways like the San Francisco Bay. We want to leave our children a resource that it is not only fishable and swimmable, but also kayakable, windsurfable, sailable and clean enough for all the other activities that people love to do in and around the Bay. To find out more about Baykeeper’s work, visit www.baykeeper.org.