The Cuyahoga River no longer catches fire as it flows through Cleveland, which is a testament to the effectiveness of the Clean Water Act of 1972. That infamous event in June 1969 led to passage of the clean-water law, even though it was not nearly as severe as a similar fire in 1952, which might have leveled the city if not for a wind shift.
Unfortunately, the wind shifted in 2001 and 2006 relative to the Clean Water Act, when the Supreme Court created ambiguity as to the Environmental Protection Agency’s jurisdiction over about 2 million miles of streams and several million acres of wetlands.
In the ensuing years, as first reported by The New York Times, the EPA has not pursued more than 1,500 pollution cases due to indistinct jurisdiction. In Pennsylvania over six years, the EPA dropped four enforcement cases and downgraded six due to what it called “uncertainty about EPA’s jurisdiction over the receiving waters.”
At question are streams that sometimes are dry, even though many of them flow into public water supplies when running, some remote headwaters and large bodies of standing water — such as the “Prairie Pothole” region of the Great Plains — that do not flow into streams.
The EPA and the Army Corps of Engineers have proposed regulations to partially restore their original jurisdiction under the Clean Water Act, although that jurisdiction would not be as extensive as it was prior to the 2001 Supreme Court decision.
Critics contend that the proposal is a vast expansion of federal regulatory authority but that is not the case. It is a restoration of authority as originally authorized by Congress.
Narrow interests such as the mining industry and developers have begun to lobby hard against the changes. But water, which flows across and under the landscape, is the classic broad public interest. Congress should act in that interest by approving the changes.