Two recent Supreme Court cases have placed longstanding Clean Water Act safeguards in doubt. The split 2001 decision in Solid Waste Authority of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and the 2006 decision in Rapanos v. United States created unworkable confusion over what constitutes a “water of the United States,” protected by the Clean Water Act. The result has crippled the permitting process and left many waters unprotected. The swirling controversy is costing time, money and invaluable water resources.

SWANCC left waters that could be defined as “isolated” without Clean Water Act protections. This is a grave ruling for wetlands, particularly Midwestern Prairie Pothole wetlands which are invaluable wildlife habitat. Unfortunately, the Bush Administration EPA misinterpreted the ruling and cut protections even further than the Court’s decision required.

The Rapanos case is a highly fractured ruling. It defined which waters will continue to be protected from pollution by the Clean Water Act. Four justices would refuse to protect any water body that was not “relatively permanent, standing or flowing,” whereas Justice Kennedy would require a showing that the water body has a “significant nexus” to waters that are or could be made navigable. Four other justices supported the Clean Water Act as it has been interpreted broadly for 30 years. This split decision has left legal confusion – and more polluted waters – in its wake.