An article in yesterday’s New York Times details how the Supreme Court has shafted the American people when it comes to water quality. Because of two cases, “About 117 million Americans get their drinking water from sources fed by waters that are vulnerable to exclusion from the Clean Water Act, according to E.P.A. reports.”

The problem stems from the definition of the word “navigable,” the operative word in the Clean Water Act that describes the kinds of waters the EPA may regulate. In two cases, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and Rapanos v. United States, the court limited the definition of “navigable waters” to preclude certain wetlands, seasonal streams, and isolated bodies of water, regardless of public exposure to these waters.

We’ve known for some time that the cases, one decided in 2001 and one decided in 2006, injected ambiguity into EPA’s interpretation of the act, but the Times’ article sheds additional light onto the breadth and impact the uncertainty has had on enforcement efforts:

More than 200 oil spill cases were delayed as of 2008, according to a memorandum written by an E.P.A. official and collected by Congressional investigators. And even as the number of facilities violating the Clean Water Act has steadily increased each year, E.P.A. judicial actions against major polluters have fallen by almost half since the Supreme Court rulings, according to an analysis of E.P.A. data by The New York Times. [emphasis added] 

Sen. Russ Feingold (D-WI) introduced last year the Clean Water Restoration Act to restore EPA’s authority. Basically, the bill would delete the word “navigable” from the original Clean Water Act. But in the United States Congress, successful passage of common sense legislation is a long shot. Similar bills were introduced in both the House and the Senate in 2002, 2003, 2005, and 2007. Feingold’s latest iteration is the first one in either chamber to pass the committee stage.

A member of an industry coalition opposing the act had this to say:

“If you can get Glenn Beck to say that government storm troopers are going to invade your property, farmers in the Midwest will light up their congressmen’s switchboards.” […] Mr. Beck, a conservative commentator on Fox News, spoke at length against the Clean Water Restoration Act in December. 

The right to clean water is a concept most of America has been on board with since at least the 1970s. Preventing dumping in wetlands, which in turn keeps pollution out of rivers and drinking water supplies, seems like a no-brainer. But when government has a chance to play a positive role in society, Beck, certain industry groups, some lawmakers, and the rest of the anti-government machine say “No!” – even to the no-brainers. Unfortunately, congressional Democrats, with their sizeable majorities, are perfectly willing to acquiesce.