Today, developers told the Supreme Court that the Clean Water Act needs to be dramatically narrowed to protect the interest of the states. But the states say the opposite: they cannot protect their citizens against water pollution and dangerous floods acting alone. A ruling for the developers here would leave downstream states powerless to protect their citizens against pollution and flooding originating in other states. That was one of the reasons we passed the Clean Water Act in the first place.
Mr. Rapanos urges the Court to adopt the autopsy theory of pollution control, allowing the federal government to prosecute polluters only after the damage to navigable waters becomes apparent. It’s like telling the federal government it can respond to hurricanes and floods only by sifting through the wreckage of destroyed buildings.
No Justice on the Court appeared receptive to the developer’s extraordinary argument that even the largest tributaries of our navigable waters are not protected by the Clean Water Act. Hopefully, the Justices will also recognize that it is the job of scientists, not the Court, to determine how far upstream protections must extend.
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Doug Kendall is Executive Director of Community Rights Counsel (CRC). CRC filed a brief in Rapanos and Carabell on behalf of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), an association representing water pollution control officials in states across the country.
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