Protect clean water.

Byline: The Register-Guard

The Clean Water Act was passed by Congress in 1972, three years after the Cuyahoga River in Cleveland caught fire in 1969 and embarrassed a nation that had long neglected its water pollution problems.

Nearly 3 1/2 decades later, Congress must once again come to the rescue of the nation's waterways by passing the Clean Water Authority Restoration Act. The legislation, which would preserve current rigorous federal enforcement of wetlands protections, is needed in the wake of Monday's Supreme Court ruling, which did nothing to clarify and much to confuse the future of one of the nation's fundamental environmental laws.

For the time being, the court's 5-to-4 decision should uphold the power of federal regulators to protect most wetlands from development. But it also opens the door to future challenges from developers and industry. Unless Congress acts to clarify and reinforce wetlands protections, the result could be long-term reductions in the government's authority to prevent the pollution and filling of thousands of marshes, seasonal streams, drainage ditches and other wetlands across the country.

The case was the first major environmental dispute to come before the court since John Roberts became chief justice, and it starkly revealed the court's conservative-liberal divide. It also highlighted the new role of centrist Justice Anthony Kennedy, who cast the swing vote and wrote the pivotal opinion that will now guide federal regulation of 300 million acres of wetlands.

The case before the court involved a Michigan developer who was sued and fined by the federal government after he filled in wetlands on three farm fields. Even though the fields were located 20 miles inland from Lake Huron, they were regulated by the U.S. Army Corps of Engineers because storm runoff from them flowed into a drainage ditch and, from there, into a small stream that ran into the lake.

The developer appealed the Corps' decision, arguing that federal control extended only to navigable rivers, bays and lakes and not to inland wetlands such as his property.

The court's four most conservative justices - Antonin Scalia, Roberts, Clarence Thomas and Samuel Alito, agreed with the developer, arguing for an reduction in the definition of wetlands that are subject to federal jurisdiction - a reduction so arbitrary, draconian and heedless of executive authority that it should be Exhibit A in Scalia's future tirades against "judicial activism."

On the other side were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer who said the Corps had acted properly and who rightly accused the Scalia faction of "antagonism to environmentalism."

Squarely in the middle was Kennedy, whose solitary opinion recognized both the importance of wetlands and the intent of the Clean Water Act.

Wetlands, he said, should qualify for federal protection if they have a "significant nexus" to a navigable body of water. While Kennedy agreed such determinations should be made by federal regulators, he said the Corps needed to do a better job of categorizing tributaries and agreed with the conservative bloc that the cases before the court should be remanded to a federal appeals court.

Kennedy's hearteningly centrist stance and well-reasoned opinion offer hope that the Clean Water Act and other critical environmental protections will survive the court's conservative shift. But that outcome is far from a certainty, and the court's deep division on wetlands protections will almost certainly prompt a flotilla of future challenges.

That's why Congress should clear up the confusion created by the court's decision by passing the Clean Water Authority Restoration Act and ensuring that the nation's wetlands will continue to enjoy strong federal protections.