From Taking Note: The New York Times (Robert B. Semple, Jr.):
Joan Mulhern would have loved this day, had she lived to see it. Joan, who died at the age of 51 in December 2012, was a feisty Massachusetts native, passionate Red Sox fan and environmental lawyer who gravitated to the Washington office of Earthjustice, an advocacy group she served as a senior attorney while becoming an absolute terror to anyone who threatened the waters of the United States — legislators and lobbyists, passive regulators, coal companies that insisted on blasting the tops off mountains and dumping coal slag in the valleys and streams below. Her biggest cause, in which she enlisted every environmentalist, journalist and ordinary citizen she could buttonhole, was to restore the full meaning and scope of the 1972 Clean Water Act, whose protections, she believed, had been fatally weakened by the courts and by politicians in thrall to special interests — mainly developers, industrial and municipal polluters, and big farmers. Next week, barring an 11th-hour cave-in by the White House, the Environmental Protection Agency and the Army Corps of Engineers are expected to issue a firm, clear rule restoring federal protections to most (though probably not all) of the waters the Act’s framers, and Joan, had hoped to protect.
The Clean Water Act, one of the more successful of the landmark environmental statutes enacted under Presidents Lyndon Johnson and Richard Nixon, was for 30 years broadly interpreted by the courts and regulators as shielding virtually all the waters of the United States from pollution and unregulated development — seasonal streams and remote wetlands, as well as lakes and large navigable waters. The basic idea was that small waters have some hydrological connection to larger watersheds and should be protected against pollution that would inevitably find its way downstream, threatening ecosystems and drinking water.
Then came two confusing Supreme Court decisions — one in 2001 suggesting that the law applied only to navigable waterways, and another in 2006 suggesting that only waters with a “significant nexus” to larger waters (Justice Kennedy’s words) could be protected. These decisions — plus subsequent and largely unhelpful guidance from the George W. Bush administration — confused regulators and exposed millions of acres of wetlands and thousands of miles of streams to development. According to one E.P.A. study, as well as investigations by two Democratic Congressmen, Henry Waxman and the late James Oberstar, this confusion compromised federal enforcement in over 500 pollution cases and allowed polluters to dump dangerous chemicals into many seasonal lakes, streams and other waterways without fear of federal enforcement.
More Environmental Protection Agency coverage here.